Scales v. State

• Citation: 219 N.W.2d 286,64 Wis.2d 485
• Decision Date: 28 June 1974
• Docket Number: No. S,S
• Parties: Donald R. SCALES, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 250.
• Court: United States State Supreme Court of Wisconsin

Page 286

219 N.W.2d 286

64 Wis.2d 485

Donald R. SCALES, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 250.

Supreme Court of Wisconsin.

June 28, 1974.

Howard B. Eisenberg, State Public Defender, Richard M. Sals, Asst. State Public Defender, Madison, for plaintiff in error.

Robert W. Warren, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., Madison, for defendant in error.

HEFFERNAN, Justice.

The defendant does not argue that there was insufficient evidence to show that he was the driver. Accordingly, we need not detail that evidence. Suffice it to say an eyewitness saw the Scales vehicle a few seconds before the accident, and he identified Scales as the driver.

The principal argument is that the admissions made to Officer Keckler in the emergency room of the hospital should have been excluded because they were the product of a custodial interrogation in which Scales was not informed of his constitutional rights as required by Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

Miranda held that the prosecution could not use statements resulting from custodial interrogation of a defendant unless the prosecution demonstrated that the defendant had been informed of his constitutional rights and that he had waived them. Custodial interrogation was defined in Miranda:

'. . . we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.' (P. 444, 86 S.Ct. p. 1612)

The trial judge made a specific finding that the confession was voluntary. While voluntariness is a partial test of the admissibility of a confession, we have, in addition, insisted not only on a Goodchild hearing on that point, but also a hearing to determine compliance with Miranda. Voluntariness per se is not attacked on this appeal. It is only argued that Miranda was not complied with, and that this in itself is sufficient to exclude the statement and to warrant a new trial. We agree that, for a statement to be admissible, it must not only be voluntary, but it must be constitutionally antiseptic in terms of the mandate of the United States Supreme Court in Miranda.

The state agrees that Scales was not informed of his constitutional rights, but it argues that he was not in custody when questioned; and, accordingly, his statement was properly admitted. The state relies on Huebner v. State (1967), 33 Wis.2d 505, 516, 147 N.W.2d 646, 651. The court therein said:

'(I)f the law-enforcement officer by order or conduct indicates the person is obliged to remain in the officer's presence or to come to the police station, such person is for practical purposes arrested because of the imposition of the will of the police officer over the freedom of the person. The central idea of an arrest is the taking or detaining of a person by word or action in custody so as to subject his liberty to the actual control and will of the person making the arrest. . . . The same result is reached by a voluntary submission to such custody. But there must exist the intent to take into custody and a corresponding understanding by the person arrested that he is in 'custody,' although no formal declaration of arrest is required.'

It is argued that, under the language of Huebner, not only must there be an arrest which results in custody, but also the accused must know and understand that he was in custody.

In the instant case, there was an arrest. Officer Keckler so testified. However, Scales himself testified at trial that he could not remember anything that happened within the first three of four days following the accident. Hence, there is no evidence that, at the time of the interrogation, Scales considered himself under arrest or in custody. Although Huebner properly states the law in respect to the circumstances evident in that case, it is not relevant to the instant situation. Huebner was stopped while driving his automobile and he was asked to report to the police station. We held that the circumstances there did not constitute an arrest 'so as to subject his liberty to the actual control and will of the person making the arrest.' (P. 516, 147 N.W.2d p. 651) Not only is Huebner inapplicable under the facts, but, in addition, it was pre-Miranda and was governed by Escobedo v. Illinois (1964), 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. While Huebner might be highly relevant, even to a Miranda case involving similar circumstances, it is not pertinent here, either as to the law or the facts.

The meaning of Miranda was discussed in Orozco v. Texas (1969), 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311. Orozco was interrogated in his own bedroom by four police officers. One of the officers stated at trial that Orozco was not free to go because he was under arrest. However, neither the Texas Court of Criminal Appeals (Orozco v. State (1967), 428 S.W.2d 666), nor the United States Supreme Court opinion recited that Orozco was told he was under arrest. The United States Supreme Court emphasized the applicability of Miranda, because the defendant was 'not free to leave.' (394 U.S. p. 327, 89 S.Ct. 1095) It was stressed that it was not only custody at a police station that triggered a Miranda situation, but the fact that the defendant was 'otherwise deprived of his freedom of action in any significant way.' (Orozco, p. 327, 89 S.Ct. p. 1097)

Miranda extensively discusses the Fifth Amendment privilege, as did Escobedo:

'(T)here can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves.' (Miranda, 384 U.S. p. 467, 86 S.Ct. p. 1624) (Emphasis supplied.)

The emphasis of Miranda, Orozco, and Escobedo is upon the necessity of extending constitutional rights to persons in the presence of overwhelming police power and who are cut off from contact, for the time being at least, from family, friends, and counsel. Certainly, that situation existed when Scales was interrogated in the emergency room in the presence of three police officers and was unable to move. It is argued, however, that his immobilization was not the result of any action of state authorities, and therefore the Fifth Amendment right should not apply to Scales' interrogation. True, Miranda itself points out that it is applicable 'when an individual is taken into custody or otherwise deprived of his freedom by the authorities . . ..' (P. 478, 86 S.Ct. p. 1630)

We conclude, however, that the basic rationale of Miranda requires its application in this case. The defendant was as effectively bound to his bed as if he had been shackled to it. Police officers cannot take advantage of a coercive situation which limits an accused's freedom of action and then proceed to interrogate him without proper admonitions. All the coercive factors Miranda attempts to mitigate are present in this case. Accusatorial attention had focused upon Scales. Ford was already dead. Scales was under arrest. To say that he was not in custody, either because he was not conscious and did not realize he was arrested or because he was not explicitly told that he was in custody, is sophistry. The use of Scales' admissions obtained in the absence of the required Miranda warnings was a violation of the Fifth Amendment privilege against self-incrimination. The statement was not admissible.

The error, though of constitutional dimensions, was harmless. The fact that Scales was intoxicated was proved beyond a reasonable doubt by a test of the blood sample. In addition, there was convincing testimony by an eyewitness that the driver of the automobile was Scales. Only these questions--intoxication and responsibility for driving the car--were at issue. They were determined beyond cavil. Even under the earlier test of Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, we would conclude beyond a reasonable doubt that the erroneous admission of the in-custody statement did not contribute to the conviction of the defendant.

We have, however, in Wold v. State (1973), 57 Wis.2d 344, 204 N.W.2d 482, accepted the harmless error test set forth in Harrington v. California (1969), 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284. In Wold we stated:

'The test of harmless error is not whether some harm has resulted, but, rather, whether the appellate court in its independent determination can conclude there is sufficient evidence, other than and uninfluenced by the inadmissible evidence, which would convict the defendant beyond a reasonable doubt.' (57 Wis.2d p. 356, 204 N.W.2d p. 490)

Under that test, the error in admitting the defendant's statement is harmless. In view of how little the questioned statement contributed to the prosecution's case, it is difficult to understand the prosecutorial decision to use it when there was an abundance of evidence from alternate and constitutionally unimpeachable sources.

We stated, in discussing the Miranda problem, that the result of the analysis of the blood sample was admissible. Prior to the effective date of the implied consent law, sec. 4, ch. 383, Laws of 1969 (now sec. 343.305, Stats.), this court, in Waukesha Memorial Hospital, Inc. v. Baird (1970), 45 Wis.2d 629, 173 N.W.2d 700, adopted the rationale of Schmerber v. California (1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908. In Waukesha Memorial Hospital, we said that the taking of blood after an arrest was an appropriate search incident to the arrest. In this case, an arrest had been made.

The defendant relies upon sec. 343.305, Stats., and argues that the procedure set forth therein was not followed by the police in this case. It is not our understanding, however, that the implied consent law was intended to give greater rights to an alleged drunken driver than were constitutionally...