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COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED                                                                    This opinion is subject to further editing.   If
published, the official version will appear in
the bound volume of the Official Reports.
December 11, 2012
A party may file with the Supreme Court a
Diane M. Fremgen                                                                                                                                   petition to review an adverse decision by the
Clerk of Court of Appeals                                                                                                                          Court of Appeals.   See WIS. STAT. § 808.10
                                                                                                                                                   and RULE 809.62.
                                                                                                                                                   Cir. Ct. No.   2006CF70
Appeal No.                                                                         2011AP2557-CR
STATE OF WISCONSIN                                                                                                                                 IN COURT OF APPEALS
DISTRICT III
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
DOUGLAS G. HICKS,
DEFENDANT-APPELLANT.
APPEAL from a judgment of the circuit court for Oconto County:
MICHAEL T. JUDGE, Judge.   Affirmed.
Before  Hoover,  P.J.,  Mangerson,  J.,  and  Thomas  Cane,  Reserve
Judge.
¶1                                                                                 PER CURIAM.    Douglas Hicks appeals a judgment of conviction
for repeated sexual assault of the same child.   Hicks argues recorded telephone
statements he made to his victim were not voluntary and therefore should have




No.   2011AP2557-CR
been ruled inadmissible at trial.   Hicks also seeks a new trial in the interest of
justice.   We affirm.
BACKGROUND
¶2                                                                                          Following  a jury trial in  2007, Hicks was convicted of  repeated
sexual assault of Eric J.   In his first appeal, Hicks argued the trial court should
have  excluded  statements  he  made  during  a  telephone  call  with  Eric.    We
concluded Eric was acting as an agent of the police and “applied impermissibly
coercive tactics to get Hicks to make incriminating statements.”   State v. Hicks,
No.  2009AP3044-CR, unpublished slip op.  ¶7  (WI App Mar.  29,  2011).    We
therefore remanded for the trial court to conduct a full voluntariness balancing
analysis, as required by State v. Clappes,  136 Wis. 2d  222,  401 N.W.2d  759
(1987).   Hicks further argued in his first appeal that counsel was ineffective for not
objecting to inappropriate comments during the State’s closing argument.    We
determined  that  the  comments  were  improper,  but  that  counsel  nonetheless
exercised reasonable trial strategy.
¶3                                                                                          The State alleged Hicks performed oral sex on Eric at least three
times between June 1996 and April 1999.   Eric was eleven years old when the
assaults began.   Hicks was his stepfather.   Eric testified that Hicks assaulted him
between 100 and 120 times and that he first reported the assaults to his girlfriend
in December 2004.   He reported the assaults to police in April 2005.
¶4                                                                                          Investigator Dale Janus arranged a phone call between Eric—by then
an adult—and Hicks on February 6, 2006, with the goal of getting Hicks to admit
to the assaults.   Eric called from the police station, where Janus both recorded and
listened  during  the  call.    Janus  gave  Eric  instructions  and  advice  on  how  to
perform the call, including what to say so as to elicit incriminating statements.
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No.   2011AP2557-CR
While Janus did not instruct Eric to threaten Hicks, he told Eric  “there wasn’t
anything he could really say wrong.”
                                                                                   ¶5                                                                                     The phone call lasted forty-three minutes.   Hicks received the call on
                                                                                        his cell phone while driving in a company vehicle and attempting to train a new
                                                                                        employee.    Eric made various threats and promises throughout the                                                                                          call,   which
Hicks has categorized as follows:
Threats of death or bodily injury
“No you cannot talk to me later you’re going to talk to me
right fucking now.   If you don’t talk, if you hang up this
phone I know a lot of people who live on the south side of
Chicago  who  are  fucking  Russians,  fucking  ex-KGB
mother fuckers, alright, I think you understand where that
goes.”
“No, it doesn’t matter, it doesn’t matter.   Pull the fucking
car over or wherever the hell you are, you’re going fucking
talk to me about this right now, or you going to have like
maybe 30 days to live, alright.”
“The only way you’re going to keep your ass safe is by
telling me what I need to hear right now …”
“Yes, yes you are because it’s the truth and that’s the only
thing that’s going to keep you safe.”
“Tell me  that  you’re sorry… You  won’t  have  to worry
about me sending anyone after you, or have to worry about
me  finding  your  house  and  coming  after  you  with  a
baseball bat or any shit like that, just say it.”
General threats of negative consequences
“I need you to answer some things for me, or there’s going
to be a lot of problems for everyone.”
“No, I don’t believe you, the first second I think that you’re
not telling me the truth, it’s all going [to] be fucking done,
alright.”
“I know what the truth is and you’re trying to be a fucking
asshole about it, you’re going to tell the truth or [you’re]
going to go fucking down, you understand me, I hold all
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No.   2011AP2557-CR
the  fucking  power  cards  here  and  you’re  going  to  do
exactly what the hell I say.”
“Just  like  it’s  probably  going  to  get  you  fucked  up.
Because I think you know what happens to child molesters
in  prison  Doug  don’t  you.”                                     “They  make  it  like  three
months and then they’re dead.”
“It’s either going to be by their hand or by mine.”
“No, you’re going to say it right now, you’re going to say it
over the phone or it’s all going to be over.”
“[B]ut if you’re not going to play ball with me right now,
you’re going to get fucking screwed and that’s all it comes
down to.”
Threats of continued harassment
“Yes you are, you’re going to say it or this is going to carry
on as long as it needs to.   I’ll call back tomorrow, and the
day after that, the day after that, until you say it.   Say it.”
“No, no, we’re going to go forward, this is going to go on
as long as it needs to.   Because now I have the power, I got
you to tell me what I needed, one part of what I needed to
hear, now we’re going to go forward until I get the rest of
it.”
Threats of going to the police
“I’m saying that if you say it, I’m not going to go to the
cops, if you say, what, come on, what, no say it, you’re
going to say it or I’m going to go to the cops and this time
you’re going to go down one way or another.”
“You can’t get out of this, you’re either going to say it, or
you’re going to get fucking screwed.   I’m going to go to the
cops if you don’t answer me.”
“Do  this  and  I,  I should  still  probably really go  to  the
police, just tell me how old I was and I, I won’t.”
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No.   2011AP2557-CR
Threats  of  talking  to  Hicks’s  son                             …  about  alleged
molestation
“You’re going to ruin [your son’s] life if you don’t answer
me.    If you don’t answer me  [he] is never, if you don’t
answer me right now I’m going to tell  [him] and  [he] is
going to know that I’m telling the truth.”
“Yes it will if you want to see your child again, if you don’t
want him to ever know about this you’re going to say it.”
Promises
“Just admit it.   This will all end, all of this will end if you
say, Eric I’m sorry for sexually molesting you.    Say it.
Right now and this will all be over and you will never hear
from me again.”
“Tell me that you’re sorry, tell me that you’re sorry for
sexually molesting me and this will all be over.   I’ll fucking
go away and you will never see me again.”
“Say you’re sorry and we can all go back to this being like
normal and you will never hear from me again and there’ll
never be any more problems like this …”
¶6                                                                 After Eric threatened to tell Hicks’s son about the alleged assaults,
the following exchange occurred:
[Hicks:]   Eric, I am sorry.
[Eric:]   You’re sorry for what, come on, go forward, you’re
sorry for what.
[Hicks:]   Just, you just told me to say it, I’m sorry.
[Eric:]   No say I’m sorry for sexually molesting you. This
isn’t going to end until you reach that point.   We got the
sorry  part  out  now  we  just  need  to  end  the  sexually
molesting me part.
[Hicks:]    That’s  going  to  keep  you  from  uh,  trying  to
upend, upend on [my son?]
[Eric:]   Yes it will if you want to see you[r] child again, if
you don’t want him to ever know about this you’re going to
say it.    You’re going to say Eric I’m sorry for sexually
molesting you.
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No.   2011AP2557-CR
[Hicks:]   Eric, I’m sorry for molesting you.
¶7                                                                                         At the initial postconviction motion hearing, trial counsel testified
that Hicks said he “really wasn’t all that threatened” by Eric’s phone call.   Hicks,
however, testified he told counsel he did feel threatened and was particularly
concerned about the threats of preventing visitation with his son.   Hicks testified,
“[T]hat’s the one that hit home and led me to cooperate with Eric.”   Hicks told
police before trial, and the presentence investigator after trial, that he only told
Eric what he wanted to hear in order to end the phone call.   Hicks also told the
presentence investigator that he worried he might lose his son if he did not respond
as Eric demanded.
¶8                                                                                         On remand, Hicks testified at the Clappes hearing about his reasons
for cooperating during the phone call.   As the jury had learned at trial, Hicks was
previously tried on sexual assault charges, resulting in a hung jury and then an
Alford1  plea  to  reduced  charges.    Hicks  testified  about  specific  instances  of
harassment at his home due to the prior case, as well as job losses.   Hicks stated
that, based on his prior experience, he knew he could “lose it all again” just by
Eric making accusations to the police.
¶9                                                                                         Nonetheless,  the  trial  court  determined  Hicks’s  statement  was
voluntary.   It reasoned:
The   ultimate   determination   of   whether   the   Hicks
confession   is   voluntary   under   the   totality   of   the
circumstances standard requires this Court to balance the
personal  characteristics  of  Hicks  against  the  pressure
imposed upon him by [Eric] during the one-party consent
phone call. Hicks’ personal characteristics show a person
with a strong personality.   He talks politely and has a good
1  See North Carolina v. Alford, 400 U.S. 25 (1970).
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No.   2011AP2557-CR
appearance.   He is articulate and has an exemplary work
record showing confidence, responsibility and leadership.
Hicks does not have a shy or withdrawn personality.   Hicks
reports that he is in good physical and emotional health.
Hicks has had no drug or alcohol issues.
This Court finds that Hicks[’s] confession on the one-party
consent phone call was a product of free and unconstrained
will, reflecting deliberateness of choice.   Hicks was not a
victim  of  an  unequal  confrontation  by  the  state  which
exceeded  Hicks[’s]  ability  to  resist.                                              The  Court,  in
balancing the personal characteristics of Hicks against the
pressures  imposed  upon  him  by  [Eric]  in  the  one-party
consent  phone  call,  finds  that  Hicks[’s]  confession  was
voluntary.
DISCUSSION
¶10    Hicks argues the court erroneously determined his statement was
voluntary.    He also  seeks a new trial in the interest of  justice,  based on the
prosecutor’s improper remarks during closing argument.
¶11    When reviewing a trial court’s determination of the voluntariness of
a defendant’s confession, we will affirm the court’s findings of historical facts
unless they are clearly erroneous.   See State v. Agnello, 2004 WI App 2, ¶8, 269
Wis.  2d  260,  674 N.W.2d  594.   However, the application of the constitutional
standard to historical facts is a question of law that we decide independent of the
trial court.   Id.
¶12    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.   Clappes, 136 Wis. 2d at 236.
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No.   2011AP2557-CR
¶13    To  determine  the  voluntariness  of  a  defendant’s  statements,  the
pertinent  inquiry  is  whether  the  statements  were  coerced  or  the  product  of
improper pressures exercised by the person conducting the interrogation.   State v.
Hoppe,  2003  WI  43,  ¶37,  261  Wis.  2d  294,  661  N.W.2d  407.    Coercive  or
improper   police   conduct   is   a   necessary   prerequisite   for   a   finding   of
involuntariness.   Id.   We apply a totality of the circumstances test to determine
whether a defendant’s statements are voluntary.   Id., ¶38.     That test involves a
balancing of the defendant’s personal characteristics against the pressures imposed
upon the defendant by law enforcement.   Id.
¶14    The relevant personal characteristics include the defendant’s age,
education and intelligence, physical and emotional condition, and prior experience
with law enforcement.   Id., ¶39.   The personal characteristics are balanced against
the police pressures and tactics that 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.   The State
must prove by a preponderance of the evidence that the statements were voluntary.
Id., ¶40.
¶15                                                                                        Hicks argues his statements were involuntary because the tactics
used  were  extremely  coercive  and  improper,  his  past  experience  with  the
consequences of sexual assault allegations made him particularly vulnerable to the
coercion applied, and it is apparent the statements were the actual product of the
coercion because Hicks merely repeated exactly what he was instructed to say.   He
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No.   2011AP2557-CR
also emphasizes that he did not have prior experience being interrogated by police
and was not given Miranda warnings.
¶16    First, we observe that Hicks’s experience with law enforcement and
the absence of Miranda warnings are irrelevant factors.   Hicks’s statements were
not made to a law enforcement officer, and Hicks was unaware that Eric was
acting as an agent of the police or that the call was being recorded.   Thus, there
was simply no pressure to comply with police authority.   See Illinois v. Perkins,
496 U.S. 292, 296-97 (1990).
¶17    Next, we view it significant that Hicks was not in physical proximity
to Eric during the course of the threatening encounter.    Although the various
threats were intended to induce Hicks to stay on the line, he nonetheless could
have terminated the call at any time and suffered no immediate risk of physical
harm.    Thus, the various threats of violence carried substantially less coercive
effect, even had Hicks taken them seriously.
¶18    Having reviewed Hicks’s own testimony, his statements to police
and  the  presentence  investigator,  and  his  trial  attorney’s  testimony,2  it  was
apparent to the trial court that Hicks did not take the threats of harm seriously.
Hicks repeatedly denied any wrongdoing despite those repeated threats.   Indeed,
2  Hicks asserts that the trial court merely recited his trial attorney’s testimony without
making any credibility determination, and found that Hicks’s testimony was consistent and
cogent.   While we are troubled by the State’s misleading suggestion that the court expressly
accepted counsel’s testimony over Hicks’s, we nonetheless accept counsel’s testimony to the
extent of any conflict.   If the trial court had concluded Hicks actually felt threatened by the
numerous threats of physical violence, it would have been compelled to conclude Hicks’s
statements were involuntary.   Although the better practice would have been to make explicit
credibility findings, such findings are implicit in the court’s decision.   See State v. Echols, 175
Wis. 2d 653, 673, 499 N.W.2d 631 (1993).
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No.   2011AP2557-CR
his trial counsel testified that Hicks stated he was amused by the assertion that Eric
had connections with Russians.    Thus, the only threat that might have had an
actual  coercive  effect  upon  Hicks  was  the  threat  to  report  the  sexual  assault
allegations to Hicks’s son.    This is the threat, however, that we view as least
problematic.
¶19    There are two possible takes on the threat to report the allegations to
Hicks’s son.   Either it was a threat to report actual sexual assaults, or it was a
threat to report false allegations.   If it was the latter, then the threat carried less
coercive strength, respectively.    Hicks would, obviously, know the allegations
were false and would have less reason to be concerned about any consequences of
the reporting.   Hicks’s claim that he was falsely accused in the past and suffered
grave consequences is not particularly convincing.   Hicks was found guilty in the
prior case based on his own plea.
¶20    If,  on  the  other  hand,  the  threat  was  to  truthfully  report  sexual
assaults,  then  the  threat  potentially carried  significant  coercive  effect.    Hicks
would know the sexual assaults occurred and would have substantial reason to fear
the reporting of those acts.   We do not view such a threat, however, impermissibly
coercive in the constitutional sense.   That is, we are not particularly troubled by a
sexual assault victim threatening to report the sexual assault.   This is not a case of
a victim attempting to extort money; Eric merely sought and obtained an apology
for the alleged assault.
¶21    As  noted  above,  the  trial  court  found  Hicks  had  no  particular
susceptibility to coercive tactics.   It found Hicks was an adult of normal education
and intelligence; had no physical, emotional, or substance abuse issues; and had a
strong personality.   Hicks himself indicated he “really wasn’t all that threatened”
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No.   2011AP2557-CR
by  Eric’s  phone  call.                                                                    Therefore,  having  considered  the  totality  of  the
circumstances, we agree with the trial court that Hicks’s statements were made
voluntarily.   That is, we are satisfied that Eric’s varied threats did not overcome
Hicks’s will to resist.
¶22    Hicks next renews his argument that he is entitled to a new trial
based on the prosecutor’s inappropriate suggestion during closing argument that
the jury should convict him in this case because justice was not done in the prior
sexual assault case where Hicks pled to lesser charges.   Hicks seeks a new trial in
the interest of justice.   In his initial appeal, Hicks raised this issue under the guise
of both ineffective assistance of counsel and interest of justice.   We concluded the
comments were inappropriate, but determined trial counsel made a reasonable
strategic decision not to call the jury’s attention to the statement.
¶23    The State argues Hicks cannot raise the issue again because our
rejection of it is the law of the case, seizing on our statement that “[w]e reject the
closing argument issue.”   Hicks, No. 2009AP3044-CR, unpublished slip op. ¶1.
However, our decision never acknowledged that Hicks made an interest of justice
argument.
¶24    We need not resolve whether Hicks is precluded from renewing his
argument.    We decline to exercise our discretion to reverse in the interest of
justice.                                                                                    See  WIS.  STAT.                                                                    § 752.35.3   “Our  discretionary  reversal  power  is
                                                                                            formidable, and should be exercised sparingly and with great caution.”   State v.
                                                                                            Williams,  2006  WI  App  212,  ¶36,  296  Wis. 2d  834,  723  N.W.2d  719.    We
3  All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise
noted.
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No.   2011AP2557-CR
exercise it “only in exceptional cases.”   State v. Armstrong, 2005 WI 119, ¶114,
283 Wis. 2d 639, 700 N.W.2d 98.
¶25    As  we  observed  in  the  first  appeal,  the  impermissible  argument
consists of three sentences in an eleven-page closing argument.   Prior to hearing
the  comments,  the  jury  had  been  instructed  that  closing  arguments               “are  not
evidence.”    More  importantly,  the  jury  was  already  well  aware  of  the  facts
surrounding the earlier sexual assault charges against Hicks and knew that the case
had ended with Hicks pleading guilty to two misdemeanors and being placed on
probation.   Because the defense delved into the circumstances of the prior sexual
assault  case  in  detail,  the  prosecutor’s  comments  did  not  tread  new  ground.
Indeed, Hicks had the opportunity to tell the jury why he pled guilty in the earlier
case even though he insisted he had not committed the charged crimes.   In the end,
we are satisfied that the real controversy—assessing the credibility of the accuser
and accused—was fully tried in this case.
By the Court.—Judgment affirmed.
                                                                                         This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)                                                                                (b)5.
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