STATE v. AGNELLO

(Reversing and remanding 218 Wis.2d 829 (table), 581 N.W.2d 593 (Ct.App. 1998).)

Slip op. at 3-4 (Fine, J., concurring).

¶ 58. I agree with Judge Fine that Agnello's testimony was admissible to demonstrate Agnello's lack of credibility as a witness. It can be inferred from the context of the prosecutor's questions that they were designed to impeach Agnello by showing the inconsistencies between his direct examination statements and his cross examination statements. Immediately before the cross examination questions at issue, Agnello was asked during his direct examination why he had signed the confession. Agnello replied, "Because I was there for so long I was tired. They told me that I was never going [to] step foot on the outside again so I signed it and hoped everything would be over." Tr. at 90. Understandably, the prosecutor then attempted to impeach Agnello by eliciting testimony that would demonstrate that Agnello had other motives for signing his confession. When viewed in context, it is clear that the question asked by the prosecutor near the beginning of cross examination, "And you [signed the statement] because what is in the statement is true; is that correct," Tr. at 90, for example, was intended to get at why Agnello signed the confession, not whether the confession was true. Indeed, Agnello's answer reveals that he himself interpreted the question in this way; he answered, "No. Because I was extremely tired and scared." Tr. at 90.

See Wis. Stat. § 906.11(2), which provides in part, "A witness may be cross-examined on any matter relevant to any issue in the case, including credibility."

¶ 59. Moreover, a circuit court may examine the manner in which a witness answers questions to resolve a witness's contradictory statements. See State v. Owens, 148 Wis.2d 922, 930, 436 N.W.2d 869 (1989). There is no question that the circuit court viewed the exchange at issue as relevant to Agnello's credibility. See Tr. at 91.

¶ 60. The transcript of the Miranda-Goodchild hearing shows that the circuit court did not consider the confession's truthfulness in its voluntariness determination. Therefore, the circuit court did not violate the rule of Rogers and Jackson in determining that the confession was voluntary. See U.S. v. Kreczmer, 636 F.2d 108, 110-11 (5th Cir. 1981); Gilreath v. Mitchell, 705 F.2d 109, 110 (4th Cir. 1983). Although the court found Agnello's testimony to lack credibility, it is not true, as the majority contends, that the line of questioning at issue "played a sizable role in the circuit court's ruling," majority op. at 14, or that "the transcript reveals that the only times Agnello's memory could be categorized as selective were when the prosecutor sought information related to the truthfulness of his confession." Majority op. at 14. The circuit court based its judgment as to Agnello's credibility on several factors. The court never indicated the weight that it gave Agnello's "selective memory" in its credibility assessment, much less whether it "played a sizeable role" in that assessment. Arguably, the numerous differences between Agnello's testimony and the testimony of police detectives played the largest role in the circuit court's determination of credibility. Almost all of these discrepancies in testimony arose in portions of the hearing other than the questioning at issue.

The circuit court state:

[I]n my judgment the police officer and detective witnesses in this case outweigh in the credibility contest. Mr. Agnello had very little credibility when he testified on his own behalf as evidenced by the manner in which he testified. As evidenced by his very selective memory in this case and also as evidenced by his past criminal history which is in the record through the statement which is in the record here itself which casts some doubt on his own credibility. And also his credibility with respect to his position that he did in fact request a lawyer is contradicted by the fact that he signed a waiver and that he gave a statement and signed the statement at various points.

Tr. at 169-70. The court also stated that it didn't "buy" Agnello's testimony that Detective Olson put pressure on his hands during questioning because Olson had testified otherwise. Id. at 171.

Four examples illustrate the pervasiveness in the record of discrepancies between Agnello's testimony and that of the detectives. First, Agnello testified that Detectives Burems and Moore came into the interrogation room about three to five minutes after he got there and questioned him all night, but Moore testified that the questioning began at 6:00 a.m. and lasted until 8:20 a.m., and that before that, Agnello was in the interview room alone and had the opportunity to sleep. See Tr. at 81-82, 151-53, 155. Second, Agnello testified that none of the detectives informed him of his Miranda rights, whereas Detectives Moore and Temp both testified that Agnello had received his rights and Temp indicated that Agnello had signed a written waiver (later admitted into evidence). See Tr. at 6, 8, 83, 86, 152. Third, Agnello claimed that Detective Olson grabbed or pressed on his hands several times during questioning, but both Olson and Temp testified that neither of them had ever touched Agnello's hands. See Tr. at 89, 144, 148-49. Finally, Agnello testified that he had requested a lawyer several times and had either been ignored or denied a lawyer by all detectives, while Moore, Temp, and Olson all testified that Agnello never once asked for an attorney. See Tr. at 20, 83-84, 86, 94-95, 148-49, 153.

¶ 61. In sum, I would hold that Agnello's objection failed because it lacked the specificity and timeliness required by Wis. Stat. § 901.03(1) (1995-96). The context of this case did not create an environment where the grounds for the objection were obvious. In addition, the objection was a general objection and the testimony elicited was admissible for purposes other than the confession's truthfulness. Therefore, I conclude that Agnello's objection was insufficient to preserve the Rogers and Jackson issue for appeal.

III.

¶ 62. The majority concludes that this court should require the State to prove that a defendant's confession was voluntary by a preponderance of the evidence. See majority op. at 17. I disagree. I see no reason to depart from the long line of precedent establishing the rule that the State must prove voluntariness beyond a reasonable doubt.

¶ 63. First, contrary to the majority's view, Wisconsin has long used a reasonable doubt standard to determine voluntariness. In State ex rel. Goodchild v. Burke, 27 Wis.2d 244, 264-65, 133 N.W.2d 753 (1965), this court announced that "[t]he state shall have the burden of proving voluntariness beyond a reasonable doubt." Following Goodchild, this court has consistently held that the State's burden in proving voluntariness is beyond a reasonable doubt. See, e.g., State v. Mitchell, 167 Wis.2d 672, 696, 482 N.W.2d 364 (1992); Owens, 148 Wis.2d at 933-34; Johnson v. State, 75 Wis.2d 344, 352, 249 N.W.2d 593 (1977); Blaszke v. State, 69 Wis.2d 81, 86, 230 N.W.2d 133 (1975); Norwood v. State, 74 Wis.2d 343, 363, 246 N.W.2d 801 (1976); State v. Hernandez, 61 Wis.2d 253, 258, 212 N.W.2d 118 (1973).

As the majority recognizes, State v. Albrecht, 184 Wis.2d 287, 301, 516 N.W.2d 776 (Ct.App. 1994), misstated the law at the time when it held that the State must prove voluntariness by a preponderance of the evidence. See majority op. at 180 n. 11. Albrecht incorrectly relied on State v. Rewolinski, 159 Wis.2d 1, 16 n. 7, 464 N.W.2d 401 (199)), a case which set forth a preponderance standard as the burden of proof in a Fourth Amendment search and seizure suppression hearing.

¶ 64. In order to remain faithful to the doctrine of stare decisis, this court should adhere to this long line of cases. Just last year, this court expounded on the importance of stare decisis, stating that application of the doctrine "is the preferred course." State v. Ferron, 219 Wis.2d 481, 504, 579 N.W.2d 654 (1998) (quoting Payne v. Tennessee, 501 U.S. 808, 827 (1991)). When established legal precedent "is open to revision in every case, `deciding cases becomes a mere exercise of judicial will, with arbitrary and unpredictable results.'" Citizens Utility Bd. v. Klauser, 194 Wis.2d 484, 513, 534 N.W.2d 608 (1995) (Abrahamson, J., dissenting) (citation omitted). Consequently, this court has held that "any departure from the doctrine of stare decisis demands special justification." Ferron, 219 Wis.2d at 504 (quoting Arizona v. Rumsey, 467 U.S. 203, 212 (1984)). The majority has failed to provide any "special justification" for its abandonment of the Wisconsin precedent in this area.

¶ 65. The fact that the United States Supreme Court has ruled that voluntariness need only be proved by a preponderance of the evidence, see Lego v. Twomey, 404 U.S. 477, 489 (1972), does not provide the "special justification" necessary for this court to cast aside Wisconsin's well-settled rule that voluntariness must be proved beyond a reasonable doubt. As the Court recognized in Lego, "Of course, the States are free, pursuant to their own law, to adopt a higher standard. They may indeed differ as to the appropriate resolution of the values they find at stake." Lego, 404 U.S. at 489. The United States Supreme Court specifically recognized that Wisconsin, in Goodchild, had already resolved the question differently. Id. at 479 n. 1, 489 n. 17. In Goodchild, this court carefully considered the appropriate procedure for voluntariness determinations in Wisconsin, taking the Wisconsin Constitution into account. See Goodchild, 27 Wis.2d at 258-265. We adopted the "orthodox procedure," and in doing so, determined that the State must prove voluntariness beyond a reasonable doubt. Id. at 264-65. This court may afford greater protection to a person's liberties under the Wisconsin Constitution than is afforded by the federal constitution and we have done so in the past. See State v. Hansford, 219 Wis.2d 226, 241, 580 N.W.2d 171 (1998); Hoyer v. State, 180 Wis. 407, 415, 193 N.W.2d 89 (1923); Carpenter v. Dane County, 9 Wis. 249, 251 (1859). To the extent that the decision in Goodchild was based upon the Wisconsin Constitution, it is not affected by Lego, which was decided under the federal constitution. See Hansford, 219 Wis.2d at 241.

¶ 66. Further, the majority offers no sound rationale as to why this court should forgo over thirty years of precedent merely to "align the burden in voluntariness determinations with the burdens of other pre-trial constitutional inquiries." Majority op. at 17. Although both the majority and the court of appeals cite several cases involving Miranda inquiries in which a preponderance of the evidence standard was applied, see majority op. at 17, slip op. at 8-9, it is well-settled law that a Miranda inquiry is entirely different from a voluntariness inquiry, even though a court may conduct both inquiries in the same hearing. See Roney v. State, 44 Wis.2d 522, 534, 171 N.W.2d 400 (1969). As we stated in Roney, "A confession can be constitutionally antiseptic under Miranda in that it arises neither from interrogation nor custody, but can be involuntary because of coercive circumstances to which the police are not parties. Accordingly, the satisfaction of the Miranda rule does not ipso facto satisfy the question of voluntariness. . . ." Id. at 533. The Miranda rule is a prophylactic, judicially created rule which "may be triggered even in the absence of a Fifth Amendment violation," Oregon v. Elstad, 470 U.S. 298, 306-07 (1985), while the requirement that a confession must be voluntary derives directly from the Fifth Amendment itself. As such, this court's holdings as to the burden of proof in one inquiry should not affect the other.

The Fifth Amendment provides: "No person . . . shall be compelled in any criminal case to be a witness against himself." The Fourteenth Amendment requires states to recognize the Fifth Amendment privilege against self-incrimination. Malloy v. Hogan, 378 U.S. 1, 3 (1978). Article I, section 8 of the Wisconsin Constitution also prohibits compelled self-incrimination.

Recently, this court held that the State must bear the burden of proof on the issue of "custodial interrogation" in a Miranda inquiry. See State v. Armstrong, 223 Wis.2d 331, 347 (1999). We based our holding in part on the fact that the burden in voluntariness determinations is on the State. See id. at 346-47. Allocation of the burden of proof presents a very different issue than determining the substantive standard of proof, however. Also, this court had never decided previously to Armstrong which party bore the burden of establishing the occurrence of a "custodial interrogation." Id. at 345. In contrast, there is a line of cases stretching back over thirty years holding that the State must prove voluntariness beyond a reasonable doubt.

¶ 67. In contrast, there is good reason, beyond adherence to the doctrine of stare decisis, for maintaining the higher burden of proof: often, the only strong evidence the State may have in a case is the defendant's confession. Without that evidence, the State most likely will not prosecute the case. Cases such as Rogers and Jackson protect a defendant from coercive tactics that might be used to secure a confession, by requiring that a court find that any confession that was obtained through impermissibly coercive tactics was an involuntary one and should be suppressed. Maintaining the burden at beyond a reasonable doubt holds the State to a higher level of accountability and scrutiny.

¶ 68. Accordingly, I conclude that this court should not lower the State's burden relating to voluntariness determinations because it would overturn over thirty years of precedent and because sound public policy supports maintaining the beyond a reasonable doubt burden. Despite the burden adopted by the court of appeals, because the circuit court properly applied the beyond a reasonable doubt standard, I conclude that the court of appeals' determination that Agnello's statement was a voluntary one should be affirmed.

IV.

¶ 69. Finally, I conclude that Agnello, at the Miranda-Goodchild hearing, adequately raised the issue of whether police tactics other than sleep deprivation impaired the voluntariness of his confession. Applying the appropriate standard of review, I would uphold the circuit court's determination that Agnello's statement was voluntary beyond a reasonable doubt.

¶ 70. Agnello argued on appeal that the police used improper tactics in questioning him, including: (1) handcuffing Agnello to the interrogation room wall; (2) lengthy questioning; (3) isolation; (4) sleep deprivation; and (5) food deprivation. Slip op. at 10-11. The court of appeals refused to consider any of these alleged tactics except sleep deprivation, holding that Agnello waived his right to raise the other tactics by failing to raise them at the circuit court level. I disagree.

¶ 71. During his Miranda-Goodchild hearing, Agnello made offers of proof regarding all of the allegedly coercive police tactics which he raises on appeal. Moreover, during his closing argument, counsel for Agnello argued that "I think the totality of the circumstances here also show that the confession itself was simply coercive circumstances." Tr. at 162 (emphasis added). While counsel for Agnello highlighted sleep deprivation as arguably the most egregious offense, he also preserved his right to raise on appeal other tactics used by specifying that the totality of the circumstances resulted in coercion.

Agnello testified that he was placed in an interrogation room and occasionally was handcuffed to its wall, that a detective grabbed his hand during questioning, that he was subjected to long periods of questioning, that he was threatened by police, that he received a hamburger, and that he was tired. See Tr. at 81-90.

Counsel for Agnello also specifically argued that the fact that police had "gone on so long with their questioning" contributed to the coercive circumstances. Id.

¶ 72. Next, I consider whether the circuit court properly found that Agnello's confession was voluntary. In determining whether a confession was voluntary a court must look at the totality of the circumstances in order to determine whether the defendant was the "victim of a conspicuously unequal confrontation in which the pressures brought to bear on him by representatives of the state exceed[ed] the defendant's ability to resist." State v. Clappes, 136 Wis.2d 222, 236, 401 N.W.2d 759 (1987) (quoting State v. Hoyt, 21 Wis.2d 284, 308, 128 N.W.2d 645 (1964)). The court must balance the defendant's personal characteristics against the tactics employed by the police in procuring the confession. Id. However, "in order to justify a finding of involuntariness, there must be some affirmative evidence of improper police practices deliberately used to procure a confession." Id. at 239. If there is no such affirmative evidence, the analysis ends; the confession is voluntary. Id. at 239-40, 245.

¶ 73. This court will not set aside the circuit court's findings of evidentiary or historical fact unless we determine that they are contrary to the great weight and clear preponderance of the evidence. Id. at 235. See also Norwood, 74 Wis.2d at 363-64. Consequently, any conflicts in the testimony regarding the circumstances surrounding the confession must be resolved in favor of the circuit court's findings. Norwood, 74 Wis.2d at 364; Clappes, 136 Wis.2d at 235. We review independently the application of constitutional principles to the circuit court's findings of fact. Clappes, 136 Wis.2d at 235.

¶ 74. In this case, the circuit court found "beyond a reasonable doubt under all of the circumstances" that Agnello's confession "was not coerced in any sense of the word." Tr. at 171. The court made a specific finding that the number of hours that Agnello was awake did not "constitute such undue fatigue as to render the statement involuntary." Tr. at 170-171. In addition, the court declined to accept as true Agnello's assertion that the police put pressure on his hand during questioning. Id. at 171. The court found the police officers' testimony more credible in general and also accepted the police detectives' version of events "over Mr. Agnello's version in this case under all the facts and circumstances that were elicited here." Id. at 169, 171. None of the police detectives testified to circumstances which even remotely could be characterized as coercive. Based on my review of the transcript, I conclude that these findings of the circuit court are supported by the great weight and clear preponderance of the evidence.

¶ 75. Because the circuit court properly found that no coercion existed, there is no need to balance Agnello's personal characteristics against the police tactics used. See Clappes, 136 Wis.2d at 236, 239-40, 245. The circuit court correctly determined that under the totality of the circumstances, Agnello's confession was voluntary.

I again note that the court of appeals also upheld the circuit court's determination that Agnello's confession was voluntary. See slip op. at 12.

¶ 76. To summarize, I conclude that Agnello waived his right to review of whether the prosecutor's line of questioning at the Miranda-Goodchild hearing violated his due process rights under the rule of Rogers and Jackson. Based on well-established Wisconsin precedent, I am convinced that the State must prove the voluntariness of a confession beyond a reasonable doubt. Further, I conclude that Agnello preserved his right to raise on appeal any police practices used during his questioning by specifying that the totality of the circumstances resulted in coercion. Finally, I find that the circuit court properly determined that Agnello's confession was voluntary. Accordingly, I would affirm the court of appeals.

¶ 77. For all of these reasons, I respectfully dissent.

¶ 78. I am authorized to state that Justice DONALD W. STEINMETZ and Justice JON P. WILCOX join this dissent.

¶ 31. N. PATRICK CROOKS, J. (dissenting).

I dissent because I conclude that Agnello waived his right to review of whether the prosecutor's line of questioning at the Miranda-Goodchild hearing violated his due process rights under the rule of Rogers v. Richmond, 365 U.S. 534 (1961), and Jackson v. Denno, 378 U.S. 368 (1964). Consistent with a long line of Wisconsin cases, I also conclude that the State must prove the voluntariness of a confession beyond a reasonable doubt at a Goodchild hearing. Further, I find that counsel for Agnello preserved his right to raise on appeal all police tactics used during questioning by specifically arguing that the totality of the circumstances resulted in coercion. Finally, I determine that the circuit court properly found that Agnello's confession was voluntary. Based on these conclusions, I would affirm the decision of the court of appeals.

Miranda v. Arizona, 384 U.S. 436 (1966); State ex rel. Goodchild v. Burke, 27 Wis.2d 244, 133 N.W.2d 753 (1995).

I.

¶ 32. The facts of this case are particularly crucial to its analysis. On the night of February 18, 1996, Agnello's foster father was found dead at the family home, having sustained gunshot wounds to his face and right shoulder. Shortly thereafter, Agnello was arrested in connection with the murder. He was taken to the police station between midnight and 1:00 a.m. on February 19, 1996.

¶ 33. According to Agnello, when he reached the station he was placed in "a 10 x 15 foot room with three chairs and one desk." Hearing Tr., Apr. 19, 1996 at 81 [hereinafter "Tr."]. Agnello was handcuffed to a wall whenever police officers were not in the room. It appears from the record that Agnello was seated while handcuffed. Agnello testified that whenever police officers were not in the room, he was permitted to sleep, and did so. See Tr. at 85, 89-90.

The record does not directly state that Agnello was seated while he was handcuffed. However, police officers testified at the Miranda-Goodchild hearing that Agnello was seated during questioning. In addition, Agnello testified that he slept whenever the police officers left the room, at which time he was handcuffed.

¶ 34. According to the testimony of police officers at the Miranda-Goodchild hearing, Agnello sat alone in the interrogation room and had the opportunity to sleep until Detectives Moore and Burems entered at 6:00 a.m. Detectives Moore and Burems questioned Agnello from 6:00 a.m. to 8:20 a.m., taking several short breaks. Moore testified at the hearing that Detective Burems advised Agnello of his rights at 6:00 a.m. and that Agnello never asked for an attorney or exercised his right to remain silent. According to Moore, Agnello did not seem tired nor did he complain of fatigue. Agnello did not request any convenience item or bathroom break. Agnello testified that he was able to drink water and sleep when the detectives occasionally left the room. Agnello recalled that he fell asleep when the session was over.

As the majority notes, Agnello's version of events differs from the police officers' version on several points, including the time at which he was first questioned. See majority op. at 168 n. 3. The circuit court found the police officers to be more credible, in general, than the defendant. See Hearing Tr., Apr. 19, 1996 at 169, 171 [hereinafter "Tr."].

¶ 35. Agnello awoke when two new detectives, Detectives Temp and Olson, entered the interrogation room. Detectives Temp and Olson questioned Agnello from 10:15 a.m. to 3:20 p.m., with breaks stretching from 11:40 a.m. to 1:15 p.m. and from 2:00 p.m. to 2:50 p.m. Temp testified at the Miranda-Goodchild hearing that at the start of the interview, he advised Agnello of his Miranda rights. Agnello replied that he understood his rights and waived them by initialing a written waiver statement. According to Temp, Agnello never requested a lawyer or asserted a right to silence.

¶ 36. Temp stated that Agnello was given "whatever he requested" in regard to convenience items. Tr. at 10. According to Temp, Agnello requested and received a hamburger, almost a full package of cigarettes, two bathroom breaks, five cups of coffee, and water. Agnello's testimony substantially corroborates this.

Agnello's testimony differed slightly from Temp's in that he stated that he thought he had taken only one bathroom break. See Tr. at 88.

¶ 37. Temp testified that both he and Olson were unarmed during questioning and that Agnello was unhandcuffed and was free to walk around the interrogation room. According to Temp, neither detective ever threatened Agnello, used physical force, or employed coercive tactics. Agnello, on the other hand, testified that Olson grabbed his hands several times, causing pain. Olson denied ever touching Agnello's hands.

¶ 38. According to Temp, Agnello appeared to be sober, alert, and attentive throughout the questioning. While Temp was present, Agnello never slept or complained of being tired. Olson and Temp left the room intermittently, and Agnello slept during those periods.

¶ 39. Detective Olson wrote out Agnello's statement, in which he confessed to killing his foster father. Agnello claimed that he could not read the statement because he was not wearing his glasses and was tired, so Olson read the statement to him. Olson went over the statement with Agnello on a line-by-line basis. Any inaccuracies were crossed out and Agnello initialed the statement as it was read to him. At the end of the statement, Agnello wrote, "this is all true," and signed the statement. Tr. at 89.

¶ 40. Agnello was charged with first degree intentional homicide as a party to the crime. Agnello moved to suppress his statement on the basis of a claimed denial of counsel, and further, alleged that his confession was not voluntary.

¶ 41. The court held a Miranda-Goodchild hearing to consider Agnello's motion. During the hearing, the prosecutor elicited a line of testimony from Agnello (reproduced in full below) which Agnello now claims impermissibly pertained to the truthfulness of the confession. As the quoted portion of the transcript indicates, defense counsel objected to only one of the questions, stating that the information sought was not "relative." Tr. at 91. The parties agree, as the majority noted, that the objection was intended to be a relevancy objection. See Majority op. at 4 n. 6. The circuit court overruled the objection, finding that the information was relevant in assessing Agnello's credibility.

Following is the relevant portion of the transcript:

PROSECUTOR: Sir, you signed the statement at the end and you wrote down the words, "this is true"; is that correct?

AGNELLO: I wrote down the words?

Q. Answer my question. Did you write it down?

A. Yes, I was told to.

Q. And you wrote down, "this is true," and you signed it; is that right?

A. Yes, I was told to.

Q. And you did that because what is in the statement is true; is that correct?

A. No. Because I was extremely tired and scared.

Q. The fact that you told them that the shotgun was in the attic of Mr. Stream's house, you told them that; is that correct?

A. Doesn't say that in the report.

Q. You're going to have to answer my questions. Did you tell them that?

A. In the report it says I did.

Q. I would ask that you instruct that he answer the question.

THE COURT: You have to listen to the question very carefully and answer the question that's asked.

Q. You told them that the shotgun was in Mr. Stream's attic; is that correct?

A. Yes.

Q. And you also told them that you and Mr. Stream had planned on this killing; is that correct?

A. I don't quite remember that.

Q. You could have told them that? You don't remember telling them that?

A. I don't remember that.

Q. But you and Mr. Stream had planned this killing; is that correct?

DEFENSE COUNSEL: I object, your Honor. I don't think that is relative [sic] to the purposes of this hearing.

THE COURT: That goes to his credibility. Answer the question.

A. Can you restate the question?

Q. Yes. You and Mr. Stream planned this killing; is that correct?

A. To the best of my knowledge, no.

Q. To the best of your knowledge, no?

A. It happened quite a while ago, and I've been through a lot of trauma.

Q. So you don't remember if you and Mr. Stream planned this killing, is that correct? Is that fair?

A. I don't remember.

Q. And you had bought the shotgun that did the killing; is that correct?

A. That's correct.

Q. And you gave it to Mr. Stream; is that correct?

A. Yes.

Q. And you told Mr. Stream you wanted your stepfather killed; is that correct?

A. I don't remember.

Q. You don't remember?

A. The exact words.

Q. Can you give me the approximate words that you might have used to Mr. Stream?

A. I can't really remember.

Q. But you and Mr. Stream had planned the killing; is that correct — even though you don't remember the exact words — is that right?

A. As far as I remember we didn't plan it.

Q. You asked Mr. Stream to kill your stepfather though; is that correct?

A. As far as I remember I didn't.

Q. But it's possible you could have but you just don't remember today; is that right?

A. Could you say that over?

Q. Sure. It's possible you could have asked Mr. Stream to kill your stepfather, you just don't remember that today; is that right?

A. Possible.

Q. And Mr. Chandler indicated that and you indicated that you read the statement in front of you; is that right?

A. Excuse me?

Q. Mr. Chandler asked you the question, do you remember reading or reviewing prior to testifying today the statement in front of you; is that correct?

A. Mr. Olson read it to me. That was the only time that I actually heard what was on the paper.

Q. And you remember what Mr. Olson read; is that right?

A. Not exactly, no.

Q. But you remember the gist or basically what Mr. Olson read to you; is that right?

A. The basic, yeah.

Q. And that was basically true; is that correct?

A. I wouldn't go as far as basically true, no.

Q. But pretty much true. There are facts in there that are true; is that correct?

A. There might have been.

Q. You don't remember?

A. Not that good.

Tr. at 90-94.

¶ 42. At the close of the hearing, the circuit court found that Agnello's testimony lacked credibility. The court found that, beyond a reasonable doubt, Agnello had been fully advised of his rights and had waived them. The judge concluded:

And so I do find beyond a reasonable doubt under all of the circumstances that have been testified [to] here today as far as Mr. Agnello's statement to the police is concerned that that statement was made by the defendant as a voluntary product of a free will and that it was his own deliberate choice to make that statement, and that it was not coerced in any sense of the word.

Tr. at 171. Following the hearing, Agnello pleaded guilty to first degree intentional homicide, party to a crime, and was sentenced to life in prison.

¶ 43. The court of appeals affirmed Agnello's conviction. First, the court of appeals concluded that Agnello waived his right to argue on appeal that the circuit court committed constitutional error under Rogers and Jackson by permitting the prosecutor to cross-examine Agnello regarding the truth or falsity of his confession. The court of appeals reasoned that defense counsel's relevancy objection "failed to present the trial court with any information concerning either Rogers or Jackson," State v. Agnello, No. 96-3406-CR, unpublished slip op. at 6 (Wis.Ct.App. Mar. 10, 1998), and that Agnello "failed to develop the argument he now makes on appeal beyond a general claim that the evidence was irrelevant." Id. at 6.

¶ 44. Second, the court of appeals upheld the circuit court's finding that Agnello's confession was voluntary. Id. at 8. The court noted that the State must prove a confession voluntary by a preponderance of the evidence. Id. The court rejected Agnello's argument that improper police practices rendered his confession involuntary. Id. at 10. The court held that Agnello waived his right to argue on appeal that any allegedly improper police tactics except sleep deprivation rendered his confession involuntary because he failed to raise those issues before the circuit court. Id. As to the issue of sleep deprivation, the court of appeals upheld the circuit court's finding that Agnello was "not `unduly' or `unintelligibly' fatigued" because it was not clearly contrary to the great weight and clear preponderance of the evidence. Id. at 11-12 (quoting Tr. at 170-71).

In support of this proposition, the court cited State v. Santiago, 206 Wis.2d 3, 28-29, 556 N.W.2d 687 (1996); State v. Jones, 192 Wis.2d 78 114a, 532 N.W.2d 79 (1995) ( per curiam on motion for reconsideration); State v. Rewolinski, 159 Wis.2d 1, 16 n. 7, 464 N.W.2d 401 (1990); State v. Albrecht, 184 Wis.2d 287, 301, 516 N.W.2d 776 (Ct.App. 1994); and State v. Lee, 175 Wis.2d 348, 362-64, 499 N.W.2d 250 (Ct.App. 1993).

¶ 45. Judge Fine filed a concurring opinion in which he explained that Agnello's testimony was admissible for purposes other than the confession's truthfulness, such as "to gauge the veracity" of the defendant and to determine why the defendant signed the confession. Slip op. at 3-4 (Fine, J., concurring). According to Judge Fine, Rogers does not prohibit such testimony; rather, Rogers only precludes courts from holding that a confession is voluntary simply because it is true. Id. at 3.

II.

¶ 46. The first issue is whether Agnello's single relevancy objection was sufficient to preserve his right to argue on appeal that the above-quoted line of questioning by the prosecutor violated Agnello's due process rights under Rogers and Jackson. Based on my review of the record, I conclude that Agnello waived his right to raise this issue on appeal because his sole objection lacked the specificity and timeliness required by Wisconsin law.

¶ 47. The majority correctly stated that "[t]he necessity of lodging an adequate objection to preserve an issue for appeal cannot be overstated." Majority op. at 7. Wisconsin Stat. § 901.03(1) requires that an objection be both specific and timely in order to preserve a challenge to admitted evidence for appeal. It states:

All references to the Wisconsin Statutes are to the 1995-96 version, unless otherwise indicated.

(1) Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected; and

(a) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; . . .

§ 901.03(1) (emphasis added). Specific and timely objections are required to allow the circuit court and/or opposing counsel to correct their own errors and "avoid the raising of issues on appeal for the first time." Bavarian Soccer Club, Inc. v. Pierson, 36 Wis.2d 8, 15, 153 N.W.2d 1 (1967). See also In re Interest of Corey J.G., 215 Wis.2d 395, 405, 572 N.W.2d 845 (1998). The United States Supreme Court has acknowledged that rules requiring adequate objection at the trial court level, which the Court referred to as "contemporaneous-objection rules," may "mak[e] a major contribution to finality in criminal litigation." Wainwright v. Sykes, 433 U.S. 72, 88 (1977). The Court stated that when a person charged with a crime is undergoing proceedings at the trial court level,

[t]o the greatest extent possible all issues which bear on this charge should be determined in this proceeding: the accused is in the courtroom, the jury is in the box, the judge is on the bench, and the witnesses, having been subpoenaed and duly sworn, await their turn to testify. Society's resources have been concentrated at that time and place in order to decide . . . the question of guilt or innocence of one of its citizens. Any procedural rule which encourages the result that those proceedings be as free of error as possible is thoroughly desirable, and the contemporaneous-objection rule surely falls within this classification.

Id. at 90. Even claims of constitutional right are waived by the failure to object adequately in the circuit court. State v. Gove, 148 Wis.2d 936, 940-41, 437 N.W.2d 218 (1989).

¶ 48. This court has held that an objection is sufficiently specific if it "reasonably advise[s] the court of the basis for the objection." Corey J.G., 215 Wis.2d at 405 (quoting State v. Peters, 166 Wis.2d 168, 174, 479 N.W.2d 198 (Ct.App. 1991)). See also State v. Wedgeworth, 100 Wis.2d 514, 528, 302 N.W.2d 810 (1981). "The cardinal principle is that a general objection if overruled cannot avail the objector on appeal." State v. Hoffman, 240 Wis. 142, 151, 2 N.W.2d 707 (1942). See also Holmes v. State, 76 Wis.2d 259, 271, 251 N.W.2d 56 (1977); Peters, 166 Wis.2d at 174. An objection on the basis of relevance, without more explanation, is a general objection. See Cornell v. Barnes, 26 Wis. 473, 480 (1870); State v. Boehm, 127 Wis.2d 351, 357, 379 N.W.2d 874 (Ct.App. 1985). See also 1 Wigmore on Evidence, § 18 (1988). To be timely, "an objection must be made as soon as the opponent might reasonably be aware of the objectionable nature of the testimony." Holmes, 76 Wis.2d at 272. See also West v. State, 74 Wis.2d 390, 401, 246 N.W.2d 675 (1976); Coleman v. State, 64 Wis.2d 124, 128, 218 N.W.2d 744 (1974); Bennett v. State, 54 Wis.2d 727, 735, 196 N.W.2d 704 (1972).

Other jurisdictions similarly have held that objections on the basis on relevancy alone are too general to preserve specific arguments for appeal. See, e.g., Rowland v. State, 561 S.W.2d 304, 310 (Ark. 1978); Singletary v. State, 390 S.E.2d 611, 612 (Ga.Ct.App. 1990); People v. Eyler, 549 N.E.2d 268, 289 (Ill. 1990); Gambill v. State, 479 N.E.2d 523, 526 (Ind. 1985); State v. Duran, 496 P.2d 1096, 1098 (N.M.Ct.App. 1972); State v. Kaiser, 504 N.W.2d 96, 102 (S.D. 1993); Wilson v. State, 541 S.W.2d 174, 175 (Tx.Crim.App. 1976).

¶ 49. Upon examination of the relevant portion of the transcript, I conclude that Agnello's objection did not meet the level of specificity and timeliness required by Wisconsin law. First, Agnello's objection lacked sufficient specificity. As the majority noted, Agnello argues on appeal that "the circuit court erred under Rogers v. Richmond, 365 U.S. 534 (1961), and Jackson v. Denno, 378 U.S. 368 (1964), by allowing the prosecutor to question Agnello about the truthfulness of his confession." Majority op. at 5. Agnello claims that his single, general relevancy objection preserved this issue for appeal. Agnello's objection, however, failed to alert the court to his underlying argument — the basis for the objection. See Corey J.G., 215 Wis.2d at 405. Agnello did not clarify why the evidence was irrelevant to the purposes of a Miranda-Goodchild hearing.

¶ 50. Relevance is too broad an evidentiary doctrine to be immediately associated with the truth or falsity of a confession. While evidence may be irrelevant at a Miranda-Goodchild hearing because, as Agnello argues, it goes to the truth or falsity of a the confession, see Lee v. Illinois, 476 U.S. 530, 547 n. 6 (1986), evidence may be irrelevant at such a hearing for any number of other reasons. As such, a relevancy objection, on its own, cannot reasonably be expected to give the court notice that it should consider whether the questions violate due process under the rule of Rogers and Jackson because they go to truth or falsity. Defense counsel did not make even the briefest mention of Rogers, Jackson, due process, truthfulness, voluntariness, or any other clarifying reference which might have alerted the circuit court, or opposing counsel, to the basis of the objection. Consequently, I conclude that the objection lacked the specificity required by Wis. Stat. § 901.03(1).

¶ 51. Similarly, I conclude that Agnello's objection was untimely. Defense counsel did not object to the prosecutor's first question which arguably related to truth or falsity of the confession. Likewise, he did not object to the second such question. Instead, defense counsel waited until the prosecutor had asked, and Agnello had answered, eleven questions that arguably regarded the confession's truth or falsity before lodging his objection. Even then, defense counsel objected to a question that only obliquely referred to the statement's truth — the question, "But you and Mr. Stream had planned this killing; is this correct?" Tr. at 91. Therefore, Agnello did not object "as soon as [he] might reasonably be aware of the objectionable nature of the testimony," as is required by Wisconsin law. Coleman, 64 Wis.2d at 129.

¶ 52. The majority concedes that the objection was "not stated with the utmost specificity," majority op. at 11, and that "[t]he addition of a short phrase, such as `the truthfulness of a confession has no bearing on voluntariness,' would have gone a long way to eliminate any confusion over the nature of the objection." Majority op. at 8. The majority concludes, however, that "the context of the objection and the status of the law in this area gravitate toward a conclusion that Agnello has preserved this issue for appeal." Majority op. at 8-9.

¶ 53. I disagree with the majority that the "context of the objection" suggested that Agnello's relevancy objection was in any way based on Rogers and Jackson. Rather, a close inspection of the transcript suggests precisely the opposite: that Agnello was not objecting to the questions which arguably violated the Rogers and Jackson rule. Defense counsel made the "relative" objection after the prosecutor asked, "But you and Mr. Stream had planned this killing; is this correct?" Tr. at 91. At best, this question might indirectly pertain to the truthfulness of Agnello's confession. Before and after this question, however, the prosecutor asked questions which arguably related much more obviously and directly to the truthfulness of the confession. For example, the prosecutor, after asking whether Agnello wrote "this is true" at the bottom of his confession, asked, "And you did that because what is in the statement is true; is that correct?" Id. at 90. Later, the prosecutor asked whether the statement was "basically true" and whether there were "facts in there that are true." Id. at 93-94. Curiously, defense counsel did not object to any of these questions. Under such circumstances, the circuit court judge could hardly be expected to connect Agnello's isolated objection to the Rogers and Jackson argument he now presents, without further specification.

¶ 54. The majority also argues that the common occurrence of Goodchild hearings coupled with the "lengthy calm in this area of the law," rendered the ground for the objection obvious. Majority op. at 9. I disagree. This case is not like Corey J.G., in which this court held that a party's statement, "I have one more motion. I would move to dismiss for lack of establishment of venue," Corey J.G., 215 Wis.2d at 403, was sufficiently specific because the basis for the objection was obvious. See id. at 407-408. In Corey J.G., the motion clearly stated the basis of the objection: venue. Id. at 407. The problem in Corey J.G. was that the circuit court judge failed to recognize that the issue of venue, when raised in a juvenile delinquency proceeding, required reference to the venue provisions of The Children's Code, Wis. Stat. ch. 48 (1993-94). Id.

¶ 55. In this case, in contrast, Agnello's objection did not inform the court of the basis of the objection: that truthfulness is not relevant to a voluntariness inquiry. See majority op. at 8. The circuit court judge did not have a chance to apply the law, however long it had been in place, because she was never "reasonably advise[d]" of the basis of the objection, as is required by Wisconsin law. Corey J.G., 215 Wis.2d at 407. See also Peters, 166 Wis.2d at 174.

¶ 56. The majority also seeks to justify its holding on the basis of the language of Lee v. Illinois, 476 U.S. 530, 547 n. 6 (1986), which states, "The truth or falsity of the statement is not relevant to the voluntariness inquiry. . . ." Majority op. at 10. The majority's reasoning ignores the underlying purpose of the rules requiring specific and timely objections. The question is not whether the United States Supreme Court has used the term "irrelevant" in describing evidence which goes to the truth or falsity of a confession. Rather, the question is whether the use of the objection "relative [sic]," Tr. at 91, by defense counsel was sufficient to "reasonably advise" the circuit court of the basis for the objection, allowing it to zero in on the source of the problem and remedy any defect. Corey J.G., 215 Wis.2d at 407. As has already been pointed out, evidence may be irrelevant for any number of reasons. This court should not use the language of Lee, and, with the benefit of hindsight, conclude that the objection here was sufficiently specific.

¶ 57. I am satisfied that Agnello's objection failed to exhibit the degree of specificity and timeliness necessary to preserve the Rogers and Jackson issue for appeal. In addition, I am convinced that, as Judge Fine recognized and the circuit court found, the testimony at issue was admissible for purposes other than proving the truthfulness of Agnello's confession. Judge Fine stated in his concurring opinion:

Neither Rogers nor any of its progeny, however, holds that inquiry into the circumstances surrounding the confession may not be had, as it was in this case, to gauge the veracity of a defendant who testifies as a witness at the suppression hearing. Thus, Agnello claimed that he signed the confession because he was allegedly "told to" and because he "was extremely tired and scared." How else is a prosecutor to challenge this testimony if not to posit that the real reason Agnello signed the confession was because he wanted to assuage his conscience by getting the matter off his chest?

In my view, the trial court accurately perceived the distinction between holding a confession to be voluntary because it is true (forbidden by Rogers and its progeny) and disbelieving a defendant/witness's claim that the confession was coerced because the trial court credits an alternate explanation as to why the defendant confessed — in the aftermath of the crime, he could not suppress his urge to tell the world about the bad things he did. [citation omitted.]