Jordan v. State
| Decision Date | 15 January 1980 |
| Docket Number | No. 77-277-CR,77-277-CR |
| Parties | Kenneth JORDAN, Plaintiff in error, v. STATE of Wisconsin, Defendant in error. |
| Court | Wisconsin Supreme Court |
Ronald L. Brandt, Deputy State Public Defender (argued) and Howard B. Eisenberg, State Public Defender, on brief, for plaintiff in error.
David J. Becker, Asst. Atty. Gen., argued, for defendant in error; Bronson C. La Follette, Atty. Gen., and Betty R. Brown, Asst. Atty. Gen., on brief.
On January 16, 1975 the plaintiff in error, Kenneth Jordan (defendant) was found guilty by a jury of first degree murder, party to a crime, and was sentenced to life imprisonment. Writs of error were issued to review the judgment of conviction and an order denying a new trial.
The issues presented for review are:
1. Was a statement made by the defendant to the police obtained in violation of the defendant's constitutional right to counsel?
2. Was it prejudicial error for the trial court to refuse to instruct the jury as to third degree murder?
3. Was it prejudicial error to allow the prosecution to lead a witness on direct examination?
We conclude that the answer to all three questions is no.
On December 13, 1973, at approximately 1:25 a. m., Ronald Reagan, an off duty Milwaukee police officer, was shot and killed during an attempted robbery of the Bungalow Tap tavern in Milwaukee.
There were six patrons and the bartender present when the shooting occurred. Three men entered the bar in single file. The first man walked up to the bartender and asked if there was a telephone. As the bartender turned to point to the phone, the man grabbed his left wrist and pointed a gun in the bartender's side. He said,
By this time the second man was standing behind a woman patron, pointing a gun at her. He said, "If anybody moves, she gets it too." The third man stood in the doorway and did not say anything.
When the holdup was announced, Mr. Reagan, who was sitting at the bar, reached down his righthand side near his foot and pulled out a handgun. He aimed the gun at the second man, who was still pointing a gun at the woman patron, and said something to the effect of "Knock if off. I am a police officer.
At that moment, the first man released the bartender and fired directly at Mr. Reagan. An exchange of shots between the four men took place in rapid succession. The woman who had been held at gunpoint fell to the floor and crouched near the bar.
The man in the doorway fired a number of shots as he was leaving. Mr. Reagan and the second man exchanged fire. The first man to enter the bar was the last to leave, and as he was leaving he pulled the trigger on his gun twice more but it made only a clicking noise. The entire incident lasted less than a minute and a half. Neither the bartender nor any patron other than Mr. Reagan was injured during the exchange.
Ronald Reagan died as a result of a bullet wound to the aorta. Another bullet wound to the chest would have also been fatal. According to the examining pathologist there were ten bullet wounds in all including entrance and exit wounds. The only bullet found in Ronald Reagan's body came from a thirty-eight caliber weapon. Spent twenty-two and thirty-eight caliber bullets were found at the bar by investigating police.
Of the five eyewitnesses produced at trial, only the bartender positively identified Kenneth Jordan as one of the men involved in the shooting. 1 He testified that Jordan was the first man to enter the bar, and was the one who had grabbed him. The state also produced another witness, Freddie Mae Pope, who testified that Jordan, her brother Battites Wesley, and a man named Robert Mallory admitted to the attempted robbery and all admitted to firing their guns. She also testified that Robert Mallory had been shot in the lower leg.
The prosecution's case against Jordan included a statement made by him while he was in the custody of the Milwaukee police. In that statement he said that he, Mallory, Wesley, and Freddie Mae Pope drove to the tavern, and parked the car on a street near the rear of the tavern. The three men proceeded to enter the tavern armed with the handguns. Jordan and Mallory had twenty-two caliber handguns and Wesley had two thirty-eight caliber handguns. He further stated that he entered the tavern first, followed by Mallory, who was in turn followed by Wesley. He stated that a man at the end of the bar started shooting, and then the bartender started to wrestle with him. He said that he did not shoot the man but that he saw Wesley fire at the man with both guns.
Jordan did not testify at the trial.
The defendant's principal argument on appeal challenges the admissibility of this statement. A hearing before Circuit Judge Hugh R. O'Connell was held on June 26, 1974, in order to determine whether Jordan's statement should be suppressed at trial because it was acquired in violation of the United States Constitution. From that hearing the following facts were adduced.
On December 16, 1973, a criminal complaint and warrant 2 were issued for Kenneth Jordan, Robert Mallory, and Battites Wesley charging them with first degree murder, and attempted armed robbery parties to a crime. 3
Jordan contacted Michael Hupy, an attorney in Milwaukee and told him that he and Mallory wished to surrender themselves. Jordan and Mallory were in Chicago at the time and Mr. Hupy told Jordan by telephone not to give a statement to anyone in Chicago or when he got back to Milwaukee. Jordan was told that when he surrendered himself in Illinois he was to talk only to the judge and that he was to tell the judge merely that he wanted to come back to Wisconsin.
William Gardner, deputy district attorney for Milwaukee County, received a phone call from Michael Hupy at 2:30 p. m. on December 19, 1973. Mr. Hupy requested that he be contacted if Mallory and Jordan surrendered to the police. He told Mr. Gardner that he had been engaged to represent Mallory and Jordan.
Robert Mallory's mother contacted the Chicago Police Department. The police were told at 4:00 p. m. on December 19, 1973, that the two men would be at a certain address in the city of Chicago. Jordan, Mallory and Mallory's father were at the address at the appointed time. The police arrested the two men and read them their Miranda rights. Thomas Boyd, the arresting officer, testified that both men indicated that they understood each of these rights.
At the Chicago Police Department Jordan was asked whether he wanted to make a statement. He said that he did not want to talk and all questioning ceased. Sometime between 5:30-6:00 p. m. on the evening of the arrest, a man identifying himself as Michael Hupy, an attorney, called the station where the men were being held and told Thomas Boyd that he was "possibly" going to represent Jordan and Mallory. He asked to speak with them. Officer Boyd would not allow Hupy to speak with the prisoners because he could not verify Hupy's identity. Mr. Hupy asked if a message could be conveyed to Mallory and Jordan to tell them to waive extradition. Boyd agreed and also asked for Hupy's telephone number. He copied the attorney's name and number and gave a copy to both men. The attorney did not request that Jordan not be interrogated or that he be interrogated only in the presence of an attorney.
Jordan and Mallory waived extradition and were picked up in Chicago on December 20, 1973, by Detectives Brah and Langford of the Milwaukee Police Department. Detective Langford received an information report from a Chicago detective which stated that Jordan had declined to make a statement to the police. The prisoners showed the officers two white slips of paper with Michael Hupy's name and number and told them that when they returned to Milwaukee they were to call him.
The officers told Jordan and Mallory that on the return trip they wanted no conversation and no statements regarding the incident for which they had been arrested. There was no conversation on the trip to Milwaukee.
Upon arrival at the Police Administration Building in Milwaukee, Jordan and Mallory were placed in separate interrogation rooms. Each prisoner was allowed to call his attorney. Officer Brah turned the phone over to Jordan after dialing Michael Hupy's number. Jordan engaged in a brief conversation with someone at the attorney's office, and then was returned to an interrogation room.
Mallory was informed of his constitutional rights and was asked if he would make a statement. He declined.
Jordan was informed of his constitutional rights in accordance with Miranda, and told the officers that he had been advised of his rights by the Chicago police.
With both officer Brah and Detective Langford in the room, Jordan was advised of the nature of the charges against him. Jordan said that he was not involved. Detective Langford then read to Jordan a statement given by Battites Wesley regarding the attempted robbery and killing. Jordan read part of the statement and then said that Wesley was lying. 4 He said that he would tell the officers what really happened and proceeded to give a statement. This was the statement read to the jury at trial. As the defendant concluded giving his statement, Michael Hupy walked in the room. From the time that he was taken to the interrogation room to the completion of his statement approximately one hour had elapsed.
Detective Langford testified at the suppression hearing that the purpose of isolating Jordan in the interrogation room was so that they could question him about the murder. Jordan had just finished making an oral statement when Langford was informed that attorney Hupy was out in the hall. The two men sharply disagreed as to the conversation that transpired when they met.
According to Langford, Mr. Hupy asked where Mallory and Jordan were, and he was told that they were in separate rooms. Mr. Hupy asked...
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