Hayes v. State

• Decision Date: 07 May 1968
• Citation: 39 Wis.2d 125,158 N.W.2d 545
• Parties: Thomas Odell HAYES, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 545

158 N.W.2d 545

39 Wis.2d 125

Thomas Odell HAYES, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

Supreme Court of Wisconsin.

May 7, 1968.

Robert H. Bichler, Racine, for plaintiff in error.

Bronson C. La Follette, Atty. Gen., William A. Platz and Betty R. Brown, Asst. Attys. Gen., Madison, Gerald E. Clickner, Dist. Atty. Racine County, Racine, for defendant in error.

CONNOR T. HANSEN, Justice.

This case presents three issues for consideration:

1. Whether the evidence found in the room in Waukegan, Illinois was properly admitted in evidence.

2. Whether exculpatory statements made by the defendant during the June 23rd interrogation were properly admitted into evidence.

3. Whether the trial court erred in not giving an instruction on third degree murder.

(1) On June 22, 1965, while investigating a burglary of the Perma Cast Corporation, Racine police arrested one Felix Baker as he was attempting to cash a Perma Cast check at a local supermarket. Baker was searched and the police found, on his person, a social security card and a membership card bearing the name of the decedent, Henry Winkel. Baker told the police that he had been given the cards by the defendant that morning as he and the defendant took a train from Waukegan to Racine. Baker also informed the police that defendant said he had found the cards at a place called Midland and that such cards were to be used as identification in cashing one of the stolen and forged Perma Cast checks.

Baker also told the police that he and the defendant lived in and shared a room in Waukegan. In response to a request from the police, he gave them his consent, both orally and in writing, to search the room.

Shortly thereafter, the defendant was located at the railroad station, arrested for the Perma Cast burglary and taken to the police station. After arriving at the police station the defendant was briefly interrogated by the Captain of Detectives who testified as follows:

'A I told him, Peewee (defendant), I'm going to ask you some questions. Before doing so, I want to advise you, you do not have to answer any of them. If you do, it must be of your own free will and accord. I am not going to promise you anything, nor am I going to threaten or harm you in any way, and I want to advise you that anything you say or write can be used against you in the event of a trial. I also want to advise you you have the right to an attorney.'

The defendant was then asked if it would be permissible to search his room in Waukegan. The defendant replied that he did not own a room in Waukegan.

Thereupon, Baker, the Captain of Detectives and another Racine police officer went to the Waukegan room without a search warrant to search the same for evidence relating to the Perma Cast burglary. Baker also stated he had some clothes in the room. At Baker's request, the landlady unlocked the door to the room. She became very nervous and requested them to 'get all the stuff out of my house as quick as you can.'

In the room, the police found a check protector machine and a book of checks belonging to Perma Cast Corporation. They also observed a paper bag which was being used as a wastebasket. In examining the contents of the bag they found some rumpled Perma Cast checks and stubs, and a wallet bearing the name of Henry Winkel stamped in gold lettering which contained numerous pieces of identification bearing decedent's name. In addition, during the search, they found a photograph of defendant, a pair of trousers bearing blood stains, a green headscarf and a dark blue sport coat.

During the morning of June 23, 1965, the Captain of the Detectives again questioned the defendant. The interrogation was reduced to writing by a stenographer who was present and it commenced with the following question and answer:

'Q PeeWee (defendant), I am going to ask you some questions. Before doing so, I want to advise you that you don't have to answer any of them. If you do, it must be of your own free will and accord. I am not going to promise you anything nor am I going to threaten or harm you in any way and I want to advise you that anything you say or write could be used against you in the event of a trial. You also have a right to an attorney. Do you understand that?

'A I understand that. Why should I go through all the trouble when I didn't do anything. I mean I rent a room in Waukegan to look for a job. I went down there at Chicago Pattern Company and the guy told me he would send me a card on the 21st of the month.'

The defendant was then shown the items found in the Waukegan room. He, at this time, acknowledged he had been living in the Waukegan room, but denied any involvement in the Winkel murder. He stated that he found the Winkel wallet and identification at a dance and had not given any identification cards to Baker, but that Baker must have taken them unbeknown to the defendant. He admitted the trousers were his, but during the questioning attributed the blood spots to various sources.

Later in the day the defendant told the police he wanted to contact a certain lawyer. No further interrogation took place. The police assisted defendant in contacting the lawyer. Subsequently, the same lawyer was appointed by the court to represent the defendant because of his indigency.

Investigation subsequently revealed that the room was rented to Baker and the defendant on June 7, 1965, for the rate of $15 per week. On June 13, 1965, Baker checked out and the landlady reduced defendant's weekly rent to $12 per week. Defendant paid the $12 rental on June 13, 1965, but no payment had been made for the week commencing June 20, 1965. On the morning of June 22, 1965, the day of the search, the landlady saw Baker and the defendant leaving the room. There were two keys to the room. The landlady kept one and gave one to the defendant.

The defendant's denial of a possessory interest in the Waukegan room lies at the heart of the validity of the search thereof.

A careful examination of the record reflects that there is no indication the police knew the true nature of the possessory interests in the room before commencing the search. The police were pursuing evidence in connection with their investigation of the Perma Cast burglary. ¹ They discovered evidence which included the check protector, a book of Perma Cast checks and also a paper bag used as a wastebasket which contained some Perma Cast check stubs, crumpled Perma Cast checks and the billfold of Henry Winkel.

Prior to the search the defendant denied any ownership in the room and at one point stated to the police that it was Baker's room. Baker did not inform the police that he was no longer a tenant in the room, but on the contrary stated that he was such a tenant. He gave them his oral and written permission to conduct the search. The landlady did not inform the police that Baker was no longer her tenant. Baker was present at the time of the search and she ordered him to get the property out of the room.

The trial court correctly determined that there could be no unlawful search of premises in which the defendant disclaims any interest. See Rossi v. United States (7th Cir. 1932), 60 F.2d 955 affirmed, 289 U.S. 89, 53 S.Ct. 532, 77 L.Ed. 1051; Creech v. United States (5th Cir. 1938), 97 F.2d 390; United States v. Eversole (7th Cir. 1954), 209 F.2d 766.

We have considered Jones v. United States (1960), 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, and Simmons v. United States (1968), 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, and conclude that the rationale of Jones and Simmons does not encompass the situation in the case now under consideration. Under these cases the defendant's testimony in an unsuccessful motion to suppress could not be used against him at his trial.

In this case, the defendant was not confronted with the problem presented in Jones and Simmons. There was no pre-trial motion to suppress. ² The defendant specifically disclaimed any interest in the premises. This statement coupled with Baker's consent and the acquiescence of the landlady constitute reasonable grounds for the search. See Bucholtz v. Warden of Maryland Penitentiary (1963), 233 Md. 614, 195 A.2d 690; Commonwealth v. Mayer (1965), 349 Mass. 253, 207 N.E.2d 686; Bowman v. State (1962), 211 Tenn. 38, 362 S.W.2d 255.

The search, having been determined to be reasonable and lawful in connection with the Perma Cast burglary, the other items of property found in connection therewith were properly seized. See Abel v. United States (1960), 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668; State v. Stevens, supra, 26 Wis.2d at page 459, 132 N.W.2d 502.

(2) We now consider the question of whether the statements made by the defendant during the June 23, 1965, interrogation were properly admitted into evidence.

The trial in this case began on November 29, 1966. Miranda v. State of Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, was decided on June 13, 1966. Johnson v. State of New Jersey (1966), 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, ruled that Miranda applies to all cases in which the trial commenced after the date of the decision, viz., June 13, 1966. Therefore, since this case was tried after June 13, 1966, it was subject to the rules of Miranda. See also Holloway v. State (1966), 32 Wis.2d 559, 566, 146 N.W.2d 441.

Mr. Chief Justice Warren summarized the mandate of Miranda, supra, 384 U.S. page 478, 86 S.Ct. page 1630, as follows:

'To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege, and unless other fully effective means are adopted to motify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are...