Howland v. State
| Decision Date | 07 May 1971 |
| Docket Number | No. S,S |
| Citation | 51 Wis.2d 162,186 N.W.2d 319 |
| Parties | Lawrence Douglas HOWLAND, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 134. |
| Court | Wisconsin Supreme Court |
The plaintiff in error, Lawrence Douglas Howland (hereinafter 'defendant'), was convicted of the crime of enticing a child into a vehicle with intent to commit a crime against sexual morality, in violation of sec. 944.12, Stats.
After defendant's conviction in a jury trial, but prior to sentencing, the defendant was committed to the department of health and social services for presentence examination under sec. 959.15(2), Stats., 1 relating to sex crimes. On December 22, 1969, a Huebner 2 hearing was held and adjourned; and on January 68 1970, defendant was found to be a sex deviate and in need of specialized treatment. He was committed to the custody of the department of health and social services for an indeterminate term under sec. 959.15(6), Stats. 3
Writs of error were issued to review the judgment of September 10, 1969, and the order of January 6, 1970.
On August 20, 1968, the victim, a five-year-old girl, was forced into an automobile in the city of Milwaukee and driven to Kenosha where she was forced to commit an act of sexual perversion on the man who had abducted her.
During the late summer of 1968 there had been a number of child abductions and molestations reported to the Milwaukee police. A composite description of the abductor's vehicle had been pieced together from information given to the police by various victims. The result was that the city of Milwaukee police and the county of Milwaukee sheriff's deputies were on the lookout for a light-colored stationwagon with black and white striped upholstery and a license number beginning with the digits '40.'
On September 9, sheriff's deputy James O'Neil and his partner, deputy Andrew Henderson, were cruising on West Bluemound road when they spotted a car which matched the general description given by several of the abduction victims. These officers noted its license number which was F--40232. The officers ran a check on this license number and obtained the name and address of the owner, who was Lawrence Douglas Howland, the defendant.
After completing their work shift on September 9, 1968, O'Neil and Henderson went to the defendant's home where they observed his car parked outside and found that it contained additional features they had not noted earlier, which matched up with the various descriptions on file. These features included, among others, mud flaps on all four wheels, a chrome luggage rack on top and a floor rug with an unusually long three-quarters-inch nap. The car was a brown over beige 1963 Rambler wagon.
After identifying themselves as police, they were admitted to the house by the defendant's wife. The officers told the defendant, out of the presence of his wife, that they were officers investigating child molestations and would like to ask him some questions. Before anything else was said, O'Neil gave the defendant a Miranda 4 warning. According to O'Neil, the defendant stated that he understood his rights, that he had nothing to hide and would be happy to answer questions.
The defendant then acknowledged that the 1963 Rambler parked outside was his. Asked if he owned any work boots, the defendant went into his bedroom and came back and exhibited a pair of tan work boots with white paint spots on them. The defendant was then asked about his past criminal record, and he admitted to the officers that he had previously done time in Waupun for offenses very similar to those the officers were investigating. The officers then asked the defendant if they could search his car. He consented and suggested that they search the garage too. Upon returning to the house, the defendant was asked if he would go downtown and talk with the deputies' commanding officer. The defendant hesitated and asked if he could call his attorney. The defendant then called his attorney; and his attorney, after determining that the officers had no warrant for the defendant's arrest, advised the defendant to remain at home and not to go downtown voluntarily.
Upon learning of this advice, the deputies called their superior who instructed them to remain with the defendant until two city of Milwaukee detectives who were assigned to the case could arrive. About a half hour later, detectives Cole and Cherney arrived. All of the above information was related by deputy O'Neil at a pretrial hearing on a motion to suppress the evidence consisting of defendant's boots and car. O'Neil also stated that neither he nor his partner placed the defendant under arrest.
When detective Cole arrived, he was admitted by the defendant's wife, and he observed the car and the work boots and noted that both matched the descriptions already referred to. Cole also gave the defendant a Miranda warning and then asked him if he knew his whereabouts on various dates. The defendant stated that he worked odd hours and could not be certain. Cole then placed the defendant under arrest and told him he would have to go downtown.
At this point the defendant again asked permission to call his attorney which was allowed. After the call was completed, Cole asked the defendant if he could search the house. The defendant said, '(G)o ahead, I have nothing to hide.' Cole then looked in the various rooms and asked to search the car and the garage. Again permission was granted. The defendant then was taken downtown, and his work boots and car were seized and impounded. Also seized was a guitar case with flower decals pasted on it. This case had also been described by victims of molestations as one of the items which they had seen in the car of the man who abducted them.
The defendant and his wife both testified that (1) The sheriff's deputies told him he was under arrest; (2) no warning as to his constitutional rights was ever given at any time by any of the four officers; and (3) no consent to a search of the house was given to any officer. The defendant stated that the guitar case was in a walk-in closet in the dining room and the door to the closet was closed when police walked in and seized it.
The defendant's wife gave the same testimony as the defendant.
Additional facts will be stated in the opinion.
Franklyn M. Gimbel, Milwaukee, for plaintiff in error.
Robert W. Warren, Atty. Gen., William A. Platz and Robert D. Martinson, Asst. Attys. Gen., Madison, E. Michael McCann, Milwaukee County Dist. Atty., Milwaukee, for defendant in error.
We are presented with the following issues:
(1) Did the trial court err in admitting certain physical evidence;
(2) Did the trial court err in denying defendant a new trial in the face of unexplained exculpatory evidence;
(3) Did the trial court err in restricting cross-examination of a state expert testifying in defendant's sex deviate hearing about his opinions which had a hearsay foundation; and
(4) Does the Wisconsin Sex Crimes Law provide cruel and unusual punishment proscribed by the United States Constitution?
Admissibility of Certain Evidence.
The defendant contends that his automobile and work boots found at his residence by the investigating officers were erroneously received in evidence and that the error was prejudicial.
After the hearing on the motion to suppress, the trial court declined to make any ruling on the admissibility of the evidence sought to be suppressed. Later, during the course of the trial, the court ruled:
(1) The search by the Milwaukee county sheriff's deputies was valid;
(2) The arrest by the Milwaukee county sheriff's deputies was valid; and
(3) The search and seizure by the Milwaukee city police was valid.
The car can be eliminated from the problem of search and seizure because it was not discovered in the course of a search. It was standing in plain view outside the defendant's house. Since no search was required in order to discover the car, the question of its admissibility under the exclusionary rule 5 of the fourth amendment to the United States Constitution does not even arise.
The boots present a different problem. The testimony of deputy O'Neil was that upon being asked if he owned any boots, the defendant went to his bedroom, returned to the kitchen with his boots and showed them to the officers. This was corroborated by detective Cole who stated that the work boots were already in plain view in the kitchen when he arrived at the apartment.
The defendant and his wife denied this, stating that some police officer walked into the bedroom and got the boots himself.
If the testimony of the officers was believed by the trial court, then no search at all occurred within the meaning of the fourth amendment.
In this case the trial court, after listening to the evidence on the motion to suppress, reserved his ruling on that issue. Later, at trial, when it became apparent that the ruling was necessary, the court stated his ruling in terms of ultimate findings of fact and did not make specific evidentiary findings. He stated that the boots were admissible, but he did not allude to the evidence or testimony from the pretrial hearing which he felt justified his conclusion that the boots were admissible.
As a result of the trial court's inadequate findings, this case comes within the rule set forth in Barnes v. State (1964), 25 Wis.2d 116, 122, 130 N.W.2d 264, 267, where this court said:
* * *'
In this case the evidence adduced at the pretrial hearing on the motion to suppress would support only one of two possibilities. Either the defendant voluntarily produced the boots himself or he consented to a search in which the boots were...
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