Wisconsin Case Law

STATE v. BROWN, 2005AP2450-CR (Wis.Ct.App. 12-19-2006)
BROWN, DEFENDANT-APPELLANT. Court of Appeals of Wisconsin,
District I. No. 2005AP2450-CR. Opinion Filed: December 19,

APPEAL from a judgment of the circuit court for Milwaukee
County: KAREN E. CHRISTENSON, Judge. Affirmed; attorney


¶ 1 FINE, J.

Devin Lee Brown appeals from a judgment entered on a jury
verdict convicting him of first-degree intentional
homicide. See WIS. STAT. § 940.01(1)(a). He contends
that the trial court erred in not suppressing his
confession, which he claims was not voluntary, and, also,
that he was deprived of his right to confrontation when the
trial court received into evidence statements made by a
witness who, when testifying at trial, claimed a loss of
memory. We affirm.



¶ 2 A jury convicted Brown of shooting and killing
Lamar Ashley. As material to the issues raised by Brown’s
appeal, Brown was arrested at his home at 6:20 Saturday
morning, August 2, 2003. Police, after first telling Brown
his rights under Miranda v. Arizona, 384 U.S. 436 (1966),
interviewed and interrogated him starting at 9:42 that
morning. Both Brown and the interrogating officers
testified at the evidentiary hearing held by the trial
court to determine whether Brown’s statements during those
interrogations were admissible. Although Brown claimed both
that he had asked for a lawyer and that an officer beat him
until he confessed, the trial court believed the officers
and not Brown. We accept the trial court’s credibility
determinations. See WIS. STAT. RULE 805.17(2) (trial
court’s findings of fact must be upheld on appeal unless
“clearly erroneous”) (made applicable to criminal
proceedings by WIS. STAT. § 972.11(1)). Brown
contends, however, that the extent and duration of the
officers’ questioning of him made his statements not
voluntary. Thus, we focus on that aspect of the Record,
drawing, where appropriate, from the trial testimony, which
is properly considered by us in determining the merits of
a suppression appeal. See State v. Truax, 151 Wis. 2d 354,
360, 444 N.W.2d 432, 435 (Ct.App. 1989) (“[W]e are not
limited to the facts as presented at the suppression
hearing and may examine pertinent trial evidence as

¶ 3 As noted, the first time the police questioned
Brown was at 9:42 a.m. on August 2, a little more than
three hours after he was arrested. This first questioning
lasted four hours and ended at 1:42 p.m. Brown was
questioned by John Wesley, a Milwaukee police detective
along with Wesley’s partner, Louis Johnson, also a
Milwaukee police detective. Wesley testified that the
interrogation room was about “average” and was
approximately twelve-foot square. The room had no windows.

¶ 4 According to Wesley, Brown was still in the
clothes he was wearing when he was arrested that morning,
and was not handcuffed. Wesley testified that Brown told
him he was not tired, waived his rights under the Miranda
decision, and that Brown was not forced to do so. Wesley
also testified that he told Brown he could have a bathroom
break whenever he wanted one, but that Brown never asked
for one during that first interview. Wesley also told the
trial court that he gave Brown a soda, and that Brown did
not want any food.

¶ 5 During that first interview, Brown told the
officers that seven months before Ashley was killed, two
persons came into his mother’s house and robbed Brown, his
brother Antwan Franklin, and a third person in the house,
and that Brown later was told that Ashley had instigated
the robbery. During Brown’s first interrogation, Brown’s
brother was telling other officers that Brown had admitted
to him that he, Brown, had shot Ashley. Brown denied in
that first interrogation that he shot Ashley.

¶ 6 After the first interrogation, the officers put
Brown in a holding cell, where he stayed for approximately
seven hours, until 8:45 p.m., when he was brought back to
an interrogation room. There, until 2:14 a.m. on Sunday,
August 3, with a fifteen-minute break and also a bathroom
break, Brown was questioned by Milwaukee police detectives
Scott Gastrow and Erik Villarreal. Gastrow told the trial
court that before he started to talk to Brown, he reminded
Brown of his rights under Miranda, and that Brown waived
them. Gastrow also testified that they gave Brown a soda
and asked whether he wanted food. Brown said he was not
hungry because he had already eaten, presumably during the
seven-hour break, and told the officers that he was not
tired. Shortly before that second interview ended at a
quarter past two, Gastrow told Brown that other officers
would be questioning him again. According to Gastrow, Brown
did not object: “We indicated that some — another
— most likely another team of detectives would be
talking to him yet, and he indicated that that would be
okay with him, and he didn’t appear to be tired.” When
asked by the prosecutor whether he asked Brown whether
Brown was tired, Gastrow replied, “[y]es,” and Brown “said
he was fine.” Later, at the trial, Villarreal testified
that if Brown had wished to go back to the holding cell
rather than talk with the new detectives they would have
permitted him to do so. In response to a question asked by
Brown’s lawyer, Villarreal testified that although as he
perceived it Brown did not “indicate” that he wanted to
talk to the new detectives, “he did not ask to stop
either.” Gastrow denied threatening or harming Brown, and
testified that Brown never asked for a lawyer. Villarreal
testified that Brown spoke with him and Gastrow willingly
and never indicated that he did not want to talk to them.
As in the first interrogation, Brown denied that he shot

¶ 7 Milwaukee police detective Mark Peterson was
the next officer to interrogate Brown. He told the trial
court that he went into the interrogation room to see Brown
at 2:45 a.m. on the morning of August 3, and explained:
“The purpose of meeting Mr. Brown was two things; one,
either to continue to talk to Mr. Brown if he choose [sic]
to do so. If he did not choose to do so, it was to take him
back up to the fifth floor to the holding area.” Brown was
not handcuffed, and used the bathroom before Peterson
started the interview. Peterson testified that he asked
Brown whether he wished to talk or whether he was tired,
and, according to Peterson, Brown said that he “did . . .
want to continue to talk” and was not tired. Peterson also
reminded Brown of his Miranda rights, which Brown said he
understood. According to Peterson, Brown said that he
wished to talk to him.

¶ 8 Peterson’s interrogation of Brown lasted until
4 a.m., and Brown admitted to shooting Ashley after
Peterson told him that his brother Antwan Franklin told the
police that Brown admitted to him that he, Brown, had done
so. Peterson told the trial court that he did not threaten
Brown or promise him anything in order to get him to
confess, and that Brown did not ask to speak to a lawyer.
Peterson also testified that his interrogation of Brown was
in a “[n]ormal tone”: “There was no yelling, no screaming.
Just a casual conversation.”

¶ 9 Brown was returned to a holding cell at 4 a.m.
From 1:25 Sunday afternoon, August 3, to 2:05 that
afternoon, Brown was interrogated by Louis Johnson, another
Milwaukee police detective. Johnson, too, reminded Brown of
his rights under Miranda, and, again, according to Johnson,
Brown said he understood and agreed to talk. Brown appeared
to Johnson to be cooperative and did not say that he was
tired. Johnson also said that he did not threaten Brown or
promise Brown anything to get him to talk to him. Brown
again said that he shot at Ashley. Johnson told the trial
court that he went to talk to Brown because he wanted Brown
to tell him where the gun was. Although Brown said he
tossed the gun into a sewer and took the police officers to
the sewer into which he claimed to have thrown it, no gun
was ever found.

¶ 10 As noted, Brown testified at the suppression
hearing. He claimed that Peterson beat him until he agreed
to confess to killing Ashley. Brown also claimed that
Peterson told him that a confession would spare him from
“spend[ing] the rest of my life in prison.” Peterson denied
hitting Brown or threatening him or telling him that he
would be imprisoned for life unless he confessed. As we
have seen, the trial court believed the officers and not
Brown, finding that Brown’s testimony was “manifestly
incredible,” and determined that Brown’s confession was
voluntary. Brown claims on appeal that it was not.


¶ 11 “In reviewing the voluntariness of a
statement, we examine the application of constitutional
principles to historical facts. We defer to the circuit
court’s findings regarding the factual circumstances
surrounding the statement. However, the application of
constitutional principles to those facts presents a
question of law subject to independent appellate review.”
State v. Jerrell C.J., 2005 WI 105, ¶ 16, 283 Wis.
2d 145, 155, 699 N.W.2d 110, 115 (citations omitted). The
State has the burden of proving by a preponderance of the
evidence that a defendant’s confession was voluntary. State
v. Hoppe, 2003 WI 43, ¶ 40, 261 Wis. 2d 294, 310,
661 N.W.2d 407, 415. Hoppe sets the standard:

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 representatives of the
State exceeded the defendant’s ability to resist.

The pertinent inquiry is whether the statements were
coerced or the product of improper pressures exercised by
the person or persons conducting the interrogation.
Coercive or improper police conduct is a necessary
prerequisite for a finding of involuntariness.

We apply a totality of the circumstances standard to
determine whether a defendant’s statements are voluntary.
The totality of the circumstances analysis involves a
balancing of the personal characteristics of the defendant
against the pressures imposed upon the defendant by law
enforcement officers.

The relevant personal characteristics of the defendant
include the defendant’s age, education and intelligence,
physical and emotional condition, and prior experience
with law enforcement. The personal characteristics are
balanced against the police pressures and tactics which
were used to induce the statements, such as: the length of
the questioning, any delay in arraignment, the general
conditions under which the statements took place, any
excessive physical or psychological pressure brought to
bear on the defendant, any inducements, threats, methods
or strategies used by the police to compel a response,
and whether the defendant was informed of the right to
counsel and right against self-incrimination.

Id., 2003 WI 43, ¶ 36-39, 261 Wis. 2d at 309-310,
661 N.W.2d at 414-415 (citations omitted).

¶ 12 Brown argues that the extent and length of the
questioning was “inherently coercive,” and that he “had
just turned 18 in May, 2003, three months before the
interrogations.” He also points out that “[h]e did not
finish high school, though he had obtained a GED.”[fn1]
Although the Record supports Brown’s contention that when
he was interrogated by the officers he did not, as
indicated by the presentence investigation report prepared
for the companion case not at issue on this appeal where he
was convicted of possessing marijuana, have a “‘formal
juvenile criminal record,'” Brown admitted during the
suppression hearing that he was aware of his rights under
Miranda before the officers interviewed and interrogated
him.[fn2] Brown also indicated that 2:30 a.m. was his
normal bedtime “[d]uring the summer.”

¶ 13 Brown has pointed to nothing in this Record
that any of the trial court’s findings of fact are
“clearly erroneous.” Although Brown’s defense lawyer did
not contradict the prosecution’s assertion during the
August 8, 2003, bail hearing that Brown had three prior
convictions, that assertion is, as we have seen,
contradicted by the presentence report. Nevertheless, the
trial court’s comment during its extensive oral decision
denying Brown’s suppression motion that Brown was “an
individual who does have experience with the criminal
justice system and who has been Mirandized before” is
accurate. Thus, as noted earlier, the trial court’s
findings of fact are binding on us unless clearly
erroneous. Under our de novo review of the constitutional
issue, we agree with the trial court that the State proved
by a preponderance of the evidence that Brown’s confession
was voluntary under the totality of the circumstances.
Although Brown was in custody for more than a day before he
confessed, and was extensively interrogated, he was, as the
trial court found, not mistreated, allowed bathroom breaks,
and given food and drink as well as long periods of rest
during which he had time to think about whether he should
cooperate with the detectives and continue to talk to them
or whether he should stop talking and ask for a lawyer.
See Schilling v. State, 86 Wis. 2d 69, 88-89, 271 N.W.2d
631, 641 (1978) (non-continuous interrogation over
forty-five hours not coercive).

¶ 14 In an apparent concession that the trial
court’s findings are supported by the evidence, Brown
contends that we should extend to police interrogations of
adults the taping requirements that the supreme court
imposed on juvenile interrogations in Jerrell C.J. See
Jerrell C.J., 2005 WI 105, ¶ 58, 283 Wis. 2d at
172, 699 N.W.2d at 123 (“All custodial interrogation of
juveniles in future cases shall be electronically recorded
where feasible, and without exception when questioning
occurs at a place of detention.”). We may not do so. State
v. Kramer, 2006 WI App 133, ¶ 17, ___ Wis. 2d ___,
___, 720 N.W.2d 459, 464-465 (court of appeals may not
adopt exclusionary rule of adults equivalent to that
adopted by the supreme court for juveniles). We are bound
by Kramer. See Cook v. Cook, 208 Wis. 2d 166, 190, 560
N.W.2d 246, 256 (1997) (“court of appeals may not overrule,
modify or withdraw language from a previously published
decision of the court of appeals.”). Further, although WIS.
STAT. § 972.115 declares that “it is the policy of
this state to make an audio or audio and visual recording
of a custodial interrogation of a person suspected of
committing a felony,” § 972.115(2)(a), and
establishes extensive procedures in connection with that
policy, the statute first applies to custodial
interrogations of adults “conducted on January 1, 2007,”
2005 Wis. Act 60, § 51(2). It does not apply to


¶ 15 As we have seen, Brown also contends that he
was denied his constitutional right to confrontation. We


¶ 16 One of the witnesses who testified at the
trial was twenty-two-year-old Eulos Rounds, who, when he
spoke with the police in early July of 2003 said that he
was at Brown’s house when Ashley was shot and that Brown
said that he was the one who shot him. In an offer-of-proof
hearing requested by the State with the jury not present,
Rounds told the trial court that he remembered talking to
police officers, and identified his signature on two
documents prepared by the police as a result of those
conversations. When asked about the substance of his
statements reified on the documents, however, Rounds said
he did not remember the events encompassed by the
statements — namely, his assertions about Brown’s
earlier involvement with Ashley and Brown’s admission that
he had shot Ashley.[fn3]

¶ 17 After the offer of proof, and with the jury
present, Rounds identified Brown in the courtroom, and
testified that he had known Brown and Brown’s brother
Antwan Franklin for some four years. As he did during the
offer of proof when the jury was not present, Rounds then
denied remembering that he told the police that Brown
admitted shooting Ashley. He did, however, again identify
his signature on the documents that recounted his
statements. The State then offered into evidence, and the
trial court received, Rounds’s statements to the police as
prior inconsistent statements under WIS. STAT. RULE
908.01(4)(a)1, which permits the receipt into evidence
statements that are “[i]nconsistent with the declarant’s
testimony” and the “declarant testifies at the trial or
hearing and is subject to cross-examination concerning the
statement.” The trial court received the statements into
evidence and indicated that it had raised “Crawford issues
and Mr. Rounds’ statement” with the lawyers at a sidebar
conference that was not recorded.[fn4] The trial court
specifically found that Rounds’s claimed inability to
remember was feigned, and cited State v. Lenarchick, 74
Wis. 2d 425, 436, 247 N.W.2d 80, 87 (1976) (“where a
witness denies recollection of a prior statement, and where
the trial judge has reason to doubt the good faith of such
denial, he may in his discretion declare such testimony
inconsistent and permit the prior statement’s admission
into evidence”).


¶ 18 As noted, Brown claims that the trial court
deprived him of his right to confrontation by receiving
into evidence things Rounds told the police, asserting that
Rounds’s claimed lack of memory deprived him of the
requisite opportunity for effective cross-examination, and
relies on, in a fairly undeveloped argument, Crawford v.
Washington, 541 U.S. 36 (2004). His contention is without

¶ 19 The opportunity for cross-examination is the
crux of a defendant’s right to confrontation. Id., 541 U.S.
at 61. Here, Brown’s lawyer cross-examined Rounds for some
twelve transcript pages, although, as Brown asserts, Rounds
claimed not to remember during most of that
cross-examination. Yet, as we have previously indicated,
“the Confrontation Clause does not guarantee that the
declarant’s answers to those questions will not be tainted
by claimed memory loss, real or feigned.” State v.
Rockette, 2006 WI App 103, ¶ 24, ___ Wis. 2d ___,
___, 718 N.W.2d 269, 277. Accordingly, the trial court did
not err in receiving into evidence Rounds’s prior
statements to police officers concerning Brown’s
involvement in the shooting death of Ashley.


¶ 20 Brown’s appellate lawyer, Terry Evan Williams,
as required by WIS. STAT. RULE 809.19(2)(a) certified in
his main brief on this appeal that he submitted “an
appendix that complies” with that rule “and that contains .
. . (3) the findings or opinion of the trial court, and (4)
portions of the record essential to an understanding of the
issues raised, including oral or written rulings or
decisions showing the trial court’s reasoning regarding
those issues.” See RULE 809.19(2)(b). This certification is
false. Williams’s appendix did not have the trial court’s
extensive oral decision on the issue of whether Brown’s
confession was voluntary, and also did not have the trial
court’s oral rulings with respect to receipt into evidence
of Rounds’s statements to the police in connection with
Brown’s involvement in the shooting of Ashley.

¶ 21 Filing a false certification with this court
is a serious infraction not only of the rule, but also
violates SCR 20:3.3 (“A lawyer shall not knowingly: (1)
make a false statement of fact or law to a tribunal.”).
Accordingly, we sanction Williams and direct that he pay
$150 to the clerk of this court within thirty days of the
release of this opinion. See WIS. STAT. RULE 809.83(2)
(“Failure of a person to comply . . . with a requirement of
these rules . . . is grounds for . . . imposition of a
penalty or costs on a party or counsel, or other action as
the court considers appropriate.”).

By the Court. — Judgment affirmed; attorney

Publication in the official reports is not recommended.

[fn1] “GED” is the acronym for “general educational
diploma” or general high-school “equivalency diploma.” See
State ex rel. Saenz v. Husz, 198 Wis. 2d 72, 74 & n. 1, 75,
542 N.W.2d 462, 463 & n. 1 (Ct.App. 1995).

[fn2] The presentence report indicates that Brown’s
“initial encounter with the juvenile Criminal Justice
System had occurred on 04/18/01” when police saw him get
out of a stolen car. He was arrested, but not “formally
charged.” Rather, Brown “signed a Deferred Prosecution
Agreement,” which placed him in “the First Time Juvenile
Offender Program.”

[fn3] During the first part of the State’s offer of proof
in connection with Eulos Rounds, Rounds had not been sworn.
This was rectified when during that offer of proof Rounds,
as reflected by the court reporter’s transcription,
“affirmed to tell the truth.” He then essentially repeated
what he had told the trial court at the offer of proof
before being sworn. Although he had objected to testifying,
explaining that he wanted to “plead the Fifth on future
retaliation,” Rounds, represented by counsel, was sworn,
again affirming to tell the truth, once the jury came back
into the courtroom.

[fn4] It is not clear whether Brown’s trial lawyer objected
to the receipt into evidence of Rounds’s out-of-court
statements to the police on hearsay grounds only or on both
hearsay and confrontation grounds because much of the trial
court’s discussion with the lawyers was at unrecorded
sidebar conferences. We assume that Brown’s trial lawyer
objected both on hearsay and confrontation grounds.