Dean v. Israel

Decision Date04 June 1981
Docket NumberCiv. A. No. 77-C-366.
Citation516 F. Supp. 477
PartiesDouglas G. DEAN, Petitioner, v. Thomas ISRAEL and Bronson C. LaFollette, Respondents.
CourtU.S. District Court — Eastern District of Wisconsin

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Dennis P. Coffey, Coffey & Coffey, Milwaukee, Wis., for petitioner.

Bronson C. LaFollette, Atty. Gen., and Edward S. Marion and Jerome S. Schmidt, Asst. Attys. Gen., Madison, Wis., for respondents.

DECISION AND ORDER

REYNOLDS, Chief Judge.

The petitioner Douglas G. Dean was convicted in Sheboygan County Court on November 21, 1971, of five counts of first degree murder, in violation of § 940.01, Wis.Stats., and sentenced to five consecutive terms of life imprisonment. The victims were the petitioner's mother, Mrs. Dean; his girl friend's mother, Mrs. Rammer; and his girl friend's three brothers. The convictions were affirmed on appeal to the Wisconsin Supreme Court. State v. Dean, 67 Wis.2d 513, 227 N.W.2d 712 (1975). The evidence presented at trial is described in detail in that decision. See 67 Wis.2d at 517-526, 227 N.W.2d 712. Presently pending before this court is Dean's petition for a writ of habeas corpus, which petition will be granted.

Dean raises seven grounds in support of his petition:1 (1) that the prosecution was permitted to ask questions at trial on the petitioner's refusal to answer questions during the investigatory phase of the case without his attorney being present and on the fact of his having retained counsel; (2) that in view of the extensive pretrial publicity about the case, the voir dire was insufficient to protect the petitioner's right to an impartial jury; (3) that the prosecution introduced prejudicial inadmissible hearsay, i. e., statements made by Mrs. Dean, one of the victims, to a third party about her relationship with the petitioner; (4) that the prosecution introduced evidence of other criminal conduct not related to this case and for which the petitioner had never been convicted; (5) that the prosecution asked certain questions implying the existence of evidence not subsequently introduced; (6) that the petitioner had ineffective assistance of counsel; and (7) that the sentence imposed constitutes cruel and unusual punishment. The Court will consider each ground separately below.

(1) USE AT TRIAL OF PETITIONER'S REFUSAL TO ANSWER QUESTIONS WITHOUT THE PRESENCE OF HIS ATTORNEY AND OF HIS HAVING RETAINED COUNSEL

Douglas Dean was discovered in a dazed condition approximately six miles outside of the City of Sheboygan, Wisconsin, at 12:15 P.M. on Monday, July 19, 1971. The five murders for which he was charged had occurred in Sheboygan during the night of July 18-19, 1971. Dean was taken by ambulance to a hospital where he remained under police guard. On Thursday, July 22, 1971, he was formally charged with the murders. Upon his arrival at the hospital on Monday, July 19, 1971, Dean was found to be under the influence of LSD, which is an hallucinogenic-type drug, and his defense at trial was that he had unwittingly taken LSD around midnight on the night of July 18-19, had no memory of the subsequent events of that night, and had been incapable of forming the requisite intent to commit first degree murder.

Dean testified at trial, and during his cross-examination the following exchange took place:

"A. A nurse was talking to me but I don't know when.
"Q. Do you know what she asked you.
"A. I think somebody asked me where I was.
"Q. What did you tell her.
"A. I think I said a hospital.
"Q. Do you recall an attorney coming to visit you shortly after that.
"A. I recall what I thought was an attorney standing —.
"Q. Recall how many times did you see that attorney before that day.
"A. I think a couple times.
"Q. And he asked you if you recognized him.
"A. I think he did. Yes.
"Q. And you told him yes.
"A. Yes.
"Q. And he asked you what his name was.
"A. Yes, I believe he did.
"Q. And you told him what his name was.
"A. I had to think but I remembered.
"Q. You remembered. And you were correct in his name, were you not.
"A. I guess so.
"Q. You refused to talk to doctors in the hospital without the presence of your attorney, isn't that right.
"ATTY. HALVORSEN: I'm going to object to that. That's not the fact. There is no evidence in the case of that.
"ATTY. AXEL: I have a right to ask him on it.
"THE COURT: It's proper cross examination. He may answer.
"A. What was the question.
"ATTY. AXEL:
"Q. You refused to talk to a doctor in the hospital without your attorney being present. Isn't that a fact.
"A. I couldn't say for sure. I am inclined to say no.
"Q. You remember Dr. Jochimsen coming in and talking to you or wanting to talk to you.
"A. I recall Dr. Jochimsen.
"Q. Didn't you tell him you wouldn't talk to him unless your attorney was present.
"A. Yes. Tr. at 743-745.
* * * * * *
"Q. Now you had attorneys representing you from Monday afternoon on, is that correct.
"A. That I could not say.
"Q. Well, you recall that an attorney came to you on Monday afternoon and asked you if you recognized him and you told him who he was, didn't you.
"A. Yes, I did.
"Q. And from that time on you had an attorney representing you.
"A. That I do not know.
"Q. What.
"A. That I do not know.
"Q. You don't recall of your attorney being in your hospital room on Tuesday morning.
"A. I recall him being there Tuesday morning.
"Q. You do recall talking to your attorney on Tuesday or Wednesday.
"A. That I recall.
"Q. And on Thursday.
"A. I believe I did. Yes.
"Q. So you knew why the attorneys were there, did you not.
"A. Not initially.
"Q. What.
"A. Not initially.
"Q. When did you find out why the attorneys were there.
"A. The day they told me that my mother and the Rammers had been killed.
"Q. So that you believe was on Wednesday.
"A. I think so. Yes." Tr. at 747-748.

On redirect examination, Dean's attorney questioned him as follows:

"Q. And when Dr. Jochimsen came to your room you didn't talk with him.
"A. When he came to my room he identified himself as Dr. Jochimsen and at that time I believe I wasn't sure if I should speak to him or not.
"Q. Why.
"A. Well, I was just under the impression I wasn't supposed to talk to anyone.
"Q. Who had given you that impression.
"A. My attorney." Tr. at 763-764.

Dr. Larry Malewiski, one of Dean's treating physicians at the hospital, was subsequently called as a defense witness, and on cross-examination was asked one question by the prosecutor about Dean's giving a medical history after he had already retained and talked to an attorney. (Tr. at 797.) Dean's sister, Constance Schneider, was also called as a defense witness and was cross-examined by the prosecutor about her reason for hiring an attorney for Dean soon after she learned about her mother's murder and Dean's hospitalization. (Tr. at 836-840 and 842-843.) The exchange between the prosecutor and the witness (Dean's sister) was in part as follows:

"Q. After you found out from the Sheriff's Department that they found your brother at Six Corners and after you observed that your mother had been shot you went home and contacted an attorney and told him to go right over to the hospital and see Douglas, didn't you. Tr. at 836.
* * * * * *
"Q. After you realized she had died from some sort of violence you retained an attorney and told him to go over to St. Nicholas Hospital and take care of Douglas. Or you had somebody call your attorney for you.
"A. Driving over my mind was very blank, driving back to my house, and I wasn't thinking anything and then I remembered Douglas. I had not connected Douglas with my mother, unreasonable as that sounds. That's how my mind worked and I had been completely blank and then I remembered Douglas and I could figure out what everybody else would think so when I realized that I would have to get a lawyer for my brother.
"Q. If he was hurt he also needed a doctor. Did you call the doctor.
"A. When the woman called from the Sheriff's Department she told me he was at the hospital already so I figured there was a doctor there.
"Q. You figured because your brother was hurt he needed an attorney.
"A. No, sir.
"Q. Why did you think he needed an attorney.
"A. Because he was — he had been picked up by the police and I connected what other people would assume.
"Q. I see. And what would other people assume.
"A. That he had been involved in this in some way. Tr. at 839-840.
* * * * * *
"Q. You didn't want the police to talk to your brother without an attorney, and you state that you had an experience about that with the Debbie Westenberger matter.2 What was that experience.
"A. The detectives took my brother away and grilled him for quite a few hours.
"Q. Were you there.
"A. No, sir.
"Q. You don't know how long they talked to him, do you.
"A. No, I only know what my brother and father said.
"Q. Of your own knowledge you don't know how long they talked to him.
"A. No.
"Q. The fact of the matter is, that at that time he was associating with Debbie Westenberger who was 16 years old.
"A. Yes.
"Q. The fact of the matter further is she was pregnant at that time. Is that right.
"A. I never knew that.
"Q. You never knew that.
"A. No.
"Q. And she was found in your brother Douglas's bedroom at your parents' home suffering from a gunshot wound. Is that right.
"A. Yes.
"Q. The gun that was lying on the bed next to her was Douglas's gun, wasn't it.
"A. Yes.
"Q. And she finally was taken to the hospital and died at the hospital.
"A. Yes.
"Q. The police questioned Douglas as to what had happened.
"A. Yes.
"Q. Other than that did anything happen.
"A. No." Tr. at 842-844.

The testimony set forth above was admitted at trial in violation of Dean's rights under both the Fifth and the Sixth Amendments to the United States Constitution. In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the Supreme Court held that a defendant's Fifth Amendment right to remain silent is violated when he is questioned at trial about his exercise of that right during a...

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    ...of several theories which can support a claim of denial of constitutional rights to due process and impartial jury); Dean v. Israel, 516 F.Supp. 477, 486-87 (E.D.Wis.) (entertaining claim of inadequate voir dire in habeas context, but holding that state trial court's voir dire and extensive......
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