Schwamb v. State

• Court: Wisconsin Supreme Court
• Writing for the Court: HEFFERNAN
• Citation: Schwamb v. State, 46 Wis.2d 1, 173 N.W.2d 666 (Wis. 1970)
• Decision Date: 06 February 1970
• Docket Number: No. S,S
• Parties: Charles Frank SCHWAMB, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 107.

Page 666

173 N.W.2d 666

46 Wis.2d 1

Charles Frank SCHWAMB, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 107.

Supreme Court of Wisconsin.

Feb. 6, 1970.

This matter is brought on a writ of error to review a judgment of conviction for first-degree murder. After a preliminary hearing, a plea of not guilty and not guilty by reason of insanity, and a trial by jury, the plaintiff in error, Charles Frank Schwamb, hereinafter referred to as the defendant, was found guilty and sentenced to a mandatory term of life imprisonment. No post-trial motions were brought for the purpose of challenging the sufficiency of the evidence or to re-examine alleged errors.

Counsel appointed by this court for appeal now asserts that trial counsel were ineffective and that error resulted in the admission of involuntary confessions.

It is also urged that this court grant a new trial in the interest of justice under our discretionary powers of sec. 251.09, Stats.

Phyllis Schaefer was killed by bullets fired from a .25 caliber pistol at approximately 12:30 a.m. on May 11, 1965. The shooting occurred at the Inn America, a tavern on the northwest side of Milwaukee, Wisconsin.

Marie Gash, a friend of the decedent, testified that she was sitting next to Phyllis and saw the defendant walking across the dance floor in their direction. Marie said, 'Phyllis, look who's behind you.' Marie 'didn't see anything until (she) heard the shot.' Then Phyllis looked up, raised herself from the stool, and let out a scream. Marie heard at least two shots and saw sparks coming from the direction of the defendant.

Floyd Theis, a fireman seated at the bar with Marie and Phyllis, testified he saw the defendant walk up to the bar and stand directly behind Phyllis. Turning to take a drink, Theis heard something he thought was fireworks. At the same time, Theis heard the bartender holler, "that man has got a gun, grab him." Theis saw Phyllis fall to the floor and the defendant walk out. Theis ran after the defendant. The bartender accompanied him and both stopped at the head of the stairs leading to the ground level when they saw the defendant standing at the bottom with his right hand raised and holding a gun.

Ralph J. Klotka, Jr., the bartender, testified he saw the defendant behind Phyllis with his arm around the 'upper portion' of Phyllis' body. He heard someone say, 'oh, no,' and then the sound of a 'firecracker,' followed by three successive similar sounds. He saw Phyllis topple to the floor, the defendant leave, and he yelled, 'somebody get the S.O.B., he shot Phyllis.'

The bartender called the police and Officer George Fish responded to the department's radio dispatch. Upon his arrival, he saw Theis and another person holding the defendant to the pavement. Theis told Officer Fish the defendant had shot a woman upstairs, whereupon Officer Fish brought the defendant to his feet and placed him under arrest. Officer Fish testified that approximately one minute after placing the defendant under arrest he asked him, 'What happened,' to which the defendant replied, 'I loved that woman and she was cheating on me, and that's why I shot her.'

When Officer Ralph Haase arrived at the scene with his partner, Officer Fish asked him to call a police car for the defendant and an ambulance for Phyllis. Haase testified that, after making the call and walking around the front of the squadcar, 'Mr. Schwamb blurted out to me, 'yeah, I shot her."

Shortly thereafter, between the hours of 2:00 and 4:30 a.m. (the killing occurred at 12:30 a.m.), the defendant signed three statements. The first signed at 2:00 a.m. in the presence of Detectives Kenneth H. Darton and John J. Orlikowski read: 'I loved her I didn't want to hurt her. I didn't mean to shoot her I just wanted to scare her. I wanted to marry her.' This statement was written on a one-page form containing the following language in standard type at the top:

'I, _ _ make the following statement of my own free will, no threats or promises having been made; I declare that it is true and correct to the best of my knowledge and recollection, and I fully understand that what I say here may be used against me in a court of law.'

The second written statement was taken at 3:05 a.m. in the Safety Building, Milwaukee, by Detective Sergeant William Fender. Present were Detectives Darton and Orlikowski, Patrolman Fish, and the stenographer, Mercedes W. Martin. The defendant was informed of his right to remain silent and that any statement given could be used against him. The defendant stated, in response to Detective Fender's questions, that he was making the statement of his own free will, that he had not been threatened or abused, and that no promises had been made. He stated that he had purchased the pistol on the south side and it was his intention to scare Phyllis. When asked what happened when he went to the Inn America (the tavern where Phyllis was shot), defendant said 'I don't know. All I know is she said, 'You back here,' she said, 'Oh, no!' and then they screamed, 'You shot her, you shot her,' or something like that.' When asked how much he had to drink, the defendant answered, 'I don't know, Sir; I had a lot to drink today.'

The final written statement was taken at 4:25 a.m. by Detective Sergeant Fender at the county morgue. The statement consisted of three questions and answers:

'SGT. FENDER: Charles, I am going to ask you, do you know this white girl you are viewing here in the Morgue? Can you tell me her name?

'A. Phyliss.

'Q. Do you know her last name?

'A. Schaefer.

'Q. Is this the girl that you shot at the Inn America early this morning, Charles?

'A. (Nods his head affirmatively.)'

The trial judge conducted a hearing outside the presence of the jury to determine the voluntariness of the three written statements and the two oral admissions given to Officers Fish and Haase. He concluded that:

'* * * all of them were made freely and voluntarily, without any constitutional contamination. That they all were the free and deliberate choice of the defendant, and they are legally admissible, applying Fourteenth Amendment standards in assessing their admissibility.'

The defendant took the stand and related his marital, drinking, and diabetes problems. He testified that on the evening of May 10, 1965, he was so disgusted with himself that he purchased a gun and contemplated suicide. The defendant left for a bar named Rieter's at approximately 10:00 p.m. Upon arrival, he learned that Phyllis had been there but had just left for the Inn America. When asked how many drinks he had while at Rieter's, the defendant answered at one point one and at another that he didn't know. The defendant was asked the next thing he remembered after shaking dice at Rieter's, and he replied:

'A It's when I woke up--I was laying on the concrete and I said to Mike's kid, Mike's son, I said, 'what happened,' and he said, 'just take it easy,' and everybody was all right. They were saying, 'he shot her, he shot her.'

'Q Now, did you ever plan to shoot Phyllis Schaefer?

'A No sir, I loved her, I never hurt her. She would argue and I would always walk out.

'Q Did you at any time, during the evening of May 10, make a plan to kill Phyllis Schaefer?

'A No, sir. I never even thought of it.

'Q Do you know today why you killed Phyllis Schaefer?

'A No, I don't--all this while I was thinking why, and I don't know why.

'Q At the time you were taken to the Police Station, did you tell them the truth about the events that led up to the killing of Phyllis Schaefer?

'A Well, I told them everything they asked me, whatever I could, whatever they asked me I answered them, I told them.

'Q Did you attempt to conceal anything from the Police concerning this killing?

'A No, sir.

'Q Have you attempted to conceal anything about this killing from this Court or this jury?

'A No, sir.'

The defense called Dr. Bernard Schaefer, a specialist in neurology and psychiatry, who testified that the defendant was suffering from a 'mental disorder * * * a character disorder or behavior disorder, sometimes known as a sociopathic type of personality.'

'This type of reaction in an individual would naturally result in execution of poor judgment in his behavior, with a deficiency of self-control, so that an individual of this type would perform acts which, by society, would be considered as being asocial.'

On cross-examination, the district attorney asked:

'Q Doctor, I understand from your testimony that you are not saying that this character disorder, which you classify as a sociopathic type of personality, is in anywise insanity?

'A That's right, sir.

'Q It is not insanity?

'A That's right, sir.'

Drs. Joseph Weber and Edward H. Schmidt were called by the court and questioned by the trial judge. Both gave opinions that the defendant was not insane, that he could distinguish between right and wrong, and that he knew the nature and quality of his acts.

The court submitted the verdicts of first and second degree murder, not guilty by reason of insanity, and not guilty, and instructed on same. The jury returned a verdict of first degree murder.

It was following this verdict that on February 1, 1966, a judgment of conviction was entered and a mandatory life sentence imposed.

L. William Staudenmaier, Milwaukee, for plaintiff in error.

Robert W. Warren, Atty. Gen., Madison, E. Michael McCann, Milwaukee County Dist. Atty., Michael Ash, Asst. Dist. Atty., Milwaukee, for defendant in error.

HEFFERNAN, Justice.

Various erros committed by the trial court are alleged in the briefs and were discussed at oral argument. They relate primarily to the contention that confessions were improperly admitted and that such confessions were highly prejudicial to the defendant's cause. Basic to defendant's argument in this court is that the two counsel who represented him at trial were incompetent, that proper objections were not made, and that, had objections...