on review of unpublished opinion; for Lemoine: Donna L. Hintze, Katie R. York, SPD, Madison Appellate; case activity
Involuntary Statement – Coercion
Issue (composed by On Point):
Whether Lemoine’s in-custody statement was involuntary given the following police tactics:
- promising that in exchange for the “true story” he would not go to jail that night;
- telling him that he would not be able to contact an attorney while at the jail;
- telling him that he could resolve the case with the district attorney to keep it out of court; and
- failing to administer Miranda warnings.
Prior post: here. The court of appeals concluded that while voluntariness presented a “close” question, the issue need not be reached, because any error in admitting the statement was harmless. Presumably, the supreme court granted review on the question of voluntariness (which raises a potentially recurrent, widespread question of law) rather than harmless error (a prototypically fact-specific problem with little impact beyond the immediate case). The State argues in part that the detective lived up to the promise Lemoine wouldn’t have to spend the night in jail, and in any event that wasn’t the sort of inducement likely to overcome someone’s will to resist speaking. Resp. Br., COA, pp. 21-23. Lemoine rejoins that the failure to advise Lemoine of his rights makes the promise fatal to a voluntary statement. In effect, the detective promised to keep Lemoine out of jail that night if he relinquished his rights to silence and representation without bothering to inform him that he had these rights.
Harmless Error
As noted, the court of appeals ruled that any error was harmless, in part for the following reasons:
¶35 Moreover, our review of Lemoine’s objected-to incriminating statements indicates that they were not necessary to prove any element of Lemoine’s crime and were to a degree cumulative; these statements merely provided additional evidence of Lemoine’s guilt. See Harris, 199 Wis. 2d at 262-63 (admission of physical evidence derived from involuntary confession was harmless where derivative physical evidence was “largely cumulative”). The apparent value of the objected-to statements to the State’s case was largely to show that Lemoine’s contact with Caitlin was intended for a sexual purpose. Proof of intent to touch Caitlin’s genitals for a sexual purpose is found in Lemoine’s admission that he rubbed her for ten to fifteen seconds, and by statements that indicated an awareness of guilt—calling the assault “the stupidest thing [he’d] ever done,” admitting he “almost wrecked [his] bike” on the way to the police station because he knew why he was being called in, and saying to himself, “I can’t believe I did this.” However, as explained above, there is no reasonable doubt that, without this evidence, a rational jury would have still found that Lemoine intended to touch Caitlin’s genitals, given the ample affirmative evidence of Lemoine’s guilt and the deep problems with Lemoine’s alternate version of events.
It is assumed that the test for harmless error (“clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error”) isn’t itself implicated by this review, only its application to the facts at hand.
