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State v. Moss

October 01, 2003


APPEAL from a judgment of the circuit court for Ozaukee County: JOSEPH D. MC CORMACK, Judge. Affirmed. Cir. Ct. No. 01CF000184

Before Anderson, P.J., Brown and Nettesheim, JJ.

The opinion of the court was delivered by: Nettesheim, J.

¶1. Marvin J. Moss appeals from a judgment of conviction for second-degree sexual assault of a child contrary to Wis. Stat. § 948.02(2) (2001-02).*fn1 Moss pled no contest to the charge after the trial court denied his motion to suppress an incriminating statement he gave to the Ozaukee County Social Services Department. In the statement, Moss admitted to having sexual contact with a fifteen-year-old girl, C.S. Moss argued that his statement was coerced by his pastoral counselor, who told Moss that he would report the incident if Moss did not self-report the matter.

¶2. The issue in this case is whether a defendant's incriminating statement improperly coerced by a person who is not a state agent offends constitutional due process such that the statement is inadmissible. We conclude that there is no due process violation where, as in this case, a private citizen coerces a confession from another private citizen and there is no state action or state nexus. We uphold the trial court's order denying Moss's motion to suppress and affirm the judgment.


¶3. On September 14, 2001, the State filed a criminal complaint against Moss alleging that he had sexual contact with a child under the age of sixteen contrary to Wis. Stat. § 948.02(2). The probable cause portion of the complaint was based on the following recitals of Detective David G. Guss. On August 29, 2001, Moss contacted the Ozaukee County Social Services Department and reported that he was a pastor at a Lutheran church in the village of Grafton and that on August 3, 2001, he was counseling C.S., a fifteen-year-old member of the congregation, at her home regarding the recent death of her mother. Moss reported that during that visit, he consoled C.S. as she cried, "held her hand and hugged her ... [and] then began to intentionally touch her breasts." On August 30, 2001, Guss spoke with C.S. who told him that approximately three weeks prior Moss visited her at her home for a conversation regarding her well-being and that during the visit Moss "began to touch her breasts and vagina over her clothing and that she began to touch his penis over his clothing."

¶4. Following a preliminary hearing, Moss was bound over for trial. On October 16, 2001, the State filed an information alleging the same charge alleged in the complaint-second-degree sexual assault of a child contrary to Wis. Stat. § 948.02(2).

¶5. On January 17, 2002, Moss filed a motion to suppress his statements given to the social services agency and all evidence stemming from those statements on grounds that the statements were involuntary and coerced. In support of his motion, Moss supplied his affidavit stating that approximately one week after the incident with C.S. he sought spiritual counseling and absolution and asked Pastor Will Reichmann if he could recommend a confidential counseling source. Reichmann recommended that Moss contact Steven Fringer at the Pastoral Counseling Center. Moss did so. At their first meeting, Fringer told Moss that he was a psychologist and minister. According to Moss, Fringer invited him to confess the facts of the incident "in hopes of both spiritual and emotional/mental healing with counseling." Moss did so, believing that his statements to Fringer were confidential and privileged.

¶6. At their second meeting, Fringer advised Moss that he was a mandatory reporter*fn2 and therefore compelled under state law to report Moss's confidences to legal authorities. Fringer urged Moss to self-report and that if Moss would not, then Fringer would do so. Fringer provided Moss with the telephone number of the social services agency and told Moss to place the call from his office. Moss "felt he had been trapped" and was led to believe that "he had no option to minimize the damage to himself and others other than to so report." As a result, Moss self-reported the incident.

¶7. On June 18, 2002, the trial court issued a bench decision denying Moss's motion to suppress.*fn3 The trial court identified the issue as "whether coercive conduct of a private person is sufficient to render a confession inadmissible under the Wisconsin Constitution." The trial court determined that absent any kind of police or governmental involvement, it is not. On September 6, 2002, Moss entered a no contest plea and was subsequently convicted and sentenced to eighteen months in prison and eight years and six months of extended supervision.

¶8. Moss appeals.


ΒΆ9. We begin with a number of observations which narrow the issue before us. First, Moss states his issue as follows: "whether a statement illegally coerced by a person not a state agent and evidence derived solely by virtue of that statement not otherwise likely to be discovered offends the Due Process Clause of the United States Constitution ... and the equivalent provisions of the Constitution of the State of Wisconsin." Thus, the issue is solely ...

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