### COURT OF APPEALS DECISION DATED AND FILED September 18, 2024

Samuel A. Christensen Clerk of Court of Appeals NOTICE This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2022AP1118
- CR Cir. Ct. No. 2018CF 45 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT II

S TATE OF W ISCONSIN , P LAINTIFF - R ESPONDENT ,
V . J ESSE L.A. S CHULTZ , D EFENDANT - A PPELLANT .

APPEAL from a judgment of the circuit court for Fond du Lac County: ANDREW J. CHRISTENSON , Judge. Affirmed

.

Before Gundrum, P.J., Neubauer and Lazar, JJ.

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in W IS . S TAT . R ULE 809.23(3).No. 2022AP1118

- CR

2 ¶ 1 PER CURIAM. Jesse L.A. Schultz appeals a judgment convicting him of f irst

- degree reckless homicide with use of a dangerous weapon . Shultz
argues: (1) the circuit court erred by requiring him to appear by telephone at the evidentiary hearing on his motion to suppress ; and (2) he was “in custody” for Miranda 1 purposes durin g his first interrogation on November 10, 2017, so the court should have suppressed statements and evidence obtained from him during that interrogation. We reject these arguments and, therefore, we affirm.
¶ 2 On September 23, 2017, Schultz and his co

- defendant, Devon Neuman, shot and killed Logan Foster outside the Press Box Tavern in Fond du Lac. O n November 10 , 2017, the police interviewed Schultz about the shooting at the Fond du Lac County Jail , where Schultz was being held on a n unrelated sentence

. They did not give Schultz Miranda warnings because they believed him to be a witness, not a suspect

. During these interviews, Schultz made several incriminating statements, including admitting th at he was present at the scene. The next day , the police again interviewed Schultz. T his time, t he police gave Schultz Miranda warnings before the interview.
¶ 3 Schul tz moved to suppress the statements he made during these interviews , arguing that his Miranda ri ghts were vi olated and that evidence obtained through subsequent search warrants for his residence, phone, and Facebook account should be excluded

. The circuit court denied Schultz ’ s motion to suppress the November 10 , 2017 statements and the evidence obtained from the search warrants, ruling that Schultz was not “ in custody ” for purposes of Miranda during the first interview and ruling that the search warrants were supported by

1 Miranda v. Arizona , 384 U.S. 436 (1966).No. 2022AP1118

- CR

3 probable cause. However, the court granted th e motion to suppress statements Schultz made during the November 11 , 2017 interview, determining that Schultz’s Miranda rights had been violated when detectives continued to question him after he requested an attorney. Following these rulings, Schultz ple aded guilty to a reduced charge of first

- degree reckless homicide.
¶ 4 Schultz first argues that the circuit court erred by requiring him to appear by telephone at the evidentiary hearing on his motion to suppress on July 13, 2020

. D u ring this time, a Wisconsin Supreme Court order was in effect du e to the COVID

- 19 pandemic

. In re the Matter of Remote Hearings During the COVID

- 19 Pandemic ( S. Ct. Order issued Mar ch 22, 2020 ; amended April 15, 2020). 2 The order provided that “ all in

- person proceedings in all appellate and circuit courts are hereby suspended until further order of this court. ” Id. at 1. The order provided that exceptions would be made “ if remote technology is not
pra cticable or adequate to address” certain “[p] roceedings necessary to protect the constitutional rights of criminal defendants .” See id. at 2

. ¶ 5 Schultz argues that his physical presence was necessary in the
courtroom for the fair adjudica tion of his motion to suppress. He contends that his

a bility to communicat e effectively with his attorney was significantly
comprom ised by the remote appearance. However, t he record and Schultz’s own admissions in his appellant brief belie the s e claim s
. Schultz was permitted to communicate confidentially wi th his attorney when he asked to do so . The circuit court pro vided them a private channel through which to speak. Schultz does not

2 https://www.wicourts.gov/news/docs/remotehearingsamended.pdf (last visited Sept. 9, 2024).No. 2022AP1118

- CR

4 offer any specific examples or arguments to demonstrate that his remote appearance hindered his defense or affect ed the out come of the hearing. S c hultz has not shown that the remote technology the court used was not adequate to address the motion to suppress in a manner consistent with the protection of Schultz’s constitutional rights. Therefore, we reject his argument that the court erred in requiring him to appear remotely for the hearing

. ¶ 6 Shultz next argues that his Miranda rights were violated during his November 10 , 2017 interview with law enforcement while he was incarcerated at the Fond du Lac County Jail on unrelated charges . Schultz contends that he was effectively “ in custody ” during the interview and, as such, should have been provided with Miranda warnings prior to any questioning. He argues that being questioned about a homicide in the j ail environment would lead any reasonable person to believe they were not free to terminate the conversation and leave.
¶ 7 In determining whether a person is in custody for Miranda purposes, courts apply an objective test: whether, under the totality of the circumstances, a reasonable person would have felt they were not free to terminate the interrogation and leave. State v. Bartelt , 2018 WI 16, ¶31, 379 Wis. 2d 588, 906 N.W.2d 684. The United States Supreme Court has emphasized that “ custody” for Miranda purposes is not defined by mere physical incarceration but by whether the interrogation environment presents inherently coercive pressures. Howes v. Fields , 565 U.S. 499, 508

- 09 (2012). We will uphold the factual findings made by the circuit court unless they are clearly erroneous but the ultimate question of

w hether a defendant was in custody for the purposes of Miranda , based on the facts , is a question of law that we review independently. See State v. Dobbs , 2020 WI 64, ¶28, 392 Wis. 2d 505, 945 N.W.2d 609.No. 2022AP1118

- CR

5 ¶ 8 While it is undisputed that Schultz was in jail at the time of the interview , case law teaches that incarceration alo ne does not automatically mean that a person is in custody for purposes of Miranda

. The critical inquiry is whether a reasonable person in Schultz ’ s position would have felt free to term inate the interview and leave. After the evidentiary hearings on the suppression motion,
t he circuit court made the following factual findings with regard t o the November 10 , 2017 interview. The court found that the officers did not escort Schultz down to the conference room

. He was simply asked or told to go there. The conference room door was not locked and Schultz was not physically restrained. The pol ice initially thought Schultz was a potential witness, not a suspect, and the questions they asked him were the type of questions the police would ask a witness, not a suspect. Based on t he eighteen mi nute recording of the interview, which was played duri ng the hearing, the court characterized the tone of the interview as not threatening or angry, and noted that the officers were not speaking loudly. Based on the court ’ s factual findings

— which indicate a non

coercive environment and lack of physical restr aint

— and the legal standards in Howes and Bartelt , we conclude that the police questioning of Schultz on November 10 did not present the inherently coercive pressures that would necessitate Miranda warnings. As such, Schultz was not in custody for Miranda purposes during the November 10 interview , and the court properly denied his moti on to suppress the evidence that was obtained based on the interview

.

By the Court.

— Judgment affirmed

. This opinion will not be published. See W IS

. S TAT

. R ULE 809.23(1)(b) 5.No. 2022AP1118

- CR

6