Bradley v. State

• Decision Date: 06 October 1967
• Citation: 36 Wis.2d 345,153 N.W.2d 38
• Parties: Sherry Jenlette BRADLEY, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 38

153 N.W.2d 38

36 Wis.2d 345

Sherry Jenlette BRADLEY, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

Supreme Court of Wisconsin.

Oct. 6, 1967.

Rehearing Denied Dec. 22, 1967.

Richard A. McDermott, Milwaukee, for plaintiff in error.

Bronson C. La Follette, Atty. Gen., Madison, Hugh R. O'Connell, Dist. Atty., E. Michael McCann, Asst. Dist. Atty., Milwaukee County, Milwaukee, for defendant in error.

HEFFERNAN, Justice.

Were the confessions voluntary and the product of deliberation?

Sherry Bradley stated that at about 2 A.M. on May 22, 1964, she returned home and discovered there was something wrong with her two infant children. She called a neighbor, who unsuccessfully attempted mouth-to-mouth resuscitation. He called an ambulance and shortly thereafter the police appeared upon the scene and commenced their investigation. Sherry, together with neighbors and other members of her family, was questioned by the police at the apartment until about 3 A.M. She was then taken to the Safety Building for further questioning. She was questioned intermittently thereafter and at approximately 2 P.M. on the afternoon of May 22, she gave an oral confession that she had strangled her two children. Thereafter, she gave police a narrative statement of the murders and, a few minutes later, permitted a court reporter to take a question-and-answer confession. She was thereafter charged with two counts of first degree murder.

Prior to trial, defense counsel objected to the admission of the confessions as being involuntary and asked that there be a separate hearing prior to trial, out of the presence of the jury, in order that the court could make that determination. The court directed, however, that the hearing be held at the point during the trial, out of the presence of the jury, when it appeared that the introduction of the confessions into evidence appeared imminent. A hearing, before the court alone, was held during the trial and thereafter the judge made the following findings:

'This Court having heard the said testimony regarding the exhibits marked for identification as Exhibits 4 and 5 and referred to as the confessions, the Court is convinced that they were the free and deliberate acts of the defendant.

'The Court is further convinced that this defendant was not deprived of any right to eat nor to consume food but that it was offered to her.

'The Court is also convinced that she was asked and given an opportunity to have an attorney.

'The Court is further convinced from the said evidence that she was given an opportunity to talk with her confessor.

'She was also given an opportunity to talk with her own husband.

'The Court is further convinced she was not subjected to any duress nor any threats nor any force or any said promises.

'The Court rules Exhibits 4 and 5 may be received into evidence.'

It should be noted at the outset that the procedure followed by the court does not exactly conform to that suggested in State ex rel. Goodchild v. Burke, 27 Wis.2d 244, 133 N.W.2d 753 (1965), in that the hearing on voluntariness took place during trial rather than prior thereto. In addition, the trial court, having found the confession voluntary, thereupon admitted the confession in evidence but instructed the jury, in accordance with the Massachusetts rule, which we declined to follow in Goodchild, to again consider the voluntariness of the confession. We hasten to add, however, that the trial herein was held in December of 1964 and the date of our mandate in Goodchild was March 30, 1965. We do not, therefore, conclude that the procedure was erroneous, particularly in view of its substantial compliance with procedure later adopted in Goodchild. While we have disapproved of the practice of permitting the jury to pass on the voluntariness of the confession, we pointed out in Phillips v. State, 29 Wis.2d 521, 531, 139 N.W.2d 41, 45 (1966), that:

'The trial court followed the Massachusetts rule not knowing which procedure this court would adopt. Any error in submitting the question of voluntariness to the jury under the Massachusetts rule was not prejudicial since the court had found the confession to be voluntary.'

We conclude the same rationale to be applicable here. We find no error on the basis of the failure to conform exactly with Goodchild; rather, the court's conclusion that the confessions were voluntary must be tested in the light of the substance of Goodchild, i.e., whether the state successfully carried its 'burden of proving voluntariness beyond a reasonable doubt.' Supra, 27 Wis.2d p. 264, 133 N.W.2d p. 764.

We said in State v. Carter, 33 Wis.2d 80, 88, 146 N.W.2d 466, 471 (1966):

'The only question at the hearing was that of the voluntariness of the defendant's confession under the 'totality of the circumstances' test. Thus the state had the burden to prove beyond a reasonable doubt that the confession was a result of deliberateness of choice and that it was the product of a free and unconstrained will.'

In the recent case of Greenwald v. State, 35 Wis.2d 146, 150, 150 N.W.2d 507, 509 (1967), we reiterated the standards set forth in Carter, supra, 33 Wis.2d pp. 89--91, 146 N.W.2d 466 to be used by this court in reviewing a trial court's determination of voluntariness. We said:

"While this court unquestionably has the power to review the evidentiary facts de novo where constitutional principles are involved, it does not follow that we must do so, especially when it appears adequate procedures have been adopted by the trial court. * * *

"Where the court has made detailed findings of fact * * * our review of the evidentiary or historical physical facts will be limited to the same review that is used in other factual disputes heard and determined by a trial judge. The findings of the trial court will not be upset unless they are against the great weight and clear preponderance of the evidence."

Although the trial court's findings herein lack the specificity that the Goodchild procedure aims to achieve, nevertheless, it should be borne in mind that this case antedates the directions set forth in Goodchild. As so viewed, we conclude that the trial court's procedure was highly commendable and attained in substance the objectives that Goodchild strives for. Because in this case the evidence is not in dispute and the testimony of the defendant and of the police officers are in almost complete agreement, on the basis of the record we come to the conclusion that the trial court's decision that the confessions were 'free and deliberate acts of the defendant' is not contrary to the great weight and clear preponderance of the evidence.

A review of the events from the time that Sherry was taken to the Safety Building to the time she gave her confession clearly shows that her confession was voluntary and not the result of overbearing pressures that deprived her of the right to the deliberate exercise of unconstrained free will.

The hearing on voluntariness revealed that Sherry was just eighteen. She was the mother of three children, only one of whom she claimed to be the child of her husband. She had received the equivalent of a ninth grade education. The last time she attended school was as an inmate of the School for Girls at Oregon, Wisconsin. Her husband had left the apartment a few days before, and Sherry was distraught and had walked the streets looking for him. On the night of the murders, she had been out of the apartment looking for him. She had no food for several days. She claimed, and it was not disputed, that she had been unable to eat and had not eaten for three or four days prior to her confession. At the time she was questioned at her apartment shortly after 2 A.M. she appeared very excited. At this time she told the police that at about 1:45 she left the apartment to visit her mother, who lived across the street. Being unable to arouse her mother, she returned home and claimed that, as she entered her apartment she saw a man, who she initially said was her husband, run from the rear of the flat. She claimed that she then returned to the flat and realized there was something wrong with the children. She called a neighbor, who, in turn, called an ambulance. With the exception of the fact that she later stated that the man she saw was not her husband, she stuck with this story until giving the confessions that are the subject of this inquiry.

At about 3 A.M. she was brought to the Safety Building and was interrogated at 4 A.M. for about 15 minutes. It is not clear from the statements of either Sherry or the police just what happened between 4 A.M. and 7:30 A.M., the time of the visit of the morgue. The police officers' testimony refers to no interrogation during that period. Yet it is clear that a police officer was with Sherry at all times. Sherry, however, in her direct testimony stated that there were substantial periods when she was not asked any questions.

At approximately 7:30 A.M. she was taken to the morgue to see the bodies of her two strangled children. She stayed with them for approximately 35 minutes. At 9 A.M. she was interrogated by two police officers. She states that they 'talked real nice' and 'gave (her a) handkerchief' and, upon learning that she had a headache, gave her aspirin and water. She was also asked if she wanted to rest or have food. She declined the offers of food and rest. She testified that the interrogation was persistent and that the officers repeatedly said, 'We know you did it.' She was shown a statement signed by her father (the authenticity of this document has not been disputed) saying that he believed she did it.

It is also undisputed that near the start of questioning which began at 9 A.M. the officers told her that she need not answer any of the questions put to her. She was asked if she wished to see her mother, but she declined to see her. She was asked if she wished to see her husband. She said she would 'love to.' The police...