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COURT OF APPEALS DECISION DATED AND RELEASED November 14, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-0757-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
RICKY L. THOM,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Dodge County: DANIEL W. KLOSSNER, Judge.
Affirmed.
Before Eich, C.J., Paul
C. Gartzke and Robert D. Sundby, Reserve Judges.
PER
CURIAM. Ricky L. Thom appeals from a judgment of conviction
and a postconviction order. The issues
are whether the trial court erred in limiting the admissibility of Thom's
post-polygraph statements ("statements") to use as impeachment during
rebuttal, and whether the trial court erroneously exercised its sentencing
discretion. We conclude that limiting
the admissibility of these voluntary statements to use as impeachment during
rebuttal did not deprive Thom of his right to a fair trial, and that the trial
court did not erroneously exercise its sentencing discretion. Therefore, we affirm.
A jury found Thom guilty
of first-degree sexual assault of his three-year-old daughter, contrary to
§ 948.02(1), Stats. Before Thom was charged, he retained counsel
who notified the Sheriff's Department of that representation.[1] Thom's daughter was reluctant to see him, so
to "clear [things] up," Thom telephoned the prosecutor to discuss the
current status of the investigation.
The prosecutor, having no recollection that Thom was represented, asked
Thom to consent to a polygraph. Thom
agreed, but never mentioned that he was represented by counsel. After the mechanical part of the polygraph,
Thom "confessed" to a single incident of sexual contact with his
daughter which allegedly occurred three months before the charged offense.[2]
The State moved to admit
these statements as evidence of a prior act.
Section 904.04(2), Stats. Thom urged suppression because these
statements were not voluntary and were made outside the presence of
counsel. After an evidentiary hearing,
the trial court found that the statements were voluntary because Thom initiated
the contact, agreed to the polygraph, felt comfortable talking with the
detective, and had not requested counsel.
The trial court ruled that State v. Schlise, 86 Wis.2d 26,
42, 271 N.W.2d 619, 626 (1978), required suppression of post-polygraph
statements during the State's case-in-chief because there was no
pre-examination stipulation as required by State v. Stanislawski,
62 Wis.2d 730, 216 N.W.2d 8 (1974).
However, it ruled that it would allow the use of these statements in
rebuttal for impeachment purposes. E.g.,
Harris v. New York, 401 U.S. 222, 225-26 (1971); State v.
Pickett, 150 Wis.2d 720, 442 N.W.2d 509 (Ct. App. 1989). Thom claims that this ruling prevented him
from testifying in his own defense. See
U.S. Const. amend. VI.
Thom challenges that
part of the trial court's order which admits the statements, albeit for a
limited purpose. He claims that this
ruling violates his attorney-client privilege, his right against
self-incrimination and his right to present a defense under the Sixth Amendment
to the United States Constitution. We
disagree.
Thom has not shown that
these factual findings are clearly erroneous.
Section 805.17(2), Stats. See State v. Michels, 141
Wis.2d 81, 90, 414 N.W.2d 311, 314 (Ct. App. 1987). Although the ultimate issue of voluntariness is one of
constitutional fact which we review independently, we cannot quarrel with the
trial court's finding that these post-polygraph statements were voluntarily
disclosed. See id. Thom contacted the prosecutor and agreed to
the polygraph. After the mechanical
part of the polygraph examination was completed and Thom was told that he had
failed, he asked to talk with Detective Anthony Z. Soblewski.[3] He cannot now complain that these statements
were coerced. He also cannot complain
that his attorney-client privilege was violated when he initiated contact with
the prosecutor, agreed to the polygraph, asked to talk with the detective
thereafter, and never requested counsel.
E.g., Patterson v. Illinois, 487 U.S. 285, 291
(1988) (citing Edwards v. Arizona, 451 U.S. 477, 484-85 (1981))
("[once the accused requests] to deal with the police only through counsel
he should not be subject to further interrogation by the authorities until
counsel has been made available to him, unless the accused himself initiates
further communication.") (emphasis supplied) (quotations omitted).
Thom also contends that
the trial court's ruling prevented him from testifying in his own defense. His fear was that by testifying, he could
open the door to use of the statements.
However, the opportunity for impeachment would only arise if Thom's
testimony was inconsistent with these statements. Thom does not have a constitutional right to testify without
risking confrontation with his prior inconsistent statements. See Harris, 401 U.S. at
225-26; Pickett, 150 Wis.2d at 726-27, 442 N.W.2d at 512-13. Because the trial court's ruling was legally
sound, it did not improperly affect Thom's decision not to testify. See id.
Thom also claims that
the trial court erroneously exercised its sentencing discretion. The trial court imposed and stayed a
fifteen-year sentence and imposed a ten-year term of probation with conditions,
including a one-year jail term. Thom
contends that the trial court's sentence was excessive insofar as it imposed
and stayed the fifteen-year sentence.
We disagree.
Our review of the
sentence is limited to whether the sentencing court erroneously exercised its
discretion. State v. Larsen,
141 Wis.2d 412, 426, 415 N.W.2d 535, 541 (Ct. App. 1987). The primary factors are the gravity of the
offense, the character of the offender and the need for public protection. Id. at 427, 415 N.W.2d at
541. The weight given to each factor is
within the sentencing court's discretion.
Cunningham v. State, 76 Wis.2d 277, 282, 251 N.W.2d 65,
67-68 (1977).
Thom does not argue that
the sentencing court failed to consider these factors. Instead he claims that the sentencing court
should impose the minimum term of custody consistent with these factors. State v. Krueger, 119 Wis.2d
327, 336, 351 N.W.2d 738, 743 (Ct. App. 1984) (citing McCleary v. State,
49 Wis.2d 263, 276, 182 N.W.2d 512, 519 (1971)). Thom claims that the fifteen-year imposed and stayed sentence
exceeds the minimum term necessary to conform to the sentencing factors.
Thom was convicted of a
Class B felony which carries a potential maximum sentence of twenty years. Section 939.50(3)(b), Stats., 1991-92. The Presentence Investigator recommended a
five-year prison term and the State concurred.
Thom suggested probation with conditions rather than prison, to avoid
further emotional and financial hardship for his family.
The trial court was
persuaded by the reasons supporting Thom's sentencing recommendation and, upon
consideration of the primary sentencing factors, it tailored a sentence
designed to control Thom for a lengthy period of time. The trial court sought to maintain Thom's
family unit through participation in counseling and allowing Thom to work. However, it was concerned that Thom could
"mess this up." To accomplish
these objectives, the trial court imposed a lengthy term of probation, followed
by a lengthy, stayed sentence. Thom has
not persuaded us that the sentence imposed and stayed by the trial court is
excessive, inconsistent with the sentencing factors, or an erroneous exercise of
discretion.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[2] The verbatim "confession" (hereinafter referred to as "statement") was: "[i]n my heart I know I did it, but I don't remember doing it. Drank enough. Only one time, that could have done it, and not remember that much about it.... On May 15, drinking after work, came home drunk, got [my daughter] ready for bed. She crawled in bed with me, [describes specific sexual contact] . . . The only time it can happen, could have happened, can happen."