McAdoo v. State
| Citation | 65 Wis.2d 596,223 N.W.2d 521 |
| Decision Date | 26 November 1974 |
| Docket Number | No. S,S |
| Parties | William McADOO, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 107. |
| Court | Wisconsin Supreme Court |
McMahon & Moroney, Milwaukee, for plaintiff in error; Dennis P. Moroney, Milwaukee, of counsel.
R. W. Warren, Atty. Gen., David J. Becker, Asst. Atty. Gen., Madison, for defendant in error.
The defendant asserts (1) that his statements admitted into evidence were involuntary, (2) that he was detained an unreasonable length of time before being charged and brought before a magistrate, and (3) that evidence is not sufficient to sustain the conviction. He further asserts that in any event this court should award him a new trial in the interest of justice under sec. 251.09, Stats.
On December 16, 1972, at 9:45 a.m., the body of Melvin Roberts, the proprietor of the Wig-Wam Tailors, was found in his shop at 2878 North 27th Street, Milwaukee. The body, which was lying behind a counter, was discovered by a truck driver who had come to make a delivery. At the time of his discovery, the door to the shop was unlocked and the lights were on. He testified that he had been there the day before in an attempt to make the delivery, but although the lights were on and the door was unlocked, no one seemed to be around or answered his calls. However, he did not look behind the counter on that day. The victim was lying on top of three pairs of trousers, which all had bullet holes in them, and a fourth pair of trousers was lying next to the body. The victim's apparel included a headband and two belts, one of which was unfastened. There was testimony by four witnesses that the victim kept his money in a green wallet or pouch which was attached by a chain to his belt or belt loop. No wallet or pouch was found on the body. The cash register was open and contained about fifty cents in pennies. The cause of death was a gunshot wound to the heart. The victim was shot once in the chest, the bullet passing through the heart and out the victim's back. An autopsy was performed at 3:40 p.m. on December 16, 1972, and the most likely time of death was estimated to be 30 to 36 hours prior thereto. Found on the premises were one .38 caliber bullet and eight bullet fragments, indicating that a second bullet, also a .38, had shattered upon striking a hard object.
Several days prior to the discovery of the body, Christine Colby, who had known the victim quite well and whose brother was a friend of the defendant, met the defendant and two other boys at the corner of 27th and Center Streets in Milwaukee. While they were conversing, the victim, Melvin Roberts, was seen walking on the other side of the street. The defendant stated, 'There's that guy that owns the cleaners.' He further stated he liked the fur coat that the victim was wearing and that he intended to 'rip it off' (steal it). Later that evening Christine Colby again saw the defendant and two other boys in a laundromat on the corner of 27th and Burleigh Streets. The defendant again said he was 'going to get that coat.' One of the other boys said that the victim carried a lot of money. The defendant acknowledged that fact, said he wanted the coat and some money, and was going to 'blow him away' (shoot Melvin Roberts). When Christine Colby expressed disbelief, the defendant stated, 'You'll believe it when you read it in the paper.' The defendant also stated that he had seen the lights on in the store and knew that the victim worked at night.
The defendant was arrested on December 19, 1972 at 9:45 a.m., by Milwaukee Police Detective Roosevelt Harrell. At the time of the arrest, Harrell was aware of the defendant's statements to Christine Colby and was also aware of a commitment order for defendant to the Milwaukee Sheriff's Department. Harrell placed the defendant in a squad car and told the officers in it not to talk to the defendant. Harrell followed in another car. The vehicles proceeded directly to the police administration building where the defendant was placed in an interrogation room.
The evidence as to what occurred from this point on is in conflict.
Detective Harrell testified that in the interrogation room in the presence of Detective Barth and Lieutenant Bottoni, he advised the defendant of his constitutional rights and then asked the other two officers to leave while he interrogated the witness alone. The defendant declined an attorney and agreed to answer any questions. The interrogation began at about 10:45 a.m. Harrell testified that during the course of the interrogation neither he nor anyone else laid hands on the defendant, displayed any weapons or coerced him in any way. In the course of the interrogation, the defendant gave a statement to Harrell in which he admitted that on Thursday, December 14, 1972, he entered the shop to rob the proprietor. He had planned to do so on an earlier date but the place had been closed. As he entered the shop he pulled up his collar and put his hands in his coat pockets. He saw no one in the shop so went right to the cash register and began removing some coins when the victim entered and said something to him. The victim was wearing a red headband and carrying three pair of trousers. Defendant put his hand back in his pocket, told the victim this was a robbery and demanded all his money. The victim reached behind a counter and pulled out a .38 revolver. The defendant grabbed at the victim, a struggle occurred and the gun fired twice. The victim fell to the floor and defendant grabbed the gun and ran out of the shop, eventually throwing the gun away on some railroad tracks.
The interrogation took about 45 minutes. Harrell then called Officers Barth and Bottoni into the room, readvised the defendant of his rights and asked him to repeat the statement for the other officers. The defendant made a virtually identical statement, except that he said he sold the gun. He then retracted the statement, however, saying he was kidding and had only made the statement because Detective Harrell had told him he could be out by four o'clock if he did. When Officers Barth and Bottoni left, the defendant readmitted the crime to Harrell alone, after again being advised of his constitutional rights. The defendant agreed to repeat his statement to other officers, and in fact did so, but this time stated that he had hid the gun behind a toilet in a restaurant. Again, however, the defendant retracted his statement, saying he only made it so he could be out by three o'clock. At this point Harrell began to doubt the defendant's sanity and inquired concerning it. The defendant again repeated the story for Harrell alone. At this point (2:30 p.m.) Harrell gave up and went to file his report. Officers Barth and Bottoni took charge of defendant, allowing him to make four phone calls, and then questioning him for twenty minutes, during the course of which the defendant again admitted the crime but then retracted his admission. The defendant was then processed in the police station from 3 to 5:45 p.m. In the course of the day the defendant had been given breaks for lunch and lavatory use.
The defendant was taken to the Milwaukee District Attorney's office the next morning, December 20th, but was not charged at that time because he requested that he be given a polygraph examination in Madison. About noon the defendant was delivered to the Milwaukee County Sheriff and held on the commitment order. At about 8:15 a.m., the following morning, December 21st, the defendant left with Police Detectives Barth and Paulous for the State Crime Laboratory.
Upon their arrival, Robert L. Anderson, the polygraph examiner, explained to the defendant how the test worked, that he did not have to take the test, that he did not have to answer any given question and that he had the right to an attorney. The defendant agreed to take the test and discuss the incident. Mr. Anderson then read to defendant a consent sheet explaining defendant's rights, and had the defendant sign it. Finally, Mr. Anderson quizzed the defendant on his rights to make sure they were understood. A first series of tests was conducted in the morning, starting at about 10:45 a.m. A lunch break was taken and a second series of tests began about 2 p.m. At about 2:25 p.m., the defendant indicated that he wished to discontinue the test. Pursuant to this request, the testing equipment was taken off the defendant, turned off and put away, and the defendant was informed that the test was over. The defendant did not indicate that he did not wish to talk to Mr. Anderson, who continued to question the defendant. The defendant freely answered the talked for about forty-five minutes. In the course of the conversation he admitted to Mr. Anderson that at 7:30 p.m., on Thursday, December 14, 1972, he had entered the victim's shop with a friend, Terry Wallace, for the purpose of getting warm. The victim ordered the two out of the shop, referring to them as 'black bastards.' The two approached the victim who then pulled a gun, a struggle ensued, two shots were fired, and the victim fell to the ground. The defendant grabbed the gun and he and Terry fled the shop, the defendant eventually selling the gun for a 'nickel.' (A 'nickel' is street language for five dollars.)
After making this statement, Detectives Barth and Paulous took the defendant into a separate room at the crime lab, where Detective Barth again advised him of his Miranda rights (Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694). The defendant then confirmed the statement that he had given to Mr. Anderson, adding only that Terry Wallace got some money from the store before they left. Barth, Paulous and the defendant then went back to Milwaukee, arriving at the police administration building at 5:15 or 5:30 p.m.
Upon arrival, the defendant was taken to an interrogation room, where Detective Kenneth McHenry explained to defendant his...
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