author: SCHUDSON, J.

text:
    Randall E. Baures, Plaintiff-Appellant, v. North Shore Fire Department, Defendant-Respondent.
    Court of Appeals

      No. 02-1936.

      Oral argument April 1, 2003.

    Decided April 29, 2003.

    2003 WI App 103
    (Also reported in 664 N.W.2d 113.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs Scott L. Schroeder of Scott L. Schroeder, S.C., of Janesville, Wisconsin. There was oral argument by Scott L. Schroeder.

    On behalf of the defendant-respondent, the cause was submitted on the brief of Andrew A. Jones, of Whyte Hirschboeck Dudek, S.C., of Milwaukee. There was oral argument by Andrew A. Jones.

    Before Fine, Schudson and Curley, JJ.

       Petition to review denied 10-1-03.

   SCHUDSON, J.

¶ 1. Lieutenant Randall E. Baures appeals from the circuit court's judgment granting summary judgment and dismissing his action challenging the North Shore Fire Department's decision to not promote him to the position of Battalion Chief. He contends that the court erred in rejecting his argument that, under both Wis. Stat. § 62.13(4) (1999-2000) and the doctrine of promissory estoppel, the Department was required to promote him to that position or, at the very least, enforce the promotion criteria it announced. We conclude, however, that although the promotion process was irregular in some respects, the Department gave Lt. Baures the promotion consideration he was due under § 62.13(4). We also conclude that because the Department did consider him for the promotion, Lt. Baures' promissory estoppel claim fails. Accordingly, we affirm.

I. BACKGROUND

¶ 2. In 1999, the North Shore Fire Department sought to fill a vacancy at the rank of Battalion Chief. The Department issued a "Promotional Announcement" seeking applicants, pursuant to Wis. Stat. § 62.13(4)(c). The announcement stated:

NORTH SHORE FIRE COMMISSION
ANNOUNCEMENT OF PROMOTIONAL TESTING FOR THE RANK OF BATTALION CHIEF
FOR POSTING AT ALL NORTH SHORE FIRE STATIONS ON MARCH 2, 1999
The North Shore Fire Commission announces its intention to fill a vacancy in the rank of Battalion Chief that will occur when Chief Donald Kopacz retires on June 1, 1999. It will search for a qualified individual already employed by the North Shore Fire Department prior to opening up the testing process to candidates from outside the Department.
The appointee will initially be assigned to oversee one of the three duty shifts. However, those who occupy the Battalion Chief rank are subject to rotation of duties at the discretion of the Fire Chief. Thus, the Commission will search for an individual who is also fully capable of performing the duties of those Battalion Chiefs who are not shift supervisors. The person promoted to this position will be on probation in the new rank for a period of one year. The appointment will not be in an "acting" capacity.
QUALIFICATIONS
The minimum qualifications to apply for promotion to the rank of Battalion Chief are as follows:
1. Associate degree or equivalent.
2. Five years of consecutive experience at the rank of Fire Lieutenant or above, or ten years of progressively responsible fire service experience with at least five years as a fire officer in a full-time department;
3. Wisconsin Fire Officer I certification;
4. Wisconsin Fire Training Instructor I certification (NFPA-1041);
5. Wisconsin Fire Inspection I certification;
6. Maintenance of continuous education courses in such areas as disaster preparedness, public management, fire department administration, etc.; and
7. A valid Wisconsin driver's license or such valid operator's permit recognized by the Wisconsin Department of Transportation as authorizing operation of a motor vehicle in Wisconsin.
APPLICATION PROCESS
Persons who meet the qualifications stated above and who are interested in promotion to the rank of Battalion Chief should advise Chief Berousek by submitting the following documents to him on or before March 31, 1999 at 4:00 PM:
A professional resume with particular attention to all educational achievements and professional experience; and
A written memorandum detailing what the candidate has done to prepare himself or herself for advancement in the fire service in general and for promotion to the battalion chief rank in particular.
PROMOTION PROTOCOL
The process for promoting a Battalion Chief will include several steps, including an assessment center, a written assessment by the Fire Chief, an oral interview with the Fire Commission, and a psychological assessment.
Thomas J. Hammer
Chairman of the Commission

(Emphases added.) The Announcement brought applications from Lt. Baures and four other departmental employees; one of them, Lt. Mark Kuopus, ultimately was selected.

¶ 3. The "North Shore Fire Department Job Description" for "Battalion Chief," in the section titled, "Education/License/Certificate Requirements," included three prerequisites relevant to this case:

4) Wisconsin Fire Officer I.
5) Wisconsin Fire Training Instructor I State Certification (NFPA-1041).
6) Wisconsin Fire Inspection I.

Depending on one's interpretation, the Announcement was, to varying degrees, consistent or inconsistent with the Job Description. Sorting out each of these three requirements is essential to understanding the factual background and isolating the factual dispute in this case.

A.

WISCONSIN FIRE OFFICER I

• Announcement: "Wisconsin Fire Officer I certification"

• Job Description (under "Certificate Requirements" heading): "Wisconsin Fire Officer I"

¶ 4. The summary judgment submissions included differing views on whether the Announcement and Job Description were accurate and consistent with each other in their descriptions of this requirement. For example, in his affidavit, Attorney Thomas Hammer, Chair of the North Shore Fire Commission, stated that the Announcement "incorrectly described the minimum qualification!]" by including "certification" in this portion. He maintained that the Job Description "only requires [a] certificate [] of completion" for Wisconsin Fire Officer I. Further, Mr. Hammer explained:

The Fire Commission does not have the authority to modify the job description for the position of Battal-
ion Chief as adopted by the Board. Thus, any conflict between the March 2, 1999 vacancy notice and the job description for Battalion Chief was in error and did not reflect a decision by the. Fire Commission to alter the minimum requirements for the position.

Thus, Mr. Hammer's view would: (1) graft "Certificate" from the Job Description section heading to "Wisconsin Fire Officer I" in the Job Description list of requirements; (2) interpret "Certificate" to mean "certificate of completion" rather than "certification"; and (3) preclude the Announcement's "certification" requirement from supplanting the Job Description's "certificate [of completion]" requirement.

¶ 5. By contrast, in his affidavit, Attorney Thomas E. Dolan, who for more than twenty-five years served as Chair or President of the Brown Deer Fire and Police Commission, explained that "the word 'certificate [,]' as opposed to 'certification [,]'... in the Section heading" of the Job Description was "not relevant to anything contained in the Section," and that "to require only a certificate would mean the candidate had merely attended a course having to do with the elements of‘a Fire Officer I." Thus, Mr. Dolan opined, "to conclude that the minimum requirements only required a certificate of completion of the course requirements in a certain subject, rather than being proficient in the subject matter by examination and certification would be ludicrous."

B.

WISCONSIN FIRE TRAINING INSTRUCTOR I

• Announcement: Wisconsin Fire Training Instructor I certification (NFPA-1041)

• Job Description (under "Certificate Requirements" heading): Wisconsin Fire Training Instructor I State Certification (NFPA-1041)

¶ 6. These listings in the Announcement and Job Description were identical. Thus, it would seem, this certification was a clear prerequisite for the promotion. According to Mr. Hammer, however: "None of the five candidates possessed a Wisconsin Fire Training Instructor I certification, but the Fire Department could not enforce this requirement because (as the Commission learned once it discovered the errors in the vacancy notice) at the time such a certification was no longer recognized or issued by the State of Wisconsin under its fire[-]service[-]training program." On appeal, Lt. Baures does not dispute this portion of Mr. Hammer's statement.

C.

WISCONSIN FIRE INSPECTION I

• Announcement: "Wisconsin Fire Inspection I certification"

• Job Description (under "Certificate Requirements" heading): "Wisconsin Fire Inspection I"

¶ 7. Here, as with "Wisconsin Fire Officer I," the parties' summary judgment submissions and interpretations differ on whether the Job Description required a certificate of completion or certification. This requirement, however, does not factor into the issue on appeal because, according to the footnote to the requirement in the Announcement, an applicant lacking this certification was not disqualified; he or she would have "three years to obtain that certification as a condition of the promotion to Battalion Chief."

¶ 8. Therefore, because the lack of certification for Wisconsin Fire Inspection I could not disqualify an applicant, and because a certification for Wisconsin Fire Training Instructor I no longer was available (and none of the applicants had it), only the disputed views of one prerequisite — "Wisconsin Fire Officer I Certification" in the Announcement and "Wisconsin Fire Officer I" (under the "Certificate Requirements" heading) in the Job Description — factor into the analysis. And before focusing on that, we must also consider two provisions of one additional, essential document: the Rules and Regulations of the Department.

¶ 9. In a section titled, "General Regulations," the Department's Rules and Regulations provide: "No member or employee shall fail to obey every rule, policy, procedure, regulation, general order or other guideline or requirement set forth in this Manual, or any directive, general order, rule or regulation however received." No one disputes that this mandate would encompass the minimum qualifications listed in the Department's job descriptions and, therefore, unless otherwise preempted, would preclude a modification from "certification" to "certificate" of completion.

¶ 10. Just four lines later, however, the Rules and Regulations, in a section titled, "Exemption by the Fire Chief," provide: "The Fire Chief, in the interest of flexibility and practical management, may exempt specific members and employees of the Department from any provision or provisions of this manual where, in his or her opinion, the Department would benefit from such exemption."

¶ 11. Although only Lt. Baures met the minimum "certification" qualifications, all five applicants were considered for the position. On June 29, 1999, Chief Berousek promoted Lt. Kuopus to the position of Battalion Chief and, one year later, the Department confirmed his permanent status in that rank.

¶ 12. Lt. Baures challenged Lt. Kuopus' promotion under Wis. Stat. § 893.80, relating to claims against governmental bodies. Pointing out that he was the only applicant who satisfied the "certification" prerequisites listed in the Announcement, Lt. Baures contended that Lt. Kuopus and the others should not even have been considered for the promotion. Rejecting Lt. Baures1 challenge, Commission Chair Hammer wrote Lt. Baures advising him that the Department had concluded:

(1) "the Wisconsin Fire Officer I' requirement in the official job description may he satisfied by obtaining a 'Certificate of Completion' issued by the Milwaukee Area Technical College for the 'Wisconsin Certified Fire Officer I' course"; and
(2) the Department could not "enforce the 'Wisconsin Fire Training Instructor I' certification requirement because, according to written documentation provided to the Department by David J. Brooks, [Fire Education and Training Consultant for the Wisconsin Technical College System Board], Fire Instructor I 'is not a valid certification level within the Wisconsin Technical College System Fire Service Training certification program.'"

(Footnote and abbreviations omitted.) Thus, interpreting its Announcement requirement for the Fire Officer I "certification" as allowing for a "certificate of completion" (which Lt. Kuopus had), and removing the requirement for a Fire Training Instructor I certification (which neither Lt. Baures nor Lt. Kuopus had), Mr. Hammer advised Lt. Baures that "the promotion awarded . . . stands."

¶ 13. Lt. Baures then challenged the Department's action — in a federal court action that was dismissed, and in the state court suit underlying this appeal. In his state court complaint, Lt. Baures alleged that he had expended substantial time and money to obtain the education and training to meet "the minimum qualifications" for the position; that he, not Lt. Kuopus, had satisfied those prerequisites; that, to his detriment, he had relied on the Department's Announcement; and that the Department, in passing over him and promoting Lt. Kuopus, had violated Wis. Stat. § 62.13(4) and the doctrine of "promissory estoppel." He sought damages for loss of earnings, earning capacity, back wages and front wages, reinstatement of benefits and seniority, and injunctive relief providing appointment to the position or, in the alternative, "reopen[ing] the position for all of the remaining qualified candidates as posted on 3-2-99 excluding Lt. Kuop[u]s

¶ 14. Both Lt. Baures and the Department moved for summary judgment. Granting the Department's motion and dismissing Lt. Baures' claim under Wis. Stat. § 62.13, the circuit court explained:

Analysis of [Lt. Baures'] claim that the Department violated [Wis. Stat. § 62.13(4)(a)] must begin by resorting to the plain language of that section ....
The chiefs shall appoint subordinates subject to approval by the board. Such appointments shall be made by promotion when this can be done with advantage, otherwise from an eligible list provided by examination and approval by the board and kept on file with the clerk.
(Emphasis added.) This court agrees with the Department's interpretation of that provision. Clearly, the plain language of [Wis. Stat. § 62.13(4) (a)] gives chiefs virtually unfettered discretion, (subject only to board approval), to appoint subordinates from within the department. "Otherwise," the legislature directs that the appointment of subordinates be made "from an eligible list." If the word "otherwise" is to have any meaning at all..., it must surely signal a shift from the unfettered discretion of a chief to promote from within, to the procedures which must be followed should the chief determine that promotion from within cannot "be done with advantage." In the latter instance, the legislature directs that appointments be made "from an eligible list ... ."

The court determined, therefore, that the remaining portions of the statute dealing with the "eligible list" procedures were inapplicable; they had nothing to do with Lt. Baures' dispute with the Department because his case involved the promotion of a subordinate from within the fire department.

¶ 15. Thus, the circuit court concluded, the specific qualifications listed in the Announcement — and what Lt. Baures alleged was either the misstatement or improper modification of those minimum qualifications — was of no significance. The court explained:

The fact that the Department, in its discretion, chose to post such a vacancy notice when promoting from within the Department does not convert the [Announcement] into a legislative mandate under [Wis. Stat. § 62.13(4)], or require the Department to comply with the provisions regarding vacancy notices under [§§ 62.13(4)(c) & (d)]. Moreover, even assuming, arguendo, that the Department failed to follow its own internal rules or procedures in this case, such a failure does not translate into a violation of [§ 62.13(4), which says nothing about what those internal rules or procedures must be, (or even that they must exist), when promoting from within the Department.

¶ 16. Also granting summary judgment and dismissing Lt. Baures1 promissory estoppel claim, the circuit court further explained:

The promise upon which [Lt. Baures] is relying is the vacancy announcement. The vacancy announcement, at most, constituted a promise that any candidate who fulfilled the minimum requirements therein would be considered for a position. It certainly did not promise that any candidates who fulfilled the minimum requirements . . . would be guaranteed a position .... [Lt. Baures] in fact has already got exactly what the vacancy announcement promised, (that is, he was considered for a position). Moreover, [Lt. Baures] does nothing to refute the Department's argument that nearly all of his claimed reliance occurred prior to the promise.

¶ 17. For the reasons we will explain, we conclude that the circuit court's analysis is sound.

II. DISCUSSION

¶ 18. We review an order granting summary judgment de novo using the same methodology as the circuit court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-17, 401 N.W.2d 816 (1987). Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Wis. Stat. § 802.08(2).

A. Wisconsin Stat. § 62.13(4)

¶ 19. "Interpretation and application of a statute to undisputed facts presents a question of law subject to our de novo review." Bohrer v. City of Milwaukee, 2001 WI App 237, ¶ 7, 248 Wis. 2d 319, 635 N.W.2d 816. "Applying a clear and unambiguous statute, we 'do not look beyond the statutory language to ascertain its meaning.'" Id. (citation omitted). Nevertheless, we may "construe a statute whose meaning is clear if a literal application would lead to an absurd or unreasonable result." Coca-Cola Bottling Co. v. La Follette, 106 Wis. 2d 162, 170, 316 N.W.2d 129 (Ct. App. 1982).

¶ 20. Wisconsin Stat. § 62.13(4)(a) is clear and unambiguous. It first mandates that, subject to commission approval, chiefs of police and fire departments "shall appoint subordinates" for promotion within the department "when this can be done with advantage." Wis. Stat. § 62.13(4)(a). In short, under the statute, " [appointments are to be made by promotion within the ranks . . . when qualified insiders exist." Glendale Prof'l Policemen's Ass'n v. City of Glendale, 83 Wis. 2d 90, 106, 264 N.W.2d 594 (1978). This portion of the statute neither specifies the promotion process nor restricts a chiefs discretion in any way, other than making a chiefs selection subject to departmental approval.

¶ 21. The statute next provides that "otherwise" —i.e., if promotion from within the department cannot be "done with advantage" — the alternative appointment process involving "an eligible list" comes into play. That alternative appointment process then triggers the "list" requirements of Wis. Stat. § 62.13(4)(c) to provide the "rules calculated to secure the best service in the departments" (and the additional requirements of § 62.13(4)(d) relating to examination, experience, and veteran preference). Under the unambiguous words of the statute, however, these "otherwise" provisions simply are not triggered when a chief has appointed a subordinate who can be promoted "with advantage." See Miller v. Thomack, 210 Wis. 2d 650, 661, 563 N.W.2d 891 (1997) (courts must assume that the legislature intended statutory words to have their ordinary and accepted meanings).

¶ 22. Here, Chief Berousek chose to promote from within and the Department approved the appointment. Apparently, the Chief and the Department determined that Lt. Kuopus' promotion would be "with advantage" to the North Shore Fire Department and, therefore, they never needed the "eligible list" alternative that "otherwise" would have been available. See Wis. Stat. § 62.13(4)(a). The curiosity of this case, however, is that the Chief and Department did indeed proceed under the "promotion protocol" of the Announcement, involving several steps including an interview and various assessments. Therefore, the resulting selection process appears as a hybrid, sharing aspects of both the "with advantage" and "otherwise . . . eligible list" approaches of § 62.13(4)(a).

¶ 23. Thus, Lt. Baures argues, the Department should be required to follow the procedures it set in motion and enforce the job prerequisites it posted. He convincingly contends that the Department's post hoc interpretation of the Announcement and the Job Description — substituting "certificate [of completion]" for "certification" — was more rationalization than rationale. Lt. Baures' problem on appeal, however, is that he is unable to establish that he was denied anything he was due.

¶ 24. Seeking promotion from within, Lt. Baures was considered — under the first alternative procedure of Wis. Stat. § 62.13(4), but with added aspects of the second alternative procedure entering into the selection process. But those added aspects were not required. Concluding that one of his own subordinates, Lt. Kuo-pus, could be promoted "with advantage," Chief Ber-ousek never had to afford any applicant any consideration under the second statutory procedure. The fact that he chose to do so does not change the fact that Chief Berousek and the Department never were required to consider Lt. Baures and the other applicants under the statutory criteria that would have been triggered had they not located a subordinate for promotion "with advantage."

¶ 25. While we appreciate Lt. Baures1 frustration in finding that he was not promoted despite believing himself to be the only applicant satisfying the posted prerequisites, and while we wince at the proposition that "certificate [of completion]" and "certification" are interchangeable, we must be mindful of the flexibility granted to police and fire chiefs and their departments. Here, for example, while the Department's Rules and Regulations require obedience by every employee to every rule, they then allow the chief, "in the interest of flexibility and practical management," to "exempt. . . employees . . . from any provision. . . where, in his or her opinion, the Department would benefit from such exemption."

¶ 26. Therefore, unquestionably, even if we were to conclude that the Announcement's posted prerequisites applied as Lt. Baures contends, the Department's Rules and Regulations would have allowed Chief Ber-ousek to exempt Lt. Kuopus from the "certification" requirement. And such exemption-granting discretion "complements, rather than contradicts," the broad authority granted chiefs under the "with advantage" standard for promotion from within a department under Wis. Stat. § 62.13(4). See Glendale Prof'l Policemen's Ass'n, 83 Wis. 2d at 109, 101-07 (Under Wis. Stat. § 62.13(4)(a), a "labor contract requiring the chief to appoint the most senior qualified candidate does not contradict an express command of law" and, therefore, the labor contract's restriction is compatible with what otherwise might be deemed the "unfettered discretion" of the chief to promote from within the department; further, because the labor contract and § 62.13(4)(a) "can be harmoniously construed," the contract does not violate "the home rule amendment" of the Wisconsin Constitution. See Wis. Const, art. XI, § 3.).

¶ 27. Our conclusion is consistent with the commonsense considerations articulated in the Handbook for Wisconsin Police and Fire Commissioners, published by the League of Wisconsin Municipalilties, and relied on by both parties in this case. See Handbook for Wis. Police & Fire Comm'rs, 47-49, (League of Wis. Muns. 2001). Commenting on Wis. Stat. § 62.13(4)(a), the Handbook provides, in part:

The chief of the department, rather than the police and fire commission, initially determines whether the appointment of a subordinate can be accomplished "with advantage."
While it may be the practice in some communities for the police and fire commission to conduct promotional examinations and require the chief to appoint from a list of eligible candidates from within the department, there is no basis in state law for the commission to impose such limitations on the chiefs discretion.... A promotion process, once adopted, need not be used each time a vacancy occurs; the chief and other senior officers are usually in the best position to know if personnel within a department are qualified for promotion and if use of a promotion process is necessary or not in each case.
Promotions should reflect a chiefs needs and the department's interests. Police and fire chiefs are often in the best position to determine the kinds of knowledge, skills and experience subordinates at progressively higher levels of responsibility in a department need to possess.

Handbook for Wis. Police & Fire Comm'rs at 47-48 (citations omitted).

¶ 28. Thus, we conclude, the circuit court correctly granted summary judgment dismissing Lt. Baures' claim under Wis. Stat. § 62.13.

B. Promissory Estoppel

¶ 29. To prevail on a claim under the doctrine of promissory estoppel, one must establish that: (1) he or she received a promise that the promisor should reasonably have expected would "induce action or forbearance of a definite and substantial character on the part of the promisee"; (2) the promise did indeed "induce such action or forbearance"; and (3) "injustice" can "be avoided only by enforcement of the promise." Hoffman v. Red Owl Stores, Inc., 26 Wis. 2d 683, 698, 133 N.W.2d 267 (1965). While the first two elements "present issues of fact which ordinarily will be resolved by a jury, the third requirement, that the remedy can only be invoked where necessary to avoid injustice, is one that involves a policy decision by the court." Id.

¶ 30. Whether the undisputed facts presented on summary judgment establish a claim for promissory estoppel presents an issue of law subject to de novo review. See Schaller v. Marine Nat'l Bank, 131 Wis. 2d 389, 401, 388 N.W.2d 645 (Ct. App. 1986). Here, we conclude, the summary judgment submissions establish that Lt. Baures did not satisfy the promissory estoppel criteria.

¶ 31. Clearly, Lt. Baures1 claim fails not because he did not receive and rely on a promise, but rather, because the essential promise was fulfilled. With the Announcement, the Department promised Lt. Baures that, if he met the minimum qualifications and applied for the promotion, he would be considered. The Department kept that promise; it never promised Lt. Baures that he would be selected. See Cosgrove v. Bartolotta, 150 F.3d 729, 733 (7th Cir. 1998) ("knowing that he is investing for a chance, rather than relying on a firm promise that a reasonable person would expect to be carried out, he cannot plead promissory estoppel").

¶ 32. And finally, how would "injustice," under the doctrine of promissory estoppel be "avoided only by" somehow enforcing the promise beyond the consideration Lt. Baures' application already has received? See Hoffman, 26 Wis. 2d at 698. That is, even if we were to embrace Lt. Baures' promissory estoppel theory, what relief would he be due? As the Department points out, "the record is devoid of evidence that the chief or commission as a whole would have chosen Baures for the promotion had he been the only candidate." Therefore, absent an order from this court actually mandating Lt. Baures' promotion, his only apparent remedy would be for the Department to go back to square one and either a) maintain the original Announcement and enforce the "certification" requirement, or b) modify the Announcement so that a "certificate of completion" would be sufficient.

¶ 33. On appeal, Lt. Baures jockeys between the options. First, he writes that he "simply expects the Commission to follow its own clear, unequivocal, promotional protocol." But how would that help him? If the Department were to enforce the "certification" requirement under the Announcement, it still could reject Lt. Baures simply because his promotion would not be deemed to be "with advantage" under Wis. Stat. § 62.13(4)(a). Chief Berousek and the Department then could open the selection process to outside applicants and/or revise the selection criteria; either way, in all likelihood, Lt. Baures would not be selected. As Chief Berousek stated in his affidavit:

Had I not been satisfied with the candidates following the assessment center and oral interview portions of the selection process, I would have been under no obligation to recommend any of the candidates for promotion. Instead, as Fire Chief, I had the authority to reject all of the candidates. In such a circumstance, the Fire Department would have begun the selection process again, soliciting further applications from qualified Lieutenants. In the alternative, the Fire Department could have opened up the search to candidates from outside the Department.

¶ 34. On appeal, Lt. Baures also explores the second option. He writes that "if the Court buys the Department's ex post facto argument that the Promotional Announcement incorrectly set forth the wrong, stringent minimum qualifications, then the Department should have reposted the announcement with the more lax minimum requirements for the Battalion Chief position and reopened the protocol to anyone who met the new lax qualifications." (Emphasis added.) In that instance, however, the only persons who would have been aggrieved by the original job listing would be those holding certificates of completion who had not applied originally because they assumed they were ineligible for lack of "certification." They, not Lt. Baures, had been denied consideration because of the "certification" requirement in the Announcement. But these circumstances could hardly help Lt. Baures. Not only would additional applicants become eligible for the promotion, but Lt. Kuopus, now satisfying the revised certificate-of-completion requirement, still could be selected.

¶ 35. Even Lt. Baures seems puzzled by the prospect of relief. He writes, "The issue for this court is whether [he] is entitled to any remedy for this injustice." Unfortunately, however, while asking that we order summary judgment for him or, in the alternative, remand for trial, Lt. Baures fails to explain how we could do either. Carefully considered, his proposed remedies do not correct any injustice.

¶ 36. Thus, while Lt. Baures is understandably upset with the promotion process, whatever "injustice" has occurred would not be redressed by ordering a trial. As his counsel conceded at oral argument, no material factual issues exist. And most importantly, whatever injustice Lt. Baures has suffered would not be redressed by ordering the Department to: (1) engage in a new selection process that, reaching the same result, would seem to be little more than a charade; or (2) remove the battalion chief selected almost four years ago and replace him with the applicant who was rejected. Thus, we conclude, the remedies Lt. Baures proposes are not the means by which "injustice can only be avoided."

¶ 37. Therefore, we conclude, the circuit court correctly granted summary judgment dismissing Lt. Baures' promissory estoppel claim.

¶ 38. While we reject Lt. Baures1 arguments and see no remedy for him here, we appreciate his legitimate concerns. We recognize that his legal action has exposed certain difficulties in the Department's promotional process. We respect Lt. Baures' efforts to correct the injustice he suffered and share his hope, expressed at oral argument, that his pursuit of this case will help the Department in the future.

By the Court. — Judgment affirmed.

       All references to the Wisconsin Statutes are to the 1999-2000 version.

       Throughout this opinion, we often will refer to the "Department" even when, more precisely, we might actually mean either of two separate entities exercising authority over the Department: the North Shore Fire Commission, and the Board of Directors of the Fire Commission. As. confirmed at oral argument before this court, the record, at times, may not precisely define and distinguish the Commission and the Board. For resolution of the issues in this appeal, however, the distinction makes no difference; accordingly, we refer to these entities as the "Department."

       In relevant part, Wis. Stat. § 62.13(4) provides:
      Subordinates, (a) The chiefs [of police and fire departments] shall appoint subordinates subject to approval by the board [of police and fire commissioners]. Such appointments shall be made by promotion when this can be done with advantage, otherwise from an eligible list provided by examination and approval by the board and kept on file, with the clerk.
      (c) For the choosing of such list the board shall adopt, and may repeal or modify, rules calculated to secure the best service in the departments. These rules shall provide for examination of physical and educational qualifications and experience, and may provide such competitive examinations as the board shall determine, and for the classification of positions with special examination for each class. The board shall print and distribute the rules and all changes in them, at city expense.

       All qualifications for appointment must be met by March 31, 1999 except #5 re: Wisconsin Fire Inspection I certification.

       A person who does not have an Associate Degree may nonetheless apply for this position if he or she is able to make the case that other schooling and experience is the "equivalent" of having an Associate Degree. %r %rThis should be specified in the application.

       Time spent as a "fire officer" includes service in a supervisory capacity including, for example, actual time spent in acting supervisory positions.

       If a candidate does not already have the Wisconsin Fire Inspection I certification, he or she will have three years to obtain that certification as a condition of the promotion to Battalion Chief.

       In his affidavit, Mr. Hammer explained:
      Under the fire[-]service[-]training program of the State of Wisconsin, a "certificate of completion" is issued upon the successful completion of the required courses in a given area of training. In turn, a separate "certification" is issued upon the successful completion of the test or examination that responds to the training courses in question.

       The record on appeal includes a photocopy of the single page on which these provisions appear, but not a title page or other heading linking these provisions to the North Shore Fire Department. In their briefs and at oral argument before this court, however, the parties extensively referred to these provisions and did not dispute that these provisions are from the Department's Rules and Regulations.

       The Department does not dispute Lt. Baures' contention that neither Lt. Kuopus nor the other applicants, with one possible exception, met the minimum qualifications. And specifically with respect to Lt. Kuopus, Lt. Baures explains: "Kuo-pus was not a Wisconsin Fire Officer I, certified by the State of Wisconsin. Kuopus' Wisconsin Fire Instructor II certification expired one day short of the minimum requirement. Kuopus never possessed a Wisconsin Fire Instructor I certification/ recognition."

       We note that whether Lt. Baures' promissory estoppel claim is even cognizable is open to fair debate. As the parties acknowledged at oral argument before this court, it may be that generally, in the absence of a contract or other enforceable commitment, a claim under the doctrine of promissory estoppel may not even be actionable against the government. See, e.g., United States ex rel. Sage v. District Dir. of Immigration, 82 F.2d 630, 631-33 (7th Cir. 1936) ("Habeas corpus does not lie to review the effect of the alleged agreement" of government to dismiss deportation action against woman in exchange for her help in apprehending John Dillinger where agreement was negotiated after she was arrested and deportation order was entered.).
      On this question, it appears that some confusion comes, and some doubt remains, because courts, discussing either "promissory estoppel" or "equitable estoppel" often refer simply to "estoppel." Subsequently, other courts, dealing with either a "promissory estoppel" or "equitable estoppel" issue, quote the "estoppel" discussions without acknowledging their distinguishable contexts. See, e.g., State v. City of Green Bay, 96 Wis. 2d 195, 200-03, 291 N.W.2d 508 (1980). Thus, much of the case law fails to recognize what has been identified as an important distinction between the two. See, e.g., Jablon v. United States, 657 F.2d 1064, 1068-69 (9th Cir. 1981) (holding that equitable estoppel cases are inapplicable to promissory estoppel actions against government and stating that "[p]romissory estoppel is a sword, and equitable estoppel is a shield"); see also Morris v. Runyon, 870 E Supp. 362, 373 n.21 (D.C. Cir. 1994) ("While promissory estoppel claims involve claims for enforcement of a promise, equitable estoppel serves as a bar against a party from asserting a theory of relief.").
      Nevertheless, in this case, without deciding whether Lt. Baures promissory estoppel claim could have been dismissed simply because it might not have been actionable against the Department, we address the merits.

       Further, Lt. Baures' reliance may not satisfy the second criterion. While Lt. Baures' efforts and his investment of time and resources to gain training and certification were commendable and, no doubt, beneficial to his work, almost all of them preceded the posting of the Announcement. Thus, they might not have been induced by the Announcement. Lt. Baures does not dispute the Department's summary of his actions:
      Baures' own deposition testimony establishes that he obtained his Wisconsin Fire Officer and his Wisconsin Fire Instructor certifications in 1997 and 1990 (long before the vacancy notice of March 1999). Furthermore, Baures obtained these certifications without incurring any personal expense.
      Before the Circuit Court, Baures also identified five continuing education courses he took at his expense in seeking the promotion to Battalion Chief as acts of reliance on his part. (Baures briefly alludes to these courses by offering that he "spent in excess of $3,000 and many hours of training and education to prepare for the position.") However, the record demonstrates that Baures took four of these classes solely in connection with the general requirement set forth in the vacancy notice that candidates "maintain!] continuing education courses" in related areas of study. Certainly this aspéct of the vacancy notice cannot be said to be the sort of definite promise necessary to establish the first prong of the promissory estoppel standard. Nonetheless, of the four courses taken by Baures in an effort to meet the general continuing education requirement, three were completed well in advance of the March 2, 1999 vacancy notice, and Baures did not even enroll in the fourth until the promotional process at issue herein was completed. Further, Baures took the fifth continuing education class not to meet the minimum qualifications contained in the vacancy notice but to prepare himself for the tests that made
        up the assessment center, an aspect of the promotional process that he has not challenged in this suit.
      (Citations omitted.) Moreover, whether undertaken before or after the job posting, Lt. Baures' efforts were not necessarily wasted. After all, his certification training and credentials may have helped his chance for promotion. The Announcement promised him not selection, but consideration, and that is what he received.

       Resolving this appeal on this basis obviates the need to address the Department's additional argument that Wis. Stat. § 893.80 bars Lt. Baures' claims. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938) (only dispositive issue need be addressed).


source: Caselaw Access Project

author: WEDEMEYER, P.J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Bobby R. Dabney, Defendant-Appellant.

    Court of Appeals

      No. 02-2445-CR.

      Submitted on briefs March 4, 2003.

    Decided April 29, 2003.

    2003 WI App 108
    (Also reported in 663 N.W.2d 366.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Lynn E. Hackbarth, of Milwaukee.

      On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general by James M. Freimuth, assistant attorney general.
    Before Wedemeyer, RJ., Fine and Curley, JJ.

       Petition to review denied 10-1-03.

   WEDEMEYER, P.J.

¶ 1. Bobby R. Dabney appeals from a judgment entered after a trial to the court where he was found guilty of kidnapping and two counts of first-degree sexual assault while using a dangerous weapon, contrary to Wis. Stat. §§ 940.31(l)(a), 940.225(l)(b) and 939.63 (2001-02). Dabney contends that the complaint and arrest warrant in this case, which initially only identified him by his DNA profile, were insufficient to confer personal jurisdiction. He further claims that the amended complaint, which identified him by name, was untimely and barred by the statute of limitations. Finally, he asserts that his due process rights were violated based on the six-year-plus delay between the criminal act and the prosecution in this case. Because the complaint and arrest warrant were sufficient to confer personal jurisdiction, because the case was commenced before the statute of limitations expired, and because Dabney has failed to demonstrate that his due process rights were violated by any delay, we affirm.

I. BACKGROUND

¶ 2. On December 7, 1994, an unknown male accosted fifteen-year-old Dawana F. at a bus stop in Milwaukee. He forced her at gunpoint to a nearby lot. There, he tied her hands behind her back, covered her eyes and led her to a car. He pushed her into the car, drove a short distance, and stopped. He then fondled her breasts and forced her to perform fellatio on him, promising not to kill her if she "did that good." The unknown male ejaculated in her mouth. He then drove again for a short time and the sequence was repeated. Finally, the man let Dawana out of the car. She found her mother and called the police.

¶ 3. Dawana was taken immediately to a sexual assault treatment center where "oral swabs and saliva samples," as well as a "blood standard," were obtained from her. The state crime lab found semen present in the saliva and developed a DNÁ profile for the unknown male suspect.

¶ 4. On December 4, 2000, the State charged John Doe #12 with kidnapping and four counts of first-degree sexual assault. The DNA profile was included in the caption of the complaint. On that same day, a trial court found probable cause in the complaint and issued an arrest warrant for John Doe #12.

¶ 5. On March 14, 2001, the State filed an amended complaint substituting Dabney's name for "John Doe." The amended complaint stated that the DNA profile had been run against the databank on December 18, 2000, without finding a match; however, on February 27, 2001, a match was found. This was reconfirmed on March 7, 2001.

¶ 6. On April 12, 2001, Dabney was bound over for trial and an information was filed, setting forth five counts: kidnapping, and four counts of first-degree sexual assault (two hand-to-breast and two mouth-to-penis). In June of 2001, Dabney moved to dismiss the charges, alleging that the original complaint and arrest warrant, based solely on his DNA profile, were insufficient and should not toll the six-year statute of limitations, which otherwise would have expired on December 7, 2000. He also argued that the State's delay in commencing this prosecution violated his right to due process. The trial court denied his motion to dismiss orally in July of 2001, followed by a written decision in August of 2001.

¶ 7. On September 13, 2001, Dabney filed a petition for leave to appeal to this court, which was denied. The supreme court also denied Dabney's request for pretrial review in this case. As a result, the case was tried to the court on February 6, 2002. Dabney waived his right to a jury trial, and agreed to have the case presented by stipulated facts. Because Dabney agreed that the victim, Dawana, did not need to testify in person, the State dismissed the two counts of sexual assault that alleged hand-to-breast contact. Dabney was found guilty on the three remaining counts. He was sentenced to three consecutive forty-year prison terms. Judgment was entered. He now appeals.

II. DISCUSSION

A. DNA Complaint & Statute of Limitations.

¶ 8. Dabney contends that the original complaint and the arrest warrant, which were filed/issued three days before the expiration of the six-year statute of limitations, did not satisfy the "reasonable certainty" identification requirements of Wis. Stat. § 968.04(3) (a)4, thereby depriving the court of personal jurisdiction over him. He also argues that because the original complaint was insufficient, and the warrant was not timely issued, the six-year statute of limitations passed, and therefore bars this prosecution. We reject both arguments for the reasons that follow.

¶ 9. Whether a criminal prosecution is properly and timely commenced by a "John Doe" complaint and arrest warrant which identify the defendant solely by a DNA profile, is an issue of first impression in this state. The issue presented requires an interpretation of statutes and, thus, is a question of law for this court. State v. Adams, 152 Wis. 2d 68, 73-74, 447 N.W.2d 90 (Ct. App. 1989).

¶ 10. Dabney contends that the original complaint and arrest warrant were insufficient to confer personal jurisdiction. Personal jurisdiction in criminal cases involves the power of the circuit court over the physical person of the defendant. See, e.g., Walberg v. State, 73 Wis. 2d 448, 457-58, 243 N.W.2d 190 (1976). The circuit court obtains personal jurisdiction when two requirements are satisfied: (1) a complaint or an indictment must he filed stating probable cause to believe a crime has been committed and that the defendant probably committed it, see State v. Smith, 131 Wis. 2d 220, 238, 388 N.W.2d 601 (1986); and (2) there must be compliance with the applicable statute of limitations, see State v. Pohlhammer, 78 Wis. 2d 516, 523, 254 N.W.2d 478 (1977). To satisfy the statute of limitations, an action must be commenced before the statute expires. In a criminal prosecution, an action is "commenced" "when a warrant or summons is issued, an indictment is found, or an information is filed." Wis. Stat. § 939.74(1); see also State v. Jennings, 2003 WI 10, ¶ 1, 259 Wis. 2d 523, 657 N.W.2d 393 (a complaint is sufficient to commence an action if the defendant is already in custody due to incarceration).

¶ 11. Here, a complaint and arrest warrant were both issued on December 4, 2000, three days before the six-year statute of limitations expired. Dabney does not dispute this fact. He argues, however, that because the complaint and arrest warrant identified him solely by his DNA profile, the "reasonable certainty" requirement of Wis. Stat. § 968.04(3) (a)4 was not satisfied. Section 968.04(3)(a)4 provides in pertinent part that the arrest warrant shall: "State the name of the person to be arrested, if known, or if not known, designate the person to be arrested by any description by which the person to be arrested can be identified with reasonable certainty."

¶ 12. Although Dabney repeatedly argues that the "reasonable certainty" requirement applies to both the complaint and the arrest warrant, that is not the case. The "reasonable certainty" requirement is specific to the warrant only. The statutory requirements for a complaint require only that the complaint set forth "a written statement of the essential facts constituting the offense charged." Wis. Stat. § 968.01(2). Moreover, case law consistently provides that a complaint must meet certain requirements to be sufficient:

A criminal complaint is a self-contained charge that must set forth facts within its four corners that are sufficient, in themselves or together with reasonable inferences to which they give rise, to allow a reasonable person to conclude that a crime was probably committed and the defendant is probably culpable .... To be sufficient, a complaint must only be minimally adequate. This is to be evaluated in a common sense rather than a hypertechnical manner, in setting forth the essential facts establishing probable cause.

Adams, 152 Wis. 2d at 73. The complaint must answer who is being charged and why. Id. at 73-74. Thus, we interpret Dabney's argument with respect to the corn-plaint to suggest that the DNA profile fails to answer the question of who is being charged. Accordingly, in addressing this issue, we refer to both the complaint and the arrest warrant.

¶ 13. The question to he addressed is whether a complaint and an arrest warrant, which identify the defendant/suspect as "John Doe" with a specific DNA profile, satisfies the particularity and reasonable certainty requirements. Our supreme court considered a similar issue more than a century ago in a case where an unknown female was accused of larceny. See Scheer v. Keown, 29 Wis. 586, 588 (1872). In Scheer, the court held: "[T]he fact that her name was unknown should have been stated in the complaint and warrant, and the best description of the person prosecuted, which the nature of the case would allow, should have been given therein[.]" Id. Thus, the particularity or reasonable certainty requirements do not absolutely require that a person's name appear in the complaint or warrant. When the name is unknown, the person may be identified with "the best description" available.

¶ 14. One treatise writer advises that a "John Doe" arrest warrant satisfies the particularity requirement if it describes the person's "occupation, his personal appearance, peculiarities, place or residence or other means of identification." 3 Wayne R. LaFave, Search and Seizure § 5.1(g) (3d ed. 1996 & Supp. 2003) (footnote citations omitted). The case law suggests that the complaint and warrant satisfy the sufficiency standard when the description clearly demonstrates that the "law enforcement authorities had probable cause to suspect a particular person of committing a crime." Powe v. City of Chicago, 664 F.2d 639, 646 (7th Cir. 1981).

¶ 15. Here, the complaint and arrest warrant identified the suspect as "John Doe" and set forth a specific DNA profile. We conclude that for purposes of identifying "a particular person" as the defendant, a DNA profile is arguably the most discrete, exclusive means of personal identification possible. "A genetic code describes a person with far greater precision than a physical description or a name." Meredith A. Bieber, Comment, Meeting the Statute or Beating It: Using "John Doe" Indictments Based on DNA to Meet the Statute of Limitations, 150 U. Pa. L. Rev. 1079, 1085 (2002). Thus, we agree with the State's arguments that the DNA profile satisfies the "reasonable certainty" requirements for an arrest warrant and answers the "who is charged" question for a complaint.

¶ 16. We are, however, persuaded by Dabney's suggestion that in addition to the DNA profile, the particular physical characteristics known to police would have further enhanced the completeness of the complaint and warrant. As Dabney points out, an individual would not necessarily recognize the DNA profile as his own. Thus, although the DNA profile satisfies the particularity requirements in identifying a suspect whose name is not known, it would be helpful, for notice purposes, to also include any known physical appearance characteristics. The lack of a more particular physical description in this case, however, does not defeat the State's argument.

¶ 17. Dabney also contends that because a DNA profile is not apparent to the naked eye, the warrant cannot be readily executed. This argument does not alter our conclusion that the particularity requirement was satisfied in this case. Clearly, a police officer with a DNA profile in hand could not walk up to an individual and arrest him/her on that basis. Rather, the officer would need to obtain a DNA sample from the individual to compare it with the one identified in the arrest warrant. This extra step, however, is not unique to a warrant based on DNA. No matter how well a warrant describes the individual, extrinsic information is commonly needed to execute it. If a name is given, information to link the name to the physical person must be acquired. Accordingly, we conclude that an arrest warrant based on a DNA profile can be readily and accurately executed.

¶ 18. Based on the foregoing, we conclude that the complaint and warrant in this case satisfy the statutory requirements; therefore, the documents were sufficient to identify Dabney and were sufficient to confer personal jurisdiction. Accordingly, the trial court did not err when it denied Dabney's motion to dismiss based on this argument.

B. Statute of Limitations.

¶ 19. Next, Dabney argues that a complaint/warrant based solely on a DNA profile should be deemed insufficient to satisfy the statute of limitations. He contends that in relying on this type of complaint/ warrant, the state is effectively eliminating the statute of limitations because a DNA complaint/warrant could be issued just before the statute of limitations passed in order to toll the action forever. We reject this contention.

¶ 20. In this case, the relevant statute of limitations is Wis. Stat. § 939.74(1), which provides that a prosecution for a felony "must be commenced within 6 years" after its commission. A prosecution is commenced when a warrant or summons is issued, an indictment is found, or an information is filed. But see Jennings, 259 Wis. 2d 523, ¶ 1 (complaint sufficient to commence action when defendant is already in custody due to incarceration).

¶ 21. Here, it is undisputed that the DNA profile complaint and warrant were issued three days before the statute of limitations expired. We have already concluded that the complaint and warrant in this case were sufficient to commence the prosecution. Thus, the case was timely filed. Nonetheless, we address briefly, Dabney's contentions that the State's actions in this case effectively nullify the statute of limitations.

¶ 22. First, we note that the protection afforded by the statute of limitations "is not a fundamental right" of a criminal defendant. State v. Sher, 149 Wis. 2d 1, 13, 437 N.W.2d 878 (1989). Rather, it is a statutorily created right, whose primary purpose is to "protect the accused from having to defend himself against charges of remote misconduct." John v. State, 96 Wis. 2d 183, 194, 291 N.W.2d 502 (1980).

¶ 23. That purpose has not been violated here. The charged crimes were committed December 7, 1994, and the arrest warrant was issued on December 4,2000. This was less than six years after the crimes. The legislature has determined that six years is not so "remote" as to negatively prejudice the defendant's rights.

¶ 24. Second, the legislature has addressed this issue and passed legislation addressing these concerns. Newly enacted Wis. Stat. § 939.74(2d) provides:

(2d)(a) In this subsection, "deoxyribonucleic acid profile" means an individual's patterned chemical structure of genetic information identified by analyzing biological material that contains the individual's deox-yribonucleic acid ["DNA"].
(b) If before the time limitation under sub. (1) expired [the six-year period for felonies], the state collected biological material that is evidence of the identity of the person who committed a violation of s. 940.225 (1) or (2), the state identified a [DNA] profile from the biological material, and comparisons of that [DNA] profile to [DNA] profiles of known persons did not result in a probable identification of the person who is the source of the biological material, the state may commence prosecution of the person who is the source of the biological material for violation of s. 940.225 (1) or (2) within 12 months after comparison of the [DNA] profile relating to the violation results in a probable identification of the person.

¶ 25. Although this statute did not apply to Dabney's case, it provides support for the State's position. The newly enacted statute demonstrates the legislature's recognition that DNA profiles do sufficiently identify sexual-assault offenders and that the competing interest in sexual-assault prosecutions weigh in favor of allowing such prosecutions to commence after six years when the state has obtained the offender's DNA profile but has been unable to match it to a known DNA profile within that period. The legislature essentially has created a "discovery rule" extension of the statute of limitations in these limited circumstances. Thus, the statute of limitations is not extended forever; rather, the statute is tolled under certain circumstances until a match is discovered. Once a match is discovered, the statute places a twelvemonth deadline upon the state in which the action must be commenced.

¶ 26. Based on the foregoing, we must reject Dabney's statute of limitations argument. We conclude that under the facts and circumstances presented in this case, the State commenced this action in a timely manner. Our conclusion is supported by the legislature's recent enactment of Wis. Stat. § 939.74(2d)(b).

C. Due Process.

¶ 27. Dabney's last claim is that his due process rights were violated for two reasons: (1) he was not given sufficient notice of the claim because the original complaint and warrant identified him only by his DNA profile; and (2) he was prejudiced by the pre-charging delay. We reject both arguments.

¶ 28. First, the fact that the original complaint and arrest warrant were issued as "John Doe" and contained only a DNA profile does not create any lack of "notice" issues. A defendant is not entitled to specific notice that the state is issuing a complaint and seeking an arrest warrant. "[A]n arrest warrant issues when it is signed by a judge with intent that it be executed and the warrant leaves the possession of the judge." State v. Mueller, 201 Wis. 2d 121, 129, 549 N.W.2d 455 (Ct. App. 1996). Thus, the warrant is issued without any involvement from the defendant and the defendant is not provided with any notice of the underlying charge until the warrant is executed. Here, the warrant was not executed until Dabney's name was substituted for "John Doe." Thus, whether or not Dabney knew his specific DNA profile is irrelevant.

¶ 29. Second, Dabney contends that the prosecu-torial delay in filing the complaint violated his due process rights. He argues that the State intentionally delayed this case until it was able to obtain a positive DNA identification. He contends that, as a result, he has been prejudiced because "memories fade" and "witnesses become unavailable." We must reject this claim as well.

¶ 30. In order to demonstrate a due process violation on this basis, Dabney has to establish that he suffered:' (1) actual prejudice as a result of the delay; and (2) that the delay arose as a result of an improper purpose, so as to afford the State a tactical advantage over him. State v. Wilson, 149 Wis. 2d 878, 903-05, 440 N.W.2d 534 (1989). Whether the pre-charging delay violated the due process clause is a constitutional question, which we review independent of the trial court. See generally State v. McMorris, 213 Wis. 2d 156, 165-66, 570 N.W.2d 384 (1997).

¶ 31. Dabney has failed to satisfy his burden. Although he alleges that "memories fade" and "witnesses become unavailable" as time passes, he does not set forth any specific facts to establish actual prejudice. Without any more specific factual allegations, he has failed to sufficiently present a claim of actual prejudice. See State v. Monarch, 230 Wis. 2d 542, 551, 602 N.W.2d 179 (Ct. App. 1999). Rather, he relies primarily on his claim that the statute of limitations expired and, therefore, prejudice is "irrebuttably presumed." We disagree based on our earlier conclusion that the statute of limitations was not violated in this case.

¶ 32. The primary evidence against Dabney was the DNA sample he left in the victim's mouth and the victim's statement. He offered no challenge to the DNA evidence and no evidence challenging the victim's version of events. Based on the foregoing, we are not persuaded by his conclusory assertions of actual prejudice.

¶ 33. Moreover, he also fails to establish that the delay in filing the complaint resulted from an improper prosecutorial motive or purpose. He made no showing as to how the timing of the complaint created a tactical advantage for the State. He argues only that the DNA profile could have been run and discovered earlier. The State refutes this allegation, pointing out that the original complaint states that the DNA sample was tested earlier, but no match was found. Regardless, there is no evidence that the State intentionally delayed the prosecution of this case in order to obtain a tactical advantage over Dabney.

By the Court. — Judgment affirmed.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.


author: ANDERSON, J.

text:
    State of Wisconsin, Plaintiff-Appellant, v. Niko MaShell Triggs, Defendant-Respondent.
    Court of Appeals

      No. 02-0447-CR.

      Submitted on briefs March 26, 2003.

      Decided April 30, 2003.

    2003 WI App 91
    (Also reported in 663 N.W.2d 396.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Daniel J. O'Brien, assistant attorney general, and James E. Doyle, attorney general.
    On behalf of the defendant-respondent, the cause was submitted on the brief of John C. Campion of Campion Law Office, Racine.
    Before Brown, Anderson and Snyder, JJ.
   ANDERSON, J.

¶ 1. The State of Wisconsin appeals from an order suppressing inculpatory statements the trial court held were not the voluntary product of a free and unconstrained will because the police misrepresented that there were several witnesses to the incident. Police misrepresentations during an interrogation do not make an otherwise voluntary statement inadmissible, but become one factor in the totality of the circumstances analysis that must be conducted in determining the voluntary nature of the statement. Since we conclude that under the totality of the circumstances the statement was voluntary, we reverse and remand.

¶ 2. Niko MaShell Triggs was charged with discharging a firearm from a vehicle towards a person in violation of Wis. Stat. §§ 941.20(3)(a) and 939.50(3)(c), and carrying a concealed weapon in violation of Wis. Stat. §§ 941.23 and 939.51(3)(a) (2001-02). Triggs filed a motion seeking to suppress all statements that she had made to the police. After a Miranda-Goodchild hearing, the trial court ordered her statements suppressed because it concluded that the investigating officer had made misrepresentations to Triggs concerning the existence of eyewitnesses to induce her to confess after her repeated denials of involvement. The State appeals.

Facts

¶ 3. The criminal complaint and the trial court's prefatory factual findings provide the setting for the police interrogation of Triggs. In the early morning hours, Officer John Rusfeldt of the Town of Mt. Pleasant Police Department heard what he believed to be a gunshot and headed in the direction of the shot to investigate. Rusfeldt was flagged down by Billy Spark-man, who related that his ex-girlfriend had chased him in her car and when he hid behind a fence, she shot at him from her car. Rusfeldt searched the area where Sparkman had hid and found a spent shell casing and a hole in the fence. Based upon information provided by Sparkman, Rusfeldt provided the information to his dispatch center and a short time later, the Racine police department advised him that it had stopped the vehicle and the suspect.

¶ 4. At the Miranda-Goodchild hearing, Rusfeldt testified that he met Triggs at the Racine County Jail and took her into an interrogation room. In preparation for the interview, he read her Miranda rights and asked her if she understood her rights; she replied that she worked as a legal assistant for a Milwaukee law firm and she understood her rights. She also responded that she was willing to answer his questions and to make a statement.

¶ 5. In the initial phase of the interview, Triggs denied any knowledge of the shooting the officer was investigating. Rusfeldt confronted Triggs with the physical evidence he had recovered from the scene and his opinion that the bullet hole in the fence was consistent with having been fired from a seated position in a vehicle. He then related the statement given by Sparkman that identified Triggs as the person who shot at him. Finally, he told Triggs, "[I]n that area of the town there are a lot of people who walk around at night and that there were some walking around and did see the incident occur. Described the vehicle to me, and the occupant of that vehicle, as well as what happened." In later questioning from the prosecution, Rusfeldt admitted that the information about other witnesses was false and he made it up in an effort to get Triggs to continue to talk about the incident.

¶ 6. Triggs' first reaction was to ask for a cigarette; the officer responded that he would have to ask the jail supervisor about the smoking policy in the jail. Rather than leave the interrogation room, the officer stayed and explained to Triggs that he wanted to get to the bottom of the incident before she had a cigarette. Rusfeldt testified that Triggs then said that he "did break her and that she would tell [him] everything [he] needed to know." Triggs then gave a statement of the events that matched Sparkman's statement. After Triggs completed her inculpatory statement, the officer escorted her to an outside smoking area.

¶ 7. Triggs testified at the Miranda-Goodchild hearing. She recounted that she had been drinking heavily before the incident, and prior to the interrogation by Rusfeldt, she submitted to a breathalyzer test and the result was a blood alcohol content of 0.19%. She also testified that it took effort on her part to speak coherently because of her intoxication. However, in response to questions from the prosecutor, Triggs admitted that she understood her rights and the questions the officer asked were clear and understandable. Rus-feldt testified that he did not observe any outward signs that Triggs was intoxicated.

¶ 8. The trial court held that Triggs had knowingly, intelligently and voluntarily waived her Miranda rights. The court then turned to the Goodchild issue, the voluntariness of Triggs' statement. Relying on Schilling v. State, 86 Wis. 2d 69, 271 N.W.2d 631 (1978), the trial court stated:

The court is satisfied and would find that the specific misrepresentation of the existence of more than one witness statement implicating the defendant and describing both her and her victim and her automobile rather when known to be false and when made for the specific purpose of misleading the defendant in order to induce her to talk would in fact constitute improper police tactics and pressure. It was a knowingly false statement and was made for the purpose of inducing her to talk recognizing that in the absence of that evidence she was not willing to talk and had in fact denied involvement up to that point.
So the court would find given the context of this case, the nature of the representation, the misrepresentation rather and the specific purpose for which it was made that that did in fact constitute an improper tactic on the part of the officer in order to obtain a statement.

¶ 9. The trial court then turned to a consideration of the totality of the circumstances, pointing out three key circumstances it found significant and relevant. First, Triggs' level of intoxication supported a reasonable inference that her free will and judgment may have been impaired. Second, Triggs' denied involvement in the incident before Rusfeldt misrepresented the strength of the evidence. Third, the nature of the misrepresentation — there were other witnesses to the shooting — was sufficient to overcome Triggs' denials. Weighing these three circumstances, the trial court concluded:

[T]he statement that she did then make implicating herself in the incident was not the voluntary product of her free and unconstrained will. It did not reflect a deliberate choice on her part, but did in fact represent something that was the product of the misrepresentation that was made to her as to the existence of the evidence.

The court granted Triggs' motion to suppress her statements.

¶ 10. The State asserts the trial court erred as a matter of law when it held that the misrepresentation was a coercive police tactic. The State maintains that-the general proposition is that police lies about the strength of the case against a suspect are not coercive and, without more, do not render a confession involuntary. In the alternative, the State contends that if the misrepresentation is coercive or improper, Triggs' statement is voluntary under the totality of the circumstances.

Standard of Review

¶ 11. In reviewing the voluntariness of Triggs' confession, we examine two determinations made by the trial court, but apply a different standard of review to each. First, the trial court determines the evidentiary or historical facts relevant to the issue in this case, namely, the circumstances surrounding the giving of the confession. Our standard of review of the trial court's findings of evidentiary or historical facts is that those findings will not be upset on appeal unless they are contrary to the great weight and clear preponderance of the evidence. See State v. Armstrong, 223 Wis. 2d 331, 352, 588 N.W.2d 606 (1999). Second, the trial court then applies those facts to resolve the constitutional questions. These are questions that require the application of constitutional principles to found facts; we independently determine these questions of "constitutional fact." Id. at 353.

Discussion

¶ 12. When the State seeks to admit a defendant's custodial statement into evidence, it must show by a preponderance of the evidence that: (1) the defendant was informed of his or her Miranda rights, understood them, and knowingly and intelligently waived them; and (2) the defendant's statement was voluntary. State v. Santiago, 206 Wis. 2d 3, 18-19, 29, 556 N.W.2d 687 (1996). In this case, it is undisputed that Triggs was in custody when she was interrogated and that she was given her Miranda warnings. The State's appeal is limited to a challenge to the trial court's suppression of Triggs' statements because they were involuntary.

¶ 13. In determining whether Triggs' confession was involuntary, we will independently examine the record and apply the totality of circumstances test, State v. Kiekhefer, 212 Wis. 2d 460, 470, 569 N.W.2d 316 (Ct. App. 1997), weighing the defendant's personal characteristics against the pressures the police imposed upon the defendant to induce a response to the questioning, State v. Albrecht, 184 Wis. 2d 287, 301, 516 N.W.2d 776 (Ct. App. 1994). In this case, the police made a misrepresentation concerning the strength of the case against Triggs. The issue we must resolve is whether under the totality of the circumstances test, the effect of the misrepresentation created sufficient pressure to overcome Triggs' free will.

¶ 14. We disagree with the State's contention that because .police misrepresentations are not inherently coercive, it was error for the trial court to engage in a totality of the circumstances analysis. The State's journey to this conclusion starts with the concept that only "if the defendant establishes coercive conduct, the court must undertake a balancing analysis, weighing the personal characteristics of the defendant against the coercive police conduct, to determine whether the statement was voluntary." State v. Owen, 202 Wis. 2d 620, 642, 551 N.W.2d 50 (Ct. App. 1996). The next leg of the State's journey is the argument that there is no rule of law barring police misrepresentations of the strength of the evidence. The State supports this argument with citation to Albrecht and State v. Woods, 117 Wis. 2d 701, 345 N.W.2d 457 (1984), aff'd, Woods v. Clusen, 794 F.2d 293 (7th Cir. 1986), for the proposition that police misrepresentations "are not inherently coercive or improper so as to render an otherwise voluntary confession involuntary." On the final leg of the journey, the State proposes that because the police misrepresentation was not inherently coercive, Triggs has failed to establish the necessary prerequisite to a balancing of her personal characteristics against coercive police conduct.

¶ 15. The State takes a wrong turn on its journey when it asserts that because there is no rule of law barring misrepresentations during interrogation, misrepresentations are not inherently coercive and do not render a confession involuntary. Case law requires that we take a different turn. The interrogation of a suspect typically requires some deception; a common form of deception is to exaggerate the strength of the evidence against the suspect. Laurie Magid, Deceptive Police Interrogation Practices: How Far Is Too Far?, 99 Mich. L. Rev. 1168, 1174 (2001). While the Miranda Court took a negative view of deceptive interrogation techniques, it imposed few limits on their use, preferring to protect suspects by requiring police to inform suspects of their rights and providing an attorney before starting interrogation. Magid, supra, at 1175. The only case in which the United States Supreme Court directly addressed misrepresenting the strength of the evidence against a defendant was Frazier v. Cupp, 394 U.S. 731 (1969). In Frazier, the police falsely told Frazier that his co-defendant had already confessed; Frazier sought to suppress his inculpatory statements, arguing that the police deception made them involuntary. Id. at 737, 739. The United States Supreme Court held that lies told by the police do not make a confession involuntary.

The fact that the police misrepresented the statements that [the co-defendant] had made is, while relevant, insufficient in our view to make this otherwise voluntary confession inadmissible. These cases must be decided by viewing the "totality of the circumstances."

Id. at 739.

¶ 16. Wisconsin courts have dealt with Frazier in several contexts. In Schilling, the supreme court did not have to address a misrepresentation by investigating officers; rather, the issue was whether police speculation about the possible existence of fingerprints was sufficient to render a confession involuntary. Schilling, 86 Wis. 2d at 72, 76. The supreme court stated that if there had been an actual misrepresentation, Frazier would apply and "an actual misrepresentation by an interrogator does not ipso facto make a confession inadmissible." Id. at 88. In Woods, the issue was the impact of misrepresentation by police on Woods' waiver of his right to remain silent and not on the voluntariness of his confession. Woods, 117 Wis. 2d at 725. The supreme court embraced the analytical framework of Frazier and applied it to an analysis of whether police subterfuge improperly induced Woods to waive his right to remain silent: "[W]e do not believe that the court in Miranda adopted a per se rule that the existence of misrepresentations by police during custodial interrogation automatically renders a waiver of the right to remain silent involuntary or a confession given after a waiver of that right inadmissible." Woods, 117 Wis. 2d at 725. Finally, in State v. Fehrenbach, 118 Wis. 2d 65, 347 N.W.2d 379 (Ct. App. 1984), we directly addressed the use of deceit by police to induce a suspect to confess:

We adopt the conclusion reached in Frazier and hold that an interrogator's use of deceit, while relevant, does not by itself make an otherwise voluntary confession inadmissible. As in the federal courts, our trial courts must view all the circumstances surrounding the statement to decide if it was voluntarily given.

Fehrenbach, 118 Wis. 2d at 66-67.

¶ 17. While the State would have us hold that a misrepresentation by the police is not coercive or improper and does not require a court to conduct a totality of the circumstances analysis, Frazier, 394 U.S. at 739, and Fehrenbach, 118 Wis. 2d at 66-67, compel a different result. Both cases clarify that "lies told by the police do not necessarily make a confession involuntary; rather, this is simply one factor to consider out of the totality of the circumstances." United States v. Velasquez, 885 F.2d 1076, 1088 (3d Cir. 1989). For that reason, we conclude that the trial court correctly determined that the misrepresentation concerning the strength of the evidence required it to consider the totality of the circumstances.

¶ 18. Consistent with the Frazier and Fehrenbach requirement, we will consider the totality of the circumstances surrounding Triggs inculpatory statement and balance her personal characteristics against the police tactic. Albrecht, 184 Wis. 2d at 301. We conduct a plenary review of whether, under the totality of the circumstances, the historical facts meet the constitutional standards for voluntariness. State v. Hindsley, 2000 WI App 130, ¶ 37, 237 Wis. 2d 358, 614 N.W.2d 48.

¶ 19. The trial court focused on Triggs1 initial denial of involvement in the incident and the police misrepresentation in its consideration of the totality of the circumstances. We will begin with these two concerns.

Of the numerous varieties of police trickery, however, a lie that relates to a suspect's connection to the crime is the least likely to render a confession involuntary. Such misrepresentations, of course, may cause a suspect to confess, but causation alone does not constitute coercion; if it did, all confessions following interrogations would be involuntary because "it can almost always be said that the interrogation caused the confession." Thus, the issue is not causation, but the degree of improper coercion.... Inflating evidence of [the defendant's] guilt interfered little, if at all, with his "free and deliberate choice" of whether to confess, for it did not lead him to consider anything beyond his own beliefs regarding his actual guilt or innocence, his moral sense of right and wrong, and his judgment regarding the likelihood that the police had garnered enough valid evidence linking him to the crime. In other words, the deception did not interject the type of extrinsic considerations that would overcome [the defendant's] will by distorting an otherwise rational choice of whether to confess or remain silent.

Holland v. McGinnis, 963 F.2d 1044, 1051 (7th Cir. 1992) (citations omitted).

¶ 20. The type of factual misrepresentation employed to induce Triggs' confession went directly to Triggs1 connection to the crime. Triggs' initial denial of involvement is what prompted Rusfeldt to detail the evidence he had accumulated. His misrepresentation that there were witnesses to the incident did nothing more than corroborate the truthful information he gave to Triggs, including the physical evidence recovered at the scene, the officer's reasonable inferences flowing from that evidence and, most importantly, the victim's description of the incident and detailed identification of Triggs and the automobile she was driving. Consequently, the trickery in this case bears little upon our analysis of whether under the totality of the circumstances the confession was involuntary.

¶ 21. Next we turn to Triggs' personal characteristics. Triggs was approximately twenty-eight years old at the time of the incident. She was pursuing a BA in criminal justice with a minor in psychology and had completed a paralegal program. Triggs was employed by a law firm. There is no evidence that she had any prior experience with the criminal justice system. Accordingly, Triggs' personal characteristics would not make her susceptible to police tactics designed to overcome her free will and judgment.

¶ 22. The trial court found that Triggs' intoxication impaired her free will and judgment. We disagree. Evidence of intoxication "should not affect the admissibility of the [statement] where there is no proof that the confessor was irrational, unable to understand the questions or his responses, otherwise incapable of giving a voluntary response, or reluctant to answer the questions posed by the authorities." State v. Clappes, 136 Wis. 2d 222, 241-42, 401 N.W.2d 759 (1987). While there is evidence that Triggs had consumed a large quantity of alcohol, there is no evidence that as a result, she did not understand her Miranda rights or the questions being asked by Rusfeldt or that she talked or behaved irrationally during the interrogation. In addition, we conclude that there is no evidence that Rusfeldt's failure to immediately provide Triggs with a cigarette caused Triggs any physical or psychological discomfort. Consequently, neither her level of intoxication nor her request for a cigarette rendered her incapable of exercising her free will and judgment.

¶ 23. Finally, we will consider the interrogation. The interrogation was conducted shortly after Triggs was taken into custody and did not last more than forty-five minutes. The interrogation room had glass on two sides, a table and several chairs. Rusfeldt was the only officer to question Triggs, who was neither handcuffed nor restrained in any manner. Triggs was given warnings of her constitutional rights before the interrogation began. Rusfeldt used a conversational tone of voice throughout the interrogation and Triggs maintained a casual demeanor. Accordingly, we conclude that the conditions of the interrogation had no impact on Triggs' free will and judgment.

Conclusion

¶ 24. Police misrepresentation is not so inherently coercive that it renders a statement inadmissible; rather, it is simply one factor to consider out of the totality of the circumstances. We conclude that the trial court erred in finding that under the totality of the circumstances, Triggs' inculpatory statement "was not the voluntary product of her free and unconstrained will. It did not reflect a deliberate choice on her part, but did in fact represent something that was the product of the misrepresentation that was made to her as to the existence of evidence." After our independent review of the record, we conclude that under the totality of the circumstances, Triggs' statement was the product of a free and deliberate choice.

By the Court. — Order reversed and cause remanded.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

         Miranda v. Arizona, 384 U.S. 436 (1966); State ex rel. Goodchild v. Burke, 27 Wis. 2d 244, 133 N.W.2d 753 (1965).

       The trial court commented that a fourth factor, although not very significant, was Rusfeldt's denial of Triggs request for a cigarette, closely followed by Triggs' inculpatory statements.

       Until recently, it was believed that the State's burden of proof at a Goodchild hearing was to establish the voluntariness of a confession beyond a reasonable doubt. However, in State v. Agnello, 226 Wis. 2d 164, 179-82, 593 N.W.2d 427 (1999), the supreme court reduced the State's burden at the Goodchild hearing to prove voluntariness by a preponderance of the evidence.

       There is one earlier reference to Frazier v. Cupp, 394 U.S. 731 (1969), in Blaszke v. State, 69 Wis. 2d 81, 88-89, 230 N.W.2d 133 (1975); the supreme court stated, in reference to Frazier, 'We point out, without deciding the question since it is not posed under the facts of this case, that there is substantial authority that giving a defendant false information does not in itself make a confession inadmissible on the grounds of involuntariness."