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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 4, 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.   2008CF2149
Appeal No.                                                                         2011AP981-CR
STATE OF WISCONSIN                                                                                                                                   IN COURT OF APPEALS
                                                                                                                                                     DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
PAUL J. DEHNE,
DEFENDANT-APPELLANT.
APPEAL  from a judgment and  an order  of  the circuit court for
Milwaukee County:   JEFFREY A. CONEN, Judge.   Affirmed.
Before Curley, P.J., Fine and Kessler, JJ.
¶1                                                                                 PER  CURIAM.    Paul  J.  Dehne  appeals  from  a  judgment  of
conviction, entered upon a jury’s verdict, on one count of first-degree reckless
homicide.   Dehne also appeals from an order denying his postconviction motion
for a new trial.   Dehne contends that he did not validly waive his rights under




No.   2011AP981-CR
Miranda v. Arizona, 384 U.S. 436 (1966), because the detective interviewing him
provided misleading information.   We reject this argument and affirm.
¶2                                                                                                Dehne  was  questioned  regarding  the  death  of  a  co-worker,
Christopher Angus, who had been asphyxiated by a homemade safety harness.
Angus had been wearing the harness, which he had attached to a rope looped over
an I-beam in the factory where both men worked.1    During the course of an
argument, Dehne pushed Angus, causing him to fall from a staircase and begin
hanging from the beam.   Part of the harness dislocated and slipped up around
Angus’s throat, ultimately choking him to death.   Dehne watched Angus struggle
for approximately a minute, doing nothing to assist him despite knowing that the
harness was cutting off blood and oxygen to Angus’s brain and despite knowing
that Angus’s death was a possibility.
¶3                                                                                                When  originally  interviewed  by  police,  Dehne  denied  knowing
anything about Angus’s death and had even assisted Angus’s family in searching
the factory for him after the family reported Angus missing.   Approximately a
week  later,  Dehne  was  interviewed  by  Detective  Michael  Braunreiter,  who
recorded  their  conversation.                                                                    Dehne  ultimately  provided  an  incriminating
statement, facts from which were later incorporated into the criminal complaint.
The next day, Dehne was interviewed again, and he confirmed the first statement.
¶4                                                                                                Dehne  moved  to  suppress  the  first  statement  based  on  potential
Miranda violations—specifically, whether Dehne had invoked the right to counsel
1  The harness was evidently not work-related.   Rather, it appears that Angus enjoyed
rock or wall climbing, and it may have been that he set up the harness so that he could climb a
wall at the factory.
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No.   2011AP981-CR
from  the  outset  of  the  interview  with  Braunreiter,  whether  Braunreiter  had
provided  misleading  information  about  Dehne’s  rights,  and  whether  Dehne’s
statements  were  voluntary.                                                                   Dehne  also  sought  to  suppress  the  second,
confirmatory statement under the “fruit of the poisonous tree” doctrine.   See Wong
Sun v. United States, 371 U.S. 471 (1963).
¶5                                                                                             The circuit court denied the motion to suppress.2   It noted that Dehne
had been properly advised of his Miranda rights and found that Dehne understood
those rights; that Dehne had made only an ambiguous reference to counsel, which
Braunreiter  properly handled by reiterating  that the  choice  was  Dehne’s;  that
Dehne made a knowing, intelligent, and voluntary waiver of his rights; that there
had been no improper or coercive police tactics; and that Dehne’s statement was
voluntary.3   Dehne was then tried and convicted of first-degree reckless homicide,
and  sentenced  to  twenty  years’  initial  confinement  and  ten  years’  extended
supervision.
¶6                                                                                             Dehne filed a postconviction motion for a new trial, renewing his
argument  that  suppression  should  have  been  granted  because  of  misleading
information from Braunreiter.   Dehne argued that although pretrial counsel had
raised the issue, she had not really developed her argument, causing the circuit
court to overlook the issue.    The circuit court denied the motion, noting that
counsel had raised the issue, and it was reasonable to assume that the circuit court
2  The case was originally assigned to the Honorable John Franke, who issued an oral
decision on the suppression motion.   The case was subsequently transferred to the Honorable
Jeffrey A. Conen, who presided over the trial and denied the postconviction motion.
3  Implicitly,  then, the                                                                      “fruit  of the poisonous  tree” argument  regarding the second
statement was necessarily rejected.
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No.   2011AP981-CR
had  considered  all  aspects  of  counsel’s  argument  when  making  its  decision.
Dehne appeals.
¶7                                                                                        “[A]n individual held for interrogation must be clearly informed that
he has the right to consult with a lawyer and to have the lawyer with him during
interrogation[.]”   Miranda, 384 U.S. at 471.   If a statement is given without an
attorney present, the State has the burden to show the defendant knowingly and
intelligently  waived  the  privilege  against  self-incrimination  and  the  right  to
counsel.   Id., 384 U.S. at 475.
¶8                                                                                        When the admissibility of a confession or other statement by the
defendant is challenged, courts conduct hearings designed to examine, among
other  things,                                                                            “whether  an  accused  in  custody  received  Miranda  warnings,
understood them, and thereafter waived the right to remain silent and the right to
the presence of an attorney[.]”   State v. Jiles, 2003 WI 66, ¶25, 262 Wis. 2d 457,
474, 663 N.W.2d 798, 806 (boldface added).                                                “[E]vidence that the accused was
threatened, tricked or cajoled into a waiver will, of course, show that the defendant
did not voluntarily waive his privilege.”   Miranda, 384 U.S. at 476.
¶9                                                                                        The circuit court’s findings of evidentiary or historical fact will not
be overturned unless clearly erroneous.   State v. Berggren, 2009 WI App 82, ¶23,
320 Wis. 2d 209, 228, 769 N.W.2d 110, 119.   We independently review the facts
to determine whether any constitutional principles have been violated.  Ibid.
¶10    Here, Dehne  alleges that his waiver of  the  right to counsel was
involuntary and unknowing because Braunreiter gave him misleading information
about the right.   Specifically, Dehne complains:
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No.   2011AP981-CR
Here, the officer told Mr. Dehne, “If you wanna talk to me,
you  have  to  understand  you’ll  do  so  without  a  lawyer
present, OK?” … About 30 minutes later, repeatedly told
Mr.  Dehne  if  he  wanted  an  attorney,  they  had  to  stop
talking “because those are the rules” but if he didn’t want
an attorney, he could continue to talk to the officer.
Dehne contends this was misleading because the right to counsel is the right to
have counsel during an interrogation.    See Miranda,  384 U.S. at  471.    Thus,
because Braunreiter misled him, Dehne argues he could not have validly waived
the right to counsel, and his first statement should have been suppressed.
¶11    It is not wholly clear that Dehne’s representation of Braunreiter’s
statement is accurate.   Pretrial counsel had a secretary prepare a transcript of the
recorded interview, from which appellate counsel now cites.   However, when the
recording was played in open court, the court reporter transcribed as follows:
Well, with that statement from you, now in my mind, in my
heart, I (unintelligible) identify if you want to talk to me,
you have (unintelligible) and can do so without an attorney
present, okay, because - and its gotta be - I’m not gonna
break the rules.
There is no factual finding about what precisely was said, though the circuit court
commented that Braunreiter had “emphasize[d] that this will be talking without a
lawyer present and that it has to be clear.”
¶12    Even  using  Dehne’s  interpretation  of  the  recording,  though,  we
discern  no  error:    Braunreiter’s  statements  were  accurate.    Once  a  defendant
invokes the right to counsel, police must terminate their interview or interrogation
of  the  defendant until counsel arrives or  the  defendant himself  reinitiates the
discussion.   See Miranda, 384 U.S. at 474; see also State v. Stevens, 2012 WI 97,
¶¶48-49,  343 Wis. 2d  157,  178-179,  819 N.W.2d  798,  809. Once the right is
invoked  and  the  interrogation  terminated,  however,  there  is  no  constitutional
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No.   2011AP981-CR
requirement that police ever resume the interrogation.   Accordingly, Dehne was
not “tricked or cajoled” into surrendering his rights.   See Miranda, 384 U.S. at
476.   The circuit court properly rejected the postconviction argument that the first
statement should have been suppressed.
¶13    Dehne also complains that his second inculpatory statement to police
should be suppressed as “fruit of the poisonous tree” under Wong Sun because it
was tainted by the improper acquisition of his first statement.   However, Wong
Sun’s applicability to Miranda violations was effectively rejected by Oregon v.
Elstad, 470 U.S. 298 (1985).   There, the Supreme Court held that “a suspect who
has once responded to unwarned yet uncoercive questions is not thereby disabled
from waiving  his rights and  confessing after  he  has  been  given  the  requisite
Miranda warnings.”   Elstad, 470 U.S. at 318.
¶14    Here, the circuit court concluded that the first statement was not
improperly obtained, and we agree.   For that reason alone, the attempt to suppress
the second statement fails—that is, there is no poisonous tree whose fruits must be
discarded.   However, it is also undisputed that Dehne received proper Miranda
warnings prior to giving his second statement.   Consistent with Elstad, those new
warnings were sufficient in this case to make the second statement fully knowing
and voluntary.   See State v. Armstrong, 223 Wis. 2d 331, 359-364, 588 N.W.2d
606,                                                                                    618-620  (1999).    Thus,  the  second  statement  was  not  required  to  be
suppressed, either, and the circuit court properly denied postconviction relief.
By the Court.—Judgment and order affirmed.
This   opinion   shall   not   be   published.                                          See   WIS.   STAT.
RULE 809.23(1)(b)5.
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