Johnson v. State

• Decision Date: 18 January 1977
• Docket Number: No. 75--350--CR,75--350--CR
• Citation: 75 Wis.2d 344,249 N.W.2d 593
• Parties: George H. JOHNSON, Jr., Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 593

249 N.W.2d 593

75 Wis.2d 344

George H. JOHNSON, Jr., Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. 75--350--CR.

Supreme Court of Wisconsin.

Submitted on Briefs Oct. 7, 1976.

Decided Jan. 18, 1977.

Howard B. Eisenberg, State Public Defender, and Alvin E. Whitaker, Asst. State Public Defender, on brief, for plaintiff in error.

Bronson C. La Follette, Atty. Gen., and Betty R. Brown, Asst. Atty. Gen., on brief, for defendant in error.

ABRAHAMSON, Justice.

Defendant George H. Johnson, Jr., was charged with the first-degree murder of his wife, Cynthia Johnson, in a criminal complaint filed November 6, 1973, in the circuit court for Milwaukee county. The time of the alleged offense was November 4, 1973, between 3:15 and 5:00 p.m. A jury trial was had on October 9--12, 14--19, 1974, which resulted in the jury returning a verdict of guilty of first-degree murder after some twelve hours of deliberation. A judgment of conviction was entered on October 19, 1974, by which the defendant was sentenced to life imprisonment. Motions for post-conviction relief were denied by order entered July 23, 1975.

The defendant raises the following issues:

I. Did the trial court err in finding that probable cause was shown for defendant's arrest without a warrant?

II. Did the trial court err in finding that defendant's confessions were voluntarily made and therefore admissible at trial?

III. Did the trial court err in limiting the scope of cross-examination of one of the prosecution's witnesses as to his mental condition?

IV. Did the trial court err in refusing to declare a mistrial after discovery that certain documents from defendant's police file had been inadvertently sent into the jury room during the jury's deliberations?

V. Did the trial court err in refusing several instructions requested by the defense on its theory of the case?

VI. Was defendant denied a fair trial by certain remarks made by the prosecutor in his closing argument to the jury?

VII. Should the defendant be granted a new trial in the interest of justice?

I. ARREST

Defendant claims that the police did not have probable cause to believe he committed the crime charged at the time of his arrest in the early hours of November 6, 1973.

The circumstances in which an arrest without a warrant may be made are stated in sec. 968.07(1)(d), Stats.:

'(1) A law enforcement officer may arrest a person when:

'. . .

'(d) There are reasonable grounds to believe that the person in committing or has committed a crime.'

'Reasonable grounds' and probable cause are synonymous, and have been defined by this court as follows:

'The 'reasonable grounds' or what is more commonly referred to as probable cause, is not that quantum of evidence which might later support a conviction, rather it is '. . . that quantum of evidence which would lead a reasonable police officer to believe that the defendant probably committed a crime. '' Ball v. State, 57 Wis.2d 653, 659, 205 N.W.2d 353, 355 (1973).

Probable cause is discussed at somewhat greater length in State v. Paszek, 50 Wis.2d 619, 624, 625, 184 N.W.2d 836, 839, 840 (1971):

'Probable cause to arrest refers to that quantum of evidence which would lead a reasonable police officer to believe that the defendant probably committed a crime. Henry v. United States (1959), 361 U.S. 98, 102, 80 S.Ct. 168, 4 L.Ed.2d 134. It is not necessary that the evidence giving rise to such probable cause be sufficient to prove guilt beyond a reasonable doubt, nor must it be sufficient to prove that guilt is more probable than not. It is only necessary that the information lead a reasonable officer to believe that guilt is more than a possibility. Browne v. State, supra (24 Wis.2d 491, 129 N.W.2d 175, 131 N.W.2d 169), and it is well established that the belief may be predicated in part upon hearsay information. Draper v. United States (1959), 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327. The quantum of information which constitutes probable cause to arrest must be measured by the facts of the particular case. Wong Sun v. United States (1963), 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. Probable cause is defined in Draper v. United States, supra, p. 313, 79 S.Ct. p. 333, as:

"'In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' Brinegar v. United States, supra, at 175 ((1949), 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879). Probable cause exists where 'the facts and circumstances within (the arresting officers') knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, (69 L.Ed. 543)."

This standard is an accommodation of the individual's right to liberty and the public interest in effective prosecution and control of crime. ¹

It is not necessary that the individual officer actually taking the suspect into custody personally have the requisite knowledge. The arresting officer may rely on the collective information in the police department. The police force is considered as a unit, and the inquiry is whether all the collective information in the police department is adequate to sustain the arrest. State v. Mabra, 61 Wis.2d 613, 625, 626, 231 N.W.2d 545 (1974); Rinehart v. State, 63 Wis.2d 760, 764, 765, 218 N.W.2d 323.

Here the police had the following information: A neighbor heard squeals or screams such as a frightened woman might make emanating from Cynthia Johnson's apartment around 3 or 4 p.m. on November 4th; a friend of Cynthia Johnson, one Robert Lee Williams, positively placed the defendant at Cynthia Johnson's door around 3 p.m. on that date; an acquaintance of the victim informed the police that the defendant was estranged from his wife and that his wife feared the defendant would harm her in some way; another friend of the victim informed the police that she had received an angry and threatening phone call from the defendant, relating to his wife, at about 5:45 p.m. on November 4th.

Before the police obtained all of the foregoing information--particularly, before Robert Lee Williams had identified the defendant as the man he saw at the victim's apartment--the defendant had gone to the police station to identify the body of the victim as that of his wife. At this time, when the defendant undisputedly was not in custody and was not suspected of the crime, he informed the police that he had not seen his wife on November 4th and had spent the day in church and in a tavern with a friend.

The facts and circumstances here were such that police officers of reasonable caution could have believed the defendant probably committed the crime. In our opinion the police had probable cause for the defendant's arrest.

Defendant also contends that under Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), the arrest was invalid because under the circumstances, which he claims were 'nonexigent,' the police could have obtained a warrant for his arrest but failed to do so.

This same contention was rejected in Rinehart v. State, 63 Wis.2d 760, 766--768, 218 N.W.2d 323 (1974), in which this court adopted the rule and rationale of United States v. Millen, 338 F.Supp. 747 (E.D.Wis.1972). See also State v. Estrada, 63 Wis.2d 476, 494, 217 N.W.2d 359 (1974); Sanders v. State, 69 Wis.2d 242, 255, 230 N.W.2d 845 (1975). ²

The arresting officers went to the home of the defendant's parents. They knocked at the door. Defendant's father appeared, and the officers asked whether the defendant lived there. They did not enter forcibly, nor was any evidence seized while they were in the house. Defendant was suspected of first-degree murder, the most serious offense against another person defined by the laws of this state. There is no indication that the police deliberately avoided procuring a warrant for any reason; nor did any significant period of time pass between the acquisition of probable cause and the making of the arrest, during which a warrant might easily have been obtained. The arrest followed within one or two hours of Williams' placing the defendant at the scene of the crime. Under these circumstances, we conclude that defendant's claim with respect to the absence of a warrant for his arrest is without merit.

II. CONFESSION

A confession given by the defendant after his arrest was used by the prosecution at trial. Defendant contends that in view of his physical and mental condition at the time of his statements to the police, the evidence fails to show that those statements were voluntarily made.

At a hearing on the admissibility of a confession, the burden in upon the state to prove that the confession was voluntary beyond a reasonable doubt. State ex rel. Goodchild v. Burke, 27 Wis.2d 244, 264, 265, 133 N.W.2d 753 (1965). The inquiry is made in light of all the circumstances of the case. McAdoo v. State, 65 Wis.2d 596, 606, 223 N.W.2d 521 (1974). In State v. Wallace, 59 Wis.2d 66, 81, 207 N.W.2d 855, 863 (1973), it was said:

'Whether a confession is voluntary 'under all of the circumstances' and therefore in conformance with constitutional standards and safeguards calls for a very careful balancing of the personal characteristics of the confessor with the pressures to which he was subjected in order to induce his statements.'

Physical or mental debilitation of an accused coupled with high pressure tactics of interrogation by the police would, of course, create a strong case for exclusion of any confession the accused might make under such conditions.

The question of voluntariness in a particular case is one of fact, and the conclusion of the trial court that a confession was voluntarily made must...