Leach v. State
| Decision Date | 02 May 1978 |
| Docket Number | No. 76-103-CR,76-103-CR |
| Citation | 265 N.W.2d 495,83 Wis.2d 199 |
| Parties | William LEACH, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error. |
| Court | Wisconsin Supreme Court |
The plaintiff-in-error, William Leach (hereinafter defendant), was convicted of attempted rape, contrary to secs. 944.01(2) and 939.32, Stats. (1973), after a trial to a jury. He was sentenced to a term of five years and six months. Post-conviction motions for sentence modification and for a new trial were denied. The writs of error are taken to review the judgment of conviction and the order denying the motion for a new trial.
During the trial, evidence relating to two statements made by the defendant to police officers was admitted at trial as part of the prosecution's case-in-chief; evidence relating to two additional statements was also admitted for the purpose of impeaching the defendant's trial testimony. The defendant contends that the admission of evidence relating to three of these four statements was improper and prejudicial because the statements were made after he had asserted his right to remain silent and to have the assistance of counsel.
The defendant also claims that the evidence was insufficient to permit the jury to conclude beyond a reasonable doubt that the defendant committed this attempted rape, and that the trial court erred in failing to instruct the jury on the offense of battery, contrary to sec. 940.20, Stats., as a lesser included offense.
The incident which gives rise to this case occurred on October 14, 1974 at a laundromat located on South 13th Street in Milwaukee. A young woman was sitting alone in the laundromat when she saw the defendant enter the premises. The defendant walked to the rear of the building and briefly entered the men's room. When he came out he approached the woman and grabbed her by the lapels of her jacket. He then dragged her towards the men's room and, as she struggled to get free, he began to hit her about the head, causing her head to strike the wall.
The defendant succeeded in getting the woman into the men's room. After closing the door, the defendant ordered her to remove her pants. She refused and continued to scream and struggle. The defendant continued to strike the woman and, at one point, knocked her to the floor. The defendant thereupon unbuttoned and unzipped her pants himself. When she again stood up, the defendant pulled her underpants away from her body.
He then dragged the woman out of the men's room and out the rear of the building towards his automobile. The woman continued to struggle and when they reached the automobile, the defendant again struck her. She fell into the automobile, but managed to remove the keys from the ignition and to get free of the defendant. The defendant caught up with her as she was running away, and the struggle continued. At this point, two bystanders, hearing her screams, approached. The woman released the keys, and the defendant ran to his automobile and drove away.
The police were called, and when they arrived, the victim gave them a description of the defendant and the license plate number of the automobile. The police traced the automobile to the defendant's wife, and at about 10:45 p. m. the police arrived at the defendant's home. The defendant was taken to the police administration building and booked. During this time, the defendant made the statements which are the subject of this appeal.
Additional facts will be stated in the opinion.
Barbara B. Berman, Asst. State Public Defender (argued), and with Howard B. Eisenberg, State Public Defender, on brief, for plaintiff-in-error.
Maryann S. Calef, Asst. Atty. Gen. (argued), and Bronson C. La Follette, Atty. Gen., on brief, for defendant-in-error.
Three issues are presented on this appeal:
1. Were the defendant's statements properly admitted into evidence?
2. Was the evidence sufficient to sustain the verdict?
3. Did the trial court err in refusing to instruct the jury on battery?
The defendant contends that the statements here under review were made after his repeated assertions of the right to remain silent and his request for an attorney, and thus in violation of the dictates of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
On April 9, 1975, a Miranda-Goodchild hearing was held before Judge Leander J. Foley, Jr., to determine the admissibility of four separate statements made by the defendant on October 14 and 15, 1974, the night of and the day following the defendant's arrest. Three members of the Milwaukee Police Department testified at this hearing. The first witness was Officer William Tengel. He testified that at 10:50 p. m. on October 14, 1974, he and two other police officers went to the defendant's home to investigate the incident which had occurred at the laundromat. The reason that their investigation was directed towards the defendant at that time was that the license plate number given to the police was registered to the defendant's wife. The defendant fit the description of the woman's attacker and he was immediately arrested. After being advised of his constitutional rights and indicating that he understood them, the defendant stated that he returned home from work that evening at 8:30 p. m. The defendant told Tengel that he would say nothing further and questioning ceased. Defense counsel conceded that this statement was constitutionally admissible, and the court so found.
The second witness at the hearing, Officer Duane Luick, testified with respect to the defendant's second statement. At about 1:25 a. m. on the morning following the defendant's arrest, Luick advised the defendant of his constitutional rights and asked him if he understood those rights. The defendant stated he did. Luick then informed the defendant that he was suspected of being involved in an attempted rape and that Luick wanted to get preliminary information from him, i. e., the defendant's place of birth, educational background and membership in the military service. Luick then asked the defendant if he wanted to make any statement regarding the attempted rape. The defendant stated he did not. Luick terminated his questioning and left the interviewing room.
Luick returned to the room about 15 minutes later. At this time defendant, unprompted by any questioning, made a second statement to the effect that he had been drinking too much and that when he drinks he cannot control himself. Luick asked the defendant if he had anything further to say, and the defendant replied that he wanted to confer with an attorney before making any further statements. Questioning then ceased, and Luick left the room.
The court concluded that the Miranda warnings given to the defendant at 1:25 a. m. were effective at 1:50 a. m. when the defendant made this second statement, and that the statement was voluntary.
Detective Robert Puls testified as to the defendant's third statement. Shortly after he made the statement to Officer Luick, the defendant was being escorted to another area of the Safety Building and ultimately to the city jail when he was intercepted by Detective Puls. Puls had been assigned to interview the defendant regarding his possible involvement in several unsolved south side murders. Puls took the defendant to another interviewing room and advised the defendant of his assignment. Puls also advised the defendant of his constitutional rights. Puls then stated that he would not ask the defendant questions relating to the attempted rape charge but would limit his questions to the unsolved murders. The defendant responded that he was not involved in any murders but that he would talk to the detective.
From about 2:00 a. m., when this interview was commenced, to about 2:30 a. m., the conversation was limited to the defendant's general history, particularly the models and makes of automobiles the defendant had owned. (Puls testified that various automobiles had been seen in the vicinity of the various murders, and that his purpose was to determine if the defendant's automobile matched their descriptions.) Puls testified that at about 2:30 a. m., the defendant, who had therefore been alert and coherent, began to get emotional and to cry. The defendant then informed Puls that he wanted to make a statement regarding the attempted rape. Puls reminded the defendant that he had previously stated he wanted an attorney present before being subjected to further inquiry on this matter, but the defendant responded that he no longer wanted an attorney and that he just wanted to "get it all off his chest." Puls left the room and shortly thereafter returned with another detective. After again being advised of his rights, Puls testified that the defendant made the following statement:
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