author: SNYDER, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Aaron O. Schreiber, Defendant-Appellant.

    Court of Appeals

      No. 01-1511-CR.

      Submitted on briefs January 25, 2002.—

      Decided February 13, 2002.

    2002 WI App 75
    (Also reported in 642 N.W.2d 621.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of William J. Donarski of Vande Castle & Donarski, S.C., Green Bay.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Jennifer E. Nashold, assistant attorney general, and James E. Doyle, attorney general.
    Before Nettesheim, EJ., Anderson and Snyder, JJ.

       Petition to review denied 5-21-02.

   SNYDER, J.

¶ 1. Aaron O. Schreiber appeals from a judgment of conviction for taking and driving a motor vehicle without the owner's consent and an order denying his motion for postconviction relief. Schreiber makes two arguments: (1) that the sentencing court imposed an unduly harsh sentence and failed to properly apply the appropriate sentencing factors and (2) that the sentencing court relied upon impermissible factors in violation of his First Amendment rights. We disagree with both contentions and affirm the judgment and order.

FACTS

¶ 2. On January 7, 2000, Schreiber was convicted of taking and driving a motor vehicle without the owner's consent, contrary to Wis. Stat. § 943.23(2) (1999-2000), after entering a no contest plea pursuant to a plea bargain. On March 28, 2000, sentence was withheld and Schreiber was placed on probation for four years. At this sentencing hearing, the trial court made the following comments:

He seems to be gang orientated and gang involved .... He has somewhat of an attitude which may be related to his gang involvement or related to just the way he feels about things but he does seem to have an attitude against authority, against people in authority .... As conditions of probation, the condition of probation will be subject to the usual rules of the Department, the rules and conditions that they may impose.... The defendant is not to contact have contact with gang members. He is not to be involved in any gang activity. The quickest way for him to get back into prison is if he gets involved in gang activity. (Emphasis added.)

Despite this clear admonition, on the very day he was sentenced, Schreiber wrote letters to other gang members, asked for gang membership fees and ordered assaults on three persons.

¶ 3. In November 2000, Schreiber's probation was revoked and on December 20, 2000, he returned to the trial court for sentencing after revocation. A presentence report recommended a thirty-month prison term. At sentencing, the Winnebago County Sheriffs Department presented the trial court with some poetry written by Schreiber while he was in jail. The verses read as follows:

Automatic weapons or pipe bombs of homemade napalm addressed to those bystanders supposed innocent
[Hjappiness is the smell of plastic explosives that leave human flesh smoking and cause delicious fits of confusion cause I chose your life's conclusion
[Hjappiness is when you learn exactly how to burn a carcass done well and not leave the trace of evidence or smell
[Hjappiness to me is a sea of red produced to the dead and a girl that understands my world.
. . . [EJventually the[y]'ll have to release the beast into the streets to tamper with peace. My destiny awaits me at the White House 1600 Penselvania [sic] Ave. When will it happen Any Day Now.

¶ 4. The prosecution recommended the maximum sentence of five years in light of Schreiber's "unproductive period of probation and jail time," noting that Schreiber had started with six months' jail time as a condition of probation but upon completion he was transferred to a boot camp as an alternative to revocation "in light of all of the violations that went on while he was still in jail." The prosecution also observed that Schreiber was terminated from the boot camp "in light of continuing violations primarily of gang activity and ... total disregard and continued blatant violations of appropriate behavior."

¶ 5. The trial court imposed the five-year maximum sentence. The trial court noted that despite the previous warnings, Schreiber continued to be involved in gang activity and had indicated that he was "not willing to give up [his] gangster disciple lifestyle." The trial court stated that it had originally planned to follow the thirty-month recommendation from the presen-tence report but then explained:

I don't want you out there. The only thing I can do to make sure that happens is to give you a sentence that I think under the circumstances guarantees . .. the community [is] protected from you, and you have had every opportunity ... to follow through with probation.

¶ 6. On May 1, 2001, Schreiber filed a motion for postconviction relief asking that his sentence be vacated or modified. This motion was heard on May 10, 2001, and denied by order on May 15, 2001. Schreiber appeals.

DISCUSSION

¶ 7. The standard of review of a motion for sentence modification is whether the sentencing court erroneously exercised its discretion. See Ocanas v. State, 70 Wis. 2d 179, 185, 233 N.W.2d 457 (1975). There is a strong public policy against interfering with the trial court's sentencing discretion and we must assume that the sentencing decision was reasonable. State v. Littrup, 164 Wis. 2d 120, 126, 473 N.W.2d 164 (Ct. App. 1991). An erroneous exercise of discretion will be found only if the sentence is excessive, unusual and so disproportionate to the offense committed as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances. Ocanas, 70 Wis. 2d at 185.

¶ 8. The three primary factors a sentencing court should consider in sentencing are the gravity of the offense, the defendant's character and rehabilitative needs and the need to protect the public. State v. Echols, 175 Wis. 2d 653, 682, 499 N.W.2d 631 (1993). Elements of these factors include a record of criminal offenses, a history of undesirable behavior patterns, the defendant's personality, character and social traits, the results of a presentence investigation, the defendant's age, educational background and employment record, the defendant's demeanor at trial and his or her remorse, repentance and cooperativeness. State v. Jones, 151 Wis. 2d 488, 495, 444 N.W.2d 760 (Ct. App. 1989). The weight assigned to each factor is particularly within the trial court's discretion. State v. Wickstrom, 118 Wis. 2d 339, 355, 348 N.W.2d 183 (Ct. App. 1984).

¶ 9. Nonetheless, a trial court does not possess unfettered sentencing discretion; a sentence may not be based on constitutionally invalid grounds, such as activity or beliefs protected by the First Amendment. State v. J. E. B., 161 Wis. 2d 655, 663, 469 N.W.2d 192 (Ct. App. 1991). To show that his sentence was excessive, unusual or disproportionate to the offense, Schreiber must demonstrate that the record contains an unreasonable or unjustifiable basis for the sentence. Id. at 661.

¶ 10. Schreiber contends that the sentencing court imposed an unduly harsh sentence and failed to properly apply the appropriate sentencing factors. Schreiber specifically argues that his sentence was unduly harsh because he received the maximum sentence when the appropriate factors do not support such a result. We disagree with these contentions.

¶ 11. We reiterate that the three primary factors a court must consider in sentencing are the gravity of the offense, the defendant's character and rehabilitative needs and the need to protect the public. Echols, 175 Wis. 2d at 682. The trial court addressed the first factor:

The underlying offense is a serious offense especially when you look at it the way that you went about with the understanding that you were specifically looking for a vehicle with the keys in it. And although it is a property offense, I consider it to be fairly serious because you take this person's vehicle, you leave the area, and you use it as your own. And there is a lot of premeditation involved in that offense. And so it is not just a situation where you've decided you are going to go joyriding. It is a situation where you are out specifically looking for a vehicle to use because you do not want to take the time to go out and get it like everybody else does by working and paying for it.

¶ 12. The trial court then concentrated on the remaining two factors: Schreiber's character and rehabilitative needs and the need to protect the public. The trial court relied primarily on Schreiber's continued involvement in gang activity despite the original sentencing court's warning that he would get prison time if such involvement continued. The sentencing court noted that Schreiber had "not taken one step to follow through with probation," that he indicated that he was "not willing to give up [his] gangster disciple lifestyle" and that he wanted to be revoked. The trial court observed that Schreiber had a criminal history, notably an attempted armed robbery and possession of crack cocaine, and that he had spent time in segregation.

¶ 13. The trial court stated:

One of the very last pieces of advice [the previous sentencing court] gives to you is: "The quickest way for you to get back into prison is to be involved in gang activity...." The day that he sentences you, you go and you send letters to other gang members asking for membership fees, order beatings of three other male individuals.
... [T]here were several indications that you spent time in segregation before you were sentenced. Now, you have spent time in segregation again while you are on revocation status.... You are again placed on segregation numerous times for making hooch, possession of gang material, and disorderly conduct. Then Ms. Stauber provides to me this November, 2000 report .... Unbelievable, Mr. Schreiber.
You scare me. You scare me from several perspectives. When the presentence report was being done there are indications in the presentence report that you are exaggerating the type of involvement that you had in the original attempted armed robbery. For what purpose, I don't know, but if you want to be a big shot in the eyes of these gang members because you want to go to prison, you are going to have that opportunity. If you think that that is going to make you a bigger gang member and a more important member within the membership, you have done everything that you have to to get there. As I indicated, you are a scary person, Mr. Schreiber. There is no chance that I'm going to release you out into the streets.

¶ 14. We conclude that the sentencing court properly considered the three primary sentencing factors— the gravity of the offense, the defendant's character and rehabilitative needs and the need to protect the public. Id. Schreiber argues that none of these three factors support the maximum sentence. He argues that his gang affiliation should not have been considered because he was "already punished for that conduct by having his probation revoked" and to sentence him based upon that conduct is "double punishment" and excessive. Schreiber cites to no authority for this proposition and it is well established that revocation is not considered punishment for double jeopardy purposes. State ex rel. Flowers v. DHSS, 81 Wis. 2d 376, 383-85, 260 N.W.2d 727 (1978).

¶ 15. The weight assigned to each sentencing factor is predominantly within the trial court's discretion. Wickstrom, 118 Wis. 2d at 355. A five-year maximum sentence, under the circumstances presented here, is not so excessive, unusual and so disproportionate to the offense committed as to shock public sentiment. Ocanas, 70 Wis. 2d at 185.

¶ 16. Schreiber further argues that the sentencing court relied upon impermissible factors in violation of his First Amendment rights. Schreiber relies on Dawson v. Delaware, 503 U.S. 159 (1992), in support of his belief that consideration at sentencing of protected First Amendment speech is constitutionally impermissible. The question presented in Dawson was whether the First Amendment prohibited the introduction in a capital sentencing proceeding of the fact that the defendant was a member of the Aryan Brotherhood where this evidence had no relevance to the issues being decided. Id. at 160. In Dawson, the United States Supreme Court specifically rejected Dawson's broad contention that the Constitution forbids the consideration in sentencing of any evidence concerning First Amendment protected activities; the Court specifically observed that a sentencing court "has always been free to consider a wide range of relevant material" and that the Constitution "does not erect a per se barrier to the admission of evidence" of First Amendment-protected activities. Id. at 164-65. A sentencing court may consider writings and statements otherwise protected so long as there is a sufficient nexus to the defendant's conduct and where the writings are relevant to the issues involved. See id. at 164. Dawson does not support Schreiber's cause in this appeal.

¶ 17. The issue before the trial court at sentencing after revocation was not only the underlying crime but also Schreiber's performance while on probation. A condition of probation, as the original sentencing court specifically alerted Schreiber, was no gang activity. Schreiber was expressly warned about the consequences of such activity while on probation and his continued gang involvement and conduct were relevant to his sentencing after revocation. Thus the consideration of Schreiber's jail writings was not an erroneous exercise of sentencing discretion.

¶ 18. Schreiber also implicitly argues that the poetry was not sufficiently linked to the relevant sentencing factors. We disagree. Again, we must bear in mind the condition of probation prohibiting gang activity. The very day he received probation, Schreiber violated that condition by resuming his gang activities and ordering the beating of certain persons. The lyrics found in Schreiber's cell refer to weapons and the joy of inflicting violence on others. At the postconviction motion hearing, the trial court expressly found a nexus between this poetry, Schreiber's gang activity and the letter that he wrote the very day he received probation.

CONCLUSION

¶ 19. The trial court exercised proper discretion in its sentence and in its refusal to modify that sentence. The trial court addressed the appropriate sentencing factors and the maximum sentence imposed is not so excessive, unusual or disproportionate so as to shock public sentiment. In addition, the trial court did not rely on impermissible factors when it considered, among other things, the contents of the poetry found in Schreiber's cell. We therefore affirm the trial court.

By the Court. — Judgment and order affirmed.


source: Caselaw Access Project

author: WILLIAM A. BABLITCH, J.

license: Public Domain

text:
    Robert Pasko, Scott Warren, Michael Wolfgram, Elizabeth Pridmore-Dahlke, Patrick LaBelle, Gertie Gilliam, Terese Ulickey, Henry Zimmerman, Anna Merhalski, Alfonso Salinas, Richard Thompson, Jean Docter, Charlene Guiliani, Harold Davis, David Granica, Audrey Warren, Mary Sikora, Linda Scholler, Joseph Suttle, Vicki Kakonis, Jeanne Sirna, Timothy Ridgway, Pamela Holmes and the Milwaukee Police Association, Plaintiffs-Appellants, v. City of Milwaukee, Board of Fire and Police Commissioners City of Milwaukee, Milwaukee Employes' Retirement System and Annuity and Pension Board and Milwaukee Police Chief Arthur Jones, in his official capacity, Defendants-Respondents-Petitioners.
    Supreme Court

      No. 99-2355.

      Oral argument December 10, 2001.

    Decided April 24, 2002.

      2002 WI 33
    (Also reported in 643 N.W.2d 72.)

      For the defendants-respondents-petitioners the cause was argued by Leonard A. Tokus, assistant city attorney, with whom on the briefs was Grant F. Langley, city attorney.

      For the plaintiffs-appellants there was a brief by John F. Fuchs, Marcia A. Snow and Fuchs Snow DeStefanis, S.C., Milwaukee, and oral argument by John F. Fuchs.

    An amicus curiae brief was filed by Jeffrey P. Sweet-land, and Shneidman Hawks & Ehlke, S.C., Milwaukee, on behalf of the Association of Law Enforcement Allied Services Personnel, Local 218, IUPA, AFL-CIO.
   WILLIAM A. BABLITCH, J.

¶ 1. The City of Milwaukee, City of Milwaukee Board of Fire and Police Commissioners, Milwaukee Employes' Retirement System and Annuity and Pension Board, and City of Milwaukee Police Chief Arthur Jones appeal from a court of appeals' decision that held that the Milwaukee Police Association was not barred from bringing its writ of mandamus action based on claim preclusion despite a similar action previously brought by its union members. The court of appeals concluded that claim preclusion did not apply because there was no privity between the union members in the first action and the union in this case. We agree. However, we disagree with the court of appeals' conclusion that, based on the current record, the Milwaukee Police Association was entitled to a writ of mandamus compelling the promotions of police officers to vacancies within the police department. Instead, we conclude that remand is appropriate on this issue to determine whether the collective bargaining agreement requires such promotions to occur, whether vacancies exist for such promotions, and whether, as the statute requires, such vacancies constitute "newly created offices." Accordingly, we reverse the court of appeals' decision and remand for additional proceedings consistent with this opinion.

I. PASKO I

¶ 2. On November 8, 19.93, Robert Pasko and 22 other City of Milwaukee police officers (officers) commenced an action in Milwaukee County Circuit Court against defendants City of Milwaukee, the City of Milwaukee Police Department, and Philip Arreola, the former City of Milwaukee Police Chief. The officers alleged that, from approximately 1984 to 1995, they worked regularly as police alarm operators under a process known as "underfilling," which entailed assigning lower ranking personnel to carry out duties of higher ranking personnel rather than filling vacancies at those higher positions. See Pasko v. City of Milwaukee, 222 Wis. 2d 274, 277, 588 N.W.2d 642 (Ct. App. 1998) (Pasko I). Despite working at the police alarm operator rank, the officers failed to receive pay commensurate with this rank. Id. Instead, they were paid at the lower rate applicable to police officers. Id. The officers therefore sought to recover the difference between their compensation as police officers and the higher compensation they would have received as police alarm operators. Id. at 277-78. They also sought promotion to the rank of police alarm operators so that they would not lose future compensation at the appropriate rank. Id. at 278.

¶ 3. The complaint alleged several causes of action, including breach of contract and a violation of Wis. Stat. § 62.50(9) (1991-92). Under the breach of contract claim, the officers alleged that the defendants breached the 1991-1992 collective bargaining agreement between the City of Milwaukee and the Milwaukee Police Association by requiring the officers to work as police alarm operators without promoting them to that rank or paying them for their employment in that capacity. The officers primarily relied on a section of the agreement that provided for different rates of base salary for police officers and police alarm operators. Under the statutory claim, the officers alleged that Wis. Stat. § 62.50(9) (1991-92) required the defendants to fill all vacancies at the police alarm operator rank as they occurred and that the failure to fill these positions constituted a violation of the statute. This statute provides:

All vacancies in either [the police or fire] department shall be filled and all new appointments shall be made by the respective chiefs with the approval of the board. Where vacancies in old offices or newly created offices can, with safety to the department, be filled by the promotion of officers or persons already in the service and who have proved their fitness for the promotion, the vacancies in newly created offices shall be so filled by promotion by the respective chiefs with the approval of the board.

Wis. Stat. § 62.50(9) (1991-92).

¶ 4. The officers moved for summary judgment. The circuit court, the Honorable Patrick J. Madden presiding, granted summary judgment in favor of the defendants on all claims except on the breach of contract claim. On the breach of contract claim, the court concluded that there were disputed issues of fact as to whether the defendants had breached the collective bargaining agreement, and therefore, summary judgment was not appropriate at that time. The court dismissed the officers' claim under Wis. Stat. § 62.50(9) (1991-92), concluding that the statute did not specifically require the defendants to make any promotions, and as a result, no violation of the statute occurred. The officers did not appeal the court's dismissal of this statutory claim. Instead, they proceeded with the breach of contract claim.

¶ 5. The parties again moved for summary judgment on the breach of contract claim. This time, the circuit court, the Honorable Frank T. Crivello presiding, granted summary judgment to the officers, concluding that the defendants' failure to pay the officers according to the rank of police alarm operator constituted a breach of the terms of the collective bargaining agreement. The court concluded:

There is no applicable legal definition of the term underfilling in statutes or case law and the contract is silent on the issue. The contract requires that Police Officers and Police Alarm Operators receive different rates of pay. It does not address the issues of a timeline for promotion or the filling of vacancies. The contract also does not specifically address when or how an employee is assigned to a particular classification. However by looking at the plain language of the contract and the intent of the parties represented by that language, it appears that employees performing the duties and responsibilities of another classification on a regular basis should be paid the amount agreed to in the contract for that classification.
Underfilling in and of itself is a permissible practice when done on an occasional and temporary basis, however, when coupled with an undisputed, yet unofficial, policy of not promoting anyone to those positions on a permanent basis, its [sic] stops being temporary underfilling, and turns into a permanent practice that violates the terms of the contract. .. . The apparent policy of the city and department to not promote anyone into these positions for the past ten years goes beyond the practice of underfilling, and is a breach of the term of the contract setting the applicable pay scale for the performance of such duties.

Based on this analysis, the court granted summary judgment to the officers. The court noted that the officers requested damages in the amount of the difference between the rate of pay as a police officer and the rate of pay as a police alarm operator, and it concluded that such relief was appropriate.

¶ 6. The court of appeals affirmed in an October 8, 1998, published decision, concluding that the circuit court correctly granted summary judgment on the officers' breach of contract claim. Pasko I, 222 Wis. 2d at 276. Specifically, the court held:

The collective bargaining agreement is clear. It specifies different ranks and different pay scales. It is undisputed that the plaintiff officers have been assigned to work as police alarm operators on a permanent basis, but have been denied the rank and additional compensation of police alarm operators. Requiring police officers to work permanently as police alarm operators without promoting them or paying them to do so violates the agreement.

Id. at 281. The court affirmed the circuit court's order awarding back pay to the officers. It did not specify any other relief, namely promotions, to which the officers were entitled, even though the opinion indicated that the failure to promote the officers constituted a violation of the collective bargaining agreement. Id. at 276, 281.

II. PASKO II

¶ 7. On December 8, 1998, the same officers from Pasko I and the Milwaukee Police Association filed an action in Milwaukee County Circuit Court in part against the City of Milwaukee, City of Milwaukee Board of Fire and Police Commissioners, and the Milwaukee Police Chief Arthur Jones (collectively "City"). The Milwaukee Police Association (MPA) is the certified collective bargaining unit for all City of Milwaukee police officers in non-supervisory ranks. In their complaint, the officers and the MPA alleged that vacancies remained at the rank of police alarm operator and that the City was required to fill these vacancies pursuant to Wis. Stat. § 62.50(9) (1997-98). The MPA and the officers also noted that Pasko I held that the failure to fill these vacancies constituted a breach of the collective bargaining agreement. They requested a writ of mandamus from the court compelling the City to effectuate promotions to unfilled police alarm operator positions within the Milwaukee Police Department.

¶ 8. The complaint also named the Milwaukee Employes Retirement System and Annuity and Pension Board (MERS/BOARD) as a defendant. The complaint alleged that the MERS/BOARD erred by allowing some of the officers, including Robert Pasko, to retire at a police officer's pay instead of at a police alarm operator's pay. The officers sought a writ of mandamus ordering the MERS/BOARD to grant the officers who had since retired the pay applicable to a police alarm operator.

¶ 9. The defendants sought a dismissal based on the doctrine of claim preclusion in their answer. The officers and the MPA then moved for summary judgment.

¶ 10. The circuit court, the Honorable Patricia D. McMahon presiding, ruled that the officers and the MPA were both barred from proceeding based on claim preclusion. In applying the doctrine, the court noted that the determinative issue was whether there was an identity between the parties in the first and second actions. The court held that the officers were clearly barred because they were the exact same officers as in the first suit. With respect to the MPA, the court held that, even though the union was not a party in the first action, it was still barred from proceeding. The court based its decision on the fact that the MPA was the collective bargaining agent that negotiated the contract that was at the heart of both cases. To conclude otherwise, the court stated, would be to place form over substance. Because the claims were barred, the court did not directly decide the merits of the claims and instead granted summary judgment in favor of the defendants. The MPA appealed.

¶ 11. In a published decision, the court of appeals concluded that the MPA's action against the City was not barred by the doctrine of claim preclusion. Pasko v. City of Milwaukee, 2001 WI App 55, ¶ 11, 241 Wis. 2d 226, 624 N.W.2d 859 (Pasko II). The court based its decision on the lack of privity between the officers who brought the first suit and the MPA in the second suit. Id. Because claim preclusion did not apply, the court of appeals then addressed the MPA's writ of mandamus claim. Id. at ¶¶ 12-18. After finding that the criteria for a writ were satisfied, the court held that the MPA was entitled to a writ compelling the City to fill the vacancies in the rank of police alarm operator with qualified officers. Id. at ¶¶ 13-18. In turn, the court reversed the circuit court's grant of summary judgment against the MPA and instead remanded to the circuit court for an entry of a writ of mandamus. Id.

¶ 12. We address two issues. First, we examine whether the MPA is barred from bringing its writ of mandamus action under the doctrine of claim preclusion. We conclude that the claim is not barred under this doctrine. Second, we address whether the MPA is entitled to a writ of mandamus compelling the City to promote, pursuant to Wis. Stat. § 62.50(9), qualified police officers to vacancies in the rank of police alarm operator. On this issue, we conclude that § 62.50(9) does not create a positive and plain duty for the City to fill any such vacancies by promotion as they occur, and therefore, standing alone, the statute does not require us to issue a writ in this case. We recognize, however, that the collective bargaining agreement may, when read alone or in conjunction with the statute, incorporate language that requires promotions to vacancies as they occur. In this case, however, the record is incomplete as to whether the collective bargaining agreement requires such promotions. Further, the record is unclear as to whether such vacancies currently exist at the rank of police alarm operator and whether these vacancies are, as § 62.50(9) requires, "newly created offices." We therefore remand to the circuit court for factual determinations on these issues.

III. CLAIM PRECLUSION

¶ 13. We first address whether the MPA is barred from bringing its writ of mandamus action based on the doctrine of claim preclusion.

¶ 14. The doctrine of claim preclusion states that "a final judgment is conclusive in all subsequent actions between the same parties [or their privies] as to all matters which were litigated or which might have been litigated in the former proceedings." DePratt v. West Bend Mut Ins. Co., 113 Wis. 2d 306, 310, 334 N.W.2d 883 (1983). Before an earlier proceeding will act to preclude a claim in another action, three factors must be present: "(1) an identity between the parties or their privies in the prior and present suits; (2) an identity between the causes of action in the two suits; and, (3) a final judgment on the merits in a court of competent jurisdiction." Northern States Power Co. v. Bugher, 189 Wis. 2d 541, 551, 525 N.W.2d 723, 727 (1995).

¶ 15. This case turns on the first prong of the analysis, that is, whether there was an identity between the parties or their privies in the first and second suits. In short, we examine whether there was privity between the officers in Pasko I and the MPA in this action requiring preclusion of MPA's action.

¶ 16. Privity exists when a person is so identified in interest with a party to former litigation that he or she represents precisely the same legal right in respect to the subject matter involved. See Hart Steel Co. v. Railroad Supply Co., 244 U.S. 294, 298 (1917); see also Restatement (First) of Judgments, § 83, cmt. a (1942). The question of whether the MPA is in privity with its members is a question of law that we review de novo. See Paige K.B. v. Steven G.B., 226 Wis. 2d 210, 226-27, 594 N.W.2d 370 (1999). The burden of proving claim preclusion is upon the party asserting its applicability. Alexopoulos v. Dakouras, 48 Wis. 2d 32, 37, 179 N.W.2d 836 (1970).

¶ 17. The City argues that the court of appeals erred in concluding that there was no privity between the officers in Pasko I and the MPA in this case. It asserts that privity was established between the parties by the collective bargaining agreement. This agreement, the City contends, was entered into by the MPA for the benefit of the officers. The officers were third-party beneficiaries to the agreement and brought their action in Pasko I based on their, interest in the agreement. The MPA is now bringing a similar action on behalf of its members based again on the collective bargaining agreement. The City contends that the contractual relationship between the officers and the MPA establishes privity between them for purposes of claim preclusion. We disagree.

¶ 18. The contractual relationship between the MPA and the officers does not, in and of itself, determine privity for purposes of claim preclusion. Instead, as the court of appeals concluded, " '[i]n order to be in privity with a party to a judgment, [a nonparty] must have such absolute identity of interests that the party to the earlier action represented the same legal interest as the non-party to that first action.'" Pasko II, 2001 WI App 55, ¶ 10 (quoting Amber J.F. v. Richard B., 205 Wis. 2d 510, 516, 557 N.W.2d 84 (Ct. App. 1996)); Chad M.G. v. Kenneth J.Z., 194 Wis. 2d 689, 695, 535 N.W.2d 97 (Ct. App. 1995). In other words, privity compares the interests of a party to a first action with a nonparty to determine whether the interests of the nonparty were represented in the first action. In turn, although the contractual relationship between the officers and the MPA may provide evidence to show that the parties' interests were similar, the relationship itself is not necessarily determinative on the privity question. See Chase Manhattan Bank, N.A. v. Celotex Corp., 56 F.3d 343, 346 (2d Cir. 1995) ("Whether there is privity between a party against whom claim preclusion is asserted and a party to prior litigation is a functional inquiry in which the formalities of legal relationships provide clues but not solutions.").

¶ 19. On this issue, the court of appeals concluded that "[t]he officers and the MPA do not share the requisite 'absolute identity of interests.'" Pasko II, 2001 WI App 55, ¶ 10. The court opined as follows:

Although the interests of the officers and the MPA are overlapping, they are not identical. In both the preceding action and the instant action, the individually named officers' interests were exclusively personal. In the first suit, "[t]he officers sought to recover the difference between their compensation as police officers and the higher compensation they would have received as police alarm operators," as well as "promotion to the rank of police alarm operators." However, in the instant action, while the MPA's interests include the promotion of the individually named officers as MPA members, its interests extend beyond the litigating officers to the rest of its members qualified to hold the rank of Police Alarm Operator. In other words, the MPA is seeking to compel the City to promote any of its qualified member-officers, not necessarily the incumbent officers.

Id. at ¶ 11 (citations omitted) (emphasis added).

¶ 20. We agree the interests of the officers and the MPA are different in this case. In Pasko I, the officers brought an action to obtain relief for themselves based on their underfilling at the rank of police alarm operator. They sought, based on state statute and the collective bargaining agreement, back pay and promotions for themselves, arguing that the City could not require them to work as police alarm operators without promoting them or paying them for their work in that capacity. Once , the circuit court determined that the statute did not require the promotions of the officers to this rank, the officers abandoned this claim and instead pursued their claim under the collective bargaining agreement, again seeking payment and promotions for themselves. Eventually, they gained relief in the form of payment for their services based on the agreement.

¶ 21. Unlike the officers, the MPA seeks a determination based solely on state statute, arguing that the statute requires the promotion of any qualified officer to vacancies in the rank of police alarm operator. Thus, as the court of appeals noted, the MPA is seeking a determination on behalf of all of its members, that is, for any qualified officer that is entitled to promotion to police alarm operator vacancies. The union's interest in filling such vacancies is not based on the unfairness of any individual officers underfilling in these positions. Instead, the union's interest is based on ensuring that a classification for which it specifically bargained is recognized by the City by filling any vacancies in this classification. Further, it is based on the union's interest in ensuring that the City follows its obligations under state statute. Individual officers may not pursue such a claim with the same zealousness as the union if the officers themselves are not guaranteed the promotion. Indeed, in this case, the officers' failure to pursue the statutory claim beyond the circuit court suggests that the officers believed that, even if promotions were required under the statute, they may not have been awarded the promotions. Thus, the MPA's pursuit of such promotions is based on different objectives and interests, focusing primarily on the interests of all members. Cf. Abels v. Titan Int'l, Inc., 85 F. Supp. 2d 924, 933-35 (S.D. Iowa, 2000) (union members were not precluded from bringing an action against their employer seeking declaratory relief under ERISA to clarify rights to future benefits under their pension plan even though their union had recently voluntarily dismissed a similar action seeking a declaration of rights under the collective bargaining agreement; the court found no privity between the parties because they had different interests).

¶ 22. Further, we conclude that claim preclusion should not apply because such application would result in unfairness to the MPA. Normally nonparties to an action are not bound to a judgment therein based on the principle that everyone should have their day in court. McCourt v. Algiers, 4 Wis. 2d 607, 611, 91 N.W.2d 194 (1958); see also Richards v. Jefferson County, 517 U.S. 793, 795 (1996). We have therefore recognized that, when deciding whether to apply claim preclusion to a nonparty's action, it is appropriate to consider whether such application will result in unfairness to the non-party. F.P.R. v. J.M., 137 Wis. 2d 375, 382, 404 N.W.2d 530 (1987); McCourt, 4 Wis. 2d at 611; Desotelle v. Cont'l Cas. Co., 136 Wis. 2d 13, 21, 400 N.W.2d 524 (Ct. App. 1986). In other words, claim preclusion should be applied so as not to deprive a party of a full and fair determination of an issue. Id. at 21-22. Under the facts and circumstances of this case, we conclude that to hold that each member of the union is bound by an action taken by 23 individual members would be unfair to the other members of the union. The overall interests of the union were not of primary concern in the first action, and in order to provide the members with their fair day in court, we conclude that claim preclusion should not apply in this instance.

IV WRIT OF MANDAMUS

¶ 23. Because we conclude that the action in this case is not precluded, we next examine whether a writ of mandamus is warranted to compel the City to fill vacancies in the rank of police alarm operator. The MPA argues that the writ is warranted based on Wis. Stat. § 62.50(9). The interpretation of § 62.50(9) is a question of law that we determine independently, while benefiting from the analyses of the circuit court and the court of appeals. See Patients Comp. Fund v. Lutheran Hosp.-LaCrosse, Inc., 223 Wis. 2d 439, 454, 588 N.W.2d 35 (1999).

v

¶ 24. A writ of mandamus may be used to compel public officers " 'to perform duties arising out of their office and presently due to be performed.'" Law Enforcement Standards Bd. v. Village of Lyndon Station, 101 Wis.2d 472, 494, 305 N.W.2d 89 (1981). In order for a writ of mandamus to be issued, four prerequisites must be satisfied: "(1) a clear legal right; (2) a positive and plain duty; (3) substantial damages; and (4) no other adequate remedy at law." Id.

¶ 25. The court of appeals concluded that a writ was required in this case. The court specifically held that Wis. Stat. § 62.50(9) created a positive and plain duty upon the City to fill the vacancies, noting that the statute's use of the word "shall" placed a ministerial obligation on the part of the City to fill vacancies. Pasko II, 2001 WI App 55, ¶ 14. The court opined as follows:

Section 62.50(9) indicates that "[a]ll vacancies .. . shall be filled," and that where vacancies can be filled by promotion, "the vacancies . . . shall be so filled." Wis. Stat. § 62.50(9) (emphasis added). The statute's use of the word "shall" as opposed to "may" places a ministerial, rather than a discretionary, obligation on the City to fill vacancies within a reasonable time whenever possible via promotion. Therefore, we conclude that § 62.50(9) requires the City to take reasonable steps to promote qualified officers in order to fill available Police Alarm Operator positions, thus creating a "positive and plain duty."

Id. (citations omitted) (emphasis added). We disagree with this interpretation of the statute.

¶ 26. When interpreting a statute, we look to the plain language. See State v. T.J. Int'l, Inc., 2001 WI 76, ¶ 20, 244 Wis. 2d 481, 628 N.W.2d 774. If we can determine the meaning of the statute based on its plain language, we need not look any further. Id. The MPA relies primarily on the following language in the statute: "All vacancies in either [the police or fire] department shall be filled and all new appointments shall be made by the respective chiefs with the approval of the board." Wis. Stat. § 62.50(9). The MPA argues, like the Pasko II court of appeals, that the legislature's use of the word "shall" in the statute requires the City to fill all vacancies in the department as they occur. We disagree and instead conclude that the circuit court in Pasko I correctly interpreted this section of Wis. Stat. § 62.50(9) as a grant of power, rather than a mandate to the chief. The court stated:

[A] review of § 62.50(9) shows that the legislature has merely designated who has the authority to fill any vacancies. It is not a mandate to the chief, but rather a grant of power. This is clear when "[a]ll vacancies" is read in conjunction with "all new appointments". The legislature is clearly granting police chiefs the authority to determine who will be on their departments, subject to board approval.

In other words, this sentence only designates who must fill vacancies and new appointments in the department, not when the vacancies must be filled. Therefore, it does not create a positive and plain duty to, as the MPA argues, fill vacancies as they occur.

¶ 27. The circuit court also correctly noted that, when comparing Wis. Stat. § 62.50(9) to other subsections under Wis. Stat. § 62.50, it is clear that the legislature intended to delineate authority between the board and the chief of police under § 62.50(9). Other subsections clearly direct the board or another person to act. Compare § 62.50(9) ("All vacancies in either department shall be filled and new appointments shall be made by the respective chiefs with the approval of the board.") with § 62.50(6) ("If a vacancy exists in the office of chief of police or in the office of chief engineer of the fire department, the board by a majority vote shall appoint proper persons to fill such offices respectively."); § 62.50(7)(a) ("If a vacancy exists in the office of assistant chief, the chief of police shall nominate and, with the approval of the board, shall appoint a person to a term of office . . . ."); § 62.50(7)(b) ("If a vacancy exists in the office of inspector of police or captain of police, the chief of police shall nominate and, with the approval of the board, shall appoint a person to the office ...."); § 62.50(8) ("If a vacancy exists in the office of the first assistant engineer of the fire department, the chief engineer shall nominate and with the approval of the board shall appoint a suitable person to the office . . . .").

¶ 28. Wisconsin Stat. § 62.50(9) also includes the following language:

Where vacancies in old offices or newly created offices can, with safety to the department, be filled by the promotion of officers or persons already in the service and who have proved their fitness for promotion, the vacancies in newly created offices shall be so filled by promotion by the respective chiefs with the approval of the board.

The Pasko II court of appeals determined that this language also constituted a mandate to the chief of police to fill vacancies by promotion as they occur. We disagree. This sentence essentially expands on the previous sentence. Whereas the previous sentence granted authority to the chief to fill all vacancies in the department, this sentence specifies the manner in which the chief is to fill vacancies in "newly created offices." It provides that vacancies in "newly created offices" shall be filled "by promotion," but only when such promotions can occur with safety to the department. The determination of whether a vacancy can be filled by promotion with safety to the department is a matter of discretion for the chief. If the chief determines that such vacancies can be filled by promotion with safety to the department, the chief must fill these positions "by promotion." However, the statute does not require the chief to fill these positions at any certain time. The circuit court noted as much, stating: "Further, § 62.50(9) has no temporal element. A chief would arguably be violating § 62.50(9) each day a vacancy goes unfilled. This would be an absurd result." The statute only requires that, if these vacancies are filled, they must be filled by promotion.

¶ 29. Alternatively, the chief may determine that the vacancies in such "newly created offices" cannot be filled by promotion without doing damage to the department. In such an event, the statute does not specify how the chief is to fill these vacancies. Presumably then, the chief may fill these vacancies through means other than by promotion or may choose not to fill the positions at all. On the whole, the statute requires the chief to make a threshold discretionary determination, and if this determination is met, it designates only the manner in which the chief must fill these vacancies, that is, "by promotion." Thus, we conclude that the statute alone does not create a positive and plain duty for the chief to, as the MPA argues, fill these vacancies by promotion as they occur.

¶ 30. The Pasko II court of appeals concluded that, based on the statute, the collective bargaining agreement, and the Pasko I decision, the MPA had a "positive and plain duty" and "clear legal right" to the promotions. The court of appeals reached this determination even though the MPA based their argument for mandamus solely on Wis. Stat. § 62.50(9), not the collective bargaining agreement or Pasko I. Nevertheless, we recognize that the statute must be interpreted in conjunction with the collective bargaining agreement because the agreement may contain language, when either read alone or in conjunction with § 62.50(9), requiring the City to fill such vacancies as they occur. We, however, conclude that, based on the current facts in the record, we cannot make any such determination in this case. To begin with, the whole collective bargaining agreement is not contained in the record. Moreover, there is currently a factual uncertainty as to whether any police alarm operator vacancies currently exist or whether this position is considered a "newly created office." As a result, we remand to the circuit court for a determination on these issues. On a final note, we conclude that, although Pasko I stated that the City's practice of underfilling the police alarm operator positions on a permanent basis without paying or promoting the officers violated the collective bargaining agreement, we do not interpret this decision as making a clear determination as to whether the collective bargaining agreement specifically required the City to immediately promote officers to any current vacancies. In turn, remand is appropriate.

V CONCLUSION

¶ 31. In sum, we conclude that the MPA is not precluded from pursuing its writ of mandamus action at this time. However, from the facts currently presented in the record, we cannot conclude, as the court of appeals did, whether the MPA is entitled to a writ of mandamus at this time. We therefore reverse the court of appeals' decision and remand to the circuit court for further proceedings consistent with this opinion.

By the Court. — The decision of the court of appeals is reversed and cause remanded.

       This section stated in relevant part:

        ARTICLE 10

        BASE SALARY

      1. Commencing Pay Period 1, 1991 (December 23, 1990), the biweekly base salary paid to employees shall be as follows:
      a. Police Officer
      Police Matron
      Policewoman
      Step 1. $ 998.92
      Step 2. $1,098.44
      Step 3. $1,227.21
      Step 4. $1,276.63
      Step 5. $1,339.29
      c. Court Liaison Officer
      Identification Technician
      Narcotics Control Officer
      Police Alarm Operator
      Step 1. $1,326.03
      Step 2. $1,368.68
      Step 3. $1,413.15

       All subsequent references to the Wisconsin Statutes are to the 1997-98 version unless otherwise indicated.
      Wisconsin Stat. § 62.50(9) (1997-98) is identical to the language of Wis. Stat. § 62.50(9) (1991-92), which was enumerated above.

       The court of appeals noted that the individual officers had conceded that claim preclusion applied to them and barred their claims. Pasko v. City of Milwaukee, 2001 WI App 55, ¶ 1 n.2, 241 Wis. 2d 226, 624 N.W.2d 859. Therefore, on appeal, the court addressed only the circuit court's ruling affecting the MPA's claims against the City.

       During the summary judgment hearing on the writ of mandamus, the MPA's attorney argued as follows: "And the only order I'm seeking, and I'm seeking it on behalf of the Milwaukee Police Association, is that the chief and fire and police commission be ordered under 6250 to fill those positions."


author: ANN WALSH BRADLEY, J. WILLIAM A. BABLITCH, J.

text:
    State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Stanley A. Samuel, Defendant-Appellant.
    Supreme Court

      No. 99-2587-CR.

      Oral argument October 3, 2001.

    Decided April 25, 2002.

    2002 WI 34
    (Also reported in 643 N.W.2d 423.)

      For the plaintiff-respondent-petitioner the cause was argued by Lara M. Herman, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.
    For the defendant-appellant there was a brief by Robert R. Henak and Henak Law Office, S.C., Milwaukee, and oral argument by Robert R. Henak.

   ANN WALSH BRADLEY, J.

¶ 1. The petitioner, State of Wisconsin, seeks review of a published court of appeals decision reversing the circuit court's judgment of conviction entered against the defendant, Stanley Samuel, on charges of sexual assault, abduction, and interference with custody. The State asserts that the court of appeals erred in concluding that the same standard for suppressing a defendant's involuntary statement should also apply when a defendant seeks to suppress an allegedly involuntary statement of a witness.

¶ 2. We conclude that the standards are different and that when a defendant seeks to suppress an allegedly involuntary witness statement, the coercive police misconduct at issue must be egregious such that it produces statements that are unreliable as a matter of law. In addition, we determine that when a defendant seeks to suppress statements under this standard, the proper procedure to follow is set forth in State v. Velez, 224 Wis. 2d 1, 589 N.W.2d 9 (1999). Finally, we apply the test we have identified to the witness statements at issue and conclude that they properly were admitted into evidence. Accordingly, we reverse the court of appeals.

H-H

¶ 3. In January 1996, Tisha L., then a minor, left Winnebago County with Samuel, a 47-year-old friend. Samuel and Tisha stayed in Milwaukee for about a week, then left Wisconsin and traveled throughout several Midwestern states. In March 1997, 13 months after they left Wisconsin, Samuel and Tisha were taken into custody by the State of Missouri.

¶ 4. Tisha was pregnant, and on March 10, the day after she returned to Wisconsin, her baby was born. Two days later, March 12, a hearing was held before a court commissioner at which it was determined that Tisha would be placed with her father. Further discussion on the issue of placement of Tisha's baby was left to an intake conference following the hearing. At the conference, Tisha was represented by an attorney. Others present for all or part of the conference included City of Oshkosh police officer Steven Sagmeister, two social workers, Tisha's father, and Cathy Stelzner, his girlfriend. Although accounts differ as to what was said at the conference, at some time during or immediately following the conference, Tisha was told to contact Sagmeister to give him a statement with regard to "what had happened the previous year." After the conference, Tisha was allowed to go home with her father and Stelzner, and the baby was temporarily placed in foster care.

¶ 5. Tisha's father and Officer Sagmeister made arrangements for Tisha to meet with Sagmeister on March 13,1997. On that day, Tisha gave a tape recorded statement to Sagmeister and one of the social workers, Rod Schraufnagel, at the police station. She said that she and Samuel had been sexually active in Winnebago County before they left the state. At the time of that sexual activity, Tisha was under age 16.

¶ 6. The next morning, March 14, another hearing was held before the court commissioner, at which Tisha's baby was returned to her. Following the hearing, Officer Sagmeister asked Tisha if she would give a second statement because the tape from the first day had not turned out very well. Tisha and her father agreed, and Sagmeister and Schraufnagel conducted another recorded interview with Tisha. Again, Tisha indicated that she had sexual relations with Samuel in 1995 prior to leaving Winnebago County.

¶ 7. Tisha gave a third statement on March 21, when Officer Sagmeister came to her residence. After questioning Tisha, Sagmeister summarized her answers in a written statement that Tisha signed. The written statement shows that Tisha and Samuel first had sexual relations in the middle of September 1995 and also had sexual relations twice in Milwaukee after leaving Winnebago County in January 1996.

¶ 8. Samuel was formally charged with interference with custody, abduction, and sexual assault of a child. He moved in limine to suppress all of Tisha's statements. At the hearing on the motion, Samuel argued that Tisha's statements should be suppressed because they were the result of police threats or coercion. Tisha, her father, her attorney, and Stelzner testified with regard to the circumstances surrounding both the intake conference and the times at which Tisha gave her statements.

¶ 9. The circuit court denied the motion, determining that Samuel was without standing to assert that Tisha's statements were coerced in violation of her constitutional rights. Instead, the court concluded, it was for the jury to determine the credibility and weight of Tisha's statements.

¶ 10. At trial, the State called Tisha as a witness, and she testified that she and Samuel had a sexual relationship, but that they did not have sexual intercourse until March or April 1996, which was months after she left Wisconsin with Samuel. While Tisha was still under direct examination, the State proceeded to impeach her with her prior inconsistent statements:

Q Isn't it also true, however, Tisha, that you have given three statements prior to this date which indicated you became sexually active with Mr. Samuel in September of 1995?
A Yes, I think I did.

The State showed Tisha her March 21, 1997 written statement and asked her several questions about it. Tisha maintained that she did not remember saying anything in the statement with regard to when, where, or how often she and Samuel had sexual relations. She later testified that the statements were not true, but that she had given them because she felt pressured to incriminate Samuel at the intake conference.

¶ 11. Tisha's father, Stelzner, Officer Sagmeister, and Schraufnagel also gave testimony relevant to the circumstances surrounding Tisha's statements. Although the witnesses each had different perceptions as to whether Tisha was improperly pressured, no one recalled that she was expressly told she would lose her baby unless she implicated Samuel.

¶ 12. The jury convicted Samuel on all three charges. Samuel brought a postconviction motion, again arguing that Tisha's statements should have been suppressed because they were coerced. The circuit court denied the motion. The court determined that regardless of whether Tisha's statements were coerced, Samuel had no standing to challenge them, and the question of any witness coercion was best left to the jury.

¶ 13. Samuel appealed, and the court of appeals reversed. Citing United States v. Gonzales, 164 F.3d 1285, 1289 n.1 (10th Cir. 1999), the court reasoned that police methods of coercion that are "offensive when used against an accused do not magically become any less so when exerted against a witness." Referring to the test for involuntariness set forth in State v. Clappes, 136 Wis. 2d 222, 401 N.W.2d 759 (1987), the court of appeals concluded that the standard for suppressing a defendant's involuntary statements should also apply to the suppression of involuntary witness statements.

¶ 14. In Clappes, 136 Wis. 2d at 236, this court applied a totality of the circumstances test in order to assess whether confessions are involuntary. That test requires courts to "balance the personal characteristics of the defendant against the pressures imposed upon him by police in order to induce him to respond to the questioning." Id. In determining whether a confession is voluntary, the essential inquiry is whether the confession was procured via police coercion. Id. at 235-36. The court of appeals remanded Samuel's case for the circuit court to determine whether, under the Clappes test, Tisha's statements were involuntary.

II

¶ 15. We are asked to determine the proper standard under which a witness's involuntary statements must be suppressed at the trial of a criminal defendant. Whether evidence should be suppressed is a question of constitutional fact. See State v. Anderson, 165 Wis. 2d 441, 447, 477 N.W.2d 277 (1991); State v. Bermudez, 221 Wis. 2d 338, 346, 585 N.W.2d 628 (Ct. App. 1998). In reviewing questions of constitutional fact, we uphold a circuit court's factual findings unless clearly erroneous, but we independently determine whether those facts meet the constitutional standard. State v. Dagnall, 2000 WI 82, ¶ 27, 236 Wis. 2d 339, 612 N.W.2d 680; State v. Phillips, 218 Wis. 2d 180, 189-90, 577 N.W.2d 794 (Ct. App. 1998).

¶ 16. In making our determination of whether Tisha's statements should have been suppressed, we consider in turn the standards advanced by the State and Samuel. However, we conclude that neither standard strikes the proper balance between the Fourteenth Amendment's guarantee of due process and the fact that witness statements that are in some sense compelled are frequently neither unreliable nor the product of egregious police misconduct. In steering a course between the positions advanced by the parties and using due process as our guide, we recognize there are circumstances under which egregious police misconduct deprives the defendant of a fair trial.

hH I — I I — H

¶ 17. The State contends that a defendant's right to due process is offended only where witness statements are extracted by "extreme coercion or torture." United States v. Chiavola, 744 F.2d 1271, 1273 (7th Cir. 1984). It argues that absent such extreme circumstances, it is the jury's role to weigh and assess credibility. Samuel asserts that involuntary witness statements should be subject to the same rule of suppression as a criminal defendant's involuntary confession. See Clappes, 136 Wis. 2d at 222. He argues that a defendant's Fourteenth Amendment due process right to a fair trial bars the admission of all involuntary witness statements that are the product of police coercion.

¶ 18. With due process as our touchstone, we turn first to the standard advanced by the State. We are not convinced, as the State asserts, that a defendant's right to due process will be offended only where the witness statements used against the defendant derive from police conduct that amounts to extreme coercion or torture. The "blood of the accused is not the only hallmark of an unconstitutional inquisition." Blackburn v. Alabama, 361 U.S. 199, 206 (1960); see also Raphael v. State, 994 P.2d 1004, 1008 (Alaska 2000). Although the United States Supreme Court in Blackburn was referring to the defendant, we similarly decline to hold that the blood of a witness is a necessary hallmark of an unconstitutional trial. Instead, we determine there are circumstances where witness statements derived by egregious police misconduct short of extreme coercion or torture müst be suppressed in order to uphold fundamental fairness to a defendant. In short, we reject the State's test as setting the bar too high to satisfy due process.

¶ 19. Next, we turn to the standard advanced by Samuel, that witness statements should be suppressed based on the same test as applied to a defendant's confession. We begin by examining the rights protected along with the purposes served by the suppression of involuntary confessions. It is well established that confessions by criminal defendants must be voluntary in order to be admitted as evidence at trial. See State v. Hunt, 53 Wis. 2d 734, 740, 193 N.W.2d 858 (1972); see also Lynumn v. Illinois, 372 U.S. 528, 534 (1963).

¶ 20. The rule requiring suppression of involuntary confessions has long been grounded in the defendant's due process rights. See Brown v. Mississippi, 297 U.S. 278, 286 (1936). In addition, in Malloy v. Hogan, 378 U.S. 1, 7 (1964), and Miranda v. Arizona, 384 U.S. 436, 464 n.43 (1966), the Supreme Court linked the rule to the Fifth Amendment right against self-incrimination.

¶ 21. Several related purposes have been cited in support of the rule. These include the "deep-rooted feeling that the police must obey the law while enforcing the law," Arizona v. Fulminante, 499 U.S. 279, 293 (1991); the notion that the government should be required to produce evidence against the accused "by its own independent labors rather than by the cruel, simple expedient of compelling it from his own mouth," Miranda, 384 U.S. at 460; and, a concern that statements that are the product of coercion are more likely to be inherently untrustworthy than voluntary statements, Spano v. New York, 360 U.S. 315, 320 (1959).

¶ 22. These rights and purposes do not all apply when a defendant seeks to suppress involuntary witness statements. See LaFrance v. Bohlinger, 499 F.2d 29, 33-34 (1st Cir. 1974); State v. Vargas, 420 A.2d 809, 814 (R.I. 1980). A nondefendant witness's right against self-incrimination generally is not in play at the trial of the defendant. "When the defendant seeks to exclude the fruit of the coerced statement of another.. . the policy of protecting the defendant from being compelled to aid the state in convicting him is not at stake." People v. Badgett, 895 P.2d 877, 886 (Cal. 1995). Likewise, the idea that the government must produce evidence by its own independent labors rather than by compelling it from the mouth of the accused does not seem to justify the suppression of statements by those other than the accused.

¶ 23. Therefore, we disagree with Samuel that the Clappes test governing involuntary confessions can alone dictate the standard for suppression of involuntary witness statements. Because the rights protected and the purposes served by suppression of a defendant's confession do not all apply when considering the suppression of a witness's statement, something additional is needed before a witness's statement will be suppressed. The Clappes test sets the bar for suppression of witness statements too low. Although we agree that the suppression of witness statements requires that those statements be involuntary under Clappes, it also requires something more.

¶ 24. Often, witness statements that are in some sense compelled are neither inherently unreliable nor the product of police misconduct. For example, we have held that, as a general rule, a defendant's right to a fair trial is not violated by the admission of testimony by a defendant's accomplice even where the State has expressly granted concessions to the accomplice in exchange for the testimony. State v. Nerison, 136 Wis. 2d 37, 45, 401 N.W.2d 1 (1987). "[C]ross-examination, not exclusion, is the proper tool for challenging the weight and credibility of accomplice testimony." Nerison, 136 Wis. 2d at 45; see also State v. Miller, 231 Wis. 2d 447, 465, 605 N.W.2d 567 (Ct. App. 1999).

¶ 25. A rule suppressing witness statements must recognize the admissibility of evidence such as accomplice testimony and also protect a defendant's due process right to a fair trial. Although we have rejected Samuel's test as setting the bar too low, we acknowledge that some of the purposes served by the suppression of involuntary confessions apply equally in the context of involuntary witness statements. Both the maxim that police obey the law while enforcing the law and the need to avoid convictions based on inherently unreliable evidence apply whether the statements at issue spring from the mouth of the criminally accused or another. Although there is no "absolute parallel" between involuntary confessions and involuntary witness statements, LaFrance, 499 F.2d at 35, there is a point at which some of the same considerations apply to both.

¶ 26. In United States v. Merkt, 764 F.2d 266, 274 (5th Cir. 1985), the Fifth Circuit Court of Appeals acknowledged that the fact that witnesses' statements were themselves unlawfully obtained was not alone sufficient to necessitate suppression. Instead, the Fifth Circuit determined that it was "egregious" intimidation and coercion of witnesses that would prompt the suppression of their statements. Id. at 275. Under such circumstances, "the government's investigation methods result[ ] in a fundamentally unfair trial." Id. at 274. In Merkt, the court discussed United States v. Fredericks, 586 F.2d 470, 481 n.14 (5th Cir. 1978), in which it had reasoned that the fundamental fairness essential to due process is undermined when a witness's statement is obtained through "shocking and intentional" police misconduct.

¶ 27. Likewise, this court has recognized that it is when police misconduct rises to an "egregious" level that it offends due process. State v. Hanson, 136 Wis. 2d 195, 211, 401 N.W.2d 771 (1987) (citing Moran v. Burbine, 475 U.S. 412, 432 (1986)). In Hanson, we concluded that when a suspect has not invoked his Fifth Amendment right to counsel, police may withhold information that there is an attorney available asking to see him. However, we cautioned, as did the Supreme Court in Burbine, that "on facts more egregious than those presented. . . police deception might rise to a level of a due process violation." Hanson, 136 Wis. 2d at 211 (quoting Burbine, 475 U.S. at 432).

¶ 28. Similarly, in Badgett, 895 P.2d at 887, the California Supreme Court concluded that in order for defendants to assert violations of their due process rights,,they must allege that the coercive methods used to obtain a witness statement were such that they would actually affect the reliability of the evidence presented at trial. The court explained that " [testimony of third parties that is offered at trial should not be subject to exclusion unless the defendant demonstrates that improper coercion has impaired the reliability of the testimony." Id.

¶ 29. As this court has observed in the context of involuntary confessions, although they may in some cases be unreliable, in other cases they are reliable. See State v. Agnello, 226 Wis. 2d 164, 173, 593 N.W.2d 427 (1999); J.G. v. State, 119 Wis. 2d 748, 760, 350 N.W.2d 668 (1984). The same can be said of involuntary witness statements. Involuntary confessions are suppressed regardless of the truthfulness of a confession in an individual case. See Lego v. Twomey, 404 U.S. 477, 484-85 (1972); Agnello, 226 Wis. 2d at 173. However, because a defendant's right against self-incrimination is not at issue with regard to statements by others, the suppression of those statements at the defendant's trial demands a more rigorous standard.

¶ 30. With due process as our touchstone, we conclude that when a defendant seeks to suppress witness statements as the product of coercion, the police misconduct must be more than that set forth in Clappes. It must be egregious such that it produces statements that are unreliable as a matter of law. The coercion must be egregious because, as we have shown, it is typically "egregious" police misconduct that offends due process. Our concern is with police misconduct that, by its nature, undermines confidence in the reliability of a witness's statements. Witness statements obtained by police methods that induce lying have no place in our system of justice because a conviction based on unreliable evidence undermines the fundamental fairness of a defendant's trial. In short, due process demands that the State not marshal its resources against an accused in a manner that results in a conviction based on unreliable evidence obtained through egregious police practices.

¶ 31. Upon an examination of the case law and the parties' arguments, we glean several factors to consider in determining whether police misconduct is egregious such that it produces statements that are unreliable as a matter of law. These factors include (1) whether a witness was coached on what to say; (2) whether investigating authorities asked questions blatantly tailored to extract a particular answer, see Gonzales, 164 F.3d at 1289; (3) whether the authorities made a threat with consequences that would be unlawful if carried out, see United States v. Tingle, 658 F.2d 1332, 1335-36 (9th Cir. 1981) ; (4) whether the witness was given an express and unlawful quid pro quo; (5) whether the State had a separate legitimate purpose for its conduct, Tingle, 658 F.2d at 1337; and, (6) whether the witness was represented by an attorney at the time of the coercion or statement, see Merkt, 764 F.2d at 269. The presence of the first four factors weighs in favor of suppression while the presence of the second two factors weighs against it. Application of these and other relevant factors will help to ensure that it is unreliable evidence that is suppressed. It will also help to guarantee that the State does not obtain convictions based on practices that offend fundamental fairness.

¶ 32. In cases where an application of the factors results in a determination that witness statements at issue will not be suppressed, the defendant nevertheless retains the ability to test the credibility of the witness statements through, among other approaches, cross-examination before the jury. See Nerison, 136 Wis. 2d at 45. Cross-examination is an essential tool for "sifting the conscience of the witness" and thereby protecting a defendant's rights at trial. State v. Bauer, 109 Wis. 2d 204, 208 n.3, 325 N.W.2d 857 (1982) (citing Mattox v. United States, 156 U.S. 237, 242-43 (1895)). The jury, of course, has the duty to scrutinize and weigh the testimony of witnesses and to determine the effect of the evidence as a whole. See Hampton v. State, 92 Wis. 2d 450, 462, 285 N.W.2d 868 (1979); Wis JI — Criminal 300. These safeguards — cross-examination and the jury's role in weighing the evidence — help ensure a fair trial where due process does not require the suppression of witness statements.

IV

¶ 33. We next address the proper procedure for circuit courts and parties to follow when a defendant wishes to assert that witness statements should be suppressed under the standards we have identified. Both Samuel and the State refer to Velez, 224 Wis. 2d 1, as providing a model procedure. The issue presented in Velez was whether a defendant is entitled to an eviden-tiary hearing upon an allegation that the State intentionally "manipulated the system" to avoid juvenile court jurisdiction and charge a defendant as an adult. Id. at 6. In Velez, as here, it was the defendant's due process rights that were at issue. See id. at 14.

¶ 34. Therefore, we agree with the parties that the procedures outlined in Velez should be applied in this case. As the circuit court correctly observed in its decision on Samuel's suppression motion, although the jury is normally the sole judge of the credibility and weight given to witness statements,

[exceptions are made where a threshold finding is made by the court, since presentation to the jury would expose them to evidence which might be otherwise barred by constitutional principles.

The Velez procedures will protect a defendant's due process rights while also preserving scarce judicial resources by eliminating unnecessary evidentiary hearings. See 224 Wis. 2d at 12.

¶ 35. Under Velez, first the defendant must bring a motion to suppress, alleging facts sufficient to show that a statement was involuntary under Clappes and that the police misconduct at issue is egregious such that it produces statements that are unreliable as a matter of law. See Velez, 224 Wis. 2d at 18. If the motion alleges facts which, if true, would entitle the defendant to relief, then the circuit court must hold an evidentiary hearing. Id.; see also State v. Bentley, 201 Wis. 2d 303, 310, 548 N.W.2d 50 (1996). However, if the motion does not allege sufficient facts, the circuit court has the discretion to deny an evidentiary hearing upon a finding that any one of the following circumstances is present: (1) the defendant failed to allege sufficient facts in the motion to raise a question of material fact; (2) the defendant presented only conclusory allegations; or (3) the record conclusively demonstrates that the defendant is not entitled to relief. Velez, 224 Wis. 2d at 17-18.

¶ 36. Even where the defendant has not met this initial burden of production and the circuit court has the discretion to deny an evidentiary hearing, in order to properly exercise that discretion, it must "carefully consider the record, the motion, counsels' arguments and/or offers of proof, and the law." Velez, 224 Wis. 2d at 17 (quoting State v. Garner, 207 Wis. 2d 520, 534-35, 558 N.W.2d 916 (Ct. App. 1996)). Moreover, when there is a reasonable possibility that the defendant will establish the factual basis at an evidentiary hearing, the circuit court must provide the defendant with the opportunity to develop the record. Id. at 18.

¶ 37. In other words, there will be cases where the court cannot properly exercise its discretion in denying an evidentiary hearing without first holding a nonevi-dentiary hearing on the defendant's motion to suppress. See Velez, 224 Wis. 2d at 17. The facts that the defendant must establish and the determinations the circuit court must make will be informed by the standard and factors we have identified.

¶ 38. We must also address the question of who bears the burden of persuasion once the defendant has established a factual basis necessitating an evidentiary hearing. Samuel argues that the burden of persuasion should lie with the State, but acknowledges that the level of that burden is the preponderance of the evidence. We agree.

¶ 39. In Velez, this court suggested that due process was not offended by placing a burden of production on the defendant because the State bore the ultimate burden of persuasion with regard to the government misconduct at issue. See 224 Wis. 2d at 16. Where a defendant makes a prima facie showing that a confession is involuntary, the State bears the burden of proving, by the preponderance of the evidence, that it is not. Agnello, 226 Wis. 2d at 179; State v. Williams, 220 Wis. 2d 458, 463, 583 N.W.2d 845 (Ct. App. 1998). Although we have identified a different substantive test for the suppression of witness statements, given Velez and the rule on the burden of proof for confessions, we discern no need to inject a different rule into our due process jurisprudence. The burden of persuasion lies with the State, and the burden the State must meet is a preponderance of the evidence.

V

¶ 40. As noted earlier, the question of whether evidence must be suppressed under a constitutional standard is ultimately a question that this court determines independently. Anderson, 165 Wis. 2d at 447. Upon an examination of the record in this case, we conclude as a matter of law that Tisha's statements should not have been suppressed. No reasonable view of the evidence can support the conclusion that Tisha's statements were coerced by egregious methods that produced statements unreliable as a matter of law. Indeed, the circuit court at the postconviction motion hearing, after hearing all of the evidence, opined that Tisha's statements were not the product of police coercion. The circuit court stated:

[A]nd in this case, in all honesty, the Court wouldn't be able to even find coercion. This is a totally different type of circumstance than say a witness comes in and she's a mother and the police say if you don't tell us what we want to hear, we're taking your child.
This is a case in which the mother was a minor on the run, who gave birth while on the run and was subsequently returned. It was her acts for which the child was initially taken into custody ... it was her acts beforehand which led to originally there being an issue as to whether the child would remain with her or not. And in light of the fact as well that she was not told what to say but just to cooperate here, doesn't to this court say that it's been inferred that she has to say what they want her to say or she won't get her child back.

¶ 41. Nonetheless, we apply the factors we have identified, ultimately arriving at the same result as the circuit court. We first note that there is little if any credible evidence that Tisha was specifically coached on what to say or that the authorities' questions were blatantly tailored in order to compel her to implicate Samuel. On the contrary, Tisha's father testified that neither Officer Sagmeister nor the social worker, Schraufnagel, told Tisha that she needed to say anything in particular in order to get her baby back. Tisha's testimony focused on the fact that she was repeatedly told she had to "cooperate" in general. Although at one point in her testimony she indicated that someone said she would not get her baby back until she implicated Samuel, when pressed, she could not remember who had said this or whether those were the exact words the speaker had used.

¶ 42. Similarly, the record does not show that authorities ever expressly threatened Tisha with the loss of her baby, although that was a possibility regardless of whether Tisha implicated Samuel. Stelzner testified that she thought there was "blackmail" involved, but was unable to explain in any detail why she so believed. The record does not show that anyone presented Tisha with an illegal quid pro quo, such as a promise that she would be able to keep her baby if she agreed to implicate Samuel. In addition, the factor of representation by counsel does not weigh strongly in favor of either Samuel or the State. Although Tisha was represented by an attorney at the intake conference, she was not represented at other times in which Samuel alleges she was coerced.

¶ 43. Finally, and perhaps most convincingly in this case, the authorities involved had a separate legitimate purpose for questioning Tisha with regard to Samuel. They needed to determine the proper placement of her baby, which depended on an assessment of whether she was a flight risk and whether she could be trusted to care properly for her newborn child. Although we recognize there may be cases where a legitimate purpose for questioning a witness is transformed into an illegitimate pretext for a criminal investigation, the record in this case does not support such a conclusion.

VI

¶ 44. In sum, the test for the suppression of witness statements is a Clappes-phis test. The court, in Clappes, applied a totality of the circumstances test when assessing whether a defendant's confession is voluntary. The Clappes test requires a court to look at both the defendant's response as well as the police misconduct, and to "balance the personal characteristics of the defendant against the pressures imposed upon him by the police in order to induce him to respond to the questioning." 136 Wis. 2d at 236.

¶ 45. Because the rights protected and the purposes served by suppression of a defendant's confession do not all apply when considering the suppression of a witness's statement, something more is needed before a witness's statement will be suppressed. That something more is the degree of police misconduct.

¶ 46. Thus, as in Clappes, a totality of circumstances test is applied when considering the suppression of a witness statement. The personal characteristics of a witness must be balanced against the conduct of the police in pressuring a witness in order to induce a response. However, we determine that when a defendant seeks to suppress witness statements as involuntary, the coercive police misconduct must be greater than that necessary under Clappes for the suppression of a defendant's confession: it must be egregious such that it produces statements that are unreliable as a matter of law.

¶ 47. In addition, we determine that where the defendant seeks to suppress witness statements, the parties must follow the procedure set forth in Velez. Finally, we conclude that on the record before us, Tisha's statements were not derived from egregious police misconduct that would produce statements unreliable as a matter of law. Accordingly, we reverse the court of appeals.

By the Court. — The decision of the court of appeals is reversed.

WILLIAM A. BABLITCH, J.

¶ 48. (dissenting). I agree with the majority's standard which requires the suppression of witnesses' statements when they are coerced through egregious police misconduct such that the statements are rendered unreliable as a matter of law, while considering the totality of the circumstances. Majority op. at ¶ 46.

¶ 49. However, it is impossible for me to reconcile the enunciated standard with the failure of the majority to remand given the totality of the circumstances present. This does not strike me as a close case at all. As a result, lower courts will ask, with some degree of confusion, if these facts do not do it, what does?

¶ 50. I conclude that this case should, at the very-least, be remanded. The record raises serious questions as to the interrogation methods employed during the intake conference and immediately thereafter. A determination on whether the police conduct was egregious involves matters of credibility that only a circuit judge can determine at an evidentiary hearing. Further, the circuit court must examine the totality of the circumstances when making its determination. Accordingly, I respectfully dissent to the mandate of the majority opinion.

¶ 51. The following sequence of events is telling. On March 10, 1997, Tisha's baby is born. On March 12, 1997, the baby is taken from Tisha and placed in a foster home after Tisha repeatedly refuses to "cooperate" with the police. The next day, Tisha "cooperates" with the police by answering questions that implicate Samuel with respect to her sexual relationship with Samuel. Tisha's baby is returned to her on March 14, 1997.

¶ 52. No one denies that Tisha was told she must cooperate with the police. But cooperate how? Was it reasonable for Tisha to believe that she had to implicate Samuel or lose her baby forever? The circuit court never reached this determination. The circuit court merely determined that Samuel had no standing to raise an objection to the admission of Tisha's statement. At the very least, this case should go back for an evidentiary hearing following the procedural standards adopted by the majority from State v. Velez, 224 Wis. 2d 1, 589 N.W.2d 9 (1999). See majority op. at ¶¶ 33-39.

¶ 53. There is more in this record, none of which has been challenged, to support my view that Samuel has met his burden in producing evidence to show egregious conduct sufficient to force an evidentiary hearing. In particular, David Keck, Tisha's attorney, testified that it was his personal impression that Tisha had to give a statement to police regarding the unlawful sexual relationship with Samuel in order to get her baby back. In addition, Peter L., Tisha's father, testified that he spoke with a sexual abuse investigator with the Department of Social Services and was told that the police needed to know where and when Tisha and Samuel had sex. Peter gave this information to Tisha. Finally, Catherine Steltzer, Peter's girlfriend, testified that she was told they would consider giving the baby to Tisha if she cooperated. It was her impression that the baby was being used as a pawn and that this was blackmail.

¶ 54. If in fact Tisha was threatened with the loss of her baby unless she confessed to an unlawful sexual relationship with Samuel, such threats, implicit or explicit, constitute egregious police conduct. This record contains much evidence, none of it challenged, that leads to that conclusion. I would send it back for the circuit court's determination of the facts and conclusions.

¶ 55. I therefore respectfully dissent.

        See State v. Samuel, 2001 WI App 25, ¶ 23, 240 Wis. 2d 756, 623 N.W.2d 565 (Ct. App. 2000) (reversing and remanding a judgment and order of the Circuit Court for Winnebago County, Thomas S. Williams, Judge).

       The information shows Tisha's date of birth as September 7, 1980.

       When the State relies on accomplice testimony, the defendant's right to a fair trial is protected as long as there is:
      (1) full disclosure of the terms of the agreements struck with the witnesses; (2) the opportunity for full cross-examination of those witnesses concerning the agreements and the effect of those agreements on the testimony of the witnesses; and (3) instructions cautioning the jury to carefully evaluate the weight and credibility of the testimony of such witnesses who have been induced by agreements with the state to testify against the defendant.

        State v. Nerison, 136 Wis. 2d 37, 46, 401 N.W.2d 1 (1987); State v. Miller, 231 Wis. 2d 447, 465, 605 N.W.2d 567 (Ct. App. 1999).

       We recognize that United States v. Tingle, 658 F.2d 1332 (9th Cir. 1981), involved involuntary confessions by a defendant; nevertheless, we deem its discussion helpful in identifying criteria that are useful in a suppression determination under the test we apply to Samuel.

       Here, the jury received a version of the standard instruction on witness credibility, which includes an instruction that the jury should consider motives for falsifying testimony. See Wis JI — Criminal 300.

       The dissent concludes that Samuel's case should, "at the very least," be remanded to the circuit court for a determination of whether Tisha's allegedly coerced statements should be suppressed. Dissent at ¶ 50. It appears to overlook, however, that the circuit court already opined that the statements were not the product of police coercion. As noted above in paragraph 40, the circuit court stated that "in all honesty, the Court wouldn't be able to even find coercion." It would be a futile exercise to remand this case for a determination by the circuit court of whether the coercive police misconduct here was egregious such that it produced statements unreliable as a matter of law when the circuit court stated it "wouldn't be able to even find coercion."

       The court of appeals concluded that it was required to reverse Samuel's convictions for abduction and interference with custody because, if the circuit court were to determine on remand that Tisha's statements were inadmissible, the admission of the statements may have improperly undermined Tisha's credibility and tainted the jury's assessment of the evidence at trial. Because we conclude that Tisha's statements were properly before the jury, we need not address Samuel's argument that the admission of the statements improperly tainted his conviction on the abduction and interference with custody charges. For the same reason, we do not address the State's argument that the admission of Tisha's statements was harmless error with regard to those two charges.

       This dissent did not "overlook," as stated in the majority opinion's response to the dissent, that the circuit court has "already opined that the statements were not the product of police coercion." Majority op. at ¶ 41 n. 6. The circuit court issued that opinion without the benefit of the new standard enunciated in the majority opinion. The circuit court could hardly apply a standard that was not even in existence at the time it so opined.