State v. Damian L. Hauschultz

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
March 13, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2022AP161-CR Cir. Ct. No. 2019CF77
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
DAMIAN L. HAUSCHULTZ,
DEFENDANT-APPELLANT.
APPEAL from a judgment of the circuit court for Manitowoc
County: JERILYN M. DIETZ, Judge. Affirmed.
Before Gundrum, P.J., Neubauer and Grogan, JJ.
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2022AP161-CR
¶1 PER CURIAM. Damian L. Hauschultz appeals a judgment of
conviction entered upon his guilty plea to one count of first-degree reckless
homicide in connection with the death of his seven-year-old foster brother, Ethan.
Hauschultz contends the circuit court erred when it denied his motion to suppress
statements he made to investigators during three interviews, all of which occurred
in the hours after Ethan was taken to the hospital with fatal injuries. Hauschultz’s
arguments in this regard are twofold: first, he contends that his statements were
made during custodial interrogation without the benefit of Miranda warnings;1
and second, he argues his statements were involuntary considering in particular his
young age—fourteen at the time of Ethan’s death.
¶2 We conclude that Hauschultz was not subjected to custodial
interrogation for purposes of Miranda during his first interview at the hospital and
during his second interview at the sheriff’s department a short time later. We also
conclude that Hauschultz’s statements during the first and second interviews were
made voluntarily. Accordingly, the circuit court properly denied Hauschultz’s
suppression motion as to those two interviews.
¶3 Whether Hauschultz was subjected to custodial interrogation during
the third interview—which occurred in the early morning hours after Ethan had
died—is a much closer question. Ultimately, we need not resolve that issue. Even
assuming the early-morning interview was custodial in nature, the State has
demonstrated that any error in admitting the statements from that interview was
harmless. Hauschultz was resistant to answer any questions regarding the incident
during that interview, and what information he did give authorities was almost
1
See Miranda v. Arizona, 384 U.S. 436 (1966).
2
No. 2022AP161-CR
entirely duplicative of information Hauschultz had disclosed during the earlier
interviews. Accordingly, there is no reasonable possibility that any error would
have affected Hauschultz’s decision to plead guilty.
BACKGROUND
¶4 On the afternoon of April 20, 2018, Ethan’s foster parents, Timothy
and Tonya,2 transported Ethan to the emergency department at Holy Family
Memorial Medical Center in Manitowoc. Hauschultz—who is Tonya’s son and
Timothy’s stepson—accompanied them. Ethan was unresponsive, had an
extremely low body temperature, and had numerous bruises and injuries on his
body. Life-saving efforts were unsuccessful, and he was pronounced dead at 9:22
p.m. The official cause of death was identified as hypothermia due to
environmental cold exposure, with other significant conditions being blunt force
injuries to the head, chest and abdomen.
¶5 Shortly after Ethan arrived at Holy Family, Lieutenant Dave
Remiker began gathering basic information from Ethan’s foster family. Remiker
learned that the injuries occurred outdoors at the Hauschultz home at a time when
Hauschultz was supervising Ethan and three other children, including Ethan’s twin
brother Adam. Timothy and Tonya were not home at the time.
2
Pursuant to the policy underlying WIS. STAT. RULE 809.86 (2021-22), we use
pseudonyms to refer to Ethan’s family members with the exception of Timothy, against whom
charges relating to the incident remain pending.
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
3
No. 2022AP161-CR
¶6 Remiker decided he wanted to speak with Hauschultz privately.
Hauschultz and his mother agreed, and Hauschultz was cooperative with Remiker.
Remiker and Hauschultz moved from the family room to a room across the hall to
conduct their conversation.3
¶7 This first interview lasted approximately eight minutes. Hauschultz
initially denied he had done anything to Ethan, adding that he could not explain
the bruises and injuries on Ethan’s body. He later told Remiker that he, Ethan, and
Adam were carrying wood around the yard at Timothy’s direction for two hours as
an “extreme punishment” for disobedience. Hauschultz stated he was in charge of
this punishment while Timothy was absent, and he acknowledged that he had
slapped, swatted and prodded Ethan with a stick to get him moving. The children
who were not subject to this punishment watched.
¶8 Hauschultz told Remiker that during the punishment, he found Ethan
slumped over a piece of wood. He claimed he and some of the other children had
thrown snow on Ethan, adding that they did this because they thought Ethan was
messing around. Hauschultz said he wanted to “get [Ethan] really cold” to force
him to keep moving. Hauschultz admitted to taking off Ethan’s boots and
described how he created a “little coffin of snow,” packing Ethan to his shoulders
in about eighty pounds of wet snow.
¶9 After the first interview, Hauschultz agreed to a second interview at
the nearby sheriff’s department. Timothy gave permission for a second interview,
and Hauschultz was transported in an unmarked vehicle by detective Christine
3
Remiker made an audio recording of the interview on his cell phone. The second and
third interviews were video recorded.
4
No. 2022AP161-CR
Bessler. Ethan was still alive at the time. The second interview began shortly
before 6:00 p.m. and lasted approximately two and one-half hours. It took place in
the department’s “soft” interview room, which is arranged like a living room with
couches. Hauschultz was seated on a couch near the door for the entire duration of
the interview.
¶10 At the inception of the second interview, Bessler told Hauschultz
that he should tell her if he no longer wanted to talk. Hauschultz responded that
the situation was ironic because the police liaison at his school had just taught a
special unit in his social studies class about constitutional rights. Hauschultz
explained that he lived with his mother, stepfather, and four other children,
including Ethan and Adam. Hauschultz and Bessler then spent approximately
twenty minutes discussing Hauschultz’s family, living arrangements, education
and extracurricular activities. They then moved on to discuss how Timothy dealt
with misbehavior in the household.
¶11 Hauschultz explained that as punishment for misbehavior, Timothy
required the children to carry wood in the yard for two hours per offense—an
activity Hauschultz described as “boring, hard, stupid work.” Timothy assigned
each child their own log, and they would have to complete “laps” carrying their
piece of wood. This punishment would occur during any season and during all
weather conditions, including rain and snow. Hauschultz estimated the piece of
wood he had to carry was about twelve pounds. Hauschultz estimated that seven-
5
No. 2022AP161-CR
year-old Ethan’s piece of wood, by contrast, weighed between thirty-five and forty
pounds.4
¶12 Hauschultz stated that if one of the children refused to carry wood,
there would be more punishment, including by extending the amount of time the
child had to carry wood outside or by assigning substantial household chores.
Hauschultz sometimes had to physically “drag them” out to carry wood. It was
Hauschultz’s opinion that Timothy had not yet “broke” the twins, adding that they
were “still doing whatever they want and just dealing with the punishment.”
Carrying wood was Timothy’s “go to” punishment, and it started when the twins
came to live with them.
¶13 Hauschultz made statements clearly indicating his resentment for
Ethan and Adam. He said the family was “all happy and fine” until Timothy said
the twins were moving in with them. Hauschultz found the twins “annoying” even
before that time, and when they came to live with him, they “[drove him] nuts.”
Hauschultz admitted he would become physical with them at times; for example,
he would “literally take [his] foot [and] kick them in their rear end” if they came
into his room. When asked if this was “older brother stuff” or if he really disliked
the twins, Hauschultz said it was the latter, though he later told Bessler he cared
about their well-being. Hauschultz felt that carrying wood was not enough
punishment for the twins’ misbehavior.
4
Police subsequently weighed the piece of wood Ethan was forced to carry. It was 44.4
pounds. Ethan weighed approximately 60 pounds. During the second interview, Hauschultz
described the twins as “tiny, scrawny, little things” who were “weak” and “fragile” and hated
physical labor.
6
No. 2022AP161-CR
¶14 Hauschultz could not recall why Ethan was being punished on
April 20th, but Hauschultz was in the final days of his own punishment for failing
to memorize Bible verses. Timothy left immediately after lunch to pick up Tonya
from technical college. He gave directions for Hauschultz to supervise the twins’
punishment, which was to last until 3:00 p.m. unless they refused to carry wood, in
which case they were to stay outside. The yard was full of melting snow;
Hauschultz described it as a “soupy, puddly slush mix.” The twins were wearing
jeans with holes in them, sweatshirts, winter jackets, snow boots, fabric gloves and
hats when they started out that afternoon.
¶15 Hauschultz explained that as the twins made their laps, he would
poke or prod them with a stick if they dropped their wood, which occurred very
often. Hauschultz stated he would usually target their torso or rear end with the
stick and he would poke them hard enough to make them feel it but not hard
enough to seriously injure them. Hauschultz estimated he poked them “a few
hundred times”—the vast majority of which were directed at Ethan because
Hauschultz perceived that he was being defiant. Hauschultz acknowledged that he
was irritated he had to be outside carrying wood and supervising the boys, and he
became even more irritated because they were making things difficult.
¶16 As the punishment progressed, Hauschultz could tell that Ethan in
particular was physically exhausted. He frequently dropped his wood piece. Five
or six times, when Ethan went to pick up the log, he could not keep his footing,
and he fell backward. Each time, the log landed on Ethan’s chest and “smushed”
him. Ethan fell forward on top of the log an additional three or four times.
Hauschultz told Bessler he did not help Ethan up when Ethan fell because he did
not feel bad for Ethan.
7
No. 2022AP161-CR
¶17 At approximately 2:30 p.m., Hauschultz noticed that Ethan was
lying motionless with the log just under his chin. Hauschultz stated he pinched
Ethan to get him moving, but Ethan was “stiff and statue-like.” When Ethan did
not respond, Hauschultz and the other children pulled him off the log and laid him
down on the ground. As he did in the first interview, Hauschultz explained how
they made Ethan “a little coffin of snow” by covering Ethan except for his face.
He could hear Ethan softly whining and could see that Ethan had a bloody face.
Hauschultz also saw that Ethan’s eyelids were slowly opening and closing, and his
pupils appeared hazy. Ethan would occasionally raise his arm, and Hauschultz
would rebury it. Eventually, Ethan stopped moving.
¶18 Hauschultz told Bessler that after he had buried Ethan in snow, he
poured water over him to “solidify” or “icify” him. Hauschultz left Ethan buried
in what he estimated was “eighty pounds of wet, soggy snow” for twenty to thirty
minutes. Upon further questioning, Hauschultz admitted that he had also given
Ethan a “facewash,” which Hauschultz described as where someone “shove[s]
their face down in the snow and wipe[s] it around.”
¶19 Hauschultz went to check on Ethan after he completed his two hours
of carrying wood. He found Ethan non-responsive lying in a puddle of water
under the snow. Hauschultz explained that he thought Ethan was faking, so he
dragged Ethan’s stiff body to his piece of wood, positioned Ethan so he was lying
over it, and told Ethan to finish his punishment. He noticed Ethan was barely
breathing, so he pressed down on Ethan’s back and compressed his chest against
the log in an effort to clear his lungs. Hauschultz then called Timothy and told
him Ethan was “playing dead.” Hauschultz did not take Ethan into the house.
8
No. 2022AP161-CR
¶20 Hauschultz told Bessler Timothy arrived home with Tonya and went
into “emergency mode” when he saw Ethan’s condition. Hauschultz stated he was
“freaked out,” so he went to “sit on the porch, [with a] ‘what in the world have I
done’-type feeling.” Hauschultz told Bessler he did not mean to harm Ethan, and
he was not even sure he had done anything to harm him. When asked whether
Ethan felt cold on the way to the hospital, Hauschultz responded he felt very cold.
Hauschultz then volunteered that maybe the cold “seeped through to [Ethan’s]
core,” and Hauschultz said that he knew if someone’s “core temperature changes a
certain amount it doesn’t work right anymore.” Hauschultz then said he started
feeling guilty, as if he did something wrong.
¶21 Bessler had Hauschultz draw a picture of the yard and where the
various events of the day had occurred. The interview finished when Timothy
arrived at the department and asked to see Hauschultz. Hauschultz left the
department with Timothy after the two spoke privately.
¶22 Ethan was pronounced dead after the second interview concluded.
The Manitowoc County Department of Human Services then requested interviews
with Hauschultz and the other children. Timothy and Tonya drove the youths to
the sheriff’s department. The children were taken into a conference room and
were interviewed individually over several hours by Bessler and social worker
Laura Zimbler. Timothy and Tonya did not accompany the children into the
building.
¶23 Hauschultz’s third interview commenced at 2:43 a.m. on the
morning following Ethan’s death. It lasted approximately one hour and took place
in the same “soft” room as the second interview. At the inception of the interview,
9
No. 2022AP161-CR
Hauschultz stated that he had been instructed by Timothy not to say anything more
without an attorney present.
¶24 Nonetheless, Bessler pressed Hauschultz for more information about
Ethan’s injuries. Bessler repeatedly and pointedly emphasized that Ethan was
dead, imploring Hauschultz to explain the bruises on Ethan’s body. But each time
Bessler asked for details of the prior day’s events, Hauschultz sat quietly and
refused to answer, informed Bessler that he did not think he should talk, or gave
curt answers that were almost entirely repetitive of his statements during earlier
interviews.
¶25 Hauschultz did respond to general questions about his activities and
feelings. He stated he wanted things to go back to normal, then he described his
typical day. He said he was always angry and talked about a “burning inside,” but
he denied that those feelings had manifested in the form of physical violence
towards the twins. Hauschultz spoke with distain for Timothy’s “dictatorship” in
the household, and he discussed his sadness about what had happened to Ethan.
He stated he did not feel responsible for Ethan’s death, but he did regret not
accepting him into the family.
¶26 Bessler repeatedly attempted to leverage these general questions into
a more specific discussion of Hauschultz’s role in Ethan’s death. For example,
she asked Hauschultz to tell her about the mud puddle Ethan was laying in.
Hauschultz responded, “It’s a puddle of mud.” She asked how Ethan ended up in
it. Hauschultz responded that everyone had covered him in snow, adding,
“Nothing I didn’t already tell you.” Bessler continued pressing the matter, but
Hauschultz refused to answer, including when asked if he became physical with
Ethan. When Bessler said she wanted to hear his side of the story, Hauschultz
10
No. 2022AP161-CR
responded that he was not supposed to say anything, and he thought it was in his
best interest to follow that advice.
¶27 Bessler tried again a short time later, stating that she believed what
Hauschultz had told her during the prior interview but thought he had left a few
things out. Hauschultz was visibly emotional during this line of questioning, but
he did not offer further details of the incident. Eventually, he responded, “I know
what I should say, but me, like in my head, is saying don’t say it, but then I want
to, but then it doesn’t, and it’s just making me not. Like mentally, I know, it’s a
weird … my brain is confusing itself about what it should do.” He then sat silent.
¶28 While Hauschultz largely refused to discuss the prior day’s events,
he did answer a few questions by repeating information he had already given.
Hauschultz repeated that Ethan did not want to carry wood and did not seem to
care about his punishment. Bessler then asked how Hauschultz would make him
carry wood, to which Hauschultz responded, “Usually how I told you, with the
stick.” He declined to answer a further question about whether that had occurred
with Ethan on the day prior.
¶29 Bessler then confronted Hauschultz with the information she had
gleaned from interviews with the other children. After Hauschultz denied
restraining Ethan when he was in the snow, Bessler told Hauschultz that was “a
little different than what I’m hearing from others,” adding that there were “still a
few gaps that I know you can fill in.” Hauschultz declined to answer without a
lawyer.
¶30 Bessler tried again, informing Hauschultz the other children had said
Hauschultz got a “little rough” with Ethan, including standing on him. Hauschultz
denied standing on Ethan, but admitted that when he was giving Ethan a
11
No. 2022AP161-CR
“facewash” he had placed a foot on Ethan. As he had in the first interview,
Hauschultz also said that he took Ethan’s boots off just before the children buried
him in the snow, because they were trying to make him “more cold.” The
interview then concluded, and Hauschultz was allowed to go home.
¶31 Hauschultz was later charged with reckless homicide, three counts of
physical abuse of a child—intentionally causing bodily harm, and three counts of
substantial battery. The defense filed a motion to suppress the statements given
during three interviews,5 contending Hauschultz was subjected to custodial
interrogation at the hospital and at the sheriff’s department without being given
Miranda warnings.6 The defense also asserted the statements Hauschultz gave
during the interviews were not voluntary.
¶32 The circuit court held a Miranda-Goodchild7 hearing over the
course of three days, the testimony from which is described further below.
Afterwards, the court denied the suppression motion. It concluded that Hauschultz
was not subjected to custodial interrogation during any of the interviews so as to
necessitate Miranda warnings. It also concluded that Hauschultz’s statements
were voluntary and were not elicited in violation of his due process rights.
¶33 Following the circuit court’s suppression determination, Hauschultz
reached a plea agreement with the State. He agreed to plead guilty to the reckless
5
Statements made during a subsequent fourth interview months later with counsel
present are not at issue in this appeal.
6
See Miranda, 384 U.S. 436.
7
See State v. Jiles, 2003 WI 66, ¶25, 262 Wis. 2d 457, 663 N.W.2d 798 (citing Miranda
and State ex rel. Goodchild v. Burke, 27 Wis. 2d 244, 133 N.W.2d 753 (1965)).
12
No. 2022AP161-CR
homicide charge, with the remaining charges dismissed and read in. The State
agreed to recommend between twelve and seventeen years of initial confinement,
with the defense free to argue. The circuit court accepted Hauschultz’s plea and
sentenced him to twenty years’ initial confinement and ten years’ extended
supervision. Hauschultz now appeals.
DISCUSSION
¶34 Hauschultz appeals the denial of his suppression motion, asserting
that his statements were elicited during custodial interrogation in violation of
Miranda and that his statements were involuntary. Because Hauschultz’s
voluntariness analysis relies heavily on the absence of Miranda warnings, we
consider these issues together. We then proceed to consider whether Hauschultz is
entitled to the relief he seeks—a remand to the circuit court with directions to
allow plea withdrawal.
I. Miranda and Voluntariness
¶35 Whether a statement should be suppressed is a question of
constitutional fact. State v. Johnson, 2007 WI 32, ¶13, 299 Wis. 2d 675, 729
N.W.2d 182. We review the circuit court’s historical findings of fact using the
“clearly erroneous” standard of review.8 Id. The application of constitutional
principles to those facts presents a question of law that we review independently.
Id.8
Two of the three interviews at issue were video recorded. Thus, we are in the same
position as the circuit court to determine what occurred during the interrogations and
independently make that determination. State v. Rejholec, 2021 WI App 45, ¶17, 398 Wis. 2d
729, 963 N.W.2d 121.
13
No. 2022AP161-CR
¶36 The federal and state constitutions each require that law enforcement
officers inform suspects of their rights to remain silent and to have an attorney
present during custodial interrogations. State v. Bartelt, 2018 WI 16, ¶27, 379
Wis. 2d 588, 906 N.W.2d 684. It is undisputed that Hauschultz was not provided
Miranda warnings during any of the relevant interviews. The parties dispute
whether Hauschultz was in custody during each of the interviews, such that
Miranda warnings were necessary for the statements to be admissible.
¶37 A custodial interrogation is one that occurs where “there is a formal
arrest or restraint on freedom of movement of a degree associated with a formal
arrest.” Id. (quoting State v. Lonkoski, 2013 WI 30, ¶6, 346 Wis. 2d 523, 828
N.W.2d 552). “A person is in ‘custody’ if under the totality of the circumstances
‘a reasonable person would not feel free to terminate the interview and leave the
scene.’” Lonkoski, 346 Wis. 2d 523, ¶6 (quoting State v. Martin, 2012 WI 96,
¶33, 343 Wis. 2d 278, 816 N.W.2d 270).
¶38 The test to determine whether a person is in custody for purposes of
Miranda is an objective one. Bartelt, 379 Wis. 2d 588, ¶31. In ascertaining how
a reasonable person would have gauged his or her freedom of movement, we
consider the totality of the circumstances. Id., ¶32. Relevant factors include the
purpose, location and duration of the questioning; the degree of physical restraint
used by the police; whether the person was moved to another location for purposes
of the interview; the number of officers involved; the statements made during the
interview; and whether the person was allowed to leave at the conclusion of the
interview. Id.; Howes v. Fields, 565 U.S. 499, 509 (2012).
¶39 The restriction-on-movement test is a necessary but not sufficient
condition for Miranda custody. Bartelt, 379 Wis. 2d 588, ¶33. If we conclude
14
No. 2022AP161-CR
that the person’s freedom of movement has been curtailed to a degree associated
with formal arrest, we must also assess whether the specific circumstances
presented a “serious danger of coercion.” Id.¶40 We analyze voluntariness in tandem with the Miranda issue as it
pertains to these interviews. The federal and state constitutions require a
statement to be voluntary to be admissible into evidence. State v. Vice, 2021 WI
63, ¶28, 397 Wis. 2d 682, 961 N.W.2d 1. 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 … the State exceeded the
defendant’s ability to resist.” Id., ¶29 (quoting State v. Davis, 2008 WI 71, ¶36,
310 Wis. 2d 583, 751 N.W.2d 332). The State bears the burden of proving
voluntariness by a preponderance of the evidence. Id.¶41 A threshold question for the voluntariness analysis is whether the
defendant’s statements have been obtained through the use of coercive or
improper police practices. Id., ¶31. “[W]ithout coercion, there is no
involuntariness.” Id., ¶35. Establishing coercion is a “high bar for a defendant to
surmount.” Id., ¶32. Vice provides many examples of coercive police practices,
including physical violence, sleep and food deprivation, and threats, id., ¶34,
though in particular cases more subtle coercion may violate due process, id., ¶32;
see also State v. Jerrell C.J., 2005 WI 105, ¶19, 283 Wis. 2d 145, 699 N.W.2d
110 (observing that police conduct need not be egregious or outrageous to be
coercive).
¶42 Once a defendant has established coercive or improper police
practices, we must ascertain whether those practices produced an involuntary
15
No. 2022AP161-CR
confession. “That analysis involves balancing the suspect’s personal
characteristics, such as age, intelligence, physical and emotional condition, and
prior experience with law enforcement, against any pressures imposed upon him
by police.” Vice, 397 Wis. 2d 682, ¶30. In evaluating whether the defendant’s
will was overcome, we consider the totality of the circumstances. Jerrell C.J.,
283 Wis. 2d 145, ¶20.
¶43 We address two prefatory matters before moving on to consider the
particulars of the interviews at issue. First, Hauschultz’s analysis of the
voluntariness criterion gives the absence of Miranda warnings an almost
talismanic quality. The custody analysis was not designed for this purpose.
Cf. Howes, 565 U.S. at 509. To be sure, the absence of Miranda warnings is a
factor to consider when assessing voluntariness. See State v. Hoppe, 2003 WI 43,
¶29, 261 Wis. 2d 294, 661 N.W.2d 407. Miranda warnings can certainly help
dispel the coercive effect of questioning. See Bartelt, 379 Wis. 2d 588, ¶27
(“These warnings are required because ‘[t]he circumstances surrounding in-
custody interrogation can operate very quickly to overbear the will of [the
suspect].’” (quoted source omitted)). But the Supreme Court has made clear that
their absence is merely one factor to consider, albeit a “significant” one. See
Davis v. North Carolina, 384 U.S. 737, 740 (1966).
¶44 Second, the State concedes that Hauschultz’s age—fourteen years
old during the relevant time period—is a relevant consideration for purposes of
both Miranda custody and voluntariness. This concession is well-taken, as courts
have long recognized the importance of age in determining both whether a person
is in custody, see J.D.B. v. North Carolina, 564 U.S. 261, 265 (2011), and
whether a confession is voluntary, Jerrell C.J., 283 Wis. 2d 145, ¶25.
Hauschultz’s age is a factor weighing both in favor of a determination of custody
16
No. 2022AP161-CR
and against a determination of voluntariness. We proceed using the appropriate
“special caution” given to interrogations involving juveniles. Id., ¶21.
¶45 The Wisconsin Innocence Project, et al., and Juvenile Law Center, et
al., appear as amici and have filed briefs in support of Hauschultz’s appellate
arguments, focusing in particular on adolescent brain development and trauma as
it pertains to the Miranda and voluntariness issues. The essence of their
arguments is that tactics that would not typically be regarded as coercive during
adult interrogations can be coercive for juveniles, particularly juveniles who have
endured traumatic events. They concur with Hauschultz’s assessment of the
interviews as both violating Miranda and producing an involuntary confession.
¶46 We agree with the general principle that custody and voluntariness
are assessed differently for juveniles and adults. See J.D.B., 564 U.S. at 264-65(“It is beyond dispute that children will often feel bound to submit to police
questioning when an adult in the same circumstances would feel free to leave.”).
Indeed, that principle is reflected in the “special caution” the case law directs us to
give the methods of interrogation when considering unaided interviews of
children. See State v. Moore, 2015 WI 54, ¶57, 363 Wis. 2d 376, 864 N.W.2d
827. Nonetheless, as set forth below, even in light of Hauschultz’s age, the first
and second interviews lacked the degree of coerciveness necessary to establish a
due process violation.9
9
Much of the amici briefs are directed towards the police conduct during the third
interview. As set forth below, we need not make a determination of custody or voluntariness
regarding that interview.
17
No. 2022AP161-CR
¶47 As the circuit court recognized, Hauschultz’s personal characteristics
remained “fairly static throughout” the interviews; we set them forth here before
proceeding to consider the specific circumstances of each interview. Hauschultz
was in the eighth grade. He concedes he is a “smart child;” he told Bessler he was
in accelerated math and English. He was expecting to attend college to be a
petroleum engineer, which he told Bessler would require four years of learning
about mechanical engineering, mathematics, chemistry—matters Hauschultz
described as “tedious stuff.” We agree with the circuit court that Hauschultz’s
“intelligence is apparent when he speaks in these interviews.”
¶48 There was no indication that Hauschultz was suffering from physical
or mental impairments that would have affected the Miranda or voluntariness
analyses.10 It does not appear Hauschultz was particularly susceptible to coercion.
In fact, Hauschultz told Bessler the situation was “ironic” because he had just
completed a special social studies unit about constitutional rights taught by his
school’s police liaison officer. Hauschultz had no prior experience with the
juvenile justice system.
¶49 The circuit court further determined that Hauschultz did not appear
confused or have difficulty understanding what was going on. The interview
recordings confirm the court’s finding that Hauschultz did not have “difficulty
with the language used during any of the interviews” and that he “spoke freely and
fluently with everyone who interviewed him.”
10
Hauschultz said he had a kidney issue that kept him from playing football and
baseball, but he was a part of the golf team. Hauschultz told Bessler, “I’m fine, I just get tired
out.”
18
No. 2022AP161-CR
A. Interview One
¶50 We first consider whether Hauschultz was subjected to Miranda
custody during his first interview, which took place at the hospital in the afternoon
while Ethan was being treated. The eight-minute interview took place in a small
intake room across the hall from the family room. Tonya and Hauschultz both
consented to allowing Remiker to speak privately with Hauschultz. Hauschultz
did not ask to have anyone with him and was very cooperative.
¶51 Hauschultz was not handcuffed or restrained during the interview.
At no point did he ask to stop talking or request that anyone join him in the room.
The door to the room was either closed or slightly ajar, and Remiker did not lock
it. Remiker was wearing street clothes. The interview ended when Remiker
received a phone call.
¶52 Hauschultz characterizes the circumstances as isolation in a “high-
stress” environment with an armed police officer who used “common, and
coercive, interrogation ploys.” As set forth above, any “isolating” features of the
interview occurred with the consent of Hauschultz and his mother, who the circuit
court found was readily available to him. There is no indication that Remiker ever
overtly displayed his firearm. And, as Hauschultz acknowledges, police “do not
generally predominate” in the medical setting—and did not do so here.
¶53 Remiker was tasked with gathering more information about what
caused Ethan to arrive at the hospital in serious medical distress. At that time,
police had very little information about what had occurred. Remiker encouraged
Hauschultz to “be honest” and explain what caused the marks and bruises on
Ethan’s body. The discussion was “calm, conversational, and pleasant.” We
perceive nothing about the nature of the questioning during the short interview that
19
No. 2022AP161-CR
would have caused a reasonable person in Hauschultz’s position to believe that he
was in custody.
¶54 Relatedly, we conclude Hauschultz’s statements during the hospital
interview were made voluntarily. Hauschultz fails to persuade us that there were
any improper or coercive aspects of the interview. He emphasizes that he was
“separated from his mother [and] … questioned in a small room by an armed law
enforcement officer,” comparing his interview with one deemed to be custodial in
United States v. Slaight, 620 F.3d 816 (7th Cir. 2010).
¶55 Hauschultz’s comparison of his situation with the defendant’s in
Slaight does him no favors. In Slaight the defendant, after being forcibly
removed from his home, was interviewed in a tiny police station room filled to
capacity with men and furniture, prompting the district court judge to remark that
it was the smallest interrogation room he had ever seen in his forty years of
experience and “should never, ever be used to take voluntary statements.” Id. at
819. Even setting aside the fact that Slaight was about Miranda custody (not
voluntariness), the facts here are far less indicative of a coercive environment.
¶56 Additionally, Hauschultz considerably overstates the matter of his
separation from his mother. In Jerrell C.J., which Hauschultz relies on, police
outright refused the juvenile’s several requests to speak with his parents during the
course of a five-hour interrogation. Jerrell C.J., 283 Wis. 2d 145, ¶10. Our
supreme court held that law enforcement’s refusal to call parents for the purpose
of depriving a juvenile of the opportunity to receive advice and counsel is strong
evidence that coercive tactics were used to elicit incriminating statements. Id.,
¶43. But here, Hauschultz and his mother both agreed that Remiker could speak
with Hauschultz alone, and Hauschultz was never denied a request to speak with
20
No. 2022AP161-CR
his parents. Indeed, he never expressed any interest in conferring with them
during the course of questioning.
¶57 Hauschultz also argues that Remiker used “psychological pressure in
the form of demands that he be honest and false reassurance that no one would get
in trouble based on his statements.” Minimization, false reassurance and
suggestions that harm to a victim may have been an accident are “tactics that
courts commonly accept.” Moore, 363 Wis. 2d 376, ¶64. Notably, the Moore
defendant’s confession was deemed to be voluntary even though those tactics were
applied to a fifteen-year-old of below-average intellect during questioning that
lasted approximately twice as long as the questioning here. See id., ¶¶58-65.
¶58 Hauschultz counters that law enforcement’s pleas for truthful
statements were regarded as coercive in Jerrell C.J. We are unpersuaded. The
supreme court’s analysis of the totality of the circumstances in that case
revealed: (1) that the questioning involved “continually challenging the juvenile’s
statement and accusing him of lying” using a frightening voice; (2) that police
interrogated the defendant in this fashion for five hours; and (3) that police denied
his repeated requests to speak with family members. Id., 283 Wis. 2d 145,
¶¶30-35. Based upon those other factors, we hesitate to adopt Hauschultz’s
reading of Jerrell C.J. as exalting the significance of police entreating honesty
from suspects.
¶59 In contrast to the Jerrell C.J. interview, the interview here was a
preliminary information-gathering interview. The circuit court described it as a
“comfortable, calm, quick discussion.” Hauschultz was not handcuffed or
restrained, he was interviewed with the consent of his mother, and his mother was
readily accessible to him. Remiker asked Hauschultz to explain Ethan’s condition,
21
No. 2022AP161-CR
and his questioning included the possibility that someone else in the household
had harmed Ethan. He did not repeatedly accuse Hauschultz of lying or otherwise
attempt to wear down his defenses using psychologically coercive tactics. The
totality of the circumstances demonstrates that Hauschultz’s statements during the
hospital interview were voluntary.
B. Interview Two
¶60 We reach the same conclusions regarding the second interview.
Hauschultz describes this as a “paradigmatically custodial police interview,”
emphasizing that the interview took place at the sheriff’s department, Hauschultz
was transported there by Bessler, and he did not have a parent with him for the
duration of the approximately two-and-one-half-hour interview. To be sure, these
factors—along with Hauschultz’s age—are relevant to the Miranda custody
analysis and indicative of a custodial interview.
¶61 Yet Hauschultz ignores other factors suggesting that the interview
was of a non-custodial nature. Hauschultz and Timothy had both agreed to the
interview and to Bessler transporting Hauschultz to the sheriff’s department a few
minutes away. Bessler drove a “plain grey Chevy” that had no divider or “cage”
between the front and rear seats. Bessler drove Hauschultz there because he could
not drive a car.11 Hauschultz was not handcuffed or restrained during the ride or at
any point during the interview.
11
Timothy and Tonya presumably wanted to stay with Ethan, who was at that point still
alive.
22
No. 2022AP161-CR
¶62 Though Hauschultz was not provided full Miranda warnings,
Bessler told him at the outset of the interview that she would answer any questions
he had and that he could decide at any time that he no longer wanted to talk.
Bessler reassured Hauschultz that he had nothing to fear from her. The interview
took place in a comfortable room with furniture; Hauschultz was seated on the
couch for the entire interview.
¶63 Hauschultz told Bessler he did not care if the interview room door
was open or closed. Bessler said she would leave it open unless outside
conversation became distracting; Hauschultz agreed that was fine. The door was
open for about five minutes before another person started speaking loudly in the
hallway outside and Bessler closed it. Thereafter, the conversation was congenial,
calm and at times even lively as Hauschultz described his family, school,
extracurricular activities and living arrangements.
¶64 The interview was undoubtedly lengthy, and the door was closed for
much of it. However, Hauschultz did not ask for his parents or an attorney, nor
did he ask—or try—to leave. He was offered and accepted coffee several times
during the interview; there were breaks in excess of ten minutes. Hauschultz was
not denied any requests for water or to use the bathroom, or other similar requests.
¶65 About two hours into the interview, Bessler told Hauschultz that
Timothy had arrived at the sheriff’s department. Hauschultz waited alone in the
room while Bessler went out to meet him. Timothy asked to speak with
Hauschultz privately and was allowed to do so. Afterwards, he left with
Hauschultz with no resistance from authorities.
¶66 The totality of the circumstances demonstrates that Hauschultz was
not subjected to Miranda custody. The interview was not marked by the use of
23
No. 2022AP161-CR
restraints, the atmosphere was relaxed and comfortable, the questioning was
conversational, Hauschultz was not denied any creature comforts, he was
expressly told at the outset that he could terminate the interview, and he did in fact
leave when his family arrived. Although Hauschultz’s age, the location and length
of the interview, and the transportation method used to bring him there are factors
suggesting custodial interrogation, on balance a reasonable person in Hauschultz’s
position would have felt free to terminate the interview and leave.
¶67 We are unpersuaded by Hauschultz’s reliance on State v.
Dionicia M., 2010 WI App 134, 329 Wis. 2d 524, 791 N.W.2d 236. There, a
truancy officer picked up the juvenile defendant and asked her to get into the back
seat of his squad car. Id., ¶2. The doors to the squad were locked. Id. During the
ride back to school, the officer questioned the defendant about her suspected
involvement in a battery case. Id., ¶10. We concluded the defendant was in
Miranda custody from the moment she entered the squad. Id.
¶68 Hauschultz endorses this “commonsense analysis,” and he urges us
similarly not to “belabor the factors supporting custody” or to “delve deeply into
the absence of other factors that might support custody (like handcuffs or a show
of force).” But as set forth above, those factors are relevant here, even though
they might not have been particularly informative on the question of custody for a
juvenile being interrogated about a crime in a locked and moving patrol car.
Nothing in Dionicia M. rescinds this court’s obligation to look to the totality of
the circumstances to determine Miranda custody.
¶69 Turning to voluntariness, again the absence of coercive or improper
police tactics during the second interview dooms Hauschultz’s arguments.
Hauschultz argues the interview was the classic “incommunicado interrogation”
24
No. 2022AP161-CR
that the Miranda court described as “destructive of human dignity.” See Miranda
v. Arizona, 384 U.S. 436, 457 (1966). This description of some police interviews
was certainly an impetus for the Supreme Court’s adoption of a constitutional rule
mandating that a person be advised of their rights prior to custodial questioning.
¶70 But another justification for adopting Miranda safeguards was the
perception that the due process voluntariness inquiry was not sufficiently
protective of a defendant’s constitutional rights. In other words, the Supreme
Court viewed Miranda warnings as necessary in part because the coercive
elements present during a custodial interrogation as a general matter are not
sufficient to overcome a defendant’s will—that is, they would not render a
confession “involuntary in traditional terms.” Id.12 Whatever might be said about
the voluntariness of the interrogations at issue in Miranda, the relatively calm,
relaxed and conversational interview in this case was not punctuated by any
impermissibly coercive practices.
C. Interview Three
¶71 Whether Hauschultz was in Miranda custody during the third
interview is a much closer question. His age and the location of the interview—
the sheriff’s department—remain factors that support a custody determination.
12
Hauschultz appears to contend that the coercion required to establish involuntariness is
created by the mere fact that an interview occurred at a police department. He relies in this
respect on State v. Bartelt, 2018 WI 16, ¶44, 379 Wis. 2d 588, 906 N.W.2d 684—a Miranda
custody case. While a stationhouse interview is certainly indicative of custody for Miranda
purposes, law enforcement’s decision to conduct an interview at that location is typically not
regarded as a coercive or improper police method for purposes of the voluntariness inquiry. See
State v. Vice, 2021 WI 63, 397 Wis. 2d 682, 961 N.W.2d 1 (concluding the defendant’s
statements were not the product of coercive police practices despite the interrogation occurring at
a police station).
25
No. 2022AP161-CR
Whereas the second interview began in the evening, the third interview occurred
in the wee hours of the morning. Perhaps most significantly, Ethan had died. The
questioning took on a much more accusatory tone; Bessler had already spoken to
the other children present during the incident and believed there were things
Hauschultz was not telling her. On the other hand, the interview appears to have
been primarily motivated by a desire to gather information about whether the other
children were safe in Timothy and Tonya’s care—a purpose that is not indicative
of custody.
¶72 A statement given during custodial interrogation in the absence of
Miranda warnings is subject to the evidentiary penalty of suppression. State v.
Halverson, 2021 WI 7, ¶14, 395 Wis. 2d 385, 953 N.W.2d 847. And indeed, that
is the remedy Hauschultz seeks for all of the statements he made during the
interviews. As set forth above, however, there was nothing constitutionally
problematic with the circuit court’s admissibility determinations regarding
Hauschultz’s statements during the first and second interviews. As a result, even
if the third interview could be characterized as custodial, Hauschultz would be
entitled to suppression only of the statements he made during that interview.
¶73 Faced with such a scenario—where the vast majority of statements a
defendant made to law enforcement were properly deemed admissible but a small
number of them present a difficult constitutional question—we turn to the doctrine
of harmless error. See State v. Dobbs, 2020 WI 64, ¶¶67-68, 392 Wis. 2d 505, 945
N.W.2d 609. The parties have not addressed this precise situation; though their
arguments touch on the harmless-error analysis, they take a collective all-or-
nothing approach to the admissibility of statements made during the three
interviews. Nonetheless, we have an independent obligation to assess harmless
26
No. 2022AP161-CR
error regardless of whether the parties do so. State v. Harvey, 2002 WI 93, ¶47
n.12, 254 Wis. 2d 442, 647 N.W.2d 189.
¶74 As set forth below, because we conclude any error in failing to
suppress the statements Hauschultz made during the third interview would be
harmless, we need not decide whether the court erred in that regard. See State v.
Castillo, 213 Wis. 2d 488, 492, 570 N.W.2d 44 (1997) (“An appellate court should
decide cases on the narrowest possible grounds.”).
II. Plea Withdrawal/Harmless Error
¶75 In State v. Abbott, 2020 WI App 25, ¶¶37-38, 392 Wis. 2d 232, 944
N.W.2d 8, we reinforced that harmless error is the appropriate test to use when a
defendant has entered a guilty plea but prevailed on only a portion of the
suppression issues he or she raised on appeal. Admitting statements in violation of
Miranda is harmless error if there is no reasonable possibility that the error
contributed to the conviction.13 See State v. Semrau, 2000 WI App 54, ¶21, 233
Wis. 2d 508, 608 N.W.2d 376; see also Dobbs, 392 Wis. 2d 505, ¶68; State v.
Johnson, 2012 WI App 21, ¶14, 339 Wis. 2d 421, 811 N.W.2d 441. In other
words, we must assess whether the State has satisfied its burden to demonstrate
that the suppression of Hauschultz’s statements in the third interview would have
changed his decision to plead guilty.
¶76 We easily conclude the harmless error standard is satisfied in this
case. A failure to suppress evidence that is identical to other, admissible evidence
13
The harmless error test has been formulated in other ways, though these formulations
appear to require that essentially the same standard be met. See State v. Abbott, 2020 WI App 25,
¶47 & n.14, 392 Wis. 2d 232, 944 N.W.2d 8.
27
No. 2022AP161-CR
is harmless. Abbott, 392 Wis. 2d 232, ¶49. Hauschultz was extremely reluctant to
speak during the third interview, having been advised by Timothy that it was not
in his interest to do so. What little relevant information Hauschultz did offer was
almost completely duplicative of the information he had presented during the
earlier interviews—so much so that Bessler repeatedly suggested that there were
significant details of the incident that he had omitted and urged him to fill in the
gaps. Hauschultz did not waver in refusing to do so.
¶77 Indeed, we have difficulty identifying any new information that
came during the third interview, let alone any information that would have had a
bearing on Hauschultz’s decision to plead guilty had he known of its
inadmissibility. Hauschultz acknowledges this in his briefing, observing that the
“substance of [his] statements during this [third] interrogation overlapped with
those he’d made earlier.” Hauschultz identifies only one, minor elaboration upon
his earlier statements, which came when Hauschultz was confronted with the other
children’s claims that he had been standing on Ethan. Hauschultz denied standing
on top of Ethan, but admitted that he had stepped on Ethan while he was giving
him a “facewash.”
¶78 We are confident beyond a reasonable doubt that the suppression of
Hauschultz’s statements during the third interview, even if warranted, would not
have affected Hauschultz’s decision to plead guilty to reckless homicide.
Accordingly, there is no basis for the relief Hauschultz seeks: a reversal with
instructions for the circuit court to grant plea withdrawal.
By the Court.—Judgment affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.
28
No. 2022AP161-CR
29