|
COURT OF APPEALS DECISION DATED AND FILED February 12, 2008 David R. Schanker Clerk of Court of Appeals |
|
NOTICE |
|
|
|
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
|
|
Appeal No. |
|
|||
|
STATE OF WISCONSIN |
IN COURT OF APPEALS |
|||
|
|
DISTRICT I |
|||
|
|
|
|||
|
|
|
|||
|
State of Plaintiff-Respondent, v. Timothy L. Toliver, Defendant-Appellant. |
||||
|
|
|
|||
APPEAL
from a judgment of the circuit court for
Before Curley, P.J., Fine and Kessler, JJ.
¶1 PER CURIAM. Timothy Toliver appeals from the judgment of conviction entered against him. He argues on appeal that the trial court erred when it denied his motion to suppress statements he made to the police because the statements were coerced and the police did not electronically record the interviews. Because we conclude that the trial court did not err, we affirm.
¶2 Toliver was charged with two counts of armed robbery, use of force, as a party to a crime, and two counts of armed robbery with a reasonable belief that he used a threat of force, as a party to a crime. Prior to entering his plea, Toliver moved to suppress the in-custody statements he had made to the police. The court denied the motion. Toliver then pled guilty to two counts of armed robbery with a reasonable belief that he used a threat of force, and the other two counts were dismissed and read in. The court sentenced him to six years of initial confinement and eight years of extended supervision on each count to be served concurrently.
¶3 Toliver argues now that the trial court erred when it denied
his motion to suppress because the police used coercive tactics to obtain his
confessions, and because the statements should have been electronically
recorded under State v. Jerrell C.J., 2005 WI 105, 283
¶4 In reviewing the voluntariness of a statement, we examine the
application of constitutional principles to historical facts. State v. Hoppe, 2003 WI 43, ¶34, 261
A defendant’s statements are voluntary if they are the product of a free and unconstrained will, reflecting deliberateness of choice, as opposed to the result of a conspicuously unequal confrontation in which the pressures brought to bear on the defendant by representatives of the State exceeded the defendant’s ability to resist.
¶5 Our inquiry is “whether the statements were coerced or the
product of improper pressures exercised by the person or persons conducting the
interrogation.”
The relevant
personal characteristics of the defendant include the defendant’s age,
education and intelligence, physical and emotional condition, and prior
experience with law enforcement. The
personal characteristics are balanced against the police pressures and tactics
which were used to induce the statements, such as: the length of the questioning, any delay in
arraignment, the general conditions under which the statements took place, any
excessive physical or psychological pressure brought to bear on the defendant,
any inducements, threats, methods or strategies used by the police to compel a
response, and whether the defendant was informed of the right to counsel and
right against self-incrimination.
¶6 At the hearing on the motion to suppress, the police officer who interrogated Toliver, Officer Ruud, testified.[1] She stated that she interviewed Toliver twice. The first interview began about three hours after he was arrested, at 9:32 p.m., and lasted until 2:10 a.m. She interviewed him again the following day from 5:25 p.m. to 11:25 p.m. She stated that she read him his Miranda rights before each interview, and that he did not ask to speak to a lawyer.[2] She said that Toliver was not handcuffed during the interviews, was intelligent and cooperative, and did not appear to have any trouble reading or comprehending. She said that he initially told her that he had not used any drugs or alcohol, but later said that he had smoked marijuana. She stated that she gave him bathroom breaks and food, and that she did not threaten him or raise her voice to him.
¶7 Toliver also testified. He said, among other things, that Officer Ruud did not read him his Miranda rights, and that he asked for an attorney three times during the first interview. He also said that he was scared, that Officer Ruud told him that he could go to jail for the rest of his life, that she did not read his statements to him, and he did not know what he was signing.
¶8 The trial court found that Officer Ruud’s testimony was more credible than Toliver’s testimony. Specifically, the court found that Toliver understood his rights and waived them. The court also found that because Toliver was over sixteen at the time (he was seventeen years and seven months old), the requirement of Jerrell C.J. that the interview be recorded did not apply.
¶9 The court concluded that Toliver gave his statements voluntarily. The court noted his age, his experience with the juvenile justice system, and that his intelligence was in the low to average range. The court considered the tactics used by the police, including the length of the interviews, and found that Toliver was given breaks during the interviews, that Officer Ruud did not badger him, accuse him of lying or use a strong voice. The court found that Toliver was cooperative and polite, and that he voluntarily admitted his involvement. The court denied the motion to suppress.
¶10 Based on these findings of fact, and considering the totality
of the circumstances, we conclude that the police did not engage in coercive
tactics or apply “improper pressures,” and that Toliver’s statements were “the
product of a free and unrestrained will.”
Hoppe, 261
¶11 We also conclude, but for a reason different from the trial
court’s, that the police were not required to record Toliver’s statement under Jerrell
C.J.
¶12 In this case, the trial court ruled that police did not have to record Toliver’s statement because the rule only applied to juveniles under the age of sixteen. We conclude, however, that the police did not have to record Toliver’s interrogation because Toliver had attained the age of seventeen at the time of the interviews. For the reasons stated, we affirm the judgment of the trial court.
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5. (2005–06).