Phillips v. State

• Decision Date: 07 January 1966
• Citation: 29 Wis.2d 521,139 N.W.2d 41
• Parties: Manuel Robert PHILLIPS, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 41

139 N.W.2d 41

29 Wis.2d 521

Manuel Robert PHILLIPS, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

Supreme Court of Wisconsin.

Jan. 7, 1966.

Rehearing Denied April 12, 1966.

Philip L. Padden, Milwaukee, for plaintiff in error.

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

HALLOWS, Justice.

The defendant initially contends the confessions should not have been admitted in evidence because he was denied counsel in violation of the 6th Amendment to the United States constitution which is made applicable to the states by the 14th Amendment. Gideon v. Wainwright (1963), 372 U.S. 335, 342, 83 S.Ct. 792, 9 L.Ed.2d 799. This contention of the defendant raises an Escobedo-type of problem. ¹ The defendant claims he asked for counsel during the interrogation after his arrest and the police denied his request and additionally argues if we find he did not request counsel, we should reconsider our interpretation of Escobedo and follow U. S. ex rel. Russo v. New Jersey, et al. (3rd Cir. May, 1965), 351 F.2d 429, which excluded a confession made during the accusatorial stage of the interrogation although no request for counsel was made. Recently in Neuenfeldt v. State (Nov. 30, 1965), 29 Wis.2d 20, 138 N.W.2d 252, we reconsidered our interpretation of Escobedo as stated in Browne v. State (1964), 24 Wis.2d 491, 129 N.W.2d 175, 131 N.W.2d 169, and in State ex rel. Goodchild v. Burke (1965), 27 Wis.2d 244, 133 N.W.2d 753. We there held that Escobedo should be confined to its facts including the request for counsel and its denial. Russo, which applied Escobedo retrospectively, was discussed and its doctrine rejected with the statement that this court would adhere to its prior interpretation until the supreme court of the United States made a further pronouncement on the problem which it now has under consideration.

Whether the defendant requested counsel during interrogation and was refused by the police is a mixed question of fact and constitutional law which was passed upon by the trial court at the hearing on the admissibility of the confession. But since the question is whether a constitutional right has been violated, it is the subject of our independent determination on this review. Ashcraft v. State of Tennessee (1944), 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192; Spano v. People of State of New York (1959), 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265.

The evidence as is usual on such an issue is in conflict. Under the defendant's version he asked about 2 p. m. to telephone his mother so he might get an attorney and was put off until after he made a confession. His mother had no phone and he did not live at home, but the defendant explained he wanted to call a neighbor who would reach his mother. His testimony as to which detectives said what is somewhat contradictory. On the other hand the testimony of the detectives is sufficiently convincing although minimum on this important point. One detective did not recall the defendant's requesting the use of the phone and the other testified the request was made after the defendant confessed. It is clear the defendant testified he knew he had a right to the advice of counsel and he admits he was advised of his constitutional right to remain silent. There is dispute in the evidence, however, whether the defendant was advised he could have counsel. At the conclusion of the testimony, the trial judge found the confession was a free and deliberate choice of the defendant, but more important on this issue, that under the circumstances the confession was 'constitutionally antiseptic and not in violation of any of his constitutional rights.' Thus while the trial court did not make a specific finding that a request was not made, it did make an ultimate fact-finding which we think under the circumstances negated the making of the request for counsel. From the record it is apparent such effect was understood by the defendant. The determination of the question of voluntariness turns primarily on credibility, and on this record we are inclined to agree with the finding of the trial court. We suggest, however, that for the aid of this court in its determination of a constitutional question and to avoid a possible hearing on collateral attack, that trial courts make specific and complete findings of the facts underlying a constitutional question. State ex rel. Goodchild v. Burke (1965), 27 Wis.2d 244, 133 N.W.2d 753.

The defendant next contends the confessions were not his free and voluntary act and were obtained by mental coercion and to admit them in evidence was violation of his right against self-incrimination guaranteed by the 5th Amendment of the United States constitution. In considering the voluntariness of a confession in reference to the 5th Amendment now applicable to the states, the federal standard must be used to determine the deliberateness of choice. In Neuenfeldt, supra, we pointed out that in State v. Hoyt (1964), 21 Wis.2d 284, 124 N.W.2d 47, 128 N.W.2d 645, '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 Ala. (1957), 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246.'

The individual factors affecting voluntariness and contributing to the totality of the circumstances include denial of rights, questioning, threats, status of accused, nature of coercion, second confession, special techniques and previous experience with police. Defender Newsletter, Vol. II, No. 5, Sept. 1965. The process of determining voluntariness is one of weighing the circumstances of the police pressure against the power of resistance of the person confessing. What is overpowering to a weak mind or a first offender may be ineffectual against an experienced criminal. Stein v. People of State of New York (1953), 346 U.S. 156, 185, 73 S.Ct. 1077, 97 L.Ed. 1522.

The defendant's claim is based upon two items of evidence; first, that the detectives just prior to the oral confession confronted the defendant with a package of cigarettes and told him the package had fingerprints on it which could be analyzed and second, in order to get the written confession, that the detective threatened to take his girl friend into custody on a charge she and the defendant were living together. The defendant admits he knew he was entitled to counsel and the police advised him of his constitutional right to remain silent. He was not subjected to any threats of physical abuse and was not promised any favors for confessing. There is some conflict in the testimony over whether the defendant was given any food. The defendant claims he was not given any but allowed to drink water and smoke cigarettes. A detective testified the defendant was given a sandwich and a cup of coffee. We think this factor is of no great significance under the circumstances. Under defendant's version there was no disregard by the police of a basic need for nourishment which if unsatisfied contributed to coercion. The interrogation lasted at the most three and a half hours and was not vigorous or pressing. The defendant was not questioned relentlessly or by relays of interrogators.

The factors of psychological pressure, other than the package of cigarettes and the girl-friend incident, were the usual 'known hostile forces' found in police-station interrogations which are best described in Culombe v. Connecticut (1961), 367 U.S. 568, 575, 81 S.Ct. 1860, 1864, 6 L.Ed.2d 1037 as: 'In the police station a prisoner is surrounded by known hostile forces. He is disorientated from the world he knows and in which he finds support. He is subject to coercing impingements, undermining even if not obvious pressures of every variety.' The defendant who had been convicted twice before, once for robbery and once for shoplifting, was a man of 22 years of age. The record does not show the extent of his education, but it does indicate he understood his constitutional rights. The statements of the police respecting the fingerprints on the package of cigarettes while accusatorial in nature did not constitute such a threat as to control and coerce the mind of the defendant and render the confession involuntary. On must distinguish between motivation and a compelling overpowering mental force. The line of demarcation between coercion and voluntariness is hard to draw and perhaps only a sense of fairness and justice rather than a philosophical approach can find it in the 'totality of the circumstances.'

We think the statement in reference to the girl friend was motivation more than coercion because the defendant in his testimony stated he considered it was threat more to her than to him. This threat is dangerously close to the threats disapproved in Lynumn v. State of Illinois (1963), 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 [she would be disentitled to public assistance (ADC) and would lose custody of her child]; in Rogers v. Richmond (1961), 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (to take accused's wife into custody); and in Haynes v. State of Washington (1963), 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (refusal to allow suspect to call his wife). But we consider the...