Gelhaar v. State, S
| Decision Date | 14 May 1973 |
| Docket Number | No. S,S |
| Citation | 207 N.W.2d 88,58 Wis.2d 547 |
| Parties | Lillian Marie GELHAAR, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 13. |
| Court | Wisconsin Supreme Court |
Howard B. Eisenberg, State Public Defender, Madison, for plaintiff in error.
Robert W. Warren, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., Madison, for defendant in error.
Five issues are raised in this review:
1. Did the trial court violate defendant's constitutional right against self-in-crimination by admitting into evidence certain inculpatory statements made to a police officer shortly after the stabbing incident here involved?
2. Did the trial court properly deny defendant's motion to dismiss at the close of the state's case-in-chief?
3. Was defendant's arrest lawful?
4. Did the exclusion of defendant from an in-chambers conference held during the trial violate her constitutional and statutory right to be present at here trial?
5. Did certain conduct of the prosecutor deny defendant her constitutional right to a fair trial?
Admissibility of Inculpatory Statements.
Defendant's primary contention is that the trial court committed constitutional error by admitting certain statements into evidence during trial which had been made to an investigating police officer shortly after the stabbing incident. It is conceded that the defendant did stab her husband and the only question is the degree of homicide involved. According to the defendant, these statements went to her intent at the time of the stabbing, the absence of proper Miranda 2 warnings rendered these statements inadmissible at her trial and their admission must result in a reversal of the judgment of conviction.
The sequence of events leading up to defendant's making the statements began, according to Milwaukee Police Officer Allan Kedzierski, when he received a radio dispatch patch at approximately 1:04 a.m. on the morning of April 20, 1966. Arriving with his partner at the Gelhaar residence at 'approximately 1:10 a.m.,' he testified, he observed a police ambulance backed into the driveway and a white male upon a stretcher being placed therein. Without speaking to the ambulance officers, Kedzierski testified, he walked into the living room of the house via the front door. Met by one of the Gelhaar children, he asked the child where the mother was. Upon the child's response, Officer Kedzierski walked through the kitchen and out the side door where he observed the defendant, standing on the driveway, 'crying and quite excited.' Kedzierski also testified that as he left the house he noticed a butcher knife on the concrete step adjacent to the side door.
Officer Kedzierski testified at trial that as he approached the defendant, in full uniform, she blurted to him with her face in her hands "I didn't mean to do it, I didn't mean to do it, I'll give him all my blood." According to Kedzierski he yet was not sure what had occurred but, attempting to comfort the defendant, asked her if she desired to go inside and sit down. The defendant indicated she did not and the officer 'asked her what happened, just what had happened here.' Kedzierski testified that he held defendant's arm to steady her and she in turn held on to him. Upon some questioning, according to Kedzierski, the defendant essentially related that she and her husband had been arguing during a drive home from a dance. They arrived home where her husband temporarily locked defendant out of the house. Eventually he permitted her entry and they continued to argue in the kitchen. According to the officer:
According to Kedzierski that was the end of their conversation--such conversation lasting approximately twenty or twenty-five minutes. Officer Kedzierski reaffirmed his trial testimony at the post-conviction hearing on February 18, 1972.
The defendant's own testimony contradicts the police officer's testimony in several respects. First, she testified at trial and at the post-conviction proceeding that she first encountered Officer Kedzierski while she was in the kitchen of her home and that he gently but forcibly guided her outside. Second, the defendant also testified at the post-conviction hearing that at all times in the presence of Officer Kedzierski she felt, in view of the fact he was wearing his uniform and such uniform represented authority, she was obligated to remain and talk with him. The defendant also testified at her post-conviction proceeding that during the conversation she requested leave of the officer to visit the bathroom and that he replied "Let's talk." Officer Kedzierski acknowledged this incident but testified that in response to her request he asked if she could wait as no one was allowed back into the house. According to Kedzierski, the defendant replied "I can wait."
Essentially, it is defendant's position that Officer Kedzierski ought to have advised her of her rights before questioning her, and his failure to do so rendered his testimony as to the statement he claimed she said her husband made to her 'Why don't you go ahead and end it all, go ahead and end my misery,' and as to her statement to the officer that 'all she (defendant) can remember is picking up the knife and coming down on him' inadmissible at her trial.
Miranda was decided June 13, 1966, two months after the statements were given to the police officer at the Gelhaar home shortly after the stabbing incident, but eight months before in 1967 trial. The Miranda requirements apply to all trials actually held after that 1966 decision; accordingly, Miranda was applicable at the time of the 'questioning,' provided there was 'custodial interrogation' as prescribed by that decision. 3 Miranda requires that a defendant must be advised of certain rights among which is the right to remain silent, prior to the institution of custodial interrogation by law enforcement officers. Thus Miranda states:
(Emphasis added.) 4
The narrow question to be decided here is whether the inculpatory statements made by the defendant were made during 'custodial interrogation.' One well known legal scholar has said:
'Probably the most difficult and frequently raised question in the wake of Miranda is what constitutes the 'in-custody interrogation' or 'custodial questioning' which must be preceded by the Miranda warnings.' 5
It is acknowledged that the defendant was not formally arrested and had not 'been taken into custody.' Defendant argues, however, that she was so significantly 'deprived of (her) freedom' during the conversation with Officer Kedzierski as to fall within the Miranda definition of custodial interrogation to mean a person who is 'otherwise deprived of his freedom of action in any significant way.'
Here the trial court, after an extensive hearing which preceded the trial, made extensive findings to the contrary. These findings are as follows:
'The second witness, with respect to the scene outside of the house, where he encountered the defendant, is similarly totally unaccompanied by any custody of any kind, under any decision that I know of. There is no significant restraint of liberty, no physical custody, and not even insignificant custody at either of the scenes by the officers who testified. This was under the auspices of the milieu of her own home environment, as has been stated by counsel for the state, in the constructive presence of her children at her home and in the immediate vicinity, and there is nothing here that gets close to the Miranda proscription.
'I have no doubt whatsoever, and I so find, beyond all reasonable doubt, that there are no factual circumstances exposed here which require the warnings or the waiver indicated in the Miranda decision, so far as any statements made. These were all statements that were made not in custody, not in even insignificant restraint of liberty, and not the subject of interrogation, except the one statement that the officer made, 'what happened,' and that wasn't coupled with custody in even the loosest sense.
We are concerned on this review with whether those findings 'are against the great weight and clear preponderance of the evidence.' 6 All on-the-scene questioning by police officers need not be preceded by Miranda warnings:
7
In United States v. Gibson, the Fourth Circuit Court of Appeals held a conversation which transpired between a Virginia state police trooper and a defendant on a sidewalk in front of a tavern not to constitute custodial interrogation within Miranda's contemplation. 8 Although the trooper asked several questions without giving Miranda warnings, the court stated
'This...
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Brown v. State, s. 302
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