468 N.W.2d 168 (Wis. 1991), 89-0896-CR, State v. Lindh

Docket Nº:89-0896-CR.
Citation:468 N.W.2d 168, 161 Wis.2d 324
Opinion Judge:The opinion of the court was delivered by: Steinmetz
Party Name:STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Aaron LINDH, Defendant-Appellant.
Attorney:For the plaintiff-respondent-petitioner the cause was argued by Sally L. Wellman, assistant attorney general, with whom on the briefs was Donald J. Hanaway, attorney general.
Case Date:April 17, 1991
Court:Supreme Court of Wisconsin

Page 168

468 N.W.2d 168 (Wis. 1991)

161 Wis.2d 324

STATE of Wisconsin, Plaintiff-Respondent-Petitioner,

v.

Aaron LINDH, Defendant-Appellant.

No. 89-0896-CR.

Supreme Court of Wisconsin.

April 17, 1991

Argued Jan. 25, 1991.

Page 169

[161 Wis.2d 332] Sally L. Wellman, Asst. Atty. Gen., argued, Donald J. Hanaway, Atty. Gen., on the briefs, for plaintiff-respondent-petitioner.

[161 Wis.2d 333] Kenneth P. Casey, Chief, Appellate Div., argued, [161 Wis.2d 332] Keith A. Findley, Asst. State Public Defender, on a brief, for defendant-appellant.

[161 Wis.2d 333] STEINMETZ, Justice.

The principal issue in this case is whether the trial court abused its discretion by ruling in favor of the state's in limine motion to restrict defense impeachment of one of the state's psychiatric witnesses during the mental capacity phase of the bifurcated trial.

A second issue is whether the trial court abused its discretion during the mental capacity phase of the trial by refusing to suppress the use of statements taken from the defendant by a psychiatric witness within hours of the defendant's arrest.

With respect to the first issue, the court of appeals reversed the circuit court for Dane county, Judge Robert R. Pekowsky, holding that the trial court's order restricting defense impeachment of the state's psychiatric witness was an abuse of discretion and remanding the case for a new mental capacity phase of the trial. With respect to the second issue, the court of appeals affirmed the trial court's decision allowing the introduction of the defendant's statements. 1

We reverse the court of appeals and hold that the trial court did not abuse its discretion in granting the state's motion in limine. We affirm that portion of the court of appeals decision which held that the trial court did not err by refusing to suppress

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the use of the statements challenged by the defense.

* * * * * *

[161 Wis.2d 334] The issues relate only to "phase II," the mental capacity phase of a bifurcated trial, pursuant to sec. 971.165, Stats. At phase I, the guilt phase of the trial, the defendant, Aaron Lindh, was charged with the following offenses: two counts of first-degree murder, contrary to sec. 940.01, Stats.; one count of attempted first-degree murder, contrary to secs. 939.32(1)(a) and 940.01; committing the acts alleged above while using a dangerous weapon, contrary to sec. 939.63(1)(a)2; and one count of carrying a firearm in a public building, contrary to sec. 941.235(1). Lindh pleaded guilty to the firearm and dangerous weapon charges and was found guilty of the other charges by a jury. At phase II of the trial, Lindh, pursuant to sec. 971.15, 2 claimed he had a mental disease at the time of the crimes and so pleaded not guilty for that reason. The jury found that Lindh did not have a mental disease at the time of the crimes. Accordingly, a judgment of conviction was entered against Lindh on all charges.

The charges arose out of an incident occurring during the noon hour of January 15, 1988. Lindh was in the City-County Building in Madison, Wisconsin, to meet [161 Wis.2d 335] with officers of the Madison Police Department. 3 After talking with certain police officers, Lindh apparently left the building and went to his automobile parked nearby, in which he had a modified .22-caliber rifle. Lindh then re-entered the building and proceeded to walk into an office of the Dane County Sheriff's Department, hiding the rifle under the coat he was wearing. There, he summarily shot and killed Eleanor Townsend, a sheriff's department secretary, adn then shot and seriously injured Erik Erikson, a private citizen who was present for the purpose of paying a parking ticket. He then proceeded to the county coroner's office, where he shot and killed Clyde Chamberlain, the coroner. He then brandished the gun at a deputy sheriff, advanced on the officer and challenged the officer to shoot and kill him. Lindh was shot, disabled and transported to Madison Meriter Hospital where he underwent surgery. After surgery, Lindh was taken to the hospital's intensive care unit where he remained through the evening.

Late in the afternoon of the shootings, Dane County Assistant District Attorney John Burr retained Dr. Leigh Roberts, whom Burr considered "one of the best forensic psychiatrists around." Dr. Roberts was informed of the shootings. He was told that Lindh had been taken into custody, that questions might be raised regarding Lindh's mental state during the shootings, and that he might be requested to interview Lindh in this connection.

That evening, shortly after 8:30 p.m., two detectives from the Madison Police Department visited Lindh in [161 Wis.2d 336] the intensive care unit. They identified themselves to Lindh as police officers and indicated that they wanted to talk with him about the shootings in the City-County Building earlier that day. The detectives fully advised Lindh of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) 4 , which rights he

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waived. The detectives questioned Lindh for approximately 35 minutes.

At 9:00 p.m. that evening, the district attorney's office contacted Dr. Roberts at his home and requested that he interview Lindh that same evening. Dr. Roberts agreed to do so and arrived at Lindh's bedside at 9:33 p.m. He explained to Lindh that Assistant District Attorney Burr had sent him and indicated that the interview was taking place "at the request of the District Attorney's office." Before beginning his interview of Lindh, Dr. Roberts essentially reiterated to him all of his Miranda rights, except that he did not inform him that before any interview an attorney would be provided to him at county expense if he wanted and could not afford one. Dr. Roberts also informed Lindh that the purpose of his interview related to assessing Lindh's mental state at the time of the shootings. Lindh did nothing to suggest that he was not disposed to such an interview.

Dr. Roberts began to question Lindh, asking him if he could recall what happened earlier that day in the City-County Building. Lindh said he had a limited amount of recall but described shooting two men and a woman. When asked why he shot them, Lindh responded that he did not know. When asked if he cared to discuss the details of the shootings, he answered in the negative. At that point, Dr. Roberts suggested to Lindh that he might not want to talk with him at all, since Lindh did not have an attorney present. "Well," [161 Wis.2d 337] Dr. Roberts said to Lindh, "I'll wait a few minutes and come back and talk with you again." Dr. Roberts then left the defendant alone because, in his words:

I wanted to be very sure that he understood, really, the purpose of my being there, and that he understood his rights in relation to anything that he might share with me, because, in general, I'd much prefer that he have an attorney prior to that time, and that his attorney be aware that he was talking with me.

Twelve minutes later, Dr. Roberts returned to Lindh's bedside. Before talking with Lindh, Dr. Roberts again generally informed him of his rights concerning the interview. Lindh responded that he understood he did not have to talk with Dr. Roberts and understood why Dr. Roberts was with him. Lindh again affirmed that he understood that anything said would not be confidential. Again, Dr. Roberts suggested to Lindh that he might want to have an attorney before he talked. Lindh indicated, however, that he would talk with Dr. Roberts.

Dr. Roberts proceeded to question Lindh about the shootings as well as about his personal and family background. Lindh again indicated that he shot three human beings, none of whom he knew personally, that day at the City-County Building. He also spoke of two burglaries of his apartment that had taken place within the past week, the second occurring on the eve of the shootings. In addition, he indicated that he was dissatisfied and angry after the meeting he had with police at the City-County Building some minutes prior to the shootings. In response to questions from Dr. Roberts concerning his recent and current mental state, Lindh indicated that he was not suicidal, that he did not have significant depression, that he was not experiencing hallucinations, hearing voices or seeing visions, and that he had not [161 Wis.2d 338] been experiencing any significant eating or sleeping problems. Dr. Roberts later testified to his opinion that Lindh, based upon his ability to converse, absence of slurred speech, and responsive answers to specific questions the nature of which is indicated above, was able to understand what was taking place and being said at the interview. Dr. Roberts stopped the interview at about 10:25 p.m., when Lindh indicated he was experiencing some pain.

On February 26, 1988, Lindh was arraigned and entered his pleas of not guilty and not guilty by reason of mental disease. At the request of the district attorney, the court appointed Dr. Roberts and Dr. Frederick Fosdal, another forensic psychiatrist, to examine the defendant on behalf of the state.

On March 8, 1988, Dr. Roberts became aware of allegations of professional misconduct

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against him. Specifically, he became aware that the University of Wisconsin Hospital was investigating an allegation that he had engaged in sexual misconduct with a female patient. He gave no particular thought at the time to the fact that there was a potential for a criminal charge to be made against him and that such a charge could involve the Dane County District Attorney's office. However, he generally knew at the time about the existence of a state law which could subject him, as a therapist, to criminal penalties if such an allegation as that made against him were true. 5 He was not aware of what penalty could be prescribed if he were charged and convicted. He presumed that, were any prosecution...

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