Greenwald v. State

Citation150 N.W.2d 507,35 Wis.2d 146
PartiesJohn Herbert GREENWALD, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
Decision Date09 May 1967
CourtUnited States State Supreme Court of Wisconsin

Leonard S. Zubrensky, Milwaukee, for plaintiff in error.

Bronson C. La Follette, Atty. Gen., Madison, Hugh R. O'Connell, Dist. Atty., Robert E. Sutton, Asst. Dist. Atty., Milwaukee, for defendant in error.

CURRIE, Chief Justice.

The following issues were presented by the writ of error:

1. Were the statements and confession elicited from the defendant as a result of interrogation, freely and voluntarily given in accordance with the standards required by the Fifth, Sixth and Fourteenth amendments of the United States constitution?

2. Where a single investigation discloses multiple charges against a defendant, a criminal prosecution is instituted against that defendant upon one charge and the defendant successfully defends that charge, is the state thereby estopped from subsequently instituting prosecution against the defendant on the other charges?

Admissibility of Defendant's Statements and Confession.

At the conclusion of the pretrial hearing to determine the voluntariness of defendant's statements and confession made pursuant to police interrogation the circuit court made detailed findings of fact and conclusions of law in accord with the mandate in State ex rel. Goodchild v. Burke 1 and concluded under the 'totality of circumstances' test that:

'* * * any statements against interest made by this defendant on any occasion referred to on January 20th or January 21st, 1965, were free and voluntary untary and that they are without Constitutional contamination. That, conversely, they are constitutionally antiseptic and that they are in full requirement of any of the standards for the admissibility of confessions, pursuant to Fourteenth Amendment criteria. And I find that they are free and voluntary and that they are legally admissible.'

Defendant contends that his statements and confession were not voluntary and requests that this court make an independent de novo determination on the question of voluntariness. The recent case of State v. Carter 2 is controlling with respect to defendant's position. In that case it is said:

'While this court unquestionably has the power to review the evidentiary facts de novo where constitutional principles are involved, it does not follow that we must do so, especially when it appears adequate procedures have been adopted by the trial court. * * *

'Where the court has made detailed findings of facts * * * our review of the evidentiary or historical physical facts will be limited to the same review that is used in other factual disputes heard and determined by a trial judge. The findings of the trial court will not be upset unless they are against the great weight and clear preponderance of the evidence.' 3

The facts leading up to and surrounding defendant's statements and confession may be summarized as follows: On January 20, 1965, sometime shortly before 10:45 p.m., defendant who was twenty-nine and had a ninth grade education, was seen by police officers Lazewski and Block behind a grocery store on East Lincoln Avenue in Milwaukee. He was placed under arrest for suspicion of burglary and taken to 'District #2 Station.' Defendant testified that on the date of his arrest he had high blood pressure for which he was taking medication twice daily--in the morning and late afternoon. At the time of the arrest he did not have medication upon his person. He testified further that he had last had food and medication about 4 p.m. the day of the arrest.

No threats or promises were made to defendant between the time of his arrest and his arrival at the police station. At the police station he was interrogated from about 10:45 p.m. until midnight. Defendant testified that during that time he did not make any requests for anything, that he knew he had a constitutional right to refuse to answer any questions, that he knew anything he said could be used against him, and that he knew he had a constitutional right to retain counsel.

At about midnight defendant was taken to the Safety Building where he was booked and fingerprinted. He did not make any requests of anybody at that time. Shortly after 2 a.m. he was taken to a cell in the city jail where he remained until 6 a.m. the morning of January 21, 1965. He claims the bed in his cell consisted of 'a plank fastened to the wall,'--the 'same' as in all the other cells, and that he did not sleep.

At about 6 a.m. defendant, without having been offered breakfast, was taken to the 'bullpen' and at about 8:30 a.m. was placed in a lineup. Shortly thereafter he was taken to an interrogation room where interrogation began about 8:45 a.m. Defendant testified that he was offered neither food nor medication, and that the absence of medication made him nervous and upset. He testified further that at approximately 10 - 10:30 he was asked to write out a confession whereupon he told the detectives present that it was against his constitutional rights and that he was entitled to counsel. At that point he claims one of the detectives said, 'Well, he's one of those guys too' and that another mentioned that maybe they ought to 'rough him up.' The police officers present at the time denied that any such threat was made. No further mention was made about an attorney. It is undisputed that defendant never directly requested an attorney.

No promises were made which induced defendant to make any statement against interest although reference was made by Detective Ullenberg to a loaf of bread which defendant claims was an implied promise that if he would confess to one charge 'they would dismiss the rest or consolidate them.' More specifically with reference to the claimed implied promise, Detective Ullenberg admitted saying to defendant, 'Here is a loaf of bread, you can give us a slice and keep the rest.' Upon examination by the court, Detective Ullenberg testified he was alluding to a parable in Victor Hugo's 'Les Miserables' concerning the fact that Jean Valjean stole a loaf of bread referring to the fact that 'we all have to live by bread.'

At about 11 o'clock defendant began admitting the acts he was asked about and at about 11:30 he made an 'oral confession.' At about noon he was offered food. Between 12 noon and 1 p.m. on the 21st before making a written statement defendant was taken to his home by the police where he changed clothes. His brother and sister-in-law were present but defendant did not converse with them nor did he in any way indicate that he wanted anything. After returning to the interrogation room, which was shortly after 1 p.m., he reduced his admissions to writing.

It is significant that from the time defendant was apprehended he did not make and accordingly was not denied any requests, except that at the time of his arrest he requested permission to go into the house and see his sister-in-law, which request was denied.

It is argued that the police should have desisted interrogating defendant when he made the aforerelated reference to his right to counsel. Counsel for defendant makes repeated reference to the Miranda 4 and Escobedo 5 decisions in developing his argument. The procedural safeguards set forth in Miranda are not applicable since the trial in this case began before the date of that decision. 6 The Escobedo decision is on the other hand applicable. However, in Browne v. State 7 which was followed by Neuenfeldt v. State, 8 which reexamined the interpretation placed on Escobedo in Browne, this court confined Escobedo to its facts and held that an accused's constitutional rights are violated only if he requests counsel and his request is denied. 9

Recently in Holloway v. State 10 it was said that this court's prior interpretations of Escobedo, limiting its applicability to the facts, had not been altered by Miranda. Defendant did not request counsel. Therefore there was no violation of the principles laid down in Escobedo. However, defendant's reference to counsel came close to what this court considers a request under the Neuenfeldt decision wherein it is stated:

'* * * a request, * * * need not be a formal one, but the desire to seek or have the advice of counsel must be communicated in some manner to him who has custody of the accused before it can be said there was a denial of counsel.' 11

While defendant was denied the right to see his sister-in-law at the time of his arrest there is no evidence whatever that he requested and was prevented from consulting with members of his family after he was taken to the police station or anytime thereafter. 12

At the conclusion of the hearing on the voluntariness of the statements and confession made by defendant the court made detailed findings of fact which may be summarized as follows:

(1) At all times and places mentioned with respect to the interrogation conducted January 20th and Januay 21st, 1965, defendant fully understood that he was not required to make any statement against his interest, that anything he said could be used against him and that he was entitled to counsel;

(2) Defendant was specifically advised on January 21, 1965, by representatives of the Milwaukee police department of his constitutional rights;

(3) Defendant at no time made any request or requests that were denied him except the 'unreasonable request' at the time of his arrest to have physical access to the premises occupied by his brother and sister-in-law;

(4) At no time on January 20th or January 21st, 1965, was defendant threatened or was physical force employed to induce him to make the statements he made;

(5) No promises were made to defendant. The 'so-called parable of the loaf of bread' was not a promise;

(6) Defendant was not deprived by any law enforcement officer of any medication. The lack of medication 'for the space of that one evening on the night of January 20th had no effect upon his making any...

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