345 N.W.2d 457 (Wis. 1984), 81-2297-CR, State v. Woods

Docket Nº:81-2297-CR.
Citation:345 N.W.2d 457, 117 Wis.2d 701
Opinion Judge:The opinion of the court was delivered by: Bablitch
Party Name:STATE of Wisconsin, Plaintiff-Respondent, v. Burdette WOODS, Defendant-Appellant-Petitioner.
Attorney:For the petitioner there were briefs by William J. Tyroler, assistant state public defender, and William G. Retert, first assistant state public defender, and oral argument by Mr. Tyroler.
Case Date:March 27, 1984
Court:Supreme Court of Wisconsin
 
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Page 457

345 N.W.2d 457 (Wis. 1984)

117 Wis.2d 701

STATE of Wisconsin, Plaintiff-Respondent,

v.

Burdette WOODS, Defendant-Appellant-Petitioner.

No. 81-2297-CR.

Supreme Court of Wisconsin.

March 27, 1984

Argued Oct. 5, 1983.

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[117 Wis.2d 705] William J. Tyroler, Asst. State Public Defender (argued), for defendant-appellant-petitioner; William G. Retert, First Asst. State Public Defender, on brief.

Marguerite M. Moeller, Asst. Atty. Gen. (argued), with whom on brief was Bronson C. La Follette, Atty. Gen., for plaintiff-respondent.

WILLIAM A. BABLITCH, Justice.

Burdette Woods seeks review of an unpublished decision of the court of appeals, 110 Wis.2d 742, 330 N.W.2d 248 (1982) affirming his conviction of second degree murder and manslaughter. He argues that his oral confession should have been suppressed because it was obtained in violation of his constitutional and statutory rights. We hold that his oral confession was admissible, and we therefore affirm his conviction.

The issues presented for review are:

(1) Did the police have probable cause to take Woods into custody on a charge regarding the theft of a chain saw? We conclude that they did.

(2) Was the taking of Woods into custody on a charge regarding the theft of a chain saw rendered illegal because it was the stated purpose of the police to question [117 Wis.2d 706] Woods about another crime once they had him in custody? We conclude that it was not.

(3) Did Woods waive his right to counsel? We conclude that he did.

(4) Did Woods' conduct before and during questioning constitute an assertion of his right to remain silent, thereby rendering the continued questioning of Woods by the police a violation of his constitutional rights? We conclude that Woods' conduct was not an assertion of his right to remain silent.

(5) Did Woods waive his right to remain silent? We conclude that he did.

(6) Under the totality of circumstances, were Woods' waivers of his right to counsel and his right to remain silent knowingly, intelligently and voluntarily made? We conclude that they were.

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(7) At the time Woods was taken into custody and questioned, did he have a right to counsel under sec. 48.23(1)(a), Stats., and under the sixth and fourteenth amendments to the United States Constitution? We conclude that he did not. We affirm the decision of the court of appeals.

Henry and Beryl Schwab were beaten to death in their Shawano county home on September 10, 1979. The day after their bodies were found, it was reported to the police that Burdette Woods, a juvenile who was sixteen years, nine months old, had been seen in the vicinity of the Schwab home either on the day of the murders or the following day. Woods was subsequently observed closely watching officers investigate the scene of the murders. Woods became the focus of the murder investigation on September 19, 1979.

During the course of the investigation, but prior to the time that Woods became the focus of it, the police received information from a reliable source that Woods had made an unsolicited attempt to sell a chain saw to [117 Wis.2d 707] a nearby resident. Officers investigated and discovered that the saw had been stolen seventeen months earlier from a local hardware store. On September 22, the officers obtained a written statement from the individual to whom Woods had attempted to sell the saw.

On September 23, 1979, officers Trombi and Thorpe went to Woods' grandparents' trailer, where Woods was living, and took him into custody on a charge regarding the theft of the saw. The officers, with the knowledge of David Gage, a juvenile intake worker, had made a decision prior to that time to question Woods about the Schwab murders immediately after they had Woods in custody. The officers took Woods to their squad car, and Trombi read Miranda warnings to him. Trombi asked Woods if he understood his rights, to which Woods responded by making affirmative head gestures that he did. Trombi asked Woods if he wished to consult an attorney, to which Woods shook his head "no". Trombi then asked Woods if he wished to answer questions or make a statement, to which Woods did not respond.

Within one-half hour after the officers had taken him into custody, Woods was taken to the sheriff's department, where Gage met them. At the suppression hearing, Trombi testified that Gage again informed Woods of his rights. Woods indicated that he had already been read his rights. Gage also asked Woods if he wanted an attorney, to which Woods replied "no". 1 At the suppression [117 Wis.2d 708] hearing, Gage testified that he additionally had asked Woods if Woods needed anything, and he thought Woods said that he wanted some cigarettes. Gage then filled out a form entitled "Request for Temporary Physical Custody."

After a 45-minute booking procedure, Trombi and Thorpe took Woods to a well lit and ventilated room where they questioned him for approximately 15 to 20 minutes. Woods was seated at a table and Thorpe and Trombi were seated near him. Woods was not handcuffed or otherwise restrained. The officers had placed a photograph album on a table in the room. The album contained some 3 1/2"' X 5"' pictures of the murder scene and the surrounding area. The album was open to pictures of the Schwabs taken after they had been murdered, and was placed approximately one to two feet from where Woods was seated.

During the questioning, Trombi and Thorpe asked Woods several times if Woods wanted to talk to them. Woods did not respond to those questions. Trombi and Thorpe also asked Woods questions

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concerning the Schwab murders. At one point, Trombi asked Woods why he went into the woods the day after the murders and Woods replied, "I never went in the woods the next day." Woods made no other verbal responses while Thorpe and Trombi questioned him.

After their questioning, Trombi and Thorpe left the room. Robert Ankenbrandt and Wendell Harker, investigators from the Wisconsin Division of Criminal Investigation, then entered the room. Trombi had informed them that he had advised Woods of his constitutional rights. Once inside, Harker asked Woods if he had been advised of his rights by Trombi, to which Woods responded affirmatively. Ankenbrandt and Harker then began questioning Woods about the Schwab murders. Woods made no response to their questions until approximately twenty to thirty minutes into the questioning. At [117 Wis.2d 709] that point, Woods gave an oral statement, in which he acknowledged that he had killed the Schwabs and gave detailed facts about the murders.

After Woods gave the oral statement, Harker again advised him of his Miranda rights. Woods stated that he did not have any money to hire an attorney. Harker and Ankenbrandt then obtained a written statement from Woods, in which Woods confessed to killing the Schwabs.

Juvenile court jurisdiction over Woods was waived, and a criminal complaint was filed against him. Woods subsequently filed a motion to suppress the oral and written statements in which he confessed to the murders. The trial court, citing Woods' statement that he did not have any money to hire an attorney, granted the motion to suppress the written statement on the grounds that it was obtained in violation of Woods' right to counsel. However, the court denied the motion to suppress the oral statement, which had been given prior to Woods' statement about his inability to pay for an attorney.

Woods pled guilty, was convicted and sentenced. He subsequently appealed to the court of appeals, which affirmed the judgment. Woods then filed a petition for review, which we granted.

TAKING INTO CUSTODY

  1. Did The Officers Have Probable Cause To Take Woods Into Custody On A Charge Regarding The Theft Of A Chain Saw?

    Woods argues that the officers did not have probable cause to take him into custody. Woods cites our decision in Gautreaux v. State, 52 Wis.2d 489, 495-96, 190 N.W.2d 542 (1971), in which we recognized that while mere possession of stolen property raises no inference of guilt, the unexplained possession of recently stolen property raises an inference of greater or less weight depending [117 Wis.2d 710] upon the circumstances. Woods contends that because the chain saw he attempted to sell was stolen seventeen months earlier, it could not be considered recently stolen property, which could create an inference of culpability.

    If the historical facts are undisputed, probable cause for an arrest is a question of law that is subject to independent review on appeal, without deference to the trial court's conclusion. State v. Drogsvold, 104 Wis.2d 247, 262, 311 N.W.2d 243 (Ct.App.1981). Because the facts in this case are undisputed, we may independently review whether the officers had probable cause to take Woods into custody.

    Section 48.19(1)(d)3, Stats., provides that a child may be taken into custody under circumstances in which the officer believes on reasonable grounds that the child committed an act in violation of a state or federal criminal law. Section 48.19(3) provides: "Taking into custody is not an arrest except for the purpose of determining whether the taking into custody or the obtaining of any evidence is lawful." Because Woods challenges the lawfulness of the officers' action in taking him into custody, the standards governing probable cause to arrest an adult are applicable to a determination whether the taking of Woods into custody was lawful.

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    Reasonable grounds and probable cause are synonymous, and are defined as follows: " 'The "reasonable grounds" or what is more commonly referred to as probable cause, is that quantum...

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