from actual coercive behavior, the government must show both that the subsequent confession was voluntary and that there was a break in the chain of events establishing that the second confession was not caused by the first.
This argument rests on a misreading of that opinion. Elstad focuses on the appropriate presumption to apply when the initial confession is inadmissible due solely to a violation of Miranda. It holds that, in such cases, the usual presumption that the subsequent confession is tainted by the coercive effect of the initial one -- and is therefore involuntary and inadmissible -- should not apply. It also notes, however, that "when a prior statement is actually coerced, the time that passes between confessions, the change in place of interrogations, and the change in identity of the interrogators all bear on whether that coercion has carried over into the second confession." Id. 470 U.S. at 310. In other words, where the initial interrogation violates the Fifth Amendment, "a passage of time or break in events [is required] before a second, fully warned statement can be deemed voluntary." Id. at 318 (emphasis added).
Thus, Elstad confirms (albeit in dicta) that, in the successive confession context, "voluntariness" analysis controls: The court must determine whether, in light of all of the events between the initial and the subsequent confessions, the latter was truly voluntary. That is precisely what this court ruled when it stated that "an evidentiary hearing [was] necessary to determine whether, in light of the events preceding [Wilson's] inculpatory statements to the police -- most significantly, the coercive scene outside the tavern and the giving of the Miranda warnings at the police station -- the inculpatory statements used against [Wilson] at trial were voluntary." Wilson, 682 F. Supp. at 950.
Magistrate Bucklo abided that ruling when addressing Wilson's statement to Officer Dubois. She looked to the passage of time, change in location, difference in interrogators, and, most importantly, Wilson's waiver of his right to remain silent
in concluding that Wilson's statement to Officer Dubois was voluntary and therefore properly admitted at trial.
Wilson, however, maintains that the statement to Officer Dubois was inadmissible because without the earlier statements at the tavern the officer would not have been able to obtain the subsequent one. But, even assuming that Wilson is right as a matter of fact, this argument falters on its legal conclusion. For, as noted above, the Supreme Court has long rejected a "but for" approach to successive confession cases. See also Brown v. Illinois, 422 U.S. 590, 603, 45 L. Ed. 2d 416, 95 S. Ct. 2254 (1975). Instead, a subsequent confession, even one causally related to an unlawful obtained earlier one, will be admissible if the taint of the first has been so dissipated by intervening events that the "facts of one [do not] control the character of the other." Holleman v. Duckworth, 700 F.2d at 396.
Here, all of the relevant factors militate in favor of the admissibility of Wilson's statement to Officer Dubois. Wilson received the Miranda warnings and waived them; the two interrogations were separated by several hours; the second interrogation occurred at the police station, far removed from the coercive setting outside the tavern; and the second interrogation was conducted by officer Dubois, not Deputy Sheriff Hudson (or the private individuals who actually did the questioning outside the tavern). Accordingly, this court affirms the magistrate's ruling that Wilson's statement to Officer Dubois was admissible at trial.
When the magistrate turned to Wilson's statements to ASA Gainer, she determined that it was not voluntary, and therefore was improperly admitted at trial, because, being merely a confirmation of what Wilson had earlier said outside the tavern, it "was clearly a result and the fruit of the first." Wilson, slip op. at 8 (quoting Brown v. Illinois, 422 U.S. at 605). Here, this court disagrees slightly with the magistrate's reasoning.
The fact that the statement to ASA Gainer was nothing more than a confirmation of an unlawfully obtained statement does not mean that Wilson made the later statement involuntarily. On the contrary, Wilson made this statement after his statement to Officer Dubois, and after again being apprised of his Miranda rights. Given that the statement to Officer Dubois was voluntary, there is no question that the statement to ASA Gainer was voluntary as well.
Nevertheless, Wilson's statement to ASA Gainer should not have been admitted at trial. This is so not because it was involuntary, but because it was offered solely for the purposes of bringing in Wilson's statements outside the tavern. Indeed, the subsequent statement had probative value only to the extent that the earlier statements did. Because this court has already ruled that the statements outside the tavern were inadmissible, a later statement confirming that they were made should not have been admitted either. (Had Wilson gone further and admitted to ASA Gainer that the earlier statements were true, then his statement would be a new admission, and thus admissible.)
Although Magistrate Bucklo, like this court, found that Wilson's statement to ASA Gainer was improperly admitted at his state court trial, she held that this error did not require that the writ issue here. Citing Seventh Circuit precedent holding that "constitutionally obtained confessions may render previous confessions harmless error," Robinson v. Percy, 738 F.2d 214, 220 (7th Cir. 1984), she determined that the harmless error doctrine applied in this case. She then found that the doctrine precluded issuing the writ here because the State had proved beyond a reasonable doubt that, even without the statement to ASA Gainer, the trial court would have rendered a guilty verdict. See United States ex rel. Savory v. Lane, 832 F.2d 1011, 1019-20 (7th Cir. 1987). Although this court questions the magistrate's finding that Wilson's statement to ASA Gainer was harmless, the court need not pursue this matter further, for the magistrate's ruling contains a more fundamental defect.
In Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967), the Supreme Court held for the first time that some constitutional errors at trial could be considered harmless, so that convictions at trials infected with such errors do not require reversal if the State can "prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Id. at 24. Since that ruling, the Court has applied the harmless error doctrine to "a wide variety of constitutional errors," Rose v. Clark, 478 U.S. 570, 578, 92 L. Ed. 2d 460, 106 S. Ct. 3101 (1986), and today the harmless error doctrine is not the exception but the rule. Id. at 578; Satterwhite v. Texas, 486 U.S. 249, 108 S. Ct. 1792, 1797, 100 L. Ed. 2d 284 (1988).
Nevertheless, the Court has repeatedly recognized, as it did in Chapman, "that some constitutional errors require reversal without regard to the evidence in the particular case." Rose, 478 U.S. at 577. In Chapman, the Court listed three examples:
Payne v. Arkansas, 356 U.S. 560 [2 L. Ed. 2d 975, 78 S. Ct. 844] (1958) (coerced confessions); Gideon v. Wainwright, 372 U.S. 335 [9 L. Ed. 2d 799, 83 S. Ct. 792] (1963) (right to counsel); Tumey v. Ohio, 273 U.S. 510 [71 L. Ed. 749, 47 S. Ct. 437] (1927) (impartial judge).
Chapman, 386 U.S. at 23 n. 8. Although the latter two exceptions are readily explained by the fact that they so infect the trial process that it is impossible to determine the scope of their effect on the trial, e.g., United States ex rel. Thomas v. O'Leary, 856 F.2d 1011, 1017-18 (7th Cir. 1988), the basis for the coerced confession exception is less clear.
Originally, this exception seemed justified by the potentially devastating impact of a confession on the jury. 3 Lefave & Israel, Criminal Procedure § 26.6 at 277 (1984). In Milton v. Wainwright, 407 U.S. 371, 33 L. Ed. 2d 1, 92 S. Ct. 2174 (1972), however, the Supreme Court held that the admission of a confession obtained in violation of the Sixth Amendment right to counsel could be harmless. Since a confession obtained in this way will be at least as damaging to the defendant as a coerced confession, Milton undermines that explanation for the coerced confession exception. United States ex rel. Thomas v. O'Leary, 856 F.2d at 1018-19 n.2.
Nevertheless, in the years since Milton the Supreme Court has repeatedly qcited the coerced confession exception as extant, see Rose, 478 U.S. at 577, United States v. Hasting, 461 U.S. 499, 508 n. 6, 76 L. Ed. 2d 96, 103 S. Ct. 1974 (1983); Connecticut v. Johnson, 460 U.S. 73, 81, 74 L. Ed. 2d 823, 103 S. Ct. 969 (1983),
and in Rose the Court explained it on the ground that a coerced confession "abort[s] the basic trial process." Rose, 478 U.S. at 578 n. 6. The Seventh Circuit has never ruled otherwise -- Robinson v. Percy, supra, involved a Sixth Amendment violation -- and this court has no authority to do so here.
As noted above, this court already has found both that the questioning outside the tavern amounted to a custodial interrogation and that the interrogation involved coercive behavior on the part of Deputy Sheriff Hudson and those who participated with him. This court has also determined that Wilson's statement to ASA Gainer should not have been admitted at trial because the statement was used for the purpose of presenting to the court the involuntary statements Wilson made outside the tavern. Given this resolution of those issues, and the fact that the improper admission of involuntary inculpatory statements can never be harmless error, this court must reverse the magistrate's ruling.
Of course, the fact that this court will grant Wilson's petition for a writ of habeas corpus does not mean that Wilson is innocent. It means, however, that he is again presumed to be innocent. The State might well choose to retry, and will be given an opportunity to do so. See Walberg v. Israel, 766 F.2d 1071, 1078 (7th Cir. 1985).
The magistrate's ruling denying Wilson's petition for a writ of habeas corpus is reversed. The writ will therefore issue, and the state is ordered to release Wilson in one hundred and twenty (120) days unless it has initiated a new trial within that time.
DATE: March 27, 1989