R.E.W. v. State
| Decision Date | 16 October 1986 |
| Citation | 397 N.W.2d 157,134 Wis.2d 454 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. In the Interest of R.E.W., a person under age 18: R.E.W., Appellant, v. STATE OF WISCONSIN, Respondent. 86-0471. |
| Court | Wisconsin Court of Appeals |
Appeal from an order of the circuit court for Rock county: Patrick J. Rude, Judge.
Before GARTZKE, P.J., DYKMAN, J., and SUNDBY, J.
On July 29 and 30, 1985, an investigating team of police officers questioned R.E.W., a juvenile fourteen years old, while in police custody, about the recent homicide of a nine-year-old Town of Beloit boy. R.E.W. was charged with the murder in a delinquency petition. The trial court denied his motion to suppress his in-custody written statement and oral statements. A jury found that R.E.W. committed a delinquent act of first-degree murder and a dispositional order was entered on the verdict. On appeal two issues are presented: (1) Did R.E.W. knowingly, intelligently and voluntarily waive his right against self-incrimination and his right to counsel; and (2) did sec. 971.12(1), Stats., require the trial court to sequester the jury. Because we hold that R.E.W. did not knowingly, intelligently and voluntarily waive his rights, we reverse and remand for a new trial. The majority holds that sec. 972.12(1) does not require that the trial court sequester the jury.
R.E.W. admits he was given Miranda 1. warnings prior to interrogation and that he agreed to answer questions. He asserts, however, that because of his immature age, lack of experience with police, his emotional state, the protracted interrogation and lack of his grandmother's advice and support, he did not knowingly, intelligently and voluntarily waive his rights and make the statements.
The trial court concluded that R.E.W.'s constitutional rights were not violated. Whether R.E.W. voluntarily and knowingly waived the privilege against self-incrimination is a constitutional fact. State v. Woods, 117 Wis.2d 701, 715-16, 345 N.W.2d 457, 465 (1984) ().
The trial court made no findings as to the historical facts but those facts relevant to the validity of R.E.W.'s waiver and the voluntariness of his in-custody statements are undisputed. We may therefore determine the 'constitutional' facts without deference to the trial court's determination. See State v. Williams, 104 Wis.2d 15, 22, 310 N.W.2d 601, 605 (1981) ()
Whether an accused knowingly, intelligently and voluntarily waived his or her Miranda rights depends on the totality of the circumstances. Woods, 117 Wis.2d at 722, 345 N.W.2d at 468. Whether a confession or self-incriminating statement is voluntarily made is determined by the same test. Theriault v. State, 66 Wis.2d 33, 39, 223 N.W.2d 850, 853 (1974); Miller v. Fenton, 474 U.S. ----, 88 L. Ed.2d 405 (1985). This is the test to be applied to custodial statements or confessions of juveniles. Theriault, supra. In Fare v. Michael C., 442 U.S. 707, 725 (1979), the Supreme Court stated:
This totality-of-the circumstances approach is adequate to determine whether there has been a waiver even where interrogation of juveniles is involved. . . . The totality approach . . . includes evaluation of the juvenile's age, experience, education, background, and intelligence, and [inquiry] into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.
We therefore apply the totality approach. 2.
The circumstances of R.E.W.'s alleged Miranda waiver and his in-custody interrogation to be considered in their totality are the following:
1. Miranda Warnings. Within hours after the body of the victim was discovered, R.E.W. was questioned by investigating officers. The officers did not give him Miranda warnings since he was not a suspect. Two officers took R.E.W. into custody on July 29 at his home and, from a standard card, read him his Miranda warnings en route to the Town of Beloit police station. R.E.W. told the officers he understood his rights and would answer their questions. After approximately three and one-half hours R.E.W. signed an eight-page statement. The statement contained a written Miranda waiver which R.E.W. signed and his grandmother witnessed. It also contained a statement that no force, threats or promises were made and that R.E.W. made the statement of his own free will.
The officers did not believe R.E.W.'s written statement and continued to question him. At approximately 4:30 p.m. the officer in charge called in a member of the investigating team, a captain of detectives of the City of Beloit police department, to continue the interrogation. The captain did not give R.E.W. Miranda warnings but advised him to keep in mind the rights which had been read to him. Upon completion of the interrogation an intake procedure was initiated under ch. 48, subch. V, Stats. The Temporary Physical Custody Request form indicates R.E.W. was given his rights under sec. 48.243, Stats., at that time although no signed acknowledgement of notice of those rights is in the record. The interrogation resumed at the county jail the following morning and one of the officers again read R.E.W. his Miranda rights. R.E.W. said he understood his rights and signed a waiver. He was released to the custody of his grandmother. The following evening he was again taken into custody and charged in a delinquency petition with having committed first-degree murder. He was then represented by counsel and invoked his right to remain silent.
These procedures were adequate to apprise a competent adult of his or her rights. However, the mere assent of a fourteen-year-old child to police questioning after being read the formal Miranda warnings does not establish a prima facie case of a knowing, intelligent and voluntary waiver of the child's Miranda rights. 3. In Haley v. Ohio, 332 U.S. 596, 601 (1948), the Supreme Court, considering the alleged voluntary confession of a fifteen-year-old boy, said:
But we are told that this boy was advised of his constitutional rights before he signed the confession and that, knowing them, he nevertheless confessed. That assumes, however, that a boy of fifteen, without aid of counsel, would have a full appreciation of that advice and that on the facts of this record he had a freedom of choice. We cannot indulge those assumptions. Moreover, we cannot give any weight to recitals which merely formalize constitutional requirements. Formulas of respect for constitutional safeguards cannot prevail over the facts of life which contradict them. They may not become a cloak for inquisitorial practices and make an empty form of the due process of law for which free men fought and died to obtain.
While age is but one of the circumstances to be considered in the totality-of-the-circumstances approach, Fare, 442 U.S. at 725, it is a factor which weighs heavily when the juvenile is very young. In Haley, supra, the age of the suspect (fifteen years) was 'the crucial factor.' Gallegos v. Colorado, 370 U.S. 49, 53 (1962). In the latter case, decided prior to Miranda, the court noted:
[A] 14-year-old boy, no matter how sophisticated, is unlikely to have any conception of what will confront him when he is made accessible only to the police. That is to say, we deal with a person who is not equal to the police in knowledge and understanding of the consequences of the questions and answers being recorded and who is unable to know how to protect his own interests or how to get the benefits of his constitutional rights.
Id., 370 U.S. at 54. A fourteen-year-old child may knowingly, intelligently and voluntarily waive Miranda rights, but the state's burden to establish capacity to waive constitutional rights is especially heavy when the juvenile is so young. More than a formal recitation of Miranda rights is required.
2. Personal Characteristics. R.E.W. was born January 8, 1971. His mother died eight days after he was born. His grandmother became his legal guardian and raised him as her son. She described his early development as normal with no significant problems. She believed him to be a happy, well-adjusted child. He is average in scholastic ability. 4.
At the dispositional hearing the court received a psychological assessment and evaluation report of R.E.W. According to the report, R.E.W. functions intellectually within the low average ranges. Without having things presented simplistically, R.E.W. cannot comprehend problems or outcomes. Emotionally he is a highly immature, dependent young man with serious emotional problems but not mentally ill or with sociopathic or overt criminal tendencies. His emotional age falls within the nine-year-old range. Test data shows him to be highly anxiety ridden with his anxiety triggered by authority confrontations, that he is a follower who wants desperately to be accepted, that he has no internalized coping mechanisms and only a helter-skelter support system, and that he deals with problems by withdrawing into fantasy and taking the easy way out by lying, avoiding, blaming or just remaining silent. These personal characteristics of R.E.W. negate a conclusion that he had the capacity to knowingly, intelligently and voluntarily waive his Miranda rights. They indicate a person especially vulnerable to manipulation by authority figures, such as the police, and increase the probability that his waivers were not made...
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