Neuenfeldt v. State

• Decision Date: 30 November 1965
• Parties: Rudolph Martin NEUENFELDT, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 252

138 N.W.2d 252

29 Wis.2d 20

Rudolph Martin NEUENFELDT, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

Supreme Court of Wisconsin.

Nov. 30, 1965.

Irving D. Gaines, Milwaukee, for plaintiff in error.

Bronson C La Follette, Atty. Gen., Madison, Hugh R. O'Connell, Dist. Atty., Ben J. Wiener, Deputy Dist. Atty., Gerald P. Boyle, Asst. Dist. Atty., Milwaukee, for defendant in error.

HALLOWS, Justice.

The first issue raised is whether the accused was denied his constitutional right to have the assistance of counsel prior to giving the confessions to the policy. It is argued the police denied the accused the right to counsel by refusing to let him contact his son-in-law and give him the card with an attorney's name, address and telephone number on it. There is testimony no such incident happened and neither the son-in-law testified nor was the slip of paper put in evidence. Nor was it explained how he would have on his person ready for the occasion a card or slip of paper with an attorney's name, address and telephone number thereon. There is positive testimony the accused never communicated to the detective in whose custody he was that he wanted to talk to his son-in-law or wanted an attorney. The request for an attorney was not proven. Such a request, however, need not be a formal one, but the desire to seek or have the advice of counsel must be communicated in some manner to him who has custody of the accused before it can be said there was a denial of counsel.

It is argued that even though a request for counsel was not proven, nevertheless the accused was entitled to counsel at the time of interrogation at the safety building under the doctrine of Escobedo v. State of Illinois (1964), 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, because he was then a suspect. This court is now asked to re-examine its interpretation of that decision and hold that when the interrogation by the police reaches the point where it becomes accusatorial in nature the accused is entitled to the assistance of counsel, whether requested or not, and statements taken by the police in the absence of counsel are inadmissible in evidence at the trial even though they may be voluntarily given.

In Brown v. State (1964), 24 Wis.2d 491, 129 N.W.2d 175, 131 N.W.2d 169, cert. denied in 379 U.S. 1004, 85 S.Ct. 730, 13 L.Ed.2d 706, we distinguished Escobedo and confined it to its facts. It is true Justice White in his dissenting opinion, 378 U.S. p. 495, 87 S.Ct. p. 1767, pointed out the decision was 'another major step in the direction of the goal which the Court seemingly has in mind--to bar from evidence all admissions obtained from an individual suspected of crime, whether involuntarily made or not.' However, we were unwilling to add another step and extend Escobedo to the facts of the Browne case where no request had been made for counsel. We further pointed out that in Holt v. State (1963), 17 Wis.2d 468, 117 N.W.2d 626, we stated there was no hard and fast rule that an accused must be informed by the police of his constitutional right not to incriminate himself as a condition precedent to admission into evidence of admissions or confessions made to the police and the failure to so advise alone was not sufficient upon which to ground inadmissibility, but might be under Escobedo if coupled with other circumstances.

In State ex rel. Goodchild v. Burke (1965), 27 Wis.2d 244, 133 N.W.2d 753, we re-examined our position in respect to Escobedo, especially as that case was interpreted by People v. Dorado (Cal.1965), 42 Cal.Rptr. 169, 398 P.2d 361. We concluded that Dorado pushed the outer limits of Escobedo and extended it to a case where no request for counsel was made during the interrogation. We unequivocally rejected the Dorado interpretation of Escobedo.

Since that decision several other courts have followed Dorado and we are asked to reconsider our position. Recently, in State v. Neely (1965), 239 Or. 487, 395 P.2d 557, 398 P.2d 482, the Oregon court applied Escobedo to a situation where the accused was not advised of his right to remain silent prior to the police's taking a confession from him. Likewise, in United States ex rel. Russo v. State of New Jersey, et al. (3rd Cir. May 1965), 351 F.2d 429, ¹ that court interpreted Escobedo to require counsel for the suspect when the interrogation process shifted from the investigatory to the accusatory stage unless intelligently waived by the suspect and such waiver was not to be presumed from the mere failure to request. In a similar vein, Escobedo has been construed by State v. Mendes (1965), R.I., 210 A.2d 50. These cases represent what is known as the soft approach and go beyond the holding of Escobedo and attempt to forecast what the United States supreme court might decide in the future.

On the other hand the majority of the courts which has considered the Escobedo problem has confined its application to the facts of that case as did this court and has required a request for counsel to be made by the accused. United States v. Childress (7th Cir. 1965), 347 F.2d 448; Edwards v. Holman (5th Cir. 1965), 342 F.2d 679; State v. Worley (1965), 178 Neb. 232, 132 N.W.2d 764; King v. State (Del. July 23, 1965), 212 A.2d 722; People v. Hartgraves (1964), 31 Ill.2d 375, 202 N.E.2d 33, cert. denied, 380 U.S. 961, 85 S.Ct. 1104, 14 L.Ed.2d 152; Sturgis v. State (1964), 235 Md. 343, 201 A.2d 681; State v. Scanlon (1964), 84 N.J.Super. 427, 202 A.2d 448; People v. Gunner (1965), 15 N.Y.2d 226, 257 N.Y.S.2d 924, 205 N.E.2d 852; United States v. Cone (2d Cir. Nov. 22, 1965), 354 F.2d 119; United States v. Robinson (2d Cir. Nov. 22, 1965), 354 F.2d 109.

We have re-examined the arguments for the extension of Escobedo, namely, that it is unfair and not due process under our accusatorial system to admit in evidence a statement from one who might be unknowledgeable of his right to remain silent or to request the aid of counsel; that the new concept of the 14th Amendment due-process clause stresses greater reliance on the presence or absence of counsel as a factor in determining the voluntariness of the confession; and that the request for counsel requirement favors those who are knowledgeable and prejudices those who are ignorant and indigent. We are aware of the expansion of the 6th Amendment and its protection from the assistance of counsel for the defense in criminal prosecutions to the aid of counsel in the interrogation process when the focus is shifted to a particular suspect.

We have heard no reasons yet why advice given by law-enforcement officers to an accused of his constitutional right to remain silent and to aid of counsel, and that whatever he may say might be used against him upon the trial does not adequately take the place of the aid of counsel at the accusatorial state of investigation. Nor have we been given any enlightenment if counsel is absolutely necessary at that stage of the investigation how as a practical matter an indigent is going to be assigned counsel unless counsel is going to be assigned automatically upon every arrest. Until the United States supreme court gives us more guidance, we are inclined to stay with our own decisions and not create additional problems by extending Escobedo beyond its facts. ²

The accused contends his confession was coerced and thus involuntary and its admission was a violation of his right against self incrimination guaranteed by the 5th Amendment to the United States Constitution. The trial court found the confessions were not only trustworthy but 'freely and voluntarily given and without any lack of due process so far as fully apprising him of his constitutional rights not to incriminate himself.' Because of this finding by the court there was no constitutional-procedural defect as was involved in Jackson v. Denno (1964), 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed 908; and State ex rel. Goodchild v. Burke (1965), 27 Wis.2d 244, 133 N.W.2d 753. In State v. Hoyt (1964), 21 Wis.2d 284, 124 N.W.2d 47, 128 N.W.2d 645, we pointed out a confession to be saved from constitutional contamination must be the result of a deliberateness of choice under the decisions of the United States supreme court. This concept that a confession to be admissible in evidence must be the voluntary product of a free and unconstrained will was followed in Pulaski v. State (1964), 24 Wis.2d 450, 129 N.W.2d 204, and State v. Brown (1964), 25 Wis.2d 413, 130 N.W.2d 760. Although the rule of voluntariness is easy to state, the determination of what is a voluntary confession in a given-fact situation may be difficult. In evaluating the facts for such purpose, the principle adopted by the United States supreme court is to consider the 'totality of the circumstances'--all the facts surrounding the making of the confession. Fikes v. State of Alabama (1957), 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246.

Many of the facts urged in the instant case as constituting psychological factors of coercion were made and considered in Pulaski v. State, supra. However, each case must be considered on its particular combination of facts. Here, it is claimed the accused was held incommunicado from the time of his arrest approximately 4:30 p. m. until he confessed about 11:30 p. m.; during which time he was not given any food or drink and was harassed and browbeaten by numerous detectives who continuously shuffled in and out of the interrogation room which was small in size. It is argued he was small in stature, being five feet four inches tall and by contrast the detective primarily in charge of the interrogation was tall and heavy, had only finished two years of Boy's Technical High School, was 53 years of age, wore glasses because of blindness in one eye, weighed 130 pounds and was an unemployed electrician. It is also argued that because by 11:30 that night he was so exhausted and wanted to get some sleep, and because of pressure by the detectives and of a threat of...