State v. Agnello ( 1999 )

ANN WALSH BRADLEY, J.

¶1. The petitioner, Lucian Agnello, seeks review of an unpublished decision of the court of appeals¹ that affirmed the circuit court's finding that he voluntarily confessed to murdering his foster father. Agnello contends that the circuit court erroneously allowed the State to question him about the truthfulness of his confession at the Goodchild² hearing and that this error tainted the circuit court's finding that his confession was voluntarily given. Because we conclude that Agnello preserved this issue for appeal, that the prosecutor improperly questioned Agnello about the truthfulness of his confession, and that the circuit court based its finding in part on Agnello's responses to the improper questions, we reverse the court of appeals and remand the cause to the circuit court. Additionally, we determine that on remand the State will need to prove Agnello's confession was voluntarily given by a preponderance of the evidence.

¶ 2. In February of 1996, the Milwaukee Police ‘Department arrested Agnello in connection with the murder of his foster father, Theodore Agnello. Between midnight and 1:00 a.m., the police transported Agnello to the downtown station and placed him in a standard interrogation room where he remained alone and handcuffed to a wall until the police began interrogating him at 6:00 a.m.³ From approximately 6:00 a.m. to 8:20 a.m., two detectives questioned him about his foster father's death. After over a 90-minute break, two other detectives began interrogating him at 10:15 a.m. This session continued, with significant breaks interspersed, until 3:20 p.m.

¶ 3. Whenever the police left Agnello alone in the room he was handcuffed to a wall; during his interrogation he was not handcuffed. From the time he was placed in the room until he confessed, the police allowed Agnello to use the bathroom once or twice and also fed him a hamburger. Agnello's ability to sleep was hampered both by the periods of interrogation and by being handcuffed to the wall. At 3:20 p.m. Agnello confessed to murdering his foster father and signed a written confession.

¶ 4. After being charged with first degree intentional homicide⁴ and party to a crime,⁵ Agnello filed a motion to suppress his confession on two grounds. First, Agnello alleged that his confession was obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966), because the police did not honor his requests for an attorney. Second, Agnello alleged that his confession was not freely and voluntarily given because the police coerced him into confessing. The circuit court then held a Miranda-Goodchild hearing at which Agnello testified. On cross-examination, the following exchange occurred:

PROSECUTOR: Q. Sir, you signed the statement at the end and you wrote down the words, "this is true"; is that correct?

A. I wrote down the words?

Q. Answer my question. Did you write it down?

A. Yes, I was told to.

Q. And you wrote down, "this is true," and you signed it; is that right?

A. Yes, I was told to.

Q. And you did that because what is in the statement is true; is that correct?

A. No. Because I was extremely tired and scared.

Q. You told them that the shotgun was in Mr. Stream's attic; is that correct?

A. Yes.

Q. And you told them that you and Mr. Stream had planned on this killing; is that correct?

A. I don't quite remember that.

Q. You could have told them that? You don't remember telling them that?

A. I don't remember that.

Q. But you and Mr. Stream had planned this killing; is that correct?

DEFENSE COUNSEL: I object, Your Honor. I don't think that is relative⁶ [sic] to the purposes of this hearing.

THE COURT: This goes to his credibility. Answer the question.

The remainder of Agnello's cross-examination consisted of the prosecutor attempting to ascertain whether or not statements in his confession were true and Agnello evasively answering those questions.

¶ 5. At the close of the Miranda-Goodchild hearing the circuit court concluded that the police officers' testimony of the events was more credible than that of Agnello, in part because of what the court described as Agnello's "selective memory." The court then concluded that the police did not run afoul of Miranda because Agnello did not request an attorney.⁷ Finally, the court concluded that the police did not engage in any coercive tactics and that Agnello's confession was a "voluntary product of his free will." Agnello then pled guilty and was sentenced to life in prison.

¶ 6. On appeal, Agnello argued that the circuit court erred under Rogers v. Richmond, 365 U.S. 534 (1961), and Jackson v. Denno, 378 U.S. 368 (1964), by allowing the prosecutor to question Agnello about the truthfulness of his confession. The court of appeals concluded that Agnello waived his right to appeal this issue because his relevancy objection did not adequately apprise the circuit court of the basis of his objection. In order to have a valid objection, the court of appeals reasoned that Agnello needed to reference more specifically the Supreme Court's rulings that the truthfulness of a confession may not be considered in a voluntariness determination. The court of appeals determined that as it was stated, Agnello's objection did not adequately inform the circuit court of his objection and as a result did not give the circuit court the opportunity to assess and correct any constitutional error.

¶ 7. Agnello also argued that the circuit court erred in concluding that his confession was voluntary. The court of appeals concluded that the State's burden is a preponderance of the evidence and that Agnello argued to the circuit court only that his confession was involuntary because he was deprived of sleep. Based upon a review of the circuit court's findings of fact, the court of appeals determined that Agnello's confession was voluntary.

¶ 8. On petition to this court Agnello challenges nearly every aspect of the court of appeals' ruling. Specifically, he argues that his relevancy objection during cross-examination adequately preserved the issue for appeal. Agnello contends that the circuit court committed constitutional error under Rogers and Jackson by allowing the prosecutor to question him about the truthfulness of his confession. He also argues that, contrary to the court of appeals' decision, the State must prove beyond a reasonable doubt that a defendant voluntarily confessed.⁸

¶ 9. Whether an objection adequately preserves an issue for appeal requires a court to apply a set of facts to a legal standard. This is a question of law that we review independently of the legal determinations rendered by the court of appeals and circuit court but benefiting from their analyses. In re Corey J.G., 215 Wis. 2d 395, 405, 572 N.W.2d 845 (1998).

¶ 10. The necessity of lodging an adequate objection to preserve an issue for appeal cannot be overstated. We have written on numerous occasions that in order to maintain an objection on appeal, the objector must articulate the specific grounds for the objection unless its basis is obvious from its context. Id.; State v. Caban, 210 Wis. 2d 597, 604, 563 N.W.2d 501 (1997); State v. Marks, 194 Wis. 2d 79, 88, 533 N.W.2d 730 (1995). This rule exists in large part so that both parties and courts have notice of the disputed issues as well as a fair opportunity to prepare and address them in a way that most efficiently uses judicial resources. Corey J.G., 215 Wis. 2d at 405; Caban, 210 Wis. 2d at 605.

¶ 11. The State maintains that Agnello's relevancy objection was insufficient to alert the circuit court of the "specific ground for the objection." See Daniel Blinka, 7 Wisconsin Practice: Evidence, § 103, p. 8 (1991). It contends that the legal theory of relevancy advanced by Agnello was neither stated with sufficient specificity nor obvious and commonplace so as to be immediately recognized by the court. The State contends in its brief that Agnello should have alerted the circuit court to the existence of Rogers and Jackson, although at oral argument it backed away slightly from this chapter and verse recitation requirement. Regardless of which degree of specificity it would impose on Agnello, the State argues that had Agnello alerted the court to his concerns, both the State and the court could have reacted in such manner to insure that any error was eliminated and appellate review on this issue would have been unnecessary.

¶ 12. There is no question that Agnello's objection was not as specific as it could have been. The addition of a short phrase, such as "the truthfulness of a confession has no bearing on voluntariness," would have gone a long way to eliminate any confusion over the nature of the objection. However, we have never required an objection to be as specific as possible to be effective. All that we have required of a party is to object in such a way that the objection's words or context alert the court of its basis. Corey J.G., 215 Wis. 2d at 405. In this instance, the context of the objection and the status of the law in this area gravitate toward a conclusion that Agnello has preserved this issue for appeal.

¶ 13. It is well settled constitutional law that the truthfulness of a confession can play no role in determining whether that confession was voluntarily given. Jackson, 378 U.S. at 376-77; Rogers, 365 U.S. at 540-41; State v. Hoyt, 21 Wis. 2d 284, 293-94, 128 N.W.2d 645 (1964). This is the case not because coerced confessions carry an insufficient indicia of reliability; they may in some cases be quite reliable. See 3 Wigmore on Evidence § 822 (1970) (discussing commentators). Rather the truthfulness of a coerced confession cannot play a part in a voluntariness determination because such confessions, and the methods used to obtain them, offend the underpinnings of the criminal law. Lego v. Twomey, 404 U.S. 477, 485 (1972); Rogers, 365 U.S. at 540-41. As a result, the State ought not be allowed to use illegal means to combat illegal ends. Rogers, 365 U.S. at 540-41.

¶ 14. Rogers and Jackson have been the law for nearly 40 years and are deeply embedded into the substantive and procedural criminal law of this state. See, e.g., LaClaw v. State, 41 Wis. 2d 177, 184-87, 163 N.W.2d 147 (1968); State ex rel. La Follette v. Raskin, 30 Wis. 2d 39, 51-52, 139 N.W.2d 667 (1966); Phillips v. State, 29 Wis. 2d 521, 531, 139 N.W.2d 41 (1966); Goodchild, 27 Wis. 2d at 258—65; State v. Drogsvold, 104 Wis. 2d 247, 271-72, 311 N.W.2d 243 (Ct. App. 1981). In addition to the lengthy calm in this area of the law, Goodchild hearings are not uncommon occurrences in the circuit courts of this state. Thus, the Rogers rule is both firmly established and commonly applied in the circuit courts of this state.

¶ 15. While judges are by no means expected to have at the fore of their minds the dispositive principles of every legal issue, the parties can reasonably expect the judge to appreciate those issues that are commonplace without substantial assistance by the litigants. Heims v. Hanke, 5 Wis. 2d 465, 471, 93 N.W.2d 455 (1958), overruled on other grounds, Butzow v. Wausau Memorial Hospital, 51 Wis. 2d 281, 187 N.W.2d 349 (1971); see also Champlain v. State, 53 Wis. 2d 751, 758-59, 193 N.W.2d 868 (1972). That expectation reasonably increases when, as is the case with Goodchild hearings, the inquiry is limited in scope and the possible issues are finite in number. Goodchild, 27 Wis. 2d at 265 ("At this hearing the defendant may take the stand and testify for the limited purpose of making a record of his version of the facts and circumstances under which the confession was obtained."); State v. Schultz, 148 Wis. 2d 370, 390, 435 N.W.2d 305 (Ct. App. 1988) (Sundby, J., dissenting), aff'd 152 Wis. 2d 408, 448 N.W.2d 424 (1989).

¶ 16. Finally, we cannot fail to mention that the language of Agnello's objection comes directly from the United States Supreme Court: "The truth or falsity of the statement is not relevant to the voluntariness inquiry..." Lee v. Illinois, 476 U.S. 530, 547 n.6 (1986); see also Twomey, 404 U.S. at 484 n.12 ("Whether [the confession] be true or false is irrelevant. . ."). We have difficulty concluding that Agnello's objection was not properly stated when it parrots the language given by the Supreme Court.⁹

¶ 17. Considering all of these factors, we conclude that the language of the objection, while not stated with utmost specificity, when coupled with the context of the proceeding sufficiently alerted the circuit court to the nature of the objection. Having determined that Agnello preserved this issue for appeal, we also conclude that the circuit court erred in overruling his objection.

¶ 18. Rogers and Jackson make clear that whether a confession is true or false cannot play a part in determining whether it was voluntarily made. The objection followed the prosecutor's question of whether it was true that Agnello and a co-defendant "had planned this killing." This question gets to the heart of the truthfulness of the confession and is far beyond the "limited purpose" of ascertaining the facts and circumstances of the confession for which a defendant may testify under Goodchild, 27 Wis. 2d at 265.

¶ 19. The State maintains that by quizzing Agnello on the truthfulness of his confession, the prosecutor was merely attempting to impeach Agnello's testimony on direct examination. Agnello testified on direct examination that he confessed because he was tired and wanted the ordeal to be over. The State contends that the prosecutor's questioning was designed only to rebut Agnello's testimony and show instead that remorse was his real motivation for confessing.

¶ 20. It is now axiomatic that a confession's truthfulness or falsity can have no direct bearing on a finding of voluntariness. Rogers, 365 U.S. at 544. That is to say, a court cannot conclude that a confession was voluntary because it is true. Some courts, however, have allowed a judge to indirectly evaluate the confession in making a voluntariness finding. In such cases, the judge considers the confession for purposes other than to pass on its truthfulness. See, e.g., Gilreath v. Mitchell, 705 F.2d 109, 110 (4th Cir. 1983) (evaluating confession to show that defendant was lucid and capable of rational choice); United States v. Kreczmer, 636 F.2d 108, 110-11 (5th Cir. 1981) (evaluating confession to show that defendant was able to speak in a rational manner).

¶ 21. We do not need to determine at this time whether a court runs afoul of Rogers by considering a confession for purposes other than its veracity. A thorough review of the transcript reveals that the prosecutor nowhere even hinted that he was pursuing that line of questioning in an attempt to uncover the "real" motive behind Agnello's confession. The questions on cross-examination do not mention Agnello's motive or lend the inference that impeaching Agnello's motive was anywhere within the prosecutor's purview. Rather, the transcript shows that the prosecutor invited the court to expressly consider that Agnello may well have committed the crime he confessed to committing.¹⁰

¶ 22. The existence of a circuit court error need not necessarily require a new hearing. A new Good-child hearing is only required if the circuit court relied on the error in determining that the confession was voluntarily given. See Powell v. Mississippi, 540 So. 2d 13, 15-16 (Miss. 1989). This is essentially a harmless error determination and the State, as the beneficiary of the error, bears the burden of proving beyond a reasonable doubt that the error was harmless. State v. Sullivan, 216 Wis. 2d 768, 792, 576 N.W.2d 30 (1998); see also Arizona v. Fulminante, 499 U.S. 279, 306-08 (1991) (harmless error doctrine applicable to admission of involuntary confession at trial); State v. Childs, 146 Wis. 2d 116, 125-26, 430 N.W.2d 353 (Ct. App. 1988).

¶ 23. The error was hardly harmless, as the prosecutor's irrelevant line of questioning played a sizable role in the circuit court's ruling. The circuit court was faced with two versions of the events surrounding Agnello's interrogation and confession and as a result needed to determine which of the two versions was the more believable. There is nothing unusual for a circuit court to face such a task in these types of hearings. See State v. Pires, 55 Wis. 2d 597, 602-03, 201 N.W.2d 153 (1972).

¶ 24. However, in reasoning that the police version was more believable, the circuit court indicated that Agnello's credibility was significantly damaged, in part, by his "selective memory in this case." A review of the transcript reveals that the only times Agnello's memory could be categorized as selective were when the prosecutor sought information related to the truthfulness of his confession. Had the improper line of questioning been absent, so too would have been Agnello's selective memory. Under these circumstances, the circuit court's finding that Agnello's confession was voluntarily given must be reversed, Agnello's conviction vacated, and the matter remanded for the purpose of conducting another Goodchild hearing.

¶ 25. We note that there is some confusion in our law regarding the State's proper burden of proof for showing voluntariness in a Goodchild hearing. It is clear that at a constitutional minimum the State must prove by a preponderance of the evidence that the confession was voluntarily obtained. Twomey, 404 U.S. at 489. However, in concluding that for federal constitutional purposes the State bears a preponderance burden, the Supreme Court also established that a state was "free, pursuant to [its] own law, to adopt a higher standard." Id. Agnello contends that we have done so and urges us not to waiver from that position.

¶ 26. Initially it might appear settled that Wisconsin requires the State to prove voluntariness beyond a reasonable doubt. Indeed, prior cases suggest that proposition.¹¹ Upon closer inspection, however, it is revealed that this burden's origin is universally traced back to Goodchild where it was stated without elaboration. See, e.g., Blaszke v. Slate, 69 Wis. 2d 81, 86, 230 N.W.2d 133 (1975); State v. Hernandez, 61 Wis. 2d 253, 258, 212 N.W.2d 118 (1973); see also Twomey, 404 U.S. at 479 n.1. As pointed out in oral argument, this standard has remained untouched since Goodchild not because the court reasoned it to be the appropriate standard, but because until today it has not been specifically challenged. See Wallace, 59 Wis. 2d at 79-80.

¶ 27. While this court does not hesitate to provide greater protections for its citizens under the Wisconsin Constitution, it does so only in cases where either the state constitution or "the laws of this state require that greater protection of the citizens' liberties. . .be afforded." State v. Doe, 78 Wis. 2d 161, 72, 254 N.W.2d 210 (1977). Where, however, the language of the provision in the state constitution is "virtually identical" to that of the federal provision or where no difference in intent is discernible, Wisconsin courts have normally construed the state constitution consistent with the United States Supreme Court's construction of the federal constitution. State v. Tompkins, 144 Wis. 2d 116, 133, 423 N.W.2d 823 (1988); see also Kenosha County v. C&S Management, Inc., 223 Wis. 2d 373, 588 N.W.2d 236 (1999). Here, the language in Article I, section 8 of the state constitution is nearly identical to that contained in the Fifth Amendment to the federal constitution.¹² We can discern no intended difference between the two provisions and Agnello has not directed us to any.

¶ 28. Additionally, the preponderance standard aligns the burden in voluntariness determinations with the burdens in other pre-trial constitutional inquiries. It is well established that the State must prove compliance with Miranda under the preponderance standard. Colorado v. Connelly, 479 U.S. 157, 168 (1986); State v. Santiago, 206 Wis. 2d 3, 29, 556 N.W.2d 687 (1996). So too must the defendant bear the burden of proving a reasonable expectation of privacy under the Fourth Amendment by a preponderance standard. State v. Rewolinski, 159 Wis. 2d 1, 16, 464 N.W.2d 401 (1990).

¶ 29. Also, we note that reducing the State's burden at the Goodchild hearing does not alter the State's burden at trial — to prove that the defendant committed the crime beyond a reasonable doubt. Thus, the State's ultimate burden, and the defendant's ultimate protection, remains intact. Accordingly, now that the issue is specifically before us, we determine that the State must prove by a preponderance of the evidence that a defendant's confession was voluntarily obtained.

¶ 30. In sum, we conclude that because of the limited inquiry in a Goodchild hearing and the fact that Rogers and Jackson are well-settled areas of law, Agnello's "relevancy" objection sufficiently alerted the circuit court to his objection and therefore preserved the issue for appeal. Additionally, we conclude that the circuit court erred in overruling Agnello's objection because the prosecutor's line of questions improperly inquired into the truthfulness of Agnello's confession in violation of Rogers and Jackson. This error was prejudicial as the circuit court relied on Agnello's answers to the improper questions in rendering its finding that the confession was voluntarily given. Finally, we conclude that the State must prove by a preponderance of the evidence that a defendant voluntarily confessed. Accordingly, we reverse the court of appeals, vacate Agnello's conviction, and remand the cause to the circuit court for a new Goodchild hearing.

By the Court. — The decision of the court of appeals is reversed and the cause is remanded.

1 State v. Agnello, No. 96-3406-CR, unpublished slip op. (Wis. Ct. App. Mar. 10, 1998) (affirming judgment, of Circuit Court for Milwaukee County, Diane S. Sykes, Judge).

2 State ex rel. Goodchild v. Burke, 27 Wis. 2d 244, 133 N.W.2d 753 (1965).

3 In his testimony at the Goodchild hearing, Agnello testified that the police began their interrogation of him shortly after being placed in the interrogation room. Although the circuit court made no specific finding that the interrogation began at 6:00 a.m., it generally found the police detective's version of the events more compelling, which included testimony that the interrogation did not begin until 6:00 a.m.

4 Wis. Stat. § 940.01 (1995-96). Unless otherwise noted, all further references to the Wisconsin Statutes will be to the 1995-96 version.

5 Wis. Stat. § 939.05.

6 Both parties agree that the defense counsel was talking about "relevance." It is unknown whether the defense attorney or the court reporter committed the error. In any event, we conclude that we are dealing with a relevancy objection.

7 This determination is not challenged on appeal.

8 Agnello further contends that his arguments to the circuit court did not rely exclusively on a lack of sleep but also encompassed the duration of the interrogation, the fact that he was handcuffed, the fact that the police used "relay teams," and the fact that he was deprived of food. Ultimately, Agnello argues that his confession was involuntarily given. Because we conclude that the circuit court erred both by permitting the prosecutor to probe the truthfulness of Agnello's confession and by relying on that'error in its findings, we do not address these other issues.

9 Additionally, this United States Supreme Court pronouncement has been incorporated into the Judicial Benchbook and is therefore part of the information a circuit court can easily obtain should it be unsure of the law. 1 Wisconsin Supreme Court Judicial Education, Judicial Benchbook CR15-2 (1997). While the Benchbook may not be cited as independent authority for a proposition of law, State v. Johnson, 121 Wis. 2d 237, 257, 358 N.W.2d 824 (Ct. App. 1984), the Benchbook in this instance merely alerts the circuit court to the law as directly expressed by the Supreme Court.

10 A few examples from the transcript of the prosecutor's cross-examination demonstrate the point:

Q. And you [signed the confession] because what is in the statement is trae; is that correct?

Q. And you told Mr. Stream you wanted your stepfather killed; is that correct?

Q. But you and Mr. Stream had planned the killing; is that correct...?

Q. You asked Mr. Stream to kill your stepfather though; is that correct?

Q. And [the statement] was basically true; is that correct?

A. I wouldn't go as far as basically true, no.

Q. But pretty much true. There are facts in there that are true; is that correct?

11 See, e.g., State v. Mitchell, 167 Wis. 2d 672, 696, 482 N.W.2d 364 (1992); Johnson v. State, 75 Wis. 2d 344, 352, 249 N.W.2d 593 (1977); Goodchild, 27 Wis. 2d at 264-65. But see State v. Albrecht, 184 Wis. 2d 287, 516 N.W.2d 776 (Ct. App. 1994) (concluding that the standard is preponderance of the evidence). Technically Albrecht was incorrect in that determination under the controlling precedent at the time it was decided in 1994.

12 The Wisconsin Constitution provides in relevant part:

No person may be held to answer for a criminal offense without due process of law, and no person for the same offense may be put twice in jeopardy of punishment, nor may be compelled in any criminal case to be a witness against himself or herself. Wis. Const. art. I, § 8(1).

The United States Constitution provides in relevant part:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury. . .nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.... U.S. Const, amend. V.