Hemauer v. State

• Decision Date: 04 June 1974
• Docket Number: No. S,S
• Citation: 64 Wis.2d 62,218 N.W.2d 342
• Parties: Francis Phillip HEMAUER, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 213.
• Court: Wisconsin Supreme Court

Page 342

218 N.W.2d 342

64 Wis.2d 62

Francis Phillip HEMAUER, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 213.

Supreme Court of Wisconsin.

June 4, 1974.

[64 Wis.2d 65] Gerald P. Boyle, Milwaukee, for plaintiff in error.

Robert W. Warren, Atty. Gen., David J. Becker, Asst. Atty. Gen., Madison, for defendant in error.

CONNOR T. HANSEN, Justice.

The defendant does not dispute the facts of the crimes. On Saturday afternoon, October 12, 1968, the crimes of abduction, rape and attempted murder were committed against B.L.S., a female, then fifteen years of age (hereinafter B.L.S.) B.L.S. testified that she was shopping at Capitol Court Shopping Center when she saw a parked car with the hood up and a man standing beside it. When she passed the car, the man called to her and asked her if she would help him start it by getting into the driver's seat and turning the ignition while he worked under the hood. She got into the car and had attempted to start it several times when he closed the hood and got into the car on the driver's side. B.L.S. said that she wanted to leave, but he pulled out a gun and forced her to get down on the floor on the passenger side of the front seat. Her assailant then drove her to a parking lot behind a Moreway department store located at 101st and West Appleton avenue. The drive took ten to fifteen minutes. After they arrived, her assailant forced her to walk through a field, over some railroad tracks, through a wooded area to an area with tall bushes and grass. She was then forced to remove her pants and panties and was raped. Subsequently, her hands were tied behind her back with some twine and she was forced to lie on her stomach. She was stabbed 20 to 30 times in her upper back and pulled up by her shoulders and stabbed in the upper chest 15 to 17 times. Her assailant then put his hand over her mouth and nose in an attempt to suffocate her. When he released her, she went limp and pretended she was dead. He then cut the rope and left her. When she heard his car start and drive away she put her clothes back on and ran to Appleton avenue where she obtained the assistance of some boys who went to the nearby Moreway store and called an ambulance for her.

Defendant's position at trial and on this appeal is that he was not the victim's assailant.

On August 5, 1971, the victim picked the defendant's photograph out of a group of four photos shown to her by police investigators. She had previously viewed hundreds of photos of potential suspects. She had described her assailant as wearing a light short-sleeve sport shirt, green work pants and light brown or tan work boots, and being approximately forty-five years Defendant was asked by Milwaukee police to come to the police administration building at approximately 1:30 p.m. Detective Douglas Zellmer informed him of his rights and at about 2 p.m. told him he was under arrest. He voluntarily answered questions that afternoon and appeared in a lineup at 7 p.m. B.L.S. picked him out of this lineup but asked him to put on a pair of glasses before she would make a positive identification. Defendant put on the glasses and also agreed to permit B.L.S. to look at him in the hall. She examined the defendant more closely in the corridor for several minutes and then indicated that she was sure the defendant was her assailant.

old, and wearing black horn-rimmed glasses. When she picked out the defendant's photograph on August 5, 1971, she told police that he could very well be the man but she would have to see him in person. She did not positively identify the defendant at that time.

The defendant was questioned further that evening and was consistently reminded of his constitutional rights. At approximately 10 p.m. he asked to call his attorney. His request was granted. There is testimony to the effect that his attorney told the defendant to make no statement and he, or someone in his place, would be down to see him in the morning. Defendant claims that he divulged the contents of this conversation to the police officers present, that he told them his attorney would be down in the morning and that he was not to answer any questions. Defendant was questioned intermittently during the night and made some very incriminating statements the next morning just before his attorney came to the station. Other facts will be subsequently detailed.

ISSUES.

This appeal presents the following issues:

1. Was the lineup in which the victim identified the defendant conducted according to constitutional standards?

2. Was it error to admit the incriminating statement in evidence?

3. Was it error to exclude testimony of defendant's offer to take a polygraph test?

4. Was the evidence sufficient to sustain the conviction?

LINEUP.

The defendant argues, amongst other things, that the lineup in which he appeared in 7 p.m. was not conducted in a fair and reasonable manner.

In Wright v. State (1970), 46 Wis.2d 75, 86, 175 N.W.2d 646, 652, the issue of an unfair and suggestive lineup was discussed and this court stated:

'. . . The test of the fairness of a lineup has been stated as follows: 'However, a claimed violation of due process of law in the conduct of a confrontation depends on the totality of circumstances surrounding it . . .'. The 'totality of circumstances' reference is a reminder that there can be an infinite variety of differing situations involved in the conduct of a particular lineup. The police authorities are required to make every effort reasonable under the circumstances to conduct a fair and balanced presentation of alternative possibilities for identification. . . . What is required is the attempt to conduct a fair lineup, taking all steps reasonable under the 'totality of circumstances' to secure such result.'

Color photographs of the challenged lineup were introduced at trial and shown to the jury. They appear in the record and upon examination of those exhibits it is clear that this lineup was fair. The defendant stood in the lineup with four other police officers. All of the participants wore street clothes with number one also wearing a sport jacket. All participants had reasonably short haircuts. They were all of similar build. There was a discrepancy between the defendant's age (48) and

the ages of participants two (32), four (30) and five (33). However, while the ages of these three younger participants might by themselves seem to set them apart from the defendant, an examination of the photographs demonstrates that such is not the case. This lineup was not unnecessarily suggestive, and in our opinion constitutionally antiseptic.

INCRIMINATING STATEMENT

Detective Kenneth Darton testified at trial that he first met and spoke with the defendant at 8:40 a.m. on August 6, 1971, at the detective bureau. The defendant does not dispute that. Darton fully advised him at that time of his constitutional rights, including his right to remain silent and to have an attorney present if he wished. Darton and the defendant spoke about a variety of subjects from 8:40 a.m. until 9:50 a.m., including hunting, fishing and this crime. Darton spoke alone with the defendant until his attorney arrived, whereupon they spoke for perhaps five minutes more and the interrogation ceased upon the advice of defense counsel.

Darton extensively detailed his interview with the defendant. Darton testified that during this interview defendant stated, '. . . (H)e probably raped B.L.S. but cannot remember. He suggested that a Psychiatrist could probably help him recall facts regarding the aforementioned offense, . . .'

Defendant testified that he had freely and voluntarily talked to Darton; that he was not forced to answer any questions; and that he was not mistreated in any way and was offered coffee during the interview. He also admitted the statements attributed to him and further testified that on occasions when he drank heavily he did not remember exactly what transpired. '. . . (A)t times I didn't remember getting home. . . .' The defendant testified that when asked about this offense, '. . . I voluntarily said, 'Anything is possible.' I don't know, I didn't do this thing in my mind, I didn't do it, I know I didn't do it. Anything is possible. That is about the way I answered the question to Mr. Darton.'

After a Goodchild hearing, the trial court admitted the foregoing inculpatory statement of the defendant, made to Detective Darton, in evidence. On this appeal, defendant argues this inculpatory statement should not have been admitted into evidence for two reasons: First, the police should not have questioned the defendant after he had telephoned an attorney and been instructed by his attorney not to say anything further; and second, that the defendant was held in custody for an exorbitant period of time before he made this statement.

At the Goodchild hearing, which was held on the admissibility of defendant's incriminating statement, the defendant testified that he told Darton that his attorney would be there shortly and that he should wait for him. Defendant testified that Darton said it wasn't necessary for his attorney to be there at that time. Darton, on the other hand, testified that prior to questioning he fully advised the defendant of his right to counsel and asked him if he wished to consult an attorney, but the defendant said no. Detective Darton testified that he had not met the defendant until 8:40 a.m. on August 6, 1971, when he interrogated him. Darton said he could not remember whether anyone in the police department had advised him that the defendant was represented by counsel. Darton also denied that after he had informed the defendant of his rights, defendant had said his attorney was to be there before any questioning. Darton testified that he did not know that the defendant had contacted an attorney before he questioned him. In resolving this issue of credibility, the trial court, after the very extensive...