State v. Schlise, 77-322-CR
| Decision Date | 28 November 1978 |
| Docket Number | No. 77-322-CR,77-322-CR |
| Citation | 86 Wis.2d 26,271 N.W.2d 619 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Donald Anthony SCHLISE, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
Jack E. Schairer, argued, Asst. State Public Defender, Howard B. Eisenberg, State Public Defender, and Robert J. Paul, Deputy State Public Defender, on brief, for defendant-appellant.
Michael R. Klos, argued, Asst. Atty. Gen., Bronson C. La Follette, Atty. Gen., on brief, for plaintiff-respondent.
On October 19, 1974, after a jury returned a verdict of guilty, the defendant, Donald Anthony Schlise, was convicted of first-degree murder as party to the crime contrary to secs. 940.01 and 939.05, Stats. An appeal of that conviction was not perfected. On September 27, 1977, after an evidentiary hearing, a postconviction motion made under the provisions of sec. 974.06 was denied and this appeal is from that order.
As stated above, this is an appeal from an order which denied a postconviction motion made pursuant to the provisions of sec. 974.06, Stats. 1
In defining the scope of this motion this court in Peterson v. State, 54 Wis.2d 370, 381, 195 N.W.2d 837, 845 (1972), 2 said:
The defendant has raised several issues with respect to the admission of evidence, instructions to jury and other trial errors. Despite the defendant-appellant's contention to the contrary, these alleged errors are not errors of constitutional proportions; accordingly they will not be reached in this opinion. To simply label an alleged procedural error as a constitutional want of due process does not make it so.
Our primary concern in this opinion will be with the admissibility of several statements or admissions made by the defendant to law enforcement authorities.
The necessary facts are as follows:
This action was commenced on December 7, 1973, by the filing of a complaint. It charged that defendant Donald Schlise in concert with James Brown as a party to a crime caused the death of Irene Schlise with intent to kill contrary to secs. 939.05 and 940.01, Stats. On December 18, 1973, an amended criminal complaint was filed asserting that Donald Schlise acted in concert with James Brown and Sam McGhee.
On January 28, 1974, a preliminary examination was commenced in the County Court of Waukesha county. Part-way through the presentation of the state's evidence, defense waived the right to a preliminary. The defendant was then bound over for trial.
An information dated January 30, 1974, was filed charging defendant with first-degree murder as party to a crime. The information also contained the statement that stipulated that defendant's plea of not guilty and not guilty by reason of insanity be withdrawn and a plea of not guilty be substituted.
A defense motion for change of venue was heard before then Judge WILLIAM G. CALLOW and denied March 14, 1974.
On March 20, 1974, a motion to suppress and various other pretrial motions dated March 18, 1974, were filed. A hearing on the motions was held May 7, 1974 before Judge CALLOW. The suppression motion was denied by written order entered on May 8, 1974.
In view of the fact that Judge CALLOW was by that time scheduled to preside over the trial of Sam McGhee for a crime arising out of the same incident, the judge was disqualified on his own motion and Judge ANDREW P. COTTER was substituted.
Judge COTTER granted a renewed request for change of venue on September 25, 1974, and the cause was transferred to the County Court of Marquette county in Montello.
A trial by jury was held from October 14, 1974 through October 19, 1974. Defendant was found guilty of first-degree murder as party to a crime. A judgment of conviction in accordance with the verdict was entered on October 21, 1974, and defendant sentenced to life imprisonment.
Postconviction procedural progress of the cause is confused. Several orders extending the time for filing and determining postconviction motions were issued some pursuant to defense motion, some per stipulation.
Finally defendant's sec. 974.02 3 motions to set aside the judgment or for an order granting a new trial were submitted, alleging trial court error in denying the motion to suppress, in refusing to submit certain requested jury instructions, and in admitting irrelevant and inflammatory evidence. On May 9, 1975, after a hearing, the trial court entered a written order denying the motions.
On August 6, 1975, notice of appeal from the judgment of conviction and sentence and from the order denying the sec. 974.02 motions was filed. This appeal was not timely pursued and is not before us.
On June 10, 1976, defendant filed a pro se sec. 974.06 motion for postconviction relief alleging that his plea of not guilty and not guilty by reason of mental defect was withdrawn without his knowledge or consent. On November 15, 1976, an amendment to defendant's postconviction motion was filed by counsel. A hearing on the amended motion was held before the trial court on April 14, 1977. On September 27, 1977, an order was issued denying the motion. It is from that order that defendant appeals.
A joint Miranda-Goodchild hearing was held on defendant's motion to exclude "any statements made by the defendant while he was in police custody or under their direct control and supervision and restrained of his liberty before and after his arrest. . . . " This motion was heard by Judge CALLOW prior to his disqualification.
Testimony was adduced from Officers Buechler, Zimmerman and Paddock (all of the Waukesha County Sheriff's Department) concerning four separate statements given by defendant Schlise to law enforcement authorities. 4
The first of the four statements under consideration was made in the early morning hours of December 8, 1973, at the Chenequa Police Station. It contained no confession and was ultimately repudiated by Schlise in his final statement. Briefly, this statement declared that defendant spent the morning of December 7, 1973, shopping with his wife, ate lunch with her, left her and went to his office at about 2 p. m., left his office to pay a call on a client after 6 p. m., arrived at Harry Deja's tavern at approximately 7:15 p. m., stayed there until 9:45 or 10 p. m., went home, and discovered the body of his wife. Additionally, defendant, in response to a question, declared he would be willing to take a lie detector test regarding the statement.
Detective Buechler, prior to taking the statement, advised Schlise of his constitutional rights by asking him the questions set out on the written waiver form. Buechler's questions and Schlise's answers are as follows:
In addition, on cross-examination Buechler testified that Schlise was advised he could stop the interrogation at any time.
The second statement was taken on December 15, 1973, at the State Crime Laboratory in Madison about twenty minutes after defendant completed his polygraph test.
Officer Zimmerman testified that Officer Buechler read the rights from the face of the statement form set forth above. No caution regarding defendant's right to cease answering was given. With regard to ascertaining Schlise's ability to understand the form question, Zimmerman declared he was questioned concerning what he did in real estate and what was involved in obtaining a real estate license. This statement took about thirty minutes to make.
The third statement was also taken on December 15, 1973, on defendant's return to Waukesha from Madison. Officer Buechler indicated that this statement was taken because Schlise stated he had a few things he wanted to add to the statement taken at the Crime Lab. This was corroborated by Zimmerman. Buechler testified that he did not readvise defendant of his constitutional rights, but merely read the typewritten language in the form:
"I, Donald Schlise, have been informed of my rights...
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