Blaszke v. State
| Decision Date | 16 June 1975 |
| Docket Number | No. S,S |
| Citation | 69 Wis.2d 81,230 N.W.2d 133 |
| Parties | Theodore BLASZKE, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error. tate 164. |
| Court | Wisconsin Supreme Court |
Howard B. Eisenberg, State Public Defender, Robert J. Paul, Asst. State Public Defender, Madison, for plaintiff-in-error.
Bronson C. La Follette, Atty. Gen., David J. Becker, Asst. Atty. Gen., Madison, for defendant-in-error.
The defendant, Theodore Blaszke, was interrogated while in custody in respect to a theft. When the subject of the theft was first brought up, Blaszke, after receiving the full Miranda warnings, stated that he wanted to talke to a lawyer. After all police interrogation had ceased, Blaszke initiated a conversation in which he stated he was prepared to proceed to give a confession in respect to the theft.
The issue on this appeal is whether Blaszke knowingly and understandingly waived his right to counsel and his right to remain silent when he confessed his involvement in the theft to a Brown county sheriff's department investigator less than thirty minutes after he had stated that he wanted the services of a lawyer.
The facts raise a question of the voluntariness of his confession and also a question of whether the permission he gave the officer to make a search of his automobile was uncoerced and freely given.
The trial judge found that the confession was freely given and the consent to search was not coerced. The trial judge denied the motion to suppress the confession and denied the motion to suppress the evidence secured as a result of the search. We affirm.
At about 11 a.m. on Friday, May 4, 1973, Theodore Blaszke was taken into custody by the Brown county sheriff's department in connection with the theft of two calves. After interrogation, he confessed to the theft and gave a statement acknowledging his guilt. At approximately 4 o'clock that afternoon, Blaszke was brought before a court commissioner for an initial appearance on that charge. At that time, he was advised by the commissioner of his right to an attorney, and bail was set in the amount of $1500. In view of the fact that the attorney requested by Blaszke was out of town, the initial appearance was continued until Monday, May 7, 1973. Blaszke was confined to jail pending the completion of the initial appearance.
The proceedings in respect to the initial appearance on the charge of calf theft are not directly involved in this appeal. However, the confession in that case and the initial appearance made on Friday, May 4, explain the reason for Blaszke being in custody on May 6, the date on which the confession relevant to this appeal was given.
On May 6, while Blaszke was awaiting the completion of the hearing on initial appearance the next day, Robert E. Tonn, an investigator for the sheriff's department, took Blaszke from the jail to the captain's office to question him in respect to another violation--a theft of saddles and bridles. When Tonn took Blaszke to the office, he properly administered the Miranda warnings to Blaszke. Thereupon Blaszke signed a waiver of his right to counsel and of his right to remain silent during the custodial interrogation. The evidence is undisputed, however, that Tonn did not advise Blaszke that he wished to interrogate him in respect to a theft other than that for which he had been charged on the previous Friday. Blaszke assumed, when he signed the waiver, that he was merely continuing the interrogation in respect to the theft of the calves. When Tonn told Blaszke that he had information that might implicate him in the theft of some saddles and bridles, however, and also that he had enough information to obtain a search warrant for Blaszke's car, Blaszke's response was that he wished to talk with his attorney. Thereupon Tonn immediately ceased all efforts to question Blaszke.
While walking back to the jail with Investigator Tonn, Blaszke stopped and initiated a conversation with Tonn in respect to his bond. He stated that he was worried that, if he gave a statement in respect to an additional crime, his bond would be raised. He had earlier expressed his concern, during the hearing at the initial appearance, of the importance of being at home with his wife. Tonn told him that, on the basis of his, Tonn's, past experience, an additional statement would not affect the amount of the bond. Blaszke thereupon, on his own initiative, said that he would give a statement and also consent to the search of his automobile. Blaszke and Tonn then returned to the captain's office, where the confession of the theft was given and a consent to search the car was executed. Less than thirty minutes elapsed from the time Blaszke first told Tonn that he wanted a lawyer until the time he had completed his confession and signed the consent to search. The search revealed a saddle and several bridles in Blaszke's vehicle.
On the following day, May 7, Blaszke appeared in court for the completion of the initial appearance; and subsequently, on May 9, Blaszke was charged with the theft of the saddles and bridles. Although he was initially charged with a felony theft, the bond remained in the sum of $1500, and Blaszke was released from jail on May 9, 1973.
Subsequently, prior to trial, Blaszke moved to suppress the evidence secured in the search of the car on the ground that the consent was not freely given. He also moved to suppress the May 6th statement on the ground of coercion. A Goodchild hearing on these motions was held on August 7 and 8, 1973. The trial judge, without making specific findings of fact, concluded that the consent to search was freely given and Blaszke's confession was not involuntary. Thereafter, Blaszke pleaded guilty to the charge, which was reduced to a misdemeanor. He was sentenced to one year in the Wisconsin State Reformatory for the theft of the saddles and bridles, which sentence was to be served concurrently with a three-year term for the theft of the calves and a three-year term on a burglary conviction.
Subsequently, it was determined that Blaszke had been erroneously sentenced, in that the maximum provided by sec. 943.20(3)(a), Stats., for misdemeanor theft was six months. Accordingly, the original sentence imposed on November 15, 1973, following the plea of guilty, was vacated, and on March 14, 1974, he was resentenced to a term of six months in the county jail.
The writs of error were taken to review the original judgment which followed the pleas of guilty on November 15, 1973, and the order of March 14, 1974, which resentenced Blaszke to six months. The writs of error in this case are concerned only with the conviction that followed the plea of guilty for the theft of the saddles and the bridles, to which crime Blaszke had confessed on May 6.
Under Wisconsin procedure, the burden is on the state to establish the voluntariness of a confession beyond a reasonable doubt. State ex rel. Goodchild v. Burke (1965), 27 Wis.2d 244, 264, 133 N.W.2d 753. In State v. Carter (1966), 33 Wis.2d 80, 90, 91, 146 N.W.2d 466, we said, in respect to a Goodchild hearing held for the purpose of determining Miranda compliance, that this court on review would not upset a trial court determination unless it appeared that the findings made were against the great weight and clear preponderance of the evidence. In the instant case, however, the trial judge did not make detailed findings. Accordingly, we are obliged to examine the record to determine ab initio whether the trial judge, on the basis of the evidence before him, could properly have determined that the confession was voluntary and uncoerced.
In the instant case, what transpired at the time the confession was given is substantially undisputed. Tonn and Blaszke agree about what happened on May 6, 1973, before the time the confession was given.
As did the United States Supreme Court in Davis v North Carolina (1966), 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895, on the basis of undisputed facts, we examine the record to make an independent determination of the ultimate issue of voluntariness. On the basis of that examination, we conclude that the confession was voluntary.
Blaszke was properly given the Miranda warnings on May 6, prior to the time he made his confession. Nevertheless, although Blaszke initially stated he wanted an attorney, a confession resulted within thirty minutes. Arguably, therefore, these facts come within the situation discussed in Miranda v. Arizona (1966), 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694, and later followed by this court in Sharlow v. State (1970), 47 Wis.2d 259, 270, 177 N.W.2d 88:
"If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel."
Nevertheless, whether or not we proceed under that special burden, the test of voluntariness remains the same--was the confession voluntary in the 'totality of the circumstances.' State v. Wallace (1973), ...
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