State v. Timothy E. Dobbs

2020 WI 64, 945 N.W.2d 609, 392 Wis. 2d 505

• Court: Wisconsin Supreme Court
• Decided: July 3, 2020
• Docket: 2018AP000319-CR
• Status: Published

Opinion

2020 WI 64

SUPREME COURT OF WISCONSIN CASE NO.: 2018AP319-CR

COMPLETE TITLE: State of Wisconsin, Plaintiff-Respondent, v. Timothy E. Dobbs, Defendant-Appellant-Petitioner.

REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 388 Wis. 2d 144,930 N.W.2d 280 (2019 – unpublished)

OPINION FILED: July 3, 2020 SUBMITTED ON BRIEFS: ORAL ARGUMENT: April 1, 2020

SOURCE OF APPEAL: COURT: Circuit COUNTY: Dane JUDGE: Clayton Patrick Kawski & Jill Karofsky

JUSTICES: DALLET, J., delivered the majority opinion of the Court with respect to Parts I, II, and III.C., in which all Justices joined; the majority opinion of the Court with respect to Part III.A., in which ROGGENSACK, C.J., ANN WALSH BRADLEY, ZIEGLER, and HAGEDORN, JJ., joined; and the majority opinion of the Court with respect to Part III.B., in which ANN WALSH BRADLEY, REBECCA GRASSL BRADLEY, and KELLY, JJ., joined. ZIEGLER, J., filed a concurring opinion, in which ROGGENSACK, C.J., and HAGEDORN, J., joined. KELLY, J., filed a concurring opinion, in which REBECCA GRASSL BRADLEY, J., joined. NOT PARTICIPATING:

ATTORNEYS:

For the defendant-appellant-petitioner, there were briefs filed by Michael D. Rosenberg and Community Justice, Inc., Madison. There was an oral argument by Michael D. Rosenberg.

For the plaintiff-respondent, there was a brief filed by Michael C. Sanders, assistant attorney general; with whom on the brief is Joshua L. Kaul, attorney general. There was an oral argument by Michael C. Sanders.

An amicus curiae brief was filed on behalf of The Innocence Projects, In., and the Wisconsin Innocence Project by Andrew T. Dufresne, Sopen B. Shah, and Perkins Coie LLP, Madison; with whom on the brief was Keith A. Findley and the Wisconsin Innocence Project, Madison.

2 2020 WI 64

NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2018AP319-CR (L.C. No. 2015CF1938)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent, FILED v. JUL 3, 2020 Sheila T. Reiff Timothy E. Dobbs, Clerk of Supreme Court

Defendant-Appellant-Petitioner.

DALLET, J., delivered the majority opinion of the Court with respect to Parts I, II, and III.C., in which all Justices joined; the majority opinion of the Court with respect to Part III.A., in which ROGGENSACK, C.J., ANN WALSH BRADLEY, ZIEGLER, and HAGEDORN, JJ., joined; and the majority opinion of the Court with respect to Part III.B., in which ANN WALSH BRADLEY, REBECCA GRASSL BRADLEY, and KELLY, JJ., joined. ZIEGLER, J., filed a concurring opinion, in which ROGGENSACK, C.J., and HAGEDORN, J., joined. KELLY, J., filed a concurring opinion, in which REBECCA GRASSL BRADLEY, J., joined.

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 REBECCA FRANK DALLET, J. The petitioner, Timothy E.

Dobbs, seeks review of the court of appeals' decision1 affirming

his judgment of conviction for homicide by intoxicated use of a

vehicle.

1State v. Dobbs, No. 2018AP319–CR, unpublished slip op. (Wis. Ct. App. May 2, 2019). No. 2018AP319-CR

¶2 Dobbs raises two issues on appeal. First, Dobbs

asserts that the circuit court improperly excluded the expert

testimony of Dr. Lawrence White.2 Second, Dobbs claims that the

circuit court erred in denying his motion to suppress statements

that he made to law enforcement because he was subject to

custodial interrogation and not read the Miranda warnings,3 or,

in the alternative, because his statements were not voluntarily

made.4

¶3 We conclude that the circuit court properly exercised

its discretion when it excluded Dr. White's exposition testimony

for a lack of fit with the facts of Dobbs's case. Additionally,

although we determine that several of Dobbs's statements should

have been suppressed because he was subject to custodial

interrogation and was not read the Miranda warnings, we conclude

that the error was harmless. We further conclude that all of

Dobbs's statements were voluntary.

¶4 We therefore affirm the decision of the court of

appeals. I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶5 On the morning of September 5, 2015, a vehicle crossed

several lanes of traffic and a median area, drove over a curb,

The Honorable Clayton P. Kawski of the Dane County Circuit 2

Court presided over the State's motion to exclude the testimony of Dr. Lawrence White. 3 Miranda v. Arizona, 384 U.S. 436 (1966).

The Honorable David T. Flanagan of the Dane County Circuit 4

Court presided over Dobbs's motion to suppress.

2 No. 2018AP319-CR

and struck a pedestrian. The vehicle left the scene. Several

blocks from the scene, Madison Police Officer Jimmy Milton

noticed a vehicle with a completely deflated tire and exposed

wheel rim on the front driver's side that matched the witnesses'

description of the vehicle involved in the hit and run. Officer

Milton positioned his squad car to prevent the driver, later

identified as Dobbs, from leaving.

¶6 With his hand on his service weapon, Officer Milton

instructed Dobbs to show his hands and exit the vehicle. Dobbs

was immediately handcuffed and placed in the squad car. Officer

Milton told Dobbs he was "being detained" for an ongoing

"accident investigation" and that he was suspected of striking a

pedestrian. Shortly after placing Dobbs in the squad car,

Officer Milton learned that the pedestrian had died.

¶7 At 7:30 a.m., Officer Milton started questioning Dobbs

while he remained handcuffed in the backseat of the locked squad

car. The audio from Officer Milton's microphone did not start

recording until 7:34 a.m.5 At 7:34 a.m., Officer Milton asked Dobbs his date of birth and questions about his vehicle's

registration. At 7:36 a.m., Officer Milton said to Dobbs "I

smell alcohol." Over the course of the next hour, Officer

Milton talked to Dobbs about a variety of topics and asked him

numerous questions, including:

Officer Milton testified that he asked Dobbs his name, 5

address, where he had been coming from, where he was headed, and other "identifying" information during this time.

3 No. 2018AP319-CR

 "Do you have any medical issues other than that splint

that you were wearing?"

 "Do you take medications for depression and anxiety?"

 "Do you have any injuries from the collision with the

curb?"

 "So [those bruises and scratches on your face] are all

old?"

In response to Officer Milton's comments, Dobbs stated that he

had not slept in 40 hours and had not taken his medication that

morning. Dobbs told Officer Milton that "he was adjusting his

arm in the sling, and he lost control of the vehicle and he hit

the curb, and that's what caused the damage to his front

driver's side tire."

¶8 About 30 minutes into the questioning, Dobbs said "I

take it I'm going to jail." Officer Milton never responded to

Dobbs's statement, but he made several subsequent comments that

there was an ongoing investigation and that was why there were

up to three other officers on the scene at a time, including a K-9 unit.

¶9 During the questioning, Officer Milton exited the

squad car several times to observe the exterior and interior of

Dobbs's vehicle, alongside two other officers. Officer Milton

saw "impact damage" to the front end and hood of Dobbs's

vehicle, including two dents and a tree branch that was lodged

in the vehicle's hood. Officer Milton also observed a can of

4 No. 2018AP319-CR

air duster6 in plain view in the front center console, which was

within reach of the driver's seat.7 Officer Milton described the

vehicle's damage in detail to Dobbs and made comments like "it's

obvious you hit something because your wheel is damaged."

¶10 After about an hour, Officer Milton removed Dobbs's

handcuffs and he was escorted out of the locked squad car to

perform field sobriety tests. Dobbs displayed no signs of

intoxication during the tests, but Officer Milton asked him to

submit to a blood test. Dobbs agreed and was subsequently

transported to a nearby hospital.

¶11 Dobbs arrived at the hospital at approximately 9:08

a.m. Additional officers arrived at the hospital, including

Officer Nicholas Pine, who began a drug recognition evaluation

at approximately 9:45 a.m.8 As part of that evaluation, Dobbs

was given a preliminary breath test, which revealed that Dobbs

did not have any alcohol in his system. Nearly three hours

after Dobbs was first handcuffed and placed in the locked squad

car, at 10:19 a.m., Officer Pine first read Dobbs the Miranda warnings. Dobbs waived his Miranda rights and was questioned by

Officer Pine.

The can of air duster was referred to by a variety of 6

names during the suppression hearing and the jury trial, including DustOff, Ultra Duster, air duster, duster, and compressed air. For ease of reference, we will refer to it as "air duster" throughout this opinion.

During a search of Dobbs's vehicle, Officer Timothy Frey 7

found a Menards receipt for air duster dated the morning of the accident. 8 There is no audio or visual recording of this evaluation.

5 No. 2018AP319-CR

¶12 Dobbs was then formally placed under arrest, informed

that the pedestrian had died, and read the Miranda warnings for

a second time by Officer Milton. Dobbs again waived his Miranda

rights and agreed to answer questions. Dobbs eventually

confessed that he had taken a puff of the air duster while he

was driving, passed out, swerved, and then drove away from the

scene.

¶13 Dobbs was transported to the City County Building

garage where Officer Paul Fleischauer continued to question him.

Dobbs confessed to Officer Fleischauer that he had been huffing

for pain management, in addition to taking an antidepressant and

prescribed pain medication. Dobbs said he had inhaled the air

duster while driving, likely striking the pedestrian after he

lost consciousness.

¶14 Dobbs was driven to another hospital to receive

medical clearance to be booked into the jail. While at that

hospital, Officer Van Hove heard Dobbs say twice, unprompted,

that he had "taken a puff of Dust-Off and had killed a man" with his vehicle. Officer Van Hove did not ask any follow-up

questions in response.

¶15 Shortly thereafter, Dobbs indicated he wanted to call

his father, despite being warned that anything he said on the

phone could ultimately be used in court. Officer Van Hove

overheard Dobbs tell his father that he went to Menards to buy

air duster, took a puff on his way home, and then drove over a

curb and "killed a man." He also heard Dobbs say "he understood

6 No. 2018AP319-CR

his rights and wanted to be honest." Later that night, Officer

Bryan Dyer heard Dobbs spontaneously repeat the same story.

¶16 The next morning, despite Officer Dean Baldukas's

reminder to Dobbs that he was under arrest "and still had rights

associated with that," Dobbs blurted out, unprompted, that he

had taken a puff of the air duster. Additionally, Officers

Linda Baehmann and Bryan Dyer overheard similar spontaneous

comments from Dobbs regarding huffing air duster.

¶17 Dobbs was ultimately charged with one count of

homicide by intoxicated use of a vehicle and one count of hit

and run resulting in death.

¶18 Prior to trial, the circuit court heard a number of

motions, two of which are relevant to this appeal. The first

was Dobbs's motion to suppress his statements on the grounds

that: (1) he was not read the Miranda warnings despite being

subject to custodial interrogation; and (2) all of his

statements were not voluntarily made due to his mental and

physical condition. The circuit court denied Dobbs's motion to suppress, concluding that the "first interrogation that would

have required a Miranda warning, had the defendant been in

custody, was the interview by [Officer] Pine," at 10:19 am, when

Officer Pine first read Dobbs the Miranda warnings. Further,

the circuit court concluded that "[e]ach of the statements made

by the defendant to Officers Milton, Pine, Kleinfeldt, Van Hove,

7 No. 2018AP319-CR

Dyer, Baldukas, and Baehmann has been demonstrated to have been

voluntary and not the product of coercion in any degree."9

¶19 The second pre-trial motion relevant to this appeal

was the State's motion to exclude the testimony of Dobbs's

proffered experts, including Dr. Lawrence White. The defense

had named Dr. White to testify generally about the phenomenon of

false confessions, as well as the interrogation techniques and

dispositional characteristics that make false confessions more

likely. The State argued Dr. White's testimony would not be

relevant because there was no link between his testimony and the

facts surrounding Dobbs's confessions. The State further argued

that Dr. White's testimony would confuse the jury, invade the

province of the jury as the ultimate assessor of credibility,

and re-litigate the voluntariness of Dobbs's statements. In

response, Dobbs alleged that Dr. White's testimony would assist

the jury by dispelling a common misbelief that an innocent

person would never confess to a crime he or she did not commit.

¶20 At the Daubert10 evidentiary hearing, the State stipulated to Dr. White's qualifications. Dr. White testified

that he saw his role as a jury educator, lecturing about the

social science and legal scholarship on false confessions and

the general psychology behind interrogation techniques and

confessions. He detailed the interrogation techniques that

9Dobbs filed a motion for reconsideration on his motion to suppress, which was denied. 10 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).

8 No. 2018AP319-CR

could make an innocent person confess: isolation, confrontation

with inculpatory evidence, police indifference to claims of

innocence, being in custody for over six hours, persistent

questioning, minimization of the accused's culpability or the

consequences, and implying lenient treatment would be given in

return for a confession. Dr. White further described the

dispositional characteristics that make a person more vulnerable

to confessing falsely when subject to these coercive

interrogation techniques, including: youth (under 25 years

old), low intelligence, a suggestible or compliant

predisposition, mental disorders like anxiety or depression,

sleep deprivation, and physical exhaustion. Dr. White affirmed

that he did not review any reports or the specific facts of

Dobbs's case, and that he would not offer an ultimate opinion on

the truthfulness of Dobbs's confessions.

¶21 The circuit court ruled that Dr. White's testimony

would not assist the jury because he never reviewed Dobbs's case

and therefore could not explicitly apply his expertise to the specific facts of the case. The circuit court determined his

proffered testimony was a "lecture" at the "highest level of

generality" which could not satisfy the requirement in Wis.

Stat. § 907.02(1) (2017-18)11 that "the witness has applied the

principles and methods reliably to the facts of the case."

All subsequent references to the Wisconsin Statutes are 11

to the 2017-18 version unless otherwise indicated.

9 No. 2018AP319-CR

¶22 Dobbs moved for reconsideration. The circuit court

affirmed its original ruling but articulated a second rationale

for excluding Dr. White's exposition testimony: it did not

"fit" the particular facts surrounding Dobbs's confessions.

Specifically, the circuit court found that Dobbs had made no

showing that the police employed the types of coercive

techniques that Dr. White would testify about.

¶23 At Dobbs's jury trial, Officers Milton, Dyer,

Baldukas, Baehmann, and Van Hove all testified to Dobbs's

confessions that he inhaled air duster prior to the accident.

Dobbs took the witness stand and denied huffing any air duster

while driving on the day of the accident. A jury ultimately

found Dobbs guilty of homicide by intoxicated use of a vehicle.12

Dobbs was sentenced to 20 years imprisonment, consisting of 12

years of initial confinement followed by 8 years of extended

supervision.

¶24 Dobbs appealed, challenging the circuit court's

decisions granting the State's motion to exclude Dr. White's testimony and denying his motion to suppress his statements.

¶25 The court of appeals affirmed the judgment of

conviction in an unpublished, per curiam decision. It

determined that the circuit court "reasonably concluded that

[Dr. White] would not assist the trier of fact unless [he] also

applied his knowledge about false confessions to the specific

The jury found Dobbs not guilty on the second count of 12

hit and run.

10 No. 2018AP319-CR

circumstances in Dobbs's case." State v. Dobbs, No. 2018AP319–

CR, unpublished slip op., ¶7 (Wis. Ct. App. May 2, 2019).

Further, it affirmed the circuit court's decision on Dobbs's

motion to suppress based on its determination that Dobbs was not

entitled to Miranda warnings because he was not in custody when

he was "first placed in the squad car." Id., ¶¶11-14.

Additionally, the court of appeals rejected Dobbs's argument

that his statements were not voluntarily made. Id., ¶¶15-17.

¶26 Dobbs petitioned this court for review, which we

granted. Additionally, we asked the parties to brief the

following issue: "Whether the court of appeals' decision is

consistent with State v. Morgan, 2002 WI App 124, 254

Wis. 2d 602, 648 N.W.2d 23, and if not, whether Morgan should be

overruled."

II. STANDARD OF REVIEW

¶27 It is within the circuit court's discretion whether to

admit proffered expert testimony. State v. Pico, 2018 WI 66,

¶15, 382 Wis. 2d 273, 914 N.W.2d 95. We review the circuit court's decision under an erroneous exercise of discretion

standard and therefore we will not reverse a circuit court's

decision if the decision "had a reasonable basis," and "was made

in accordance with accepted legal standards and in accordance

with the facts of record." Id. (internal quotation marks

omitted) (quoting State v. LaCount, 2008 WI 59, ¶15, 310

Wis. 2d 85, 750 N.W.2d 780).

¶28 In evaluating a circuit court's decision on a motion to suppress, we uphold the circuit court's findings of fact 11 No. 2018AP319-CR

unless they are clearly erroneous. State v. Eason, 2001 WI 98,

¶9, 245 Wis. 2d 206, 629 N.W.2d 625. However, we independently

apply constitutional principles to the facts as found by the

circuit court to ensure that the scope of constitutional

protections do not vary from case to case. State v. Turner, 136

Wis. 2d 333, 344, 401 N.W.2d 827 (1987). Whether Dobbs was in

custody for purposes of Miranda is a question of law that we

review de novo. State v. Mosher, 221 Wis. 2d 203, 211, 584

N.W.2d 553 (Ct. App. 1998).

¶29 Finally, in assessing the circuit court's decision on

the voluntariness of Dobbs's statements, we independently apply

the constitutional principles of due process to the facts as

found by the circuit court. See State v. Hoppe, 2003 WI 43,

¶34, 261 Wis. 2d 294, 661 N.W.2d 407. Whether Dobbs's

statements were voluntary is a question we review de novo. Id.

III. ANALYSIS

¶30 We first address whether the circuit court reasonably

exercised its discretion in excluding Dr. White's expert testimony. Next we consider whether any of the statements Dobbs

gave before he was read the Miranda warnings should have been

suppressed because he was subject to custodial interrogation,

and if so, whether admission of those statements was harmless

error. Finally we consider the voluntariness of Dobbs's

statements in light of his mental and physical condition.

12 No. 2018AP319-CR

A. The circuit court properly excluded Dr. White's exposition testimony on the grounds that it did not "fit" the facts of the case. ¶31 Dobbs sought to admit the expert testimony of

Dr. White, who would have testified generally about

interrogation techniques and dispositional factors that can lead

an innocent person to falsely confess without directly opining

on whether those techniques and factors led Dobbs to give a

false confession. We refer to an expert witness testifying in

the form of an educational lecture on general principles as exposition testimony. See Daniel D. Blinka, Expert Testimony

and the Relevancy Rule in the Age of Daubert, 90 Marq. L. Rev.

173, 219 (2006) ("Expository testimony consists of a lecture or

explanation on a specialized subject such as economics,

accounting, engineering, medicine, or psychology.").

¶32 The circuit court excluded Dr. White's testimony after

determining that it would not assist the trier of fact for two

reasons: (1) Dr. White did not know, and thus could not apply

his expertise to, the specific facts of the case, contrary to

the language of Wis. Stat. § 907.02(1) that the expert witness "appl[y] the principles and methods reliably to the facts of the

case"; and (2) Dobbs made no showing that Dr. White's exposition

testimony would fit the facts of the case. We will not overturn

the circuit court's exercise of discretion if the decision had a

"reasonable basis" and was made in accordance with the proper

legal standard and the facts in the record. Pico, 382

Wis. 2d 273, ¶15. We accept the circuit court's findings of

13 No. 2018AP319-CR

fact unless they are clearly erroneous. Metro. Assocs. v. City

of Milwaukee, 2018 WI 4, ¶25, 379 Wis. 2d 141, 905 N.W.2d 784.

¶33 The admission of expert testimony is governed by Wis.

Stat. § 907.02. As originally enacted, § 907.02 permitted

expert testimony in the form of an opinion or otherwise as long

as the expert witness was qualified, the evidence assisted the

trier of fact, and the evidence was relevant. § 907.02 (1973-

74); Seifert v. Balink, 2017 WI 2, ¶52, 372 Wis. 2d 525, 888

N.W.2d 816 (lead opinion). This court initially interpreted

§ 907.02 to permit exposition testimony without requiring an

expert to "apply[] those factors to the concrete circumstances

of th[e] case" or "stat[e] to the jury his own opinion."

Hampton v. State, 92 Wis. 2d 450, 458, 285 N.W.2d 868 (1979).

This court's reading of § 907.02 was consistent with the federal

interpretation of the identical language as set forth in Federal

Rule of Evidence 702 ("Rule 702").13 See Kopf v. Skyrm, 993

F.2d 374, 378 (4th Cir. 1993) ("An expert on the stand may give

a dissertation or exposition of scientific or other principles relevant to the case, leaving the trier of fact to apply them to

13 Rule 702 and Wis. Stat. § 907.02 both read:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Pub. L. No. 93–595, 88 Stat. 1926, 1937 (1975); Wis. Stat. § 907.02 (1973-74).

14 No. 2018AP319-CR

the facts." (quoting Fed. R. Evid. 702, Advisory Committee

Notes14 to 1972 Proposed Rule 702)).15

¶34 In 2000, Rule 702 was amended to codify the

reliability standard articulated in Daubert v. Merrell Dow

Pharm., Inc., 509 U.S. 579 (1993), and its progeny.16 In 2011,

the Wisconsin legislature followed suit, renumbering Wis. Stat.

§ 907.02 to § 907.02(1) and amending it to expressly "adopt the

Daubert reliability standard embodied in Federal Rule of

14 As Justice Shirley Abrahamson explained in Seifert:

Under the Rules Enabling Act, 28 U.S.C. § 2072, the United States Supreme Court is authorized to promulgate rules of practice and procedure for the federal courts. This authority is exercised by the Judicial Conference of the United States. The Conference promulgates and changes rules of practice and procedure in the federal courts subject to oversight by the Court. For the Federal Rules of Evidence, the Judicial Conference is aided in its rule-making powers by the Evidence Advisory Committee; the members of and reporter to this Committee are appointed by the Chief Justice of the United States Supreme Court.

Seifert v. Balink, 2017 WI 2, ¶55 n.13, 372 Wis. 2d 525, 888 N.W.2d 816 (lead opinion) (citing Paul R. Rice and Neals-Erik William Delker, Federal Rules of Evidence Advisory Committee: A Short History of Too Little Consequence, 191 F.R.D. 678, 679 (2000)).

Rule 702 served to expressly "encourage the use of expert 15

testimony in non-opinion form when counsel believes the trier can itself draw the requisite inference," as opposed to having an expert witness opine on hypotheticals before the jury. Hampton v. State, 92 Wis. 2d 450, 459, 285 N.W.2d 868 (1979) (quoting Fed. R. Evid. 702, Advisory Committee Notes to 1972 Proposed Rule 702).

See General Electric Co. v. Joiner, 522 U.S. 136 (1997); 16

Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999).

15 No. 2018AP319-CR

Evidence 702." State v. Kandutsch, 2011 WI 78, ¶26 n.7, 336

Wis. 2d 478, 799 N.W.2d 865; see also State v. Jones, 2018 WI

44, ¶7, 381 Wis. 2d 284, 911 N.W.2d 97 ("These changes [to

§ 907.02] adopted the federal standard, which incorporates the

analysis promulgated in Daubert . . . .") (citing Seifert, 372

Wis. 2d 525, ¶6); 2011 Wis. Act 2, Wis. S. Amend. Memo, 2011

Jan. Spec. Sess. S.B. 1 ("This language [in § 907.02(1)] is

identical to the language of Rule 702 of the Federal Rules of

Evidence."). Section 907.02(1) now reads:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if the testimony is based upon sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case. 2011 Wis. Act 2, § 34m (emphasis added to signify added

language).

¶35 Whether the Daubert reliability standard expressly

adopted in Wis. Stat. § 907.02(1) altered Wisconsin's long-

standing practice of allowing expert exposition testimony is a

question of first impression. In answering this question, we

begin with the text of § 907.02(1). State ex rel. Kalal v. Cir.

Ct. for Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681

N.W.2d 110. We interpret the statutory language in the context

in which it is used, not in isolation, and we consider prior case law in this inquiry as it "may illumine how we have

16 No. 2018AP319-CR

previously interpreted or applied the statutory language."

Augsburger v. Homestead Mut. Ins. Co., 2014 WI 133, ¶16, 359

Wis. 2d 385, 856 N.W.2d 874 (quoting Belding v. Demoulin, 2014

WI 8, ¶16, 352 Wis. 2d 359, 843 N.W.2d 373). Since § 907.02(1)

is identical to the language of Rule 702, we also look to the

federal interpretation of Rule 702 for guidance. See State v.

Poly–America, Inc., 164 Wis. 2d 238, 246, 474 N.W.2d 770 (1991)

("When a state statute is modeled after a federal rule, we look

to the federal interpretation of that rule for guidance and

assistance."). Lastly, although not dispositive, we consider

how other state courts have interpreted analogous state laws.

See Seifert, 372 Wis. 2d 525, ¶55 (lead opinion).

¶36 The text of Wis. Stat. § 907.02(1) permitting an

expert to testify "in the form of an opinion or otherwise"

remains unchanged by the addition of the Daubert reliability

standard. See Wis. Stat. § 907.02(1). As we recognized in

Hampton, the phrase "or otherwise" signifies that expert

testimony may take a form other than an opinion, which courts should encourage when the trier of fact can itself draw the

17 No. 2018AP319-CR

requisite inference from the facts of the case.17 Hampton, 92

Wis. 2d at 459; see also Hagenkord v. State, 100 Wis. 2d 452,

463, 302 N.W.2d 421 (1981) ("Testimony by experts is not limited

to giving opinions or to the stating of facts derived from

specialized knowledge."). A reading of § 907.02(1) that

requires an expert to apply his or her expertise to the facts of

the case would result in an expert always providing some type of

Circuit courts need this flexibility to limit otherwise 17

relevant and reliable expert testimony that, if given in the form of an opinion, would invade the prerogative of the finder of fact. See Hampton, 92 Wis. 2d at 458 (holding that the circuit court did not erroneously exercise its discretion by limiting an eyewitness identification expert to only provide exposition testimony rather than rendering an opinion on the reliability of any of the eyewitnesses' identifications in the case); 7 Daniel D. Blinka, Wisconsin Practice Series: Wisconsin Evidence § 608.3, at 560 (4th ed.) ("Indeed, the supreme court has encouraged the use of expert evidence in non-opinion form because such expository testimony assists the jury while minimizing the risk that the jury will surrender its autonomy to the expert. A judge reluctant to introduce Jensen evidence may nonetheless permit exposition to assist the jury without sacrificing the record." (footnote omitted) (citing State v. Jensen, 147 Wis. 2d 240, 256, 432 N.W.2d 913 (1988))).

18 No. 2018AP319-CR

an opinion about the matter18 and would render the phrase "or

otherwise" inoperative. Such a reading would violate this

court's interpretive canon "to give reasonable effect to every

word" in a statute. Kalal, 271 Wis. 2d 633, ¶46.

¶37 There is a reasonable reading of Wis. Stat.

§ 907.02(1) that gives effect to both the language "or

otherwise" and the condition that "the witness has applied the

principles and methods reliably to the facts of the case." If

the expert is testifying in the form of an opinion, he or she is

applying the principles or methods to the specific facts of the

case and must therefore do so reliably. If, however, the expert

is testifying in a form other than an opinion, such as an

exposition, then the expert would not be applying principles or

18For example, in this case, if Dr. White applied the principles and methods to the facts of the case, he would be giving an opinion on whether or not Dobbs's dispositional factors combined with the police interrogation techniques could have resulted in Dobbs falsely confessing. It is important to recognize that if Dr. White offered such an opinion, it would invade the province of the factfinder as the sole determiner of credibility. Cf. State v. Kleser, 2010 WI 88, ¶104, 328 Wis. 2d 42, 786 N.W.2d 144 ("The essence of the rule prohibiting vouching testimony is that such testimony invades the province of the fact-finder as the sole determiner of credibility." (citing State v. Haseltine, 120 Wis. 2d 92, 95-96, 352 N.W.2d 673 (Ct. App. 1984))). Even if Dr. White had simply been asked whether any of the factors he described in his exposition testimony related to Dobbs's case, his response would be offering his view about whether his exposition testimony relates to the particular facts in Dobbs's case. This is the very definition of an opinion. See "Opinion," Merriam- Webster Online Dictionary (2020), https://www.merriam- webster.com/dictionary/opinion ("[A] view . . . formed in the mind about a particular matter.").

19 No. 2018AP319-CR

methods to the facts of the case and it would be nonsensical to

require him or her to do so reliably.

¶38 A reading of Wis. Stat. § 907.02(1) permitting

exposition testimony is consistent with the intent of the

drafters of Rule 702, as evidenced by the Advisory Committee

Notes to the 2000 Amendment. See Guertin v. Harbour Assur. Co.

of Bermuda, 141 Wis. 2d 622, 628–29, 415 N.W.2d 831 (1987) ("The

'written comments of legislatively created advisory committees

are relevant in construing statutes and ascertaining the

legislative intent of statutes recommended by such committees.'"

(quoting Champlin v. State, 84 Wis. 2d 621, 625, 267 N.W.2d 295

(1978))). The Advisory Committee Notes to the 2000 Amendment

clarify that the amendment was not intended to alter the

established practice of admitting exposition testimony without

requiring an expert to apply those principles to the facts of

the case.

If an expert purports to apply principles and methods to the facts of the case, it is important that this application be conducted reliably. It might also be important in some cases for an expert to educate the factfinder about general principles, without ever attempting to apply these principles to the specific facts of the case. For example, experts might instruct the factfinder on the principles of thermodynamics, or bloodclotting, or on how financial markets respond to corporate reports, without ever knowing about or trying to tie their testimony into the facts of the case. The amendment does not alter the venerable practice of using expert testimony to educate the factfinder on general principles. Fed. R. Evid. 702, Advisory Committee Notes to the 2000 Amendment (emphasis added). The drafters of Rule 702(d)

20 No. 2018AP319-CR

intended it to mean that if the expert gives opinion testimony,

then the expert must reliably apply the principles and methods

to the facts of the case.

¶39 Federal courts of appeals also uniformly interpret

Rule 702 to continue to permit the admission of exposition

testimony without an expert applying general principles to the

specific facts of the case. For example, "[t]he federal courts

uniformly hold . . . that government agents or similar persons

may testify as to general practices of criminals to establish

the defendants' modus operandi." United States v. Mejia-Luna,

562 F.3d 1215, 1219 (9th Cir. 2009); see also United States v.

Skyers, 787 F. App'x 771, 774 (2d Cir. 2019) (summary order)

(upholding admission of a detective's expert testimony that

"generally explained" a drug trafficking circle because it "was

relevant to helping the jury understand the general nature of

international narcotics trafficking organizations"); United

States v. Reed, 788 F. App'x 903, 906 (4th Cir. 2019)

(unpublished per curiam) ("Rule 702 did not require [the expert witness] to explicitly link his testimony to the specific facts

of [the] case."); United States v. Galatis, 849 F.3d 455, 462

(1st Cir. 2017) (holding a Medicare-fraud investigator could

describe the applicable regulatory regime without ever applying

the regulations to the facts of the case or suggesting that any

actions had violated the law); Lapsley v. Xtek, Inc., 689

F.3d 802, 809 (7th Cir. 2012) ("As the Rule 702 committee

notes . . . make clear, an expert may . . . 'give a dissertation or exposition of scientific or other principles relevant to the 21 No. 2018AP319-CR

case, leaving the trier of fact to apply them to the facts.'"

(quoting Fed. R. Evid. 702, Advisory Committee Notes to 1972

Proposed Rule 702)).

¶40 Federal courts acknowledge that an expert need not

even know the specific facts of the case to satisfy the

requirements of Rule 702. See United States ex rel. Miller v.

Bill Harbert Int'l Const., Inc., 608 F.3d 871, 893-96 (D.C. Cir.

2010) (per curiam) (upholding the admission of an expert witness

who had no direct knowledge of the facts in the case, but whose

testimony on how bid-rigging cartels work in general was

sufficiently connected to the facts to be relevant and helpful

to the jury); see also United States v. Warren, 774

F. App'x 778, 780-82 (4th Cir. 2019) (unpublished per curiam)

(concluding that a FBI agent, "who acknowledged that he had no

information regarding the facts of [the] case," could

permissibly "testif[y] generally about human trafficking" to put

the case into context for the jury); United States v. Brinson,

772 F.3d 1314, 1319-20 (10th Cir. 2014) (rejecting the argument that an expert without knowledge of the specific case facts was

unreliable because he testified generally "about characteristics

of the prostitution trade" rather than "about case-specific

facts").

¶41 State supreme courts faced with this issue have

likewise interpreted state statutes modeled after Rule 702 to

allow for the admission of expert exposition testimony. The

Arizona Supreme Court was recently faced with a claim that the same statutory language——"the expert has reliably applied the 22 No. 2018AP319-CR

principles and methods to the facts of the case"——necessitates

that the expert have knowledge of, and apply his or her

expertise to, the particular facts of the case. State v.

Salazar-Mercado, 325 P.3d 996 (Ariz. 2014) (interpreting Ariz.

R. Evid. 702). Citing federal case law and the Advisory

Committee Notes, the Arizona Supreme Court held that its expert

testimony rule "does not bar admission of 'cold' expert

testimony that educates the trier of fact about general

principles but is not tied to the particular facts of the

case."19 Id. at 997-99, 1001. The South Dakota Supreme Court

likewise reached the same conclusion. See State v. Johnson, 860

N.W.2d 235, 247-48 (S.D. 2015) ("[A]n expert's testimony may be

admissible [pursuant to S.D. Stat. § 19-19-702] even if the

expert's sole function is 'to educate the factfinder about

general principles, without ever attempting to apply [those]

principles to the specific facts of the case.'" (alteration in

original) (quoting Salazar-Mercado, 325 P.3d at 999)); see also

In a similar vein, the Utah Supreme Court recognized that 19

its state's adoption of the Rule 702 language resolved the "Catch-22" expert witnesses faced when testifying to eyewitness reliability. State v. Clopten, 223 P.3d 1103, 1106-07, 1114 (Utah 2009) (interpreting Utah R. Evid. 702 (2009)). Under Utah's prior rule, eyewitness experts whose testimony was too specific would be excluded for invading the province of the factfinder, while experts whose testimony was too general would be excluded for lecturing rather than dealing with the specific facts of the case. Id. The Utah Supreme Court concluded that the recent amendment to its own expert witness rule adopting the language of Rule 702 now permitted an eyewitness expert to "'give a dissertation or exposition' of factors found in the case that are understood to contribute to eyewitness inaccuracy." Id. at 1114.

23 No. 2018AP319-CR

State v. Marshall, 596 S.W.3d 156, 160-62 (Mo. Ct. App. 2020)

(interpreting Mo. Stat. § 490.065.2(1)).

¶42 We conclude that Wis. Stat. § 907.02(1) continues to

permit an expert witness to testify in the form of an opinion

"or otherwise," including exposition testimony on general

principles without explicitly applying those principles to, or

even having knowledge of, the specific facts of the case. If an

expert testifies in the form of an opinion, then the expert must

apply the principles and methods reliably to the facts of the

case.

¶43 Our inquiry does not end there, however, because the

admissibility of exposition testimony pursuant to Wis. Stat.

§ 907.02(1) is not automatic. "[T]he trial judge stands as a

gatekeeper to prevent irrelevant or unreliable testimony from

being admitted." Lapsley, 689 F.3d at 809; see also Jones, 381

Wis. 2d 284, ¶¶31-32 ("[T]he heightened standard under the

amended Wis. Stat. § 907.02(1) does not change this gatekeeping

function."). When expert testimony is proffered in the form of an exposition on general principles, the circuit court, as

gatekeeper, must consider the following four factors:

(1) whether the expert is qualified; (2) whether the testimony

will address a subject matter on which the factfinder can be

assisted by an expert; (3) whether the testimony is reliable;

24 No. 2018AP319-CR

and (4) whether the testimony will "fit" the facts of the case.20

7 Daniel D. Blinka, Wisconsin Practice Series: Wisconsin

Evidence § 702.4032, at 673-74 (4th ed. 2017) (citing Fed. R.

Evid. 702, Advisory Committee Notes to the 2000 Amendment). The

party proffering the expert testimony bears the burden of

satisfying each of these preliminary questions by a

preponderance of the evidence. Wis. Stat. § 901.04; see also

This four-part inquiry is consistent with how federal 20

courts analyze exposition testimony. See, e.g., United States ex rel. Miller v. Bill Harbert Int'l Const., Inc., 608 F.3d 871, 894-96 (D.C. Cir. 2010) (per curiam); Burton v. Am. Cyanamid, 362 F. Supp. 3d 588, 601-02 (E.D. Wis. 2019); Emblaze Ltd. v. Apple Inc., 52 F. Supp. 3d 949, 959-61 (N.D. Cal. 2014); Konikov v. Orange Cty., 290 F. Supp. 2d 1315, 1317 (M.D. Fla. 2003); Magistrini v. One Hour Martinizing Dry Cleaning, 180 F. Supp. 2d 584, 612 n.30 (D.N.J. 2002), aff'd, 68 F. App'x 356 (3d Cir. 2003); TC Sys. Inc. v. Town of Colonie, 213 F. Supp. 2d 171, 175, 178-79 (N.D.N.Y. 2002); see also Fed. R. Evid. 702, Advisory Committee's Notes to 2000 Amendments; 32 C.J.S. Evidence § 801 (2020); Daniel D. Blinka, Expert Testimony and the Relevancy Rule in the Age of Daubert, 90 Marq. L. Rev. 173, 219 & n.215 (2006). State courts with an expert evidentiary rule modeled after Rule 702 similarly recognize this test as the proper one for exposition testimony. See State v. Johnson, 860 N.W.2d 235, 248 (S.D. 2015); State v. Marshall, 596 S.W.3d 156, 160-61 (Mo. Ct. App. 2020).

These considerations differ slightly from the considerations to admit opinion testimony of an expert: (1) whether the scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue; (2) whether the expert is qualified as an expert by knowledge, skill, experience, training, or education; (3) whether the testimony is based upon sufficient facts or data; (4) whether the testimony is the product of reliable principles and methods; and (5) whether the witness has applied the principles and methods reliably to the facts of the case. State v. Jones, 2018 WI 44, ¶29, 381 Wis. 2d 284, 911 N.W.2d 97.

25 No. 2018AP319-CR

Seifert, 372 Wis. 2d 525, ¶58 (lead opinion) (citing Daubert,

509 U.S. at 593); Blinka, supra, § 702.403, at 672.

¶44 Fit "goes primarily to relevance," Daubert, 509 U.S.

at 591, and is tied to the gatekeeping function the circuit

courts perform under Wis. Stat. § 904.01. Whether expert

testimony "fits" a case turns on whether it is "sufficiently

tied to the facts of the case" such that "it will aid the jury

in resolving a factual dispute." Daubert, 509 U.S. at 591

(quoting United States v. Downing, 753 F.2d 1224, 1242 (1985)).

"[E]xpert testimony is helpful to the jury," or fits, "if it

concerns a matter beyond the understanding of the average

person, assists the jury in understanding facts at issue, or

puts the facts in context." United States v. Welch, 368

F.3d 970, 974 (7th Cir. 2004), judgment vacated on other

grounds, 543 U.S. 1112 (2005). Establishing the fit of

exposition testimony is particularly important because, unlike

opinion testimony, exposition testimony does not in and of

itself explicitly connect the witness's expertise to the particular facts of the case. See Trout v. Milton S. Hershey

Med. Ctr., 576 F. Supp. 2d 673, 677 (M.D. Pa. 2008)

("Generalized expert testimony that is factually disconnected

from the case is inadmissible because it does not assist the

jury in rendering a verdict based on the material facts in

issue.") (citing Elcock v. Kmart Corp., 233 F.3d 734, 755 n.12

(3d Cir. 2000)).

¶45 In this case, the circuit court determined that Dr. White's exposition testimony did not fit the particular 26 No. 2018AP319-CR

facts of Dobbs's case because Dobbs "made no showing that the

types of tactics that were employed in [his] case would

correspond to any of the generalized opinions that Dr. White

holds about false confessions and police interrogations." We

conclude that the circuit court applied the proper legal

standard for admission of exposition testimony in assessing the

fit of Dr. White's testimony to the facts of the case. We

therefore uphold its exercise of discretion so long as the

circuit court had "a reasonable basis," applying the proper

legal standard "in accordance with the facts of record." Pico,

382 Wis. 2d 273, ¶15 (quoting LaCount, 310 Wis. 2d 85, ¶15).

¶46 Dr. White testified that he would educate the jury on

police interrogation techniques that could make an innocent

person confess: isolation, confrontation with inculpatory

evidence, police indifference to claims of innocence, being in

custody for over six hours, persistent questioning, minimization

of the accused's culpability or the consequences, and implying

lenient treatment will be given in return for a confession. Dr. White also testified he would educate the jury on

dispositional characteristics that, when combined with those

police interrogation techniques, make an accused person more

vulnerable to falsely confessing: youth (under 25 years old),

low intelligence, a suggestible or compliant predisposition,

mental disorders like anxiety or depression, sleep deprivation,

and physical exhaustion.

¶47 According to Dobbs, Dr. White's testimony would have assisted the jury in assessing the truthfulness of Dobbs's 27 No. 2018AP319-CR

confessions to police by correcting a common misbelief that

innocent people do not confess to crimes they did not commit.

Dobbs further argues that he established a "fit" with his

circumstances and Dr. White's testimony based on his

dispositional factors——anxiety, depression, and sleep

deprivation——combined with the police using the interrogation

technique of confronting him with evidence suggesting his guilt.

¶48 We acknowledge that the circuit court could have found

this narrow overlap provided a sufficient fit between

Dr. White's testimony and the facts of Dobbs's case.21 This is a

matter of circuit court discretion, however, and therefore our

role on review is to "search the record for reasons to sustain

the circuit court's exercise of discretion." Pico, 382

Wis. 2d 273, ¶15 (quoting LaCount, 310 Wis. 2d 85, ¶15).

The Innocence Project, Inc. and The Wisconsin Innocence 21

Project, as amicus curiae, argue that once the presence of even one of the recognized risk factors is shown, the Daubert threshold for fit is satisfied and at that point the circuit court loses any discretion in the matter. A circuit court, in its discretion, might reasonably decide that the testimony is not beyond the understanding of the average person, does not assist the jury in understanding facts at issue, or does not put the facts in context. United States v. Welch, 368 F.3d 970, 974 (7th Cir. 2004), judgment vacated on other grounds, 543 U.S. 1112 (2005).

Additionally, the circuit court may always exclude expert testimony, "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Wis. Stat. § 904.03.

28 No. 2018AP319-CR

¶49 The circuit court found that Dobbs was not subject to

most of the types of coercive interrogation techniques described

by Dr. White. Dobbs had not been in custody for over six hours,

was not persistently interrogated while in custody, nor was he

isolated for much of that time. The police did not attempt to

lessen his culpability or offer him leniency if he confessed.

The police did not fabricate incriminating evidence. The record

further contains at least six instances of Dobbs spontaneously

admitting to huffing the air duster absent any coercive police

tactics.

¶50 Additionally, our review of the record indicates that

Dobbs did not possess most of the characteristics that Dr. White

would testify may predispose an individual to falsely confess if

coercive interrogation techniques were used. Dobbs was not

younger than 25 years old and did not claim to be of low

intelligence or particularly suggestible.

¶51 The circuit court could have reasonably concluded that

Dr. White's exposition testimony regarding situational factors that increase the likelihood of false confessions would not

assist the trier of fact to understand the evidence, especially

in light of the numerous spontaneous confessions introduced into

evidence. See United States v. Mamah, 332 F.3d 475, 477-78 (7th

Cir. 2003) (upholding the exclusion of expert testimony for lack

of fit where the defendant had previously been subjected to

coercive interrogation tactics, but the confession at issue was

made at a later point when the defendant was not subjected to those tactics). We conclude that the circuit court properly 29 No. 2018AP319-CR

exercised its discretion in excluding Dr. White's testimony on

the grounds that it did not sufficiently fit the facts of

Dobbs's case.

B. Dobbs was subject to custodial interrogation without being read Miranda warnings, but the admission of those statements was harmless error. ¶52 Dobbs moved to suppress the statements he made from

approximately 7:30 a.m. to 10:19 a.m. on the grounds that he was

subject to custodial interrogation and not read the Miranda

warnings, violating his Fifth Amendment right against self-

incrimination. The Fifth Amendment to the United States

Constitution provides that "[n]o person . . . shall be compelled

in any criminal case to be a witness against himself."22 In

order to protect the rights secured by the Fifth Amendment, the

United States Supreme Court held that the government "may not

use statements, whether exculpatory or inculpatory, stemming

from custodial interrogation of the defendant unless it

demonstrates the use of procedural safeguards effective to

secure the privilege against self-incrimination." Miranda v.

Arizona, 384 U.S. 436, 444 (1966). Pursuant to Miranda, no

suspect may be subjected to custodial interrogation until he is

"warned that he has a right to remain silent, that any statement

The Wisconsin Constitution similarly provides that "[n]o 22

person . . . may be compelled in any criminal case to be a witness against himself or herself." Wis. Const. Art. I, § 8. This court has generally interpreted this provision consistent with the United States Supreme Court's interpretation of the Fifth Amendment to the federal Constitution. See State v. Ward, 2009 WI 60, ¶18 n.3, 318 Wis. 2d 301, 767 N.W.2d 236.

30 No. 2018AP319-CR

he does make may be used as evidence against him, and that he

has a right to the presence of an attorney, either retained or

appointed." Id. Incriminating statements made in violation of

Miranda must be suppressed, id., unless the admission of the

statements was harmless error.

¶53 Since custody is "a necessary prerequisite to Miranda

protections," we must first resolve whether Dobbs was "in

custody," as that term is understood in the Miranda context.

State v. Lonkoski, 2013 WI 30, ¶23, 346 Wis. 2d 523, 828

N.W.2d 552. A person is in custody for Miranda purposes if

"there is a formal arrest or restraint on freedom of movement of

a degree associated with a formal arrest." State v. Bartelt,

2018 WI 16, ¶31, 379 Wis. 2d 588, 906 N.W.2d 684 (quoted source

omitted); see also California v. Beheler, 463 U.S. 1121, 1125

(1983) (per curiam) ("Although the circumstances of each case

must certainly influence a determination of whether a suspect is

'in custody' for purposes of receiving Miranda protection, the

ultimate inquiry is simply whether there is a 'formal arrest or restraint on freedom of movement' of the degree associated with

a formal arrest." (quoted source omitted)).

¶54 This objective test requires us to examine the

totality of the circumstances. See Bartelt, 379 Wis. 2d 588,

¶¶31-32; see also Thompson v. Keohane, 516 U.S. 99, 112-13

(1995). There are several factors we consider, including: "the

defendant's freedom to leave; the purpose, place, and length of

the interrogation; and the degree of restraint." State v. Martin, 2012 WI 96, ¶35, 343 Wis. 2d 278, 816 N.W.2d 270 31 No. 2018AP319-CR

(quoting Morgan, 254 Wis. 2d 602, ¶12). When evaluating the

"degree of restraint," we consider "whether the suspect is

handcuffed, whether a weapon is drawn, whether a frisk is

performed, the manner in which the suspect is restrained,

whether the suspect is moved to another location, whether

questioning took place in a police vehicle, and the number of

officers involved." Morgan, 254 Wis. 2d 602, ¶12.

¶55 As the State conceded, in both its brief23 and at oral

argument,24 Dobbs was in custody at some point while he was being

questioned in the squad car and therefore Miranda warnings were

required well before Officer Pines first read them at 10:19 a.m.

While we accept that concession, we also explain why, under the

totality of the circumstances, a reasonable person in Dobbs's

position would have felt a restraint on his freedom of movement

of a degree associated with formal arrest and why he was

For example, the State conceded that "Dobbs's statements 23

in response to inquisitorial questions before he waived his Miranda rights probably should have been suppressed because Dobbs was probably in custody at some point while he was being questioned."

As24 the assistant attorney general conceded at oral argument:

At some point when you look at the [State v. Bartelt, 2018 WI 16, 379 Wis. 2d 588, 906 N.W.2d 684] factors, it would appear that at some point because he was frisked, he was handcuffed, he was in the back of a locked squad car, and he was asked some questions, some of which were not inquisitorial and some of them may have been. So I think at some point during that hour, it is likely that it changed into a custodial type situation.

32 No. 2018AP319-CR

therefore in custody for purposes of Miranda. But first, we

answer the question we presented to the parties: "Whether the

court of appeals' decision is consistent with State v. Morgan,

2002 WI App 124, 254 Wis. 2d 602, 648 N.W.2d 23, and if not,

whether Morgan should be overruled."

¶56 In Morgan, 254 Wis. 2d 602, ¶13, the court of appeals

emphasized that the analyses required by the Fourth Amendment

and Fifth Amendment are distinct, despite some lack of clarity

in the case law. See United States v. Smith, 3 F.3d 1088, 1096

(7th Cir. 1993) ("[O]ur inquiry into the circumstances of

temporary detention for a Fifth and Sixth Amendment Miranda

analysis requires a different focus than that for a Fourth

Amendment Terry25 stop."). The court of appeals in this case

fell prey to this confusion when it relied upon Blatterman, a

Fourth Amendment case, to resolve Dobbs's Fifth Amendment

claim.26 See Dobbs, No. 2018AP319–CR, ¶¶12-13 (per curiam)

(relying exclusively on State v. Blatterman, 2015 WI 46, 362

Wis. 2d 138, 864 N.W.2d 26).

25 Terry v. Ohio, 392 U.S. 1 (1968).

In her concurrence in Martin, then-Chief Justice Shirley 26

Abrahamson made a "cautionary point" that "[i]t is possible that some past cases have cited Fourth Amendment cases while deciding Fifth Amendment issues or cited Fifth Amendment cases while deciding Fourth Amendment issues. Going forward, this court should be cautious to avoid conflating closely related constitutional standards and analyses." State v. Martin, 2012 WI 96, ¶¶72, 77, 343 Wis. 2d 278, 816 N.W.2d 270 (Abrahamson, C.J., concurring).

33 No. 2018AP319-CR

¶57 We uphold Morgan and clarify that the Fourth Amendment

and Fifth Amendment protect different interests and involve

different inquiries. A claimed violation of a defendant's

Fourth Amendment rights involves balancing the government's

interest in crime prevention against an individual's right to be

free from government intrusion. See Morgan, 254 Wis. 2d 602,

¶14 (citing Terry v. Ohio, 392 U.S. 1, 19-27 (1968)). When

evaluating a Terry stop under the Fourth Amendment, this court

considers the totality of the circumstances leading up to the

stop and focuses on "the reasonableness of the officers' actions

in the situation facing them." State v. Miller, 2012 WI 61,

¶30, 341 Wis. 2d 307, 815 N.W.2d 349 (quoted source omitted).

¶58 The Fifth Amendment protects a different interest:

the right not to be compelled to incriminate oneself. Morgan,

254 Wis. 2d 602, ¶15. We require Miranda warnings to be given

based on the need to protect the fairness of a criminal

defendant's trial. Id. (citing Schneckloth v. Bustamonte, 412

U.S. 218, 240 (1973)). It is well-settled that at the point in time where an individual's freedom of action is "curtailed to a

'degree associated with a formal arrest'" under the totality of

the circumstances, the safeguards of Miranda become applicable.

Berkemer v. McCarty, 468 U.S. 420, 440 (1984) (quoting Beheler,

463 U.S. at 1125).

¶59 A brief detention, such as a traffic stop, typically

does not rise to the level of "custody" for purposes of Miranda.

See Berkemer, 468 U.S. at 437-40. However, if under the totality of the circumstances a detained motorist's freedom of 34 No. 2018AP319-CR

action is curtailed to a degree associated with a formal arrest,

he or she is entitled to the "full panoply of protections

prescribed by Miranda." Id. at 440 (citing Oregon v. Mathiason,

429 U.S. 492, 495 (1977) (per curiam)); see State v. Griffith,

2000 WI 72, ¶69 n.14, 236 Wis. 2d 48, 613 N.W.2d 72 (noting that

the United States Supreme Court has "made clear that if a

detained motorist is treated in such a manner that he or she is

rendered 'in custody' for practical purposes, Miranda

protections are triggered."); State v. Gruen, 218 Wis. 2d 581,

594, 582 N.W.2d 728 (Ct. App. 1998) ("[T]he fact that a

defendant was detained pursuant to a Terry stop does not

automatically dispel the need for Miranda warnings.").

¶60 We therefore recognize the distinction between an

analysis of a violation of the Fourth and Fifth Amendment as

aptly described in Morgan, 254 Wis. 2d 602, ¶¶13-16. Having

clarified this framework and identified the court of appeals'

error in relying on Blatterman, 362 Wis. 2d 138, we return to

the facts of Dobbs's case. ¶61 We conclude that Dobbs was in custody for purposes of

Miranda protections because, under the totality of the

circumstances, a reasonable person would have considered himself

restrained to a degree associated with formal arrest. See

Martin, 343 Wis. 2d 278, ¶¶34-35. First, Dobbs was never free

to leave from the moment Officer Milton blocked Dobbs's vehicle

and handcuffed him in a locked squad car. In each of the

locations Dobbs was taken, he was either locked in, guarded by armed law enforcement, or both. This was not like a routine 35 No. 2018AP319-CR

traffic stop where if Dobbs had successfully performed the field

sobriety tests, he would have been free to leave. See State v.

Swanson, 164 Wis. 2d 437, 452, 475 N.W.2d 148, abrogated on

other grounds by State v. Sykes, 2005 WI 48, 279 Wis. 2d 742,

695 N.W.2d 277 ("A reasonable person would understand a request

to perform a field sobriety test to mean that if he or she

passed the test, he or she would be free to leave.").

¶62 Second, as to the "place[] and length of the

interrogation," Martin, 343 Wis. 2d 278, ¶35, Dobbs was

initially questioned by Officer Milton in his parked, locked

squad car from 7:31 a.m. until 8:52 a.m., with a short break to

complete field sobriety tests. Dobbs was then subjected to more

questioning at the hospital by several armed officers. Unlike a

brief traffic stop, the place of interrogation did not expose

Dobbs to public view and would have caused a reasonable person

to feel completely at the mercy of police. See Berkemer, 468

U.S. at 437-40.

¶63 Ultimately, Dobbs was not read the Miranda warnings until almost three hours after he was first handcuffed and put

in the backseat of a locked squad car. Three hours is

significantly longer than the 30 minutes of questioning in a

patrol car that the United States Supreme Court has implied

rises to the level of custody for purposes of Miranda. On

multiple occasions the Supreme Court has cited favorably to

Commonwealth v. Meyer, 412 A.2d 517 (Pa. 1980), which concluded

that a driver was in custody for purposes of Miranda when he was detained for over 30 minutes, part of the time in a patrol car, 36 No. 2018AP319-CR

and subject to questioning. See Berkemer, 468 U.S. at 427

nn.7 & 8, 441 n.34; see also Pennsylvania v. Bruder, 488 U.S. 9,

11 n.2 (per curiam) ("[T]he motorist in Meyer could be found to

have been placed in custody for purposes of Miranda safeguards

because he was detained for over half an hour, and subjected to

questioning while in the patrol car.").

¶64 Lastly, we examine the degree of restraint, which

includes "whether the suspect is handcuffed, whether a weapon is

drawn, whether a frisk is performed, the manner in which the

suspect is restrained, whether the suspect is moved to another

location, whether questioning took place in a police vehicle,

and the number of officers involved." Morgan, 254 Wis. 2d 602,

¶12. A degree of restraint was used when Officer Milton

initially blocked Dobbs's car and ordered him out while holding

onto his service weapon. Dobbs was then frisked, handcuffed,

and locked in the backseat of Officer Milton's squad car while

being questioned for the first hour. Dobbs was not told "no"

when he asked whether he was going to be arrested and whether he was going to jail. Cf. State v. Quigley, 2016 WI App 53, ¶¶36-

43, 370 Wis. 2d 702, 883 N.W.2d 139 (holding that the defendant

was not in custody for purposes of Miranda where he was told

numerous times during questioning in an unlocked room that he

was not under arrest and was free to leave). Dobbs was also

surrounded by multiple officers at all times on the scene and at

the hospital, as many as four officers at one time.

¶65 Unlike in Gruen, 218 Wis. 2d at 598, where the defendant was not in custody for purposes of Miranda because he 37 No. 2018AP319-CR

was only held in a police van for 10-15 minutes without

handcuffs and asked "three short, general, common-sense

investigatory questions," Dobbs was initially questioned for an

hour while handcuffed in a locked squad car. Just as the

defendants in New York v. Quarles, 467 U.S. 649, 655 (1984), and

Morgan, 254 Wis. 2d 602, were determined to be in custody for

purposes of Miranda because they were surrounded by multiple

officers and handcuffed27 at the time of questioning,28 Dobbs's

freedom was restricted to the degree associated with formal

arrest.

¶66 Having concluded that, under the totality of the

circumstances, Dobbs was in custody for purposes of Miranda well

before 10:19 a.m., we must next ascertain whether he was subject

to interrogation. Custodial interrogation can take two forms:

express questioning or its functional equivalent. See State v.

Harris, 2017 WI 31, ¶15, 374 Wis. 2d 271, 892 N.W.2d 663; see

also Rhode Island v. Innis, 446 U.S. 291, 301 (1980) ("[T]he

term 'interrogation' under Miranda refers not only to express

While we have recognized that the use of handcuffs alone 27

"does not in all cases render a suspect in custody for Miranda purposes," Martin, 343 Wis. 2d 278, ¶34, this case involves other factors relevant to the degree of restraint.

These cases are distinguishable from Torkelson, where the 28

court concluded that a reasonable person in the defendant's position "would not believe his freedom was restricted to a 'degree associated with formal arrest'" after being briefly questioned by one officer in an area open to the public and not handcuffed or physically restrained. State v. Torkelson, 2007 WI App 272, ¶20, 306 Wis. 2d 673, 743 N.W.2d 511 (quoted source omitted).

38 No. 2018AP319-CR

questioning, but also to any words or actions on the part of the

police (other than those normally attendant to arrest and

custody) that the police should know are reasonably likely to

elicit an incriminating response from the suspect.") (footnotes

omitted). "Express questioning" does not encompass every

inquiry that is directed to a suspect, it covers only those

"designed to elicit incriminatory admissions." Harris, 374

Wis. 2d 271, ¶16 (quoting Pennsylvania v. Muniz, 496 U.S. 582,

602 n.14 (1990)). Therefore, it is "the nature of the

information the question is trying to reach" that determines

whether a question is inquisitorial. Id., ¶17.

¶67 As the State concedes, Officer Milton's questions and

statements about the damage to Dobbs's vehicle, his depression

and anxiety, and injuries to his face were intended to illicit

incriminatory admissions and therefore were likely

inquisitorial.29 Accordingly, we conclude that under the

We need not determine which questions and statements were 29

intended to illicit incriminatory admissions. However, the questions Officer Milton asked Dobbs included:

 Do you have any medical issues other than that splint that you were wearing?"

 "Do you have any injuries from the collision with the curb?

 "So [those bruises and scratches on your face] are all old?"

39 No. 2018AP319-CR

totality of the circumstances, Dobbs was subject to custodial

interrogation for purposes of Miranda.30 Therefore, it was error

for at least some of Dobbs's pre-Miranda statements to be

admitted at trial. However, because we determine the error in

admitting Dobbs's statements was harmless, we need not resolve

precisely which statements should have been suppressed by the

circuit court.

¶68 Admitting Dobbs's pre-Miranda statements was harmless

error if it is "clear beyond a reasonable doubt that a rational

jury would have found the defendant guilty absent the error."

Martin, 343 Wis. 2d 278, ¶45 (quoted source omitted).

Accordingly, the State must prove "that the error complained of

We also note that Officer Milton's comments "I smell alcohol" and "its obvious you hit something" could also be considered the functional equivalent to express questioning.

Rejecting the State's concession that Dobbs was subject 30

to custodial interrogation because she finds it "ill-advised," Justice Ziegler reframes this case in a way that was neither briefed nor argued by the parties: "To me, the actual issue in this case is whether law enforcement's investigatory detention of Dobbs under Terry turned into custody under Miranda for Fourth and Fifth Amendment purposes." Justice Ziegler's concurrence, ¶101. Justice Ziegler further declares that "The extent to which a stop can be reasonable under Terry for Fourth Amendment purposes and, nonetheless, render the suspect in custody under Miranda for Fifth Amendment purposes is an issue subject to a federal circuit court split." Id., ¶99. Although the discussion that follows demonstrates that a few circuits simply frame the issue differently, as opposed to being "split," we focus only on whether Dobbs was in custody for purposes of Miranda, which the State expressly concedes. See Springer v. Nohl Elec. Prods. Corp., 2018 WI 48, ¶40, 381 Wis. 2d 438, 912 N.W.2d 1 ("[T]he court must always be careful not to gratuitously address issues unnecessary to the resolution of the matter before us").

40 No. 2018AP319-CR

did not contribute to the verdict obtained." State v. Mayo,

2007 WI 78, ¶47, 301 Wis. 2d 642, 734 N.W.2d 115 (quoted source

omitted).

¶69 All of Dobbs's incriminating statements about huffing

air duster before hitting the pedestrian were made to Officers

Milton and Fleischauer following Dobbs's waiver of his Miranda

rights, or were made to officers, hospital staff, and his father

spontaneously. To the extent that Dobbs's five pre-Miranda

statements introduced into evidence were incriminating, they

were also independently testified to by other witnesses or were

inconsequential to the crime of homicide by intoxicated use of a

vehicle, the only crime for which Dobbs was convicted.

¶70 First, Officer Milton testified that Dobbs told him

"he had gone to Menards and he was on his way home." This fact

was independently introduced by Officer Frey, who found the

Menards receipt for air duster dated the morning of the

accident. Second, Officer Milton testified that Dobbs "admitted

to having hit a curb," a fact that a witness to the accident testified to at trial. Third, Dobbs told Officer Milton he "had

a few beers the previous evening," but the jury heard that there

was no alcohol detected in Dobbs's blood. Fourth, Dobbs told

Officer Milton that he "suffered from depression and anxiety and

he took medications for those conditions, as well as

painkillers." Dobbs testified at trial about his medical

conditions and his medications. Finally, the jury heard that

Dobbs said "none of the injuries on his face were as a result of the accident." However, identifying when Dobbs received his 41 No. 2018AP319-CR

facial injuries was not relevant to proving he committed

homicide by intoxicated use of a vehicle. We therefore conclude

that any error in admitting Dobbs's pre-Miranda statements "did

not contribute to the verdict obtained," and was harmless.

C. All of Dobbs's statements were voluntary.

¶71 In the alternative, Dobbs moved to suppress his

statements both before and after he was read the Miranda

warnings because he alleged they were not voluntarily made. In

its written decision, the circuit court merely said: "Each of

the statements made by the defendant to Officers Milton, Pine,

Kleinfeldt, Van Hove, Dyer, Baldukas and Baehmann has been

demonstrated to have been voluntary and not the product of

coercion in any degree."

¶72 When a defendant challenges the voluntariness of the

statements he made to law enforcement the State bears the burden

of showing by a preponderance of the evidence that the

statements were voluntary. See State v. Moore, 2015 WI 54, ¶55,

363 Wis. 2d 376, 864 N.W.2d 827. We evaluate voluntariness in light of all the circumstances surrounding the interrogation and

balance the defendant's personal characteristics against the

actions of law enforcement. See id., ¶56. We cannot properly

label a statement involuntary unless there is "some affirmative

evidence of improper police practices deliberately used to

procure a confession." Id. (quoting State v. Clappes, 136

Wis. 2d 222, 239, 401 N.W.2d 759 (1987). A defendant's personal

characteristics alone "cannot form the basis for finding that the suspect's confessions, admissions, or statements are 42 No. 2018AP319-CR

involuntary." Moore, 363 Wis. 2d 376, ¶56; see Hoppe, 261

Wis. 2d 294, ¶37 ("Coercive or improper police conduct is a

necessary prerequisite for a finding of involuntariness."

(citing Colorado v. Connelly, 479 U.S. 157, 167 (1986)));

Clappes, 136 Wis. 2d at 239.

¶73 Dobbs asks this court to conclude that his statements

to the police were involuntary without providing any evidence of

improper police conduct or coercion. Instead, he points solely

to his personal characteristics, namely his "physical and

emotional duress" on September 5, 2015, including:

 his swollen and infected hand that he had not taken

his painkillers or antibiotics for;

 his depression and anxiety;

 his failure to take his prescribed medication for his

depression and anxiety;

 his lack of sleep in 40 hours; and

 his emotional breakdowns throughout the day.

Additionally, Dobbs notes that he had minimal contact with law enforcement prior to the day of the accident as he had no prior

adult or juvenile record and had never been on probation or

¶74 However, Dobbs's failure to establish any improper

police practices is determinative. We decline Dobbs's

invitation to assess the voluntariness of his statements based

solely on the his physical and mental condition as it would

"effectively result in the establishment of a per se rule of involuntariness (and inadmissibility) whenever an officer 43 No. 2018AP319-CR

questions a defendant who is suffering from serious pain and

undergoing medical treatment at the time the questioning takes

place." Clappes, 136 Wis. 2d at 242. We conclude that based

upon the lack of proof of any improper police practices, Dobbs's

statements were voluntary.

IV. CONCLUSION

¶75 We conclude that the circuit court properly exercised

its discretion when it excluded Dr. White's exposition testimony

for a lack of fit with the facts of Dobbs's case. Additionally,

although we determine that several of Dobbs's statements should

interrogation and not read the Miranda warnings, we conclude

¶76 By the Court.—The decision of the court of appeals is

affirmed.

44 No. 2018AP319-CR.akz

¶77 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I join

the majority opinion's analyses and conclusions regarding the

admissibility of Dr. White's expert testimony and the

voluntariness of Dobbs' statements to law enforcement. But I do

not join the majority's analysis or conclusions regarding

Miranda1 and custodial interrogation for two reasons. First, I

disagree with the majority's ultimate conclusion. Dobbs was not

subject to custodial interrogation at any time prior to

receiving his Miranda warnings on the day in question. Second,

I am concerned that the majority's analysis, though it addresses

the Fifth Amendment and Miranda, could seriously undermine

Fourth Amendment law regarding Terry2 stops and investigatory

detention. Accordingly, I write separately to clarify the

jurisprudence surrounding the intersection of Terry

investigatory detention and Miranda custodial interrogation. I

respectfully concur.

I. MIRANDA AND THIS CASE

¶78 The Fifth Amendment to the United States Constitution states that "[n]o person" "shall be compelled in any criminal

case to be a witness against himself" or herself. Article 1,

section 8(1) of the Wisconsin Constitution affords the same

protection. State v. Bartelt, 2018 WI 16, ¶26, 379 Wis. 2d 588,

906 N.W.2d 684 (citing State v. Ward, 2009 WI 60, ¶18 n.3, 318

Wis. 2d 301, 767 N.W.2d 236). In Miranda v. Arizona, the

1 Miranda v. Arizona, 384 U.S. 436 (1966). 2 Terry v. Ohio, 392 U.S. 1 (1968).

1 No. 2018AP319-CR.akz

Supreme Court concluded that the Fifth Amendment requires law

enforcement to inform suspects of their rights prior to

conducting custodial interrogations.3 384 U.S. 436 (1966).

Miranda warnings are required because "'[t]he circumstances

surrounding in-custody interrogation can operate very quickly to

overbear the will of [the suspect.]'" Bartelt, 379 Wis. 2d 588,

¶27 (quoting Miranda, 384 U.S. at 469). Accordingly, Miranda is

rooted in a concern that custodial interrogation can "compel[]"

a suspect "to be a witness against himself" or herself. U.S.

Const. amend. V.

¶79 In this case, law enforcement did not inform Dobbs of

his Miranda rights until around 10:19 a.m., after he had already

made a series of statements. This concurrence focuses on the

narrow issue of whether Miranda required Dobbs' pre-warning

3 We summarized the content of Miranda warnings and suspects' relevant rights in Bartelt as follows:

"[The suspect] must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." Miranda, 384 U.S. at 479. If the accused indicates that he or she wishes to remain silent, questioning must stop. If he or she requests counsel, questioning must stop until an attorney is present. Id. at 474.

State v. Bartelt, 2018 WI 16, ¶27 n.6, 379 Wis. 2d 588, 906 N.W.2d 684.

2 No. 2018AP319-CR.akz

statements to be suppressed.4 Because only custodial

interrogation triggers Miranda protections, the court must

determine whether Dobbs was both in custody and subject to

interrogation prior to 10:19 a.m. On review, determinations of

custody and interrogation involve a two-step process. Bartelt,

379 Wis. 2d 588, ¶25; State v. Harris, 2017 WI 31, ¶9, 374

Wis. 2d 271, 892 N.W.2d 663. We review the circuit court's

factual findings and uphold them unless they are clearly

erroneous. Bartelt, 379 Wis. 2d 588, ¶25; Harris, 374

Wis. 2d 271, ¶9. We then apply constitutional principles

regarding Miranda custody and interrogation to the facts de

novo, but benefit from the analyses of the courts below.

Bartelt, 379 Wis. 2d 588, ¶25; Harris, 374 Wis. 2d 271, ¶9. The

parties do not dispute the circuit court's factual findings in

this case.

A. Custody

¶80 "The test to determine whether a person is in custody

under Miranda is an objective test." Bartelt, 379 Wis. 2d 588, ¶31 (citing State v. Lonkoski, 2013 WI 30, ¶27, 346 Wis. 2d 523,

828 N.W.2d 552). We look to the "totality of the circumstances"

to determine "whether there is a formal arrest or restraint on

freedom of movement of a degree associated with a formal

arrest." Id. (citing Lonkoski, 346 Wis. 2d 523, ¶27; California

4Dobbs does not challenge the sufficiency of law enforcement's Miranda warnings, once he heard them, or the validity of his waiver. Rather, he challenges the admissibility of his post-Miranda warning statements as involuntary only. I join the majority on the voluntariness issue, and so will not address it here.

3 No. 2018AP319-CR.akz

v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam); and State

v. Martin, 2012 WI 96, ¶33, 343 Wis. 2d 278, 816 N.W.2d 270)).

See also New York v. Quarles, 467 U.S. 649, 655 (1984) ("'[T]he

ultimate inquiry is simply whether there is a "formal arrest or

restraint on freedom of movement" of the degree associated with

a formal arrest[.]'" (quoting Beheler, 463 U.S. at 1125)).

¶81 "We consider a variety of factors to determine whether

under the totality of the circumstances a reasonable person

would feel at liberty to [leave]." Bartelt, 379 Wis. 2d 588,

¶32. Those factors include: "the defendant's freedom to leave;

the purpose, place, and length of the interrogation; and the

degree of restraint." Martin, 343 Wis. 2d 278, ¶35 (citing

State v. Morgan, 2002 WI App 124, ¶12, 254 Wis. 2d 602, 648

N.W.2d 23). Regarding degree of restraint, "we consider:

whether the suspect is handcuffed, whether a weapon is drawn,

whether a frisk is performed, the manner in which the suspect is

restrained, whether the suspect is moved to another location,

whether questioning took place in a police vehicle, and the number of officers involved." Bartelt, 379 Wis. 2d 588, ¶32

(citing Morgan, 254 Wis. 2d 602, ¶12).

¶82 But the restraint-on-freedom-of-movement test does not

end the inquiry. Bartelt, 379 Wis. 2d 588, ¶33. Restraint on

freedom of movement, i.e., constructive arrest, is a necessary,

but not a sufficient condition to establish Miranda custody.

Id. "If we determine that a suspect's freedom of movement" is

restrained to a degree "such that a reasonable person would not feel free to leave, we must then consider whether 'the relevant

4 No. 2018AP319-CR.akz

environment presents . . . inherently coercive pressures

. . . .'" Id. (quoting Howes v. Fields, 565 U.S. 499, 509

(2012)). Only then will Miranda's Fifth Amendment concerns

regarding compelled witness testimony be triggered. A person

may not always be free to leave circumstances such as those

present here, but that does not require a determination that

such person is in custody.

¶83 In this case, Dobbs was not in custody prior to

receiving the Miranda warnings. The circuit court determined

that Dobbs was not subject to custodial interrogation until

after 10:19 a.m. Similarly, the court of appeals concluded that

Dobbs was detained, but not in custody. State v. Dobbs, No.

2018AP319-CR, unpublished slip op., ¶¶11-14 (Wis. Ct. App. May

2, 2019). I agree. Under the totality of the circumstances,

Dobbs was not formally arrested or subject to a restraint on

freedom of movement to a degree associated with formal arrest

prior to receiving the Miranda warnings. Bartelt, 379

Wis. 2d 588, ¶31. The majority concludes otherwise only because it seemingly changes the Bartelt test for Miranda custody.5 It

gives too much weight to particular factors at the expense of

the totality of the circumstances, and ignores the final inquiry

whether the environment included inherently coercive pressures.

The majority also relies on the State's concession in this 5

case that Dobbs was subject to custodial interrogation. See majority op., ¶55. But we are not bound by the State's concession. State v. Anderson, 2014 WI 93, ¶19, 357 Wis. 2d 337, 851 N.W.2d 760 ("[W]e are not bound by a party's concession of law." (citing Bergmann v. McCaughtry, 211 Wis. 2d 1, 7, 564 N.W.2d 712 (1997))).

5 No. 2018AP319-CR.akz

¶84 Regarding Dobbs' "freedom to leave," Martin, 343

Wis. 2d 278, ¶35, the majority notes that Officer Milton blocked

Dobbs' vehicle, handcuffed him, and put him in the squad car.

Majority op., ¶61. The majority also notes that, while at the

hospital, Dobbs was guarded. Id. But during any traffic stop,

the suspect is not permitted to drive away, whether the vehicle

is blocked or not. Additionally, it is not unusual for law

enforcement to place a suspect in a squad car while they

investigate and control the scene or to guard a suspect. The

majority determines that Dobbs was not free to leave under these

circumstances. Id. That may be true. But even if a suspect is

not free to leave, that does not establish that he is in

custody. Not being free to leave, though a necessary condition

to conclude a suspect is in custody, is not itself sufficient to

conclude a suspect is in custody. See Quarles, 467 U.S. at 655

(describing the ultimate inquiry as "whether there is a 'formal

arrest or restraint on freedom of movement' of the degree

associated with a formal arrest"). If it was sufficient, then any person temporarily detained for an ordinary traffic stop

would be in custody. While perhaps not actually "free to

leave," these people are not in Miranda custody. See Berkemer

v. McCarty, 468 U.S. 420, 436 (1984) ("Certainly few motorists

would feel free . . . to leave the scene of a traffic stop

without being told they might do so."). The record reflects

that Dobbs' case unfolded in a manner similar to an

investigation and detention incident to a traffic stop. Indeed, Officer Milton repeatedly told Dobbs that there was an ongoing

6 No. 2018AP319-CR.akz

investigation. See majority op., ¶8. Dobbs may not have been

actually "free to leave," but that does not mean that he was in

custody.

¶85 Regarding the second factor, "the purpose, place, and

length of the interrogation," Martin, 343 Wis. 2d 278, ¶35, the

majority's analysis again distorts facts ordinarily associated

with a routine traffic stop into Miranda concerns. The majority

does not analyze the purpose of Officer Milton's questioning at

all, but notes that it occurred intermittently over the course

of three hours in the squad car and at the hospital. Majority

op., ¶¶62-63. There are several problems with this. First,

general on-the-scene questioning is not the same thing as

interrogation and does not raise Miranda concerns to the same

degree. Dobbs was not subjected to questioning of any

significant length and the type of conversation that occurred

did not amount to interrogation. Second, the place of Dobbs'

questioning was not of particular concern. Questioning suspects

in squad cars and hospitals, particularly incident to suspected OWI or traffic accident cases, is a common, and often necessary,

law enforcement practice in order to control a scene or ensure

the health and well-being of a suspect. Regarding the purpose

of law enforcement's questions, Dobbs was asked who he was,

where he was coming from, where he was going, how he got his

injuries, and whether he had any other medical issues or took

any medications. Majority op., ¶7. These types of questions

are routine in traffic stops, traffic accidents, and suspected OWI cases.

7 No. 2018AP319-CR.akz

¶86 Regarding "the degree of restraint," Martin, 343

Wis. 2d 278, ¶35, the majority notes that Officer Milton held

his service weapon, that there were other officers on the scene

and at the hospital, and that Dobbs was frisked, handcuffed, and

locked in the squad car. Majority op., ¶64. But again, during

a routine traffic stop, a frisk or the presence of multiple

officers is common in order to ensure officer safety.

Importantly, there is nothing in the record to suggest that

Officer Milton, though he had his hand on his service weapon,

ever pointed it at Dobbs. Simply holding a service weapon,

without pointing it at a suspect, is also appropriately related

to officer safety. Nor does the fact that Dobbs was handcuffed

pull the degree of restraint in this case into Miranda custody.

Martin, 343 Wis. 2d 278, ¶34 ("We recognize that the use of

handcuffs does not in all cases render a suspect in custody for

Miranda purposes."). Even as a whole, these facts did not

necessarily render Dobbs in Miranda custody. Martin, 343

Wis. 2d 278, ¶34 n.23 ("[D]rawing weapons, handcuffing a suspect, placing a suspect in a patrol car for questioning, or

using or threatening to use force does not necessarily elevate a

lawful stop into a custodial arrest for Miranda purposes."

(quoting United States v. Leshuk, 65 F.3d 1105, 1109–10 (4th

Cir. 1995))).

8 No. 2018AP319-CR.akz

¶87 Accordingly, none of the Miranda custody factors favor

a determination of custody in this case.6 Dobbs was not formally

arrested or restrained to a degree associated with formal

arrest. Because I so conclude, my custody analysis ends here.

But, under Bartelt, since the majority concluded that Dobbs was

restrained to the degree associated with formal arrest, the

majority should have continued on to consider "whether 'the

relevant environment present[ed] . . . inherently coercive

pressures . . . .'" Bartelt, 379 Wis. 2d 588, ¶33 (quoting

Howes, 565 U.S. at 509.) For the sake of completeness, I note

that there was nothing inherently coercive or wrongful about law

enforcement's conduct in this case. There is nothing in the

record to suggest otherwise. Indeed, the majority notes the

utter lack of wrongful or coercive conduct in the record in its

6 This case is distinguishable from State v. Morgan, 2002 WI App 124, 254 Wis. 2d 602, 648 N.W.2d 23. In that case, the court of appeals concluded that Morgan was in custody where, after police pointed their guns at Morgan, he tried to flee and was chased and caught by police, was frisked, handcuffed and placed in a squad car. Id., ¶¶3-4, 17. Dobbs never had a weapon pointed at him and never tried to evade or escape law enforcement. Under the totality of the circumstances, it is clear that Dobbs was handcuffed and in the back of the squad car for a very different reason from Morgan, and law enforcement used significantly less force against Dobbs than Morgan.

Rather, this case is more analogous to State v. Gruen, 218 Wis. 2d 581, 582 N.W.2d 728 (Ct. App. 1998). In that case, Gruen was not in custody where, after a traffic accident, he was stopped near the scene, frisked, placed in the back of a police van, and questioned by law enforcement. Id. at 586, 597-98. Just like Gruen, Dobbs did not have a weapon pointed at him, but was stopped near the scene of a traffic accident, frisked, detained in a police vehicle, and questioned. If Gruen was not in custody, then Dobbs was not either.

9 No. 2018AP319-CR.akz

voluntariness analysis. Majority op., ¶¶73-74. Consideration

of the relevant environment further counsels against a

determination of Miranda custody in this case.

B. Interrogation

¶88 For purposes of Miranda, interrogation includes

express questioning or its functional equivalent. Harris, 374

Wis. 2d 271, ¶¶16-17, 19-22. "Express questioning" includes

"only those questions 'designed to elicit incriminatory

admissions.'" Id., ¶16 (quoting Pennsylvania v. Muniz, 496 U.S.

582, 602 n.14 (1990)). "It is the nature of the information the

question is trying to reach, therefore, that determines whether"

the question triggers Miranda. Id., ¶17. If the desired

"information has no potential to incriminate the suspect, the

question requires no Miranda warnings." Id. (citing Doe v.

United States, 487 U.S. 201, 211 n.10 (1988) ("In order to be

privileged, it is not enough that the compelled communication is

sought for its content. The content itself must have

testimonial significance.")). ¶89 Miranda can also be triggered by the "'functional

equivalent' of an interrogation." Harris, 374 Wis. 2d 271, ¶19

(citing Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980)).

Functional equivalence is aimed at capturing law enforcement

"techniques of persuasion that, in a custodial setting, can

create the same potential for self-incrimination even in the

absence of an express question." Id. The functional

equivalents of interrogation include "'any words or actions on the part of the police (other than those normally attendant to

10 No. 2018AP319-CR.akz

arrest and custody) that the police should know are reasonably

likely to elicit an incriminating response from the suspect.'"

Id. (quoting Innis, 446 U.S. at 301 (footnotes omitted)).

Functional equivalence is an objective inquiry; neither law

enforcement's underlying subjective intent nor the suspect's

subjective understanding is dispositive. Id., ¶¶20, 22.

¶90 Rather, we review law enforcement's actions from the

perspective of a "reasonable third-person observer and inquir[e]

into how such a person would expect the suspect to react to the

officer's words and actions." Harris, 374 Wis. 2d 271, ¶22. We

impute to the third-person observer "'[a]ny knowledge the police

may have had concerning the unusual susceptibility of a

defendant to a particular form of persuasion.'" Id., ¶21

(quoting Innis, 446 U.S. at 302 n.8). The test is:

"[I]f an objective observer (with the same knowledge of the suspect as the police officer) could, on the sole basis of hearing the officer's remarks or observing the officer's conduct, conclude that the officer's conduct or words would be likely to elicit an incriminating response, that is, could reasonably have had the force of a question on the suspect, then the conduct or words would constitute interrogation." Id., ¶22 (quoting State v. Cunningham, 144 Wis. 2d 272, 278-79,

423 N.W.2d 862 (1988)).

¶91 The majority concludes that Dobbs was subject to

interrogation. Majority op., ¶67. But, in so concluding, it

relies entirely on the State's ill-advised concession that

Officer Milton interrogated Dobbs. Because I conclude Dobbs was

not in custody, I need not analyze whether he was interrogated; regardless, the Miranda protections are not triggered. See

11 No. 2018AP319-CR.akz

Innis, 446 U.S. at 300-01 ("[T]he Miranda safeguards come into

play whenever a person in custody is subjected to either express

questioning or its functional equivalent." (Emphasis added.)).

But I have reason to doubt the merit of the State's concession

in this case.

¶92 First, I note——and the majority seems to agree——that

at least some of Dobbs' statements were spontaneous and not

elicited in any way. See majority op., ¶¶15-16, 49, 69.

Second, I am unpersuaded that Officer Milton's questions were

express questions designed to elicit incriminating admissions.

As discussed above, Officer Milton's questions were routine

investigatory questions incident to ordinary traffic stops,

traffic accidents, or suspected OWI cases. General, on-the-

scene questioning of this sort is not interrogation. See United

States v. Adegbite, 846 F.2d 834, 838 (2d Cir. 1988) ("[T]he

solicitation of information concerning a person's identity and

background does not amount to custodial interrogation prohibited

by Miranda . . . ."). Third, I am equally unpersuaded that this case presents any functional equivalent concerns. I do not

readily see a basis for a reasonable third-party observer to

conclude that any officer's words or conduct "'could reasonably

have had the force of a question on'" Dobbs. Harris, 374

Wis. 2d 271, ¶22 (quoting Cunningham, 144 Wis. 2d at 279).

¶93 Thus, I disagree with the majority's ultimate

conclusion; Dobbs was not subject to custodial interrogation

under Miranda. But my disagreement with the majority does not end there. I am also concerned that its analysis conflates the

12 No. 2018AP319-CR.akz

routine investigatory detention of Dobbs in this case with

custody and Miranda Fifth Amendment violations, thereby

undermining our Fourth Amendment jurisprudence.

II. THE INTERSECTION OF MIRANDA AND TERRY.

¶94 The Fourth and Fifth Amendments to the United States

Constitution protect different interests. As discussed above,

the Fifth Amendment and Miranda protect the right to be free

from compulsion to incriminate oneself. U.S. Const. amend V.

Relevant here, the test for Miranda custody is whether, under

the "totality of the circumstances," viewed objectively, "there

is a formal arrest or restraint on freedom of movement of a

degree associated with a formal arrest." Bartelt, 379

Wis. 2d 588, ¶31. Custody is analyzed in light of various

factors, including: "the defendant's freedom to leave; the

purpose, place, and length of the interrogation; and the degree

of restraint." Martin, 343 Wis. 2d 278, ¶35 (citing Morgan, 254

Wis. 2d 602, ¶12).

¶95 In contrast, the Fourth Amendment protects the right to be free from unreasonable searches and seizures. U.S. Const.

amend. IV.; see also Wis. Const. art. 1, § 11. If law

enforcement conducts a traffic stop or "temporary investigative

stop," that is "a seizure within the meaning of the Fourth

Amendment . . . ." State v. Blatterman, 2015 WI 46, ¶17, 362

Wis. 2d 138, 864 N.W.2d 26. To comply with the Fourth

Amendment, the stop must be reasonable at its inception and in its duration. Id., ¶¶19-20. "Pursuant to Terry v. Ohio, 392

U.S. 1, a police officer may, under certain circumstances, 13 No. 2018AP319-CR.akz

temporarily detain a person for purposes of investigating

possible criminal behavior even though there is not probable

cause to make an arrest." Id., ¶18 (citing Terry, 392 U.S. at

22; State v. Chambers, 55 Wis. 2d 289, 294, 198 N.W.2d 377

(1972). "The Wisconsin Legislature codified the Terry

constitutional standard in Wis. Stat. § 968.24." Id. Relevant

here, "an officer may conduct a temporary investigatory

detention when 'the officer reasonably suspects that [a] person

is committing . . . a crime.' § 968.24." Id., ¶19.

Accordingly, an officer may conduct an investigatory detention

so long as he has reasonable suspicion to do so and the

detention is reasonable in duration. See id., ¶¶19-20.

¶96 What starts as an investigatory detention can turn

into an arrest. If and when it does, the Fourth Amendment

requires that the arrest be supported by probable cause. See

Blatterman, 362 Wis. 2d 138, ¶29. The test whether a suspect is

arrested is "whether a 'reasonable person in the defendant's

position would have considered himself or herself to be "in custody," given the degree of restraint under the

circumstances.'" Id., ¶30 (quoting State v. Swanson, 164

Wis. 2d 437, 447, 475 N.W.2d 148 (1991), abrogated on other

grounds by State v. Sykes, 2005 WI 48, 279 Wis. 2d 742, 695

N.W.2d 277)). The similarities between Fourth Amendment arrest

analysis and Fifth Amendment custody analysis are readily

apparent. This case tees up questions surrounding the

intersection between the Fifth Amendment and Miranda custodial interrogation on one hand, and the Fourth Amendment, Terry

14 No. 2018AP319-CR.akz

investigatory detentions, and arrests on the other. A Terry

investigatory detention can turn into an arrest. Miranda

custody occurs when a suspect is under arrest or restrained to a

degree associated with formal arrest. So can a Terry

investigatory detention turn into Miranda custodial

interrogation? If so, when and how?

¶97 In Morgan the court of appeals said that Miranda and

Terry are two different analyses designed to protect different

constitutional rights. Morgan, 254 Wis. 2d 602, ¶¶13-16.

Morgan was not the first time that Wisconsin courts noted the

intersection of Miranda and Terry. See also, State v. Griffith,

2000 WI 72, ¶69 n.14, 236 Wis. 2d 48, 613 N.W.2d 72; Swanson,

164 Wis. 2d at 447-49; Gruen, 218 Wis. 2d at 593-94; and State

v. Pounds, 176 Wis. 2d 315, 322, 500 N.W.2d 373 (Ct. App. 1993).

In Griffith, a Fourth Amendment traffic stop case, we stated:

The United States Supreme Court has held that persons temporarily detained in ordinary traffic stops are not "in custody" and therefore not subject to the rule in [Miranda]. Berkemer v. McCarty, 468 U.S. 436, 440 (1966); see also [Swanson, 164 Wis. 2d at 449]. However, the Court made clear that if a detained motorist is treated in such a manner that he or she is rendered "in custody" for practical purposes, Miranda protections are triggered. Berkemer, 468 U.S. at 440.

Griffith, 236 Wis. 2d 48, ¶69 n.14. ¶98 In this case, the majority appears to draw a bright

line between Terry Fourth Amendment jurisprudence and Miranda

Fifth Amendment jurisprudence. See majority op., ¶57 ("We

uphold Morgan and clarify that the Fourth Amendment and Fifth Amendment protect different interests and involve different

inquiries."); see also id., ¶60 ("We therefore recognize the 15 No. 2018AP319-CR.akz

distinction between an analysis of a violation of the Fourth and

Fifth Amendment as aptly described in Morgan, 254 Wis. 2d 602,

¶¶13-16."). In doing so, the majority oversimplifies the

analysis in this case, ignores an important issue in

constitutional law, and potentially undermines Fourth Amendment

law as an expense of its development of Fifth Amendment law.

¶99 The extent to which a stop can be reasonable under

Terry for Fourth Amendment purposes and, nonetheless, render the

suspect in custody under Miranda for Fifth Amendment purposes is

an issue subject to a federal circuit court split. The Second,

Seventh, Ninth, and Tenth Circuits conclude that the two

inquiries are entirely distinct. See United States v. Ali, 68

F.3d 1468, 1473 (2d Cir. 1995) (stating that whether a stop was

permissible under Terry is "irrelevant" to Miranda analysis,

because "Terry is an exception to the Fourth Amendment probable-

cause requirement, not to the Fifth Amendment protections

against self-incrimination"); United States v. Smith, 3 F.3d

1088, 1096-97 (7th Cir. 1993) (noting the "'vast difference between those rights that protect a fair criminal trial and the

rights guaranteed under the Fourth Amendment'"; stating that its

"inquiry into the circumstances of temporary detention for a

Fifth and Sixth Amendment Miranda analysis requires a different

focus than that for a Fourth Amendment Terry stop"); United

States v. Kim, 292 F.3d 969, 976 (9th Cir. 2002) (stating that

"whether an individual detained during the execution of a search

warrant has been unreasonably seized for Fourth Amendment purposes and whether that individual is 'in custody' for Miranda

16 No. 2018AP319-CR.akz

purposes are two different issues"); and United States v.

Perdue, 8 F.3d 1455, 1463–64 (10th Cir. 1993) (noting that "a

suspect can be placed in police 'custody' for purposes of

Miranda before he has been 'arrested' in the Fourth Amendment

sense"; holding that a gunpoint stop permissible under the

Fourth Amendment "created the 'custodial' situation envisioned

by Miranda and its progeny").

¶100 The First, Fourth, and Eighth Circuits conclude that

the two inquiries are not so distinct. See United States v.

Trueber, 238 F.3d 79, 92 (1st Cir. 2001) (stating, "As a general

rule, Terry stops do not implicate the requirements of Miranda

because Terry stops, though inherently somewhat coercive, do not

usually involve the type of police dominated or compelling

atmosphere which necessitates Miranda warnings") (internal

quotations omitted); United States v. Leshuk, 65 F.3d 1105,

1109-10 (4th Cir. 1995) (discussing Terry law in the course of

its Miranda analysis and stating, "From these standards, we have

concluded that drawing weapons, handcuffing a suspect, placing a suspect in a patrol car for questioning, or using or threatening

to use force does not necessarily elevate a lawful stop into a

custodial arrest for Miranda purposes"); and United States v.

Pelayo-Ruelas, 345 F.3d 589, 592 (8th Cir. 2003)(rejecting the

defendant's "broad contention that a person is in custody for

Miranda purposes whenever a reasonable person would not feel

free to leave"); see also id. ("One is not free to leave a Terry

stop until the completion of a reasonably brief investigation, which may include limited questioning. But most Terry stops do

17 No. 2018AP319-CR.akz

not trigger the detainee's Miranda rights."). See also

Katherine M. Swift, Drawing a Line Between Terry and Miranda:

The Degree and Duration of Restraint, 73 U. Chi. L. Rev. 1075,

1084-88 (summarizing this split of authority).

¶101 To the majority, the issue in this case is whether

Dobbs was in custody under Miranda. To me, the actual issue in

this case is whether law enforcement's investigatory detention

of Dobbs under Terry turned into custody under Miranda for

Fourth and Fifth Amendment purposes. I answer no, it did not.

The totality of the circumstances, viewed objectively,

demonstrate that Dobbs was subject to a reasonable investigatory

detention, but not in Miranda custody. The intersection of

Miranda and Terry is at the heart of this case. But the

majority fails to meaningfully address it. I am concerned that

the majority's analysis of Fifth Amendment Miranda law could

seriously undermine Fourth Amendment Terry law, and so I cannot

join it.

III. CONCLUSION ¶102 I join the majority opinion's analyses and conclusions

regarding the admissibility of Dr. White's expert testimony and

the voluntariness of Dobbs' statements to law enforcement. But

I do not join the majority's analysis or conclusions regarding

Miranda and custodial interrogation for two reasons. First, I

disagree with the majority's ultimate conclusion. Dobbs was not

subject to custodial interrogation at any time prior to receiving his Miranda warnings on the day in question. Second,

I am concerned that the majority's analysis, though it addresses 18 No. 2018AP319-CR.akz

Fourth Amendment law regarding Terry stops and investigatory

investigatory detention and Miranda custodial interrogation.

¶103 For the foregoing reasons, I respectfully concur.

¶104 I am authorized to state that Chief Justice PATIENCE

DRAKE ROGGENSACK and Justice BRIAN HAGEDORN join this opinion.

19 No. 2018AP319-CR.dk

¶105 DANIEL KELLY, J. (concurring). There are many

reasons people grow frustrated with the law. It's language is

too arcane, it's written at such length that no normal person

can reasonably hope to comprehend even a small part of its

content, it spreads like a crazed spider web across innumerable

sections, subsections, paragraphs, and parts, it changes so

frequently it's impossible to stay abreast of it, etc. But for

those who actually make an effort to discover what the written

law requires, perhaps one of its most maddening features is

that, apparently, it sometimes doesn't mean what it so plainly

says. Or at least that's sometimes the case once we get our

hands on it, as we did today with Wis. Stat. § 907.02(1). No

tremors will spread through our republic because of our

treatment of this evidentiary rule. But the way we reached our

conclusion will alienate the people from their law just a

smidgen more, and will further encourage the perception that the

law cannot be understood without the priestly class of lawyers

and judges revealing their gnosis to those to whom the law actually belongs.1

1The advent of a written code of law is one of the most significant developments in the relationship between governors and the governed. Some of the key attributes of a written code include the following:

[I]t was important that the laws be stated in the vernacular, not Latin, and be phrased in clear and ordinary language, so that citizens could consult the code and perfectly understand their rights and obligations, without having to go to lawyers and judges. The codes needed to be organized logically so that people could readily find the relevant laws. And the provisions ought to be short, so that people could more easily remember them. 1 No. 2018AP319-CR.dk

¶106 Today, we made Wis. Stat. § 907.02(1) say something

that no reasonably capable English-speaker would understand it

to say. Our task was to determine whether the 2011 addition of

the Daubert2 standard for the admission of expert witness

testimony changed the standard for the admission of expert

witness testimony. Just to state the question suggests the

answer. The text of the statute confirms the answer cannot be

anything other than "yes." It's not a lengthy provision, so

I'll set it out in full with the text added by the 2011

"Daubert" amendment underlined for the sake of clarity:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if the testimony is based upon sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case. 2011 Wis. Act 2, § 34m (emphasis added). Most of the preamble

in this provision addresses whether expert testimony would be helpful to the jury and whether the proposed witness qualifies

as an expert. The part at issue today is the permission

granting clause, which provides that an expert witness "may

testify thereto [that is, his area of expertise] in the form of

an opinion or otherwise, if" the witness satisfies the

conditions that follow.

Peter Tiersma, The Rule of Text: Is It Possible to Govern Using (Only) Statutes?, 6 NYU J.L. & Liberty 260, 270–71 (2011). 2 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).

2 No. 2018AP319-CR.dk

¶107 I pause at this spot in the statute because this is

where the majority discovers some gnosis not accessible through

the words on the page. Ordinary folk like me see the "if" and

conclude that what precedes it is contingent on what follows.3

Thus, I understand this language to mean that the expert may

testify "in the form of an opinion or otherwise" but only if he

can meet the conditions following the "if."4 The court, however,

acting on a plane of understanding to which I apparently do not

have access, says that only testimony in the form of an opinion

is subject to the listed conditions. Testimony in the

"otherwise" category, for some reason, is not. The court

dedicates the bulk of its opinion on this subject to a detailed

discussion of testimony in the "otherwise" category——its type,

3 The Oxford English Dictionary defines "if" as "[i]ntroducing a clause of condition or supposition" and as meaning "[o]n condition that; given or granted that; in (the) case that; supposing that; on the supposition that." If, The Oxford English Dictionary (definition A. I. (conjunction)). Merriam-Webster similarly defines "if" as meaning "in the event that," "allowing that," "on the assumption that," and "on condition that." See If, Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/if. 4 We actually have a requirement that we read statutory language the way everyone else does, with a narrow exception for technical meanings and special definitions. "[S]tatutory interpretation 'begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry.'" State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (citation omitted). We give that language "its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning." Id., ¶45. There are no technical or specially-defined words involved in the statute we are considering today, so we should read it just like everyone else.

3 No. 2018AP319-CR.dk

its value, and our treatment of it prior to the 2011 Daubert

amendment. I have no quibble with this historical recitation,

but I can't figure out how it separates "opinion" from

"otherwise" such that testimony in the former category is

subject to the statute's Daubert conditions while testimony in

the latter is not. The actual words on the page flat-out

contradict the court inasmuch as they do not distinguish between

"opinion" testimony and "otherwise" testimony. They say an

expert "may testify thereto in the form of an opinion or

otherwise, if . . . ." In ordinary English, this means the "if"

applies with just as much force to "otherwise" as it does to

"opinion."5

5Part of the problem might be the court's apparent understanding that an expert who applies his principles and methods to the facts of a case must necessarily be offering an opinion. It says "[e]ven if Dr. White had simply been asked whether any of the factors he described in his exposition testimony related to Dobbs's case, his response would be offering his view about whether his exposition testimony relates to the particular facts in Dobbs's case." Majority op., ¶36 n.18. The court does not explain why this is the only way Dr. White could have been asked to connect his principles and methods to the facts of this case, nor does it provide any authority for the proposition.

4 No. 2018AP319-CR.dk

¶108 Although I'm highlighting the court's gnostic

understanding of Wis. Stat. § 907.02(1), the majority isn't

exactly hiding it, as a comparison between its framing of the

question and its answer makes plain. The majority says, and I

agree, that the issue before us is "[w]hether the Daubert

reliability standard . . . altered Wisconsin's long-standing

practice of allowing expert exposition testimony . . . ."

Majority op., ¶35. Before I get to the court's answer, a short

glossary: In this framing, "Daubert reliability standard" means

the requirements following the "if" in § 907.02(1), including

the requirement that the witness "applied the principles and

methods reliably to the facts of the case"; and the term

"exposition testimony" means testimony included in the

"otherwise" category. And now the court's answer: "[W]e

conclude that Wis. Stat. § 907.02(1) continues to permit an

expert witness to testify in the form of an opinion 'or

It's not hard to imagine exposition testimony that the expert ties to the facts of the case without expressing an opinion. Here, after providing his exposition about false confessions, Dr. White could have been asked whether he examined Mr. Dobbs, and what the observation or examination comprised. And he could have been asked whether, pursuant to this examination, he observed any of the factors he described in his exposition as potentially disposing a person to confess falsely. So long as Dr. White does not take the ultimate step of saying whether he believed the presence of those pre-disposing factors meant that Mr. Dobbs had confessed falsely, he would not have rendered an opinion. But he would have applied his principles and methods to the facts of the case. In fact, this is exactly the type of connection the court describes as "fitness."

So it simply is not true that all expert testimony that the witness ties to the facts of the case is necessarily opinion testimony.

5 No. 2018AP319-CR.dk

otherwise,' including exposition testimony on general principles

without explicitly applying those principles to, or even having

knowledge of, the specific facts of the case." Majority op.,

¶42. So, although the words on the page say the legislature

made the admission of "otherwise" testimony contingent on the

expert having "applied the principles and methods reliably to

the facts of the case," we know——with our special knowing——that

this actually means the opposite, that the expert does not need

to have "applied the principles and methods reliably to the

facts of the case." And so today we reveal to the bench, bar,

and public that our special insight allowed us to see that the

Daubert reliability standard of § 907.02(1) applies to only one

of the listed categories, even though the actual text says it

applies to both.6

¶109 But that does not end our revelation. Having

discerned that the existing words do not mean what they so

obviously say, we further discerned that Wis. Stat. § 907.02(1)

contains a condition that is not actually there. The court says that

[w]hen expert testimony is proffered in the form of an exposition on general principles, the circuit court,

The majority cites other courts that have experienced 6

similar insight, as well as the Advisory Committee Notes to Federal Rule of Evidence 702 (the federal analog to our expert witness rule). The court's apparent goal is to create a sense of authority out of nothing more than a multiplicity of sources because none of the citations lend any additional explanatory power to the court's gnostic insights. If other sources explain why certain language doesn't actually mean what it appears to say, I will be an attentive student. But a sea of others simply ignoring the text of the law means nothing to me.

6 No. 2018AP319-CR.dk

as gatekeeper, must consider the following four factors: (1) whether the expert is qualified;[7] (2) whether the testimony will address a subject matter on which the factfinder can be assisted by an expert;[8] (3) whether the testimony is reliable;[9] and (4) whether the testimony will "fit" the facts of the case.[10] Majority op., ¶43. From the footnotes I attached to each of the

elements in this quote, it is easy to see that one of them is

not like the others. Elements one through three each reiterates

a requirement contained in § 907.02(1). Element four, however,

has no counterpart in the statute and is instead a purely

judicial creation.

¶110 That we would add a condition not already present in

the statute is interesting enough. But what I find fascinating

is why the court grafted the condition onto the statute.

"Establishing the fit of exposition testimony is particularly

important," the court says, "because, unlike opinion testimony,

exposition testimony does not in and of itself explicitly

connect the witness's expertise to the particular facts of the

7This element echoes the statute's requirement that the witness is "qualified as an expert by knowledge, skill, experience, training, or education[.]" Wis. Stat. § 907.02(1). 8This is a restatement of the statutory requirement that expert testimony is admissible only "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue[.]" Wis. Stat. § 907.02(1). 9This reflects one of the Daubert reliability standards, that is, that "the testimony is the product of reliable principles and methods." Wis. Stat. § 907.02(1).

This 10 element has no counterpart in Wis. Stat. § 907.02(1).

7 No. 2018AP319-CR.dk

case." Majority op., ¶44. Well, yes. But the explicit

connection is absent only because our gnosis revealed that the

statutory requirement that "the witness has applied the

principles and methods reliably to the facts of the case" does

not apply to exposition testimony, even though the text

obviously says it does. So now we are trying to patch a hole of

our own making.

¶111 It gets better. The "fitness" patch the court

engineered to cover the hole it created is uncannily similar to

the condition it excised.

Whether expert testimony "fits" a case turns on whether it is "sufficiently tied to the facts of the case" such that "it will aid the jury in resolving a factual dispute." Daubert, 509 U.S. at 591 (quoting United States v. Downing, 753 F.2d 1224, 1242 (1985)). "[E]xpert testimony is helpful to the jury," or fits, "if it concerns a matter beyond the understanding of the average person, assists the jury in understanding facts at issue, or puts the facts in context." Majority op., ¶44 (emphasis added). There's a reason for the

similarity, and the court's Daubert cite should have tipped it

off to the irony of what it is doing here. The Daubert quote on

which the majority relies for its "fitness" requirement is

itself the inspiration for the Wis. Stat. § 907.02(1)

requirement that the witness apply his testimony to the facts of

the case. So let's take stock of where we are. Our legislature

wrote into § 907.02(1) the Daubert requirement that the expert

connect his testimony to the facts of the case, we took that

condition out and replaced it with a patch based on Daubert's "fitness" concept, the very concept that inspired the condition

we removed, the removal of which created the need for the patch. 8 No. 2018AP319-CR.dk

This is dizzying and disorienting even for those trained in the

law. For everyone else, it just makes the law a hopeless

jumble.

¶112 One would hope that the end product of the court's

superior insight into the true meaning behind the words of Wis.

Stat. § 907.02(1) would yield something profound. But it

didn't. In fact, it produced just a few minor alterations to

the condition it removed. Whereas the statute requires that the

witness apply his testimony to the facts so that there is an

actual testimonial connection between the two, the court's

"fitness" requirement downgrades the connection from explicit to

implicit, and requires that the court make the connection as

part of its gate-keeping function rather than requiring the

witness to make it as part of his testimony. I don't think that

cake is worth the candle. And it's most definitely not worth

the statute-rending process necessary to get there.

¶113 Having said all this, I agree with the court's

conclusion that the circuit court did not err in not admitting Dr. White's testimony. As everyone agrees, he not only did not

apply his testimony to the facts of this case, he did not even

know what they were. Consequently, he did not satisfy the Wis.

Stat. § 907.02(1) condition that the witness must "appl[y] the

Therefore, I join the court's opinion except with respect to

Part III.A.

¶114 I am authorized to state that Justice REBECCA GRASSL BRADLEY joins this concurrence.

9 No. 2018AP319-CR.dk