Jones v. State

Decision Date30 June 1975
Docket NumberNo. S,S
Citation69 Wis.2d 337,230 N.W.2d 677
PartiesMichael C. JONES, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error. tate 193.
CourtWisconsin Supreme Court

Plaintiff in error Michael Charles Jones (hereinafter defendant) was convicted of first-degree murder, party to a crime, contrary to secs. 940.01 and 939.05, Stats., and robbery, party to a crime, contrary to secs. 943.32 (1)(a) and 939.05. He received a sentence of life imprisonment for the murder and a concurrent term of ten years for the robbery.

The incident involved in this conviction occurred shortly before noon on December 3, 1971, after defendant and two companions, Odell Hardison and Sherry Henderson, entered the Salt and Pepper Lounge in Milwaukee. While the trio was inside, the bartender was severely and brutally beaten, his wallet was taken, money was removed from the tavern's cash register, and a bottle of liquor was stolen. The bartender, Andrew Nelson, died three days later of head and brain injuries.

Neither defendant nor Hardison (who was tried separately) 1 testified at defendant's trial. The only direct evidence concerning events inside the tavern came from a confession given to police by defendant shortly after his arrest, and from the testimony of Sherry Henderson, who was granted immunity from prosecution.

Police Officer Lamoyne Richardson testified he arrested defendant December 12th and took him to the detective bureau where the defendant confessed to participation in the crime. The officer's account of the confession is as follows:

'He stated that he remembered on December 3rd he was riding around in a car with Odell Hardison and he also remembers that there was a white girl with him. He wasn't specific about time because he said he couldn't remember the times too well; but during the time that they were riding around, he remembered they had gone to other taverns, and this white girl mentioned let's go over to the Salt & Pepper. He states that they drove over to the Salt & Pepper Tavern, which is located at 2925 West Holton Street, City and County of Milwaukee, State of Wisconsin. When they entered the tavern, he said he thinks that there was one other patron in the tavern.

'They went and sat at the bar, and the bartender was at the opposite end of the bar at the time. He couldn't remember whether or not they had a drink or not; but he stated while sitting there, Hardison asked him if he wanted to knock the place off, and his answer was, 'I don't care.'

'When the bartender came down to the end of the bar to wait on them, he stated to me that he struck the bartender with his fists, knocking him to the floor, and he thinks that the bartender was unconscious. At that time, Hardison jumped over the counter and removed cash from the cash register. The girl who was with them picked up a bottle of whiskey from behind the bar and Hardison then kicked the (bartender) about the head. He stated he slapped the (bartender) about the head and face.

'. . .

'He stated the girl was acting as a lookout at the door. After Hardison had got the money out of the cash register, they left the tavern and got into Hardison's car and drove over to his house, where they finished drinking the whiskey they had. He also stated Hardison gave him some of the money which was taken out of the cash register . . .'

Sherry Henderson gave a more detailed but slightly different account of what transpired. Henderson said she was, at the time of the incident, a twenty-year-old divorced mother of three who had, three weeks previous, hitchhiked to Milwaukee from Hollywood, California, where she worked as a receptionist in a massage parlor. After midnight, in the early morning hours of Thursday, December 2nd, Henderson went to the Salt and Pepper tavern and met Odell Hardison who later introduced her to Jones. The three stayed at the tavern, drinking alcoholic beverages, until closing, at which time they went to defendant's apartment. All day Thursday, while the three remained at the apartment, defendant and Odell Hardison drank straight whiskey, going out from time to time to buy more liquor. Some time Thursday evening, according to Henderson, defendant and Hardison fell asleep. 2 Friday morning before dawn the trio went to a friend's house, and later visited a tavern where each had a drink.

Finally, at around 11 a.m., they again arrived at the Salt and Pepper tavern, sat at one end of the bar, and ordered drinks. Henderson testified she walked to the other end of the bar to put money in the juke box when the defendant came over and sat near her. She said defendant called the bartender, Andrew Nelson, over to bring potato chips and when she turned from the juke box she saw defendant's arm around Nelson's neck. He pulled Nelson to the floor when, Henderson testified, defendant 'stomped' on his head. She said, 'I heard a real--something crushing.' She also said defendant told her at that point 'to sit down and not to move or he would kill me exactly like he was doing on him.' She testified that at this time Odell Hardison took money from the cash register as well as a bottle of scotch whiskey from a shelf behind the bar. Defendant also removed his victim's wallet. When asked if Odell Hardison had joined in beating the bartender, Sherry Henderson said she saw him raise his leg as if to kick Nelson, but did not actually see him kick the man. However, defense counsel introduced into evidence the following statement by Henderson at the preliminary examination: 'Odell put his foot on the man's head and . . . he was pushing down . . . and the man was screaming.' The trio then left the tavern and went to Hardison's apartment where Hardison and defendant split the stolen money, about $70.

At defendant's April, 1973, trial the court submitted verdicts to the jury on robbery, together with first-, second- and third-degree murder, and injury by conduct regardless of life. The jury found defendant guilty of robbery and first-degree murder. We are asked to review the judgment of conviction and also the order denying Jones' motion for a new trial.

Patrick J. Devitt, Legal Aid Society, Milwaukee, for plaintiff-in-error.

Bronson C. LaFollette, Atty. Gen., Thomas J. Balistreri, Asst. Atty. Gen., Madison, for defendant-in-error.

BEILFUSS, Justice.

Several issues are raised on this review. The first and most important is adequacy of the warnings given by the police officer before the custodial confession was given to the officer by the defendant.

Defendant argues that his confession was inadmissible as evidence at the trial because he received an inadequate Miranda warning. Specifically, he contends that while he was advised of his right to court-appointed counsel at trial, he was not advised of the right to court-appointed counsel prior to submitting to interrogation. We disagree. The warning, although not a model of clarity, was sufficient. We conclude, therefore, there was no error in admitting the confession into evidence.

After defendant was arrested at his mother's home on December 12th he was taken to the Detective Bureau where, in response to police interrogation, he confessed to his part in the robbery and killing. Prior to confession, defendant was warned of his rights by Officer Lamoyne Richardson, who described the warning as follows in the pretrial Goodchild hearing:

'I advised him that he had a right to remain silent and that he had a right to have an attorney and that if his attorney was present, he could sit in on the interrogation; that anything he said to me could be held against him when he appeared in court. By that I meant I could repeat in court what he said to me. At the time he appeared in court, he was also entitled to have an attorney. If he didn't have one, and he wanted one and didn't have any funds for one, the Courts would appoint him one. I also told him that he could have his interrogation terminated any time that he so desired, and I repeated that he had the right to remain silent if he wanted to. I asked him if he understood his constitutional rights. He said, 'Yes,' and I asked him was there any questions regarding them.

'. . .

'He said no, he didn't have any questions regarding them.' (Emphasis supplied.)

Jones said, according to Richardson, that he 'didn't mind talking about' the incident.

When the admissibility of the confession was challenged at the Goodchild hearing, held prior to the trial, the trial court orally stated its conclusion that the warning as given satisfied the requirements of Miranda v. Arizona, 3 and that the defendant's statements were made voluntarily.

Before an inculpatory custodial statement may be received into evidence at trial, the state must prove first that defendant received a proper Miranda warning, and second that the statements were made voluntarily. 4 The trial court's findings of fact concerning these issues may not be upset unless they are against the great weight and clear preponderance of the evidence. 5 Here, defendant challenges only the sufficiency of the Miranda warning as it relates to his right to court-appointed counsel prior to interrogation.

We conclude that the warning given here does comply with the requirements of Miranda.

The specific 'Miranda' warnings do not have to follow a "ritualistic formula which must be repeated without variation in order to be effective." 6 'Substance, not form, controls' 7 and the requirements of the warnings should not be a trap for the police who are attempting to give warnings that clearly indicate to the defendant that he is entitled to counsel and can have the interrogation ended at the time the warnings are given.

The particulars of warnings, similar to that involved here, have been tested against the mandate of Miranda in numerous federal and state appellate courts, 8 but not in the United States Supreme Court. 9

In United States v. Lacy 10 the Fifth Federal Circuit Court of Appeals upheld a Miranda warning similar to the...

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