LaTender v. State, 75-852-CR

• Decision Date: 03 May 1977
• Docket Number: No. 75-852-CR,75-852-CR
• Citation: 77 Wis.2d 383,253 N.W.2d 221
• Parties: John Mark LaTENDER, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.
• Court: Wisconsin Supreme Court

Page 221

253 N.W.2d 221

77 Wis.2d 383

John Mark LaTENDER, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.

No. 75-852-CR.

Supreme Court of Wisconsin.

Argued Feb. 1, 1977.

Decided May 3, 1977.

Mark Lukoff, Asst. State Public Defender, with whom on the brief was Howard B. Eisenberg, State Public Defender, for plaintiff in error.

John M. Schmolesky, Asst. Atty. Gen., with whom on the brief was Bronson C. La Follette, Atty. Gen., for defendant in error.

HEFFERNAN, Justice.

The defendant, John Mark LaTender, after a trial by jury, was found guilty of second degree murder, contrary to sec. 940.02, Stats., and of burglary, contrary to sec. 943.10. He was sentenced to a term not to exceed twenty-two years for the murder conviction and a term not to exceed ten years for the burglary conviction, with the terms to be served concurrently. Postconviction motions for sentence modification and for a new trial were denied. The writs of error are taken to review the judgment of conviction and sentence and the order denying postconviction motions.

Two confessions of guilt were admitted into evidence, and one was excluded. The defendant argues that the inadmissible confession in regard to the murder weapon so tainted the subsequent confession that the admission of that confession constituted prejudicial error warranting a new trial.

It is also argued that the evidence was insufficient to permit the jury to conclude beyond a reasonable doubt that a burglary was committed by the defendant.

We disagree with both of these contentions and affirm the judgment and order of the trial court.

The case arises out of the murder of Father Marcellus M. Cabo, the priest of St. Anthony's Church in Neopit, Wisconsin, which occurred in the course of a burglary at the rectory where Father Marcellus resided.

The facts elicited at a Miranda-Goodchild hearing prior to trial and at a suppression hearing during trial show that, in the early morning hours of November 28, 1974, LaTender went to the office of the Menominee County Sheriff's Department and asked the radio dispatcher to call the sheriff's officers who were then on patrol. LaTender told the radio dispatcher that he wished to speak to the officers. Officers LeRoy Waupoose and Wilbur Wilber, on arrival at the office, escorted LaTender into the back room of the station. Without any prior questioning, LaTender volunteered the statement to the officers, "I killed Father Marcellus." Waupoose responded, "You did," to which the defendant nodded, "Yes." This confession, which was introduced at trial, was held to be admissible as a spontaneous and volunteered statement. Its admissibility is not challenged on this appeal.

After that statement was given, Waupoose went to the rectory to confirm LaTender's statement, while Wilber remained at the station with LaTender.

Although the record fails to show any formal arrest at this time, it is clear from the record that LaTender was not free to go and was in custody of Officer Wilber. Wilber asked the defendant what he did with the murder weapon, to which the defendant responded that he threw it in the river by the dam. No Miranda warnings were given to the defendant, and the trial judge properly excluded this inculpatory statement and denied its admission into evidence.

While Waupoose was at the rectory and LaTender was in the custody of Wilber, the radio dispatcher called Chief Deputy Tourtillott and asked that he come to the station. Prior to his arrival at the station, the crime in respect to Father Marcellus had not been related to Tourtillott. He stated that Marcellus' name was not mentioned on the phone.

When Tourtillott arrived at the main room of the station, Wilber told him that LaTender wanted to talk to him. Wilber then told LaTender to tell Tourtillott "what he told us." (Emphasis supplied) Tourtillott testified that, when Wilber made that statement, he, Tourtillott, said, "(W)ait, let's go in the back room." As Tourtillott, Wilber, and the defendant were walking down the hallway, some fifteen or twenty seconds after Wilber's statement and after Tourtillott's admonition to wait, LaTender said that he had killed Father. Tourtillott, because he had not heard clearly, asked, "(W)hat," and the defendant stated, "I done in Father." The Miranda rights were thereafter, for the first time, read to LaTender.

In respect to each of these confessions, it is apparent from the mere recitation of the surrounding facts that they were not coerced or involuntary statements, as proscribed by Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), and State ex rel. Goodchild v. Burke, 27 Wis.2d 244, 133 N.W.2d 753 (1965). Accordingly, the rule of Schwamb v. State, 46 Wis.2d 1, 173 N.W.2d 666 (1970), upon which the Public Defender relies, is inapplicable. Therein we said:

" . . . the admission of a coerced confession cannot be deemed harmless error even in the presence of other evidence which might well have constituted independent proof of guilt beyond a reasonable doubt." (at 14, 173 N.W.2d at 672)

In that case we drew a sharp distinction between the voluntariness of a confession which is mandated by Goodchild and the procedural requirements of Miranda, which are intended to preclude the admissibility of confessions, even though voluntary, if the confessor, who is subject to custodial interrogation, is not first made aware of his rights under the Fifth and Sixth Amendments.

There is not a scintilla of evidence to indicate that any of the confessions were coerced; and, accordingly, the rule of Schwamb, which precludes the application of the harmless-error rationale to coerced confessions, is totally inapplicable in the instant case.

The facts in this case show that the initial statements of LaTender made when he first spoke to Waupoose and Wilber were not only voluntary but volunteered. At that time LaTender, on his own volition, came to the station and asked to speak to the officers. Without being placed in custody, without being the focus in any way of an investigation, he spontaneously stated that he killed Father Marcellus. After that statement was made, it appears reasonable to conclude from the record that he was in custody and thereafter no interrogation was appropriate unless he had at first been advised of his rights under Miranda. Nevertheless, in response to questioning by Wilber, LaTender told where he had disposed of the weapon. This constituted custodial interrogation and was properly suppressed by the trial judge, and that confession was not put before the jury.

The last statement that made to Chief Deputy Tourtillott was clearly voluntary; and, moreover, the defendant's rights under Miranda were not infringed. We so conclude, because that statement, too, was volunteered. See Miranda v. Arizona 384 U.S. 436, 478, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). LaTender was specifically admonished to wait with any statement until they had reached the back room. Instead of heeding that admonition, LaTender blurted out that he had killed Father Marcellus. Under these facts, the strictures of Miranda are not applicable.

The defendant on this appeal appears to argue that, because the statement to Wilber in respect to the disposition of the murder weapon violated Miranda, the subsequent statement made to Tourtillott constituted the "fruit of the poisonous tree" and was, therefore, inadmissible. In the defendant's brief, it is asserted:

"Once it is determined that a statement was improperly obtained from an accused, it follows that any other evidence, including a subsequent confession obtained as a result of the illegality is equally inadmissible unless the taint was obviated."

It is quite clear, putting aside the volunteered nature of the last statement, that the statement given to Wilber was not the lever which induced LaTender to talk to Tourtillott. The initial statement of Wilber was addressed to LaTender when Tourtillott came to the station. Wilber testified, "I asked him to . . . tell Officer Tourtillott what he had told Mr. Waupoose and myself." The reference clearly was not to the prior statement in regard to the disposition of the weapon, for only Wilber was present at that time. The reference was to the volunteered and constitutionally antiseptic statement originally given to Waupoose and Wilber. That fact alone would not necessarily obviate compliance with Miranda for LaTender was in custody. However, whatever taint there may have been from the prior statement in respect to the knife was wholly erased when Tourtillott told LaTender to wait until they got into the back room, but nevertheless LaTender stated that he had killed Father Marcellus. This was a totally volunteered statement and was completely independent of the statement in respect to the weapon and free of any taint that might have been lent to the proceedings by the improper question earlier posed by Wilber. We conclude, therefore, that the trial court properly admitted the two volunteered admissions and properly excluded the statement elicited by Wilber in violation of Miranda.

This court will sustain a trial court's finding in respect to Miranda-Goodchild determinations unless such finding is contrary to the great weight and clear preponderance of the evidence. Norwood v. State, 74 Wis.2d 343, 246 N.W.2d 801 (1976); Grennier v. State, 70 Wis.2d 204, 234 N.W.2d 316 (1975); Blaszke v. State, 69 Wis.2d 81, 230 N.W.2d 133 (1975). The evidence adduced at the suppression hearings demonstrates that the trial judge's rulings in respect to the admissibility of LaTender's statements were correct.

Smith v. Estelle, 527 F.2d 430 (5th Cir. 1976), discusses circumstances in which the harmless-error rule is applicable to confessions obtained in violation of Miranda. That case, at 432, states:

"Confessions unlawful but not involuntary admitted into evidence but obtained without having given the warnings required by Miranda are subject to the...