State v. Jeffrey L. Torkelson, 2007 WI App 272, PFR filed 11/30/07
For Torkelson: Timothy A. Provis
Issue/Holding: Custody, for purposes of Miranda, requires that the suspect’s freedom be restricted to a degree associated with formal arrest, and is as gauged by a multi-factor test articulated in State v. Zan Morgan, 2002 WI App 124, ¶¶13-14. None of those factors are present in this instance, where the suspect was never told he was under arrest and was questioned in a police lobby open to the public, while waiting for an ambulance (because he had taken a number of pills; but was never told he had to wait for the ambulance), ¶¶19-20.
¶21 Torkelson lists several factors he contends show he was in fact in custody. He first argues his decision to come to the police station in the first place was not voluntary because he came in response to an “ultimatum” from his wife Carrie. However, the fact that a decision was made while facing personal pressure, such as pressure from a family member, does not mean the decision was involuntary. Craker v. State, 66 Wis. 2d 222, 229, 223 N.W.2d 872 (1974). Nothing in Carrie’s demand would lead a reasonable person in Torkelson’s position to believe he was in the custody of the State while at the police station. [5]
[5] Torkelson relies on Yarborough v. Alvarado, 541 U.S. 652 (2004). However,Yarborough involved a minor brought to the police station by his parents. Id. at 656. This made “the extent of [the minor’s] control over his presence unclear.” Id. at 665. Torkelson argues a marriage is similar because “one ignores the ultimatums of one’s wife at one’s peril.” However, a parent-child relationship is hierarchical, while a marriage involves two adults with equal authority relative to one another. Torkelson’s attempt to analogize Carrie’s “ultimatum” to demands by police is also unavailing, for the same reason.
