COURT OF APPEALS
DATED AND FILED
July 27, 2010
A. John Voelker
Acting Clerk of Court of Appeals
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.
IN COURT OF APPEALS
from a judgment and an order of the circuit court for
¶1 FINE, J.
¶3 Brock was arrested the next day and was questioned by
¶4 Detective Panasiuk interviewed Brock again on January 15, 2006. According to Panasiuk, this time Brock confessed: “I wanted to tell you the truth about what happened.” Brock asked if Panasiuk would “help his girlfriend with her charge.” He then admitted that he had robbed the grocery store “to get some quick money” to help take care of his girlfriend’s nine children. Brock said he used a toy gun, which he had modified to look like a real gun. Brock signed the confession after making one correction on the second page.
¶5 Brock sought to suppress the confession, claiming that it was the result of unlawful coercion because the detectives brought his girlfriend to his interrogation room in handcuffs and, he claimed, told him that she would be charged with robbery and would lose her kids if he did not confess. He also contended that he was kept in a cold cell for three days with no food, and that he asked for but did not get a lawyer. Brock claims that he signed the confession that the detective wrote just to help his girlfriend and did not read it.
¶6 Detective Panasiuk testified at the suppression hearing that:
· Brock initially denied robbing the store, claiming he was at the casino with his girlfriend.
· During Brock’s second interview, he confessed orally and in writing that he lied during the first interview when he told the detective that he was with a prostitute and did not want his girlfriend to know.
· He told Brock that Brock’s girlfriend “was also under arrest regarding this incident, and depending [on] what happened to her that her children could be taken away,” and that “depending [on] what he had to say it could either help her possibly either get out or it could hurt her.”
· The cell Brock was kept in between interviews had a bed, bathroom and water, and when placed there, an interviewee is given three meals a day.
· Brock did not ask for a lawyer, and each time Brock was read his rights under Miranda v. Arizona, 384 U.S. 436 (1966), he waived them and was cooperative.
Brock testified at the suppression hearing that:
· He asked for a lawyer, but the police denied his request.
· The police brought his girlfriend into the interrogation room and told him that “she was saying that I did it.”
· Ruud told him that he was “going to jail,” and that his “girlfriend go to jail [sic] with me.”
· Panasiuk told him that his girlfriend “was being charged with accessory to armed robbery,” and if she stayed in jail, her kids would go to social services.
· He was kept in a cold cell with no blanket or food.
· When he asked to make a telephone call to a lawyer, Panasiuk refused, saying: “he don’t want me to use the phone because I might get somebody to corroborate my story.”
· He did not confess to the robbery but signed the confession without reading it “because I was getting my girlfriend out of jail and she was going to make sure our kids didn’t get took by the government.”
¶7 The trial court found the police version of events credible and Brock’s version not credible:
[T]he defense is saying the third statement, which is the key statement here, was made up - - what the defendant is saying is the third statement was made up from whole cloth, and he said he didn’t confess, he didn’t make up the statement, it was presented to him. He was told if I do not sign the confession his girlfriend was to be … charged as an accessory to armed robbery.
It was presented to him. Some corrections were made. He doesn’t know what was made. The State’s pointing out the corrections. He initialed it. He signed it. He said he didn’t read it. He said he was asked questions and the officer answered the questions himself. I just said it. So I’m starting at the end and working my way back which I find incredible, that part.
Some other parts of his testimony I find incredible…. Talks about the cold holding cell, being there for nine to ten hours, water in the cell, no food, cold cell without food.
I’ve done this for nine and a
half years. I’ve had defendants claim
coercion, different ways, but no one has ever claimed during a
… I think he’s poisoned his entire credibility with those statements.
Then we turn to whether or not the confession, the third one, was a product of his free will and his choice and was not coerced. There were no police pressures, and he gave three stories. He came up [with] one story he wasn’t there, and then there’s the prostitute story, and then we have the confession with the details. And, as the State pointed out, where did they get these details? Defense says well, they knew from other witnesses what happened; and … they knew what happened, they had to basically put the blame on someone, so they took the facts they know [sic], wrote up the statement and had him initial it and sign it and these facts never came from him and were just made up completely, and I just can’t accept it based upon listening to the officers, ascertaining their credibility and the defendant’s credibility.
There has to be some affirmative evidence of improper police practice and tactics, not just his assertion which I find incredible.
¶8 As noted, a jury did not return a verdict in Brock’s first
trial. According to Brock, the police then showed
[A]pparently some photos were shown to a witness, Otis S[.], who has been named as a possible witness. I believe I was told he was one of the individuals present during the alleged incident on January 12th, but he has not been located by anyone at this point and he apparently selected the photo of someone who is in jail that [wa]s in custody at the time of this incident and the court was not going to allow them to go into it for a number of reasons; hearsay, didn’t identify the defendant, and he identified someone who was in custody at the time the offense occurred.
I didn’t know where that was going to or what it was going to lead to….
If he was available to testify the court may have considered it but at this point he wasn’t and I didn’t want him going into it with a different witness because we wouldn’t have had the circumstances as to why, what he did, … photo array that he saw and so on and so forth and that’s why the court took the position that it did.
The jury found Brock guilty. We consider Brock’s contentions in turn.
A. Suppression Motion.
¶9 Brock claims that his confession should have been suppressed
because it was coerced. A trial court’s
ruling on a motion to suppress evidence presents a mixed question of fact and
law. State v. Casarez, 2008 WI
App 166, ¶9, 314
¶10 As we have seen, the trial court found that there was no police coercion, that Brock’s testimony was not credible, and that the detective’s version of events was credible. We defer to the trial court’s credibility determinations.
¶11 Brock argues that Lynumn v. Illinois, 372 U.S. 528 (1963),
requires suppression of his statement. Lynumn
held that threats that a mother’s children would be taken away from her unless
she “cooperated” “must be deemed not voluntary, but coerced.”
¶12 Brock’s second complaint is that the trial court erroneously
exercised its discretion when it stopped him from questioning Detective Ruud
¶13 As we have seen, the trial court ruled that putting Otis S.’s observations into evidence through the detective would have been hearsay, see Wis. Stat. Rule 908.02 (hearsay generally not permitted), and both awkward and confusing to the jury, see Wis. Stat. Rule 904.03. The trial court did not erroneously exercise its discretion; what Otis S. said or did not say was inadmissible.
C. Ineffective Assistance.
¶14 Brock’s final claim is that his lawyer gave him constitutionally
deficient representation by not calling Detectives Ruud and Beauchene to
testify at the suppression hearing because both would have corroborated Brock’s
claim that his girlfriend was brought to the interrogation room in order to
force him to confess. He also argues that
his lawyer was ineffective for not calling
¶15 To establish ineffective assistance of counsel, a defendant must show: (1) deficient performance; and
¶16 Here, the trial court ruled that the testimony of the detectives confirming that Brock’s girlfriend was brought to the interrogation room “would not have altered its findings” “on coercion.” The trial court explained:
His girlfriend was taken to the interrogation room between the first and second statements. If the defendant felt coerced by this, it is more reasonable to believe that he would have confessed at that time with the facts given in his third statement. The fact that he presented another story about looking for a hooker renders the defendant’s coercion claim much less compelling. At the suppression hearing, the court would not have found that the presence of his girlfriend caused him to admit guilt in this case.
Further, as we have seen, truthful
representations about a third person’s potential criminal liability does not
make a defendant’s confession involuntary. Therefore, Brock’s lawyer’s failure to call
the detectives was not prejudicial under
¶17 Finally, Brock’s contention that
his lawyer should have called
By the Court.—Judgment and order affirmed.
Publication in the official reports is not recommended.
Honorable David A. Hansher decided the suppression motion. The case was then transferred to the
Honorable William Sosnay. Brock’s first
trial ended when the jury could not agree on a verdict.
 Technically, of course, the trial court stopped the defense lawyer before a hearsay response was requested. But whether the police showed Otis S. a photograph would not be relevant without Otis S.’s response, which would have been hearsay if testified to by the detective.