Schultz v. State

• Decision Date: 05 April 1978
• Docket Number: No. 76-208-CR,76-208-CR
• Parties: Harvey J. SCHULTZ, Plaintiff in error, v. STATE of Wisconsin, Defendant in error.
• Court: Wisconsin Supreme Court

Page 245

264 N.W.2d 245

82 Wis.2d 737

Harvey J. SCHULTZ, Plaintiff in error, v. STATE of Wisconsin, Defendant in error.

No. 76-208-CR.

Supreme Court of Wisconsin.

Submitted on Briefs March 8, 1978.

Decided April 5, 1978.

The plaintiff in error (hereinafter defendant) was convicted of first degree murder after a trial to a jury. Defendant was sentenced to life imprisonment. The writs of error are taken to review the judgment of conviction and the order denying the motion for a new trial.

This case arises out of the death of Mary Ann Schultz, the wife of the defendant, Harvey J. Schultz. In the early morning of October 3, 1975, Policewoman Marian Becker was on duty at the switchboard of the Fond du Lac Police Department. At 5:08 a.m. she received an anonymous phone call during which the caller stated "I want to report a murder." The caller gave an address, stated, "woman lying on floor," and hung up.

Police officers were immediately dispatched to the address. After receiving no response at the door the officers entered the home. One of the officers announced himself as a police officer and proceeded upstairs. When he got to the top of the stairs, the officer heard what sounded like a young person crying in a room at the end of the hall. He entered this room and discovered a young girl and boy. He told the children to stay in the room, and then informed the other officers that there appeared to be a dead person in the master bedroom. The officer checked the body for vital signs but found none.

An inspection of the premises revealed that the telephone wires had been disconnected. A note, flashlight and log book were found on a kitchen counter. The body was removed to St. Agnes Hospital where an autopsy was performed.

The defendant's automobile was found abandoned at a wayside rest area in the township of Lomira later that same day. At 8:00 that evening, the defendant entered R & B's Tap in Lomira and ordered a Pepsi Cola. He then requested the tavernkeeper to call the police. When the police arrived, the defendant was placed under arrest. While being conveyed to the Fond du Lac Police Station, the defendant informed the arresting officer that he had taken a large quantity of aspirin. The defendant was then taken to the emergency room at St. Agnes Hospital where his stomach was pumped.

The defendant's stomach was pumped at 9:55 p.m. The procedure took between twenty minutes to a half an hour, but the defendant was kept under observation in the emergency room until about 11:30 p.m. The defendant was then moved to another room in the hospital where he was advised of his constitutional rights. After acknowledging his rights, the defendant gave the officers a signed statement in which he confessed killing his wife. During the next few days, several of defendant's relatives received letters bearing the defendant's name, in one of which the defendant told his mother- and father-in-law, "Due to all the things you are trying to pull me and Mary apart for years . . . . I will take a life from you and give her to God."

On November 11, 1975 an evidentiary hearing was conducted to determine the voluntariness of the hospital statement. The trial court concluded that the statement was voluntary and thus admissible.

The jury returned a verdict of guilty. Post conviction motions were denied and this appeal followed.

Howard B. Eisenberg, State Public Defender, and Jack E. Schairer, Asst. State Public Defender, submitted brief for plaintiff in error.

Bronson C. La Follette, Atty. Gen., and Maryann S. Calef, Asst. Atty. Gen., submitted brief for defendant in error.

HANLEY, Justice.

Three issues are presented on this appeal:

1. Did the trial court usurp the prosecutorial function during the course of the trial?

2. Was the defendant's statement admissible at trial?

3. Was the evidence sufficient to sustain the verdict?

Judicial Usurpation of Prosecutorial Functions

The defendant contends that the trial court coached the prosecuting attorney and otherwise improperly assumed an adversarial role. The defendant lists fourteen incidents to support this argument which are grouped by the state as follows: first, the court's sua sponte interrogation of witnesses; second, the court's admonitions in the absence of defense objections; and third, the court's comments and directives in response to defense objections. The examples given by the defendant are fully set forth in his brief at pp. 15-23, and have been reviewed. There is no need to repeat them here.

Recently, in State v. Asfoor, 75 Wis.2d 411, 437, 249 N.W.2d 529, 540, (1976) this court stated:

"Sec. 906.14(2), Stats., governs the interrogation of witnesses by a judge. While a judge may question any witness, he must be careful not to function as a partisan or advocate. State v. Garner, 54 Wis.2d 100, 104, 194 N.W.2d 649, 651 (1972). '(T)he judge should not take an active role in trying the case for either the state or the defense.' Id. In this case the judge took a somewhat active role in questioning witnesses. There is a fine line which divides a judge's proper interrogation of witnesses and interrogation which may appear to a jury as partisanship. A trial judge must be sensitive to this fine line. However, the trial judge is more than a mere referee. The judge does have a right to clarify questions and answers and make inquiries where obvious important evidentiary matters are ignored or inadequately covered on behalf of the defendant and the state. A judge does have some obligation to see to it that justice is done but must do so carefully and in an impartial manner." (Emphasis supplied).

By a similar analysis, this court has on several occasions rejected a defendant's contention that questioning of witnesses by the trial court constituted an impermissible intervention in the adversarial process of the trial. Willis v. State, 60 Wis.2d 158, 169-70, 208 N.W.2d 403 (1973); State v. Garner, 54 Wis.2d 100, 104, 194 N.W.2d 649 (1972); Lemerond v. State, 44 Wis.2d 158, 164, 165, 170 N.W.2d 700 (1969); State v. Herrington, 41 Wis.2d 757, 767-68, 165 N.W.2d 120 (1969); State v. Nutley, 24 Wis.2d 527, 561-62, 129 N.W.2d 155 (1964). These cases demonstrate that this court is reluctant to hold that the trial court's involvement in the elicitation of testimony during a trial resulted in such prejudice as to require a new trial.

Moreover, insofar as the defendant's criticism is directed towards the trial court's comments which allegedly nullified defense objections to the elicitation of testimony, it must be remembered that the rules of evidence, upon which the defense objections were based, are intended to provide a system of guidelines by which the truth may be ascertained in a manner which is fair and without unjustified delay. Sec. 901.02, Stats.; sec. 904.03, Stats. Thus, in the final analysis, this court must be convinced that the cumulative effect of the trial court's questioning of witnesses and its general direction of the course of the trial had a substantial prejudicial effect upon the jurors. In this case we are not so convinced.

While the examples cited by the defendant reveal that the trial judge closely moderated the course of this trial, they are not of such a nature as would have a substantial prejudicial impact upon the jury. In those instances where the court interrogated witnesses, nothing in the language or timing of the questions put to the witnesses evidence a motive or purpose other than that of eliciting relevant and, at times, clarifying testimony. In those instances during which the defendant alleges the trial court coached the state's attorney in formulating questions, no inference prejudicial to the defendant is shown. Finally, in those instances where the defendant alleges the trial court impermissibly suggested to the state's attorney how to rephrase a question to which the defense had objected, the trial court attempted merely to expedite the introduction of highly relevant evidence in a manner which would not compromise the defendant's substantive rights.

The court did not comment on any witness' testimony and specifically instructed the jury to disregard any inference as to the guilt or innocence of the defendant which they might draw from his participation in the trial. We are satisfied that on the basis of this record there was no cumulative prejudicial effect warranting a new trial of this case.

Admissibility of Defendant's Statement

The defendant challenges the admissibility of the statement given by the defendant to police officers following his arrest. This issue was initially raised by a timely motion to suppress. To determine the merits of the motion, the trial court conducted an evidentiary hearing on November 11, 1975.

Immediately after his arrest, the defendant was conveyed to the emergency room at St. Agnes Hospital in Fond du Lac. Police Officer James F. Thome was present when the defendant arrived at the hospital at 9:15 p. m. Officer Thome testified that the doctor in attendance treated the defendant for the ingestion of a large quantity of aspirin, including pumping the defendant's stomach. He stated that after this procedure, the defendant remained in the emergency room until about 11:30 p. m., when he was taken to another room and placed in bed. While the defendant was in the emergency room, the witness stated that he introduced himself as a police officer and engaged the defendant in what the witness characterized as "small talk."

Once the defendant had been removed to his hospital room and placed in bed, Officer Thome testified that he initiated a conversation relating to the events of that day.

Thome testified that he first advised the defendant of his rights from memory and then read him his rights from a written form. Thome also had the defendant read the rights. According to the witness, the defendant acknowledged that he understood these rights, and stated that he did not want an attorney. Thome...