Sharlow v. State
| Decision Date | 02 June 1970 |
| Docket Number | No. S,S |
| Citation | 47 Wis.2d 259,177 N.W.2d 88 |
| Parties | Allerd James SHARLOW, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 145. |
| Court | Wisconsin Supreme Court |
Plaintiff in error Allerd James Sharlow (hereinafter the defendant) was charged with robbery contray to sec. 943.32(1)(a), Stats. After preliminary hearing defendant entered a plea of not guilty and waived his right to a trial by jury. Upon request of defense counsel, an examination of the defendant to determine his sanity was ordered pursuant to sec. 957.13, Stats.
At the conclusion of this examination, a hearing was held on January 23, 1969; and upon receipt of competent medical testimony, the defendant was declared both sane and capable of intelligently assisting counsel in his defense.
The defendant was tried by the court and found guilty. On February 3, 1969, judgment was entered adjudging defendant guilty of the offense as charged and sentencing him to an indeterminate term of not more than five years in state prison. Thereafter defendant moved to have his conviction reversed or, in the alternative, to have a new trial. The purpose of this motion was not to challenge the sufficiency or credibility of the complainant's testimony. Instead, the motion questioned the admissibility of certain testimony given by Robert Zellmer, the arresting officer. The defendant now assigns error to the trial court's acceptance of such testimony.
Writs of error were issued by the Supreme Court to review both the judgment of conviction and the order denying a new trial.
Additional facts will be stated in the opinion.
Leonard S. Zubrensky, Milwaukee, Herbert S. Bratt, Milwaukee, of counsel, for plaintiff in error.
Robert W. Warren, Atty. Gen., Madison, E. Michael McCann, Milwaukee Co. Dist. Atty., Theodore J. Hodan, Asst. Dist. Atty., Milwaukee, for defendant in error.
Defendant seeks the revesal of the judgment of conviction or, in the alternative, a new trial on the ground of alleged prejudicial error committed by the trial court. This alleged error raises the issue as to whether Officer Zellmer's testimony concerning defendant's confession was admissible. A question also arises as to whether, having expressly declined to challenge the statement at the time of trial, he can now raise the issue of admissibility.
At the trial Officcer Zellmer was asked what, if anything, the defendant had told him concerning the offense with which he was charged. Officer Zellmer replied:
'A Regarding the offense, he related that on Monday, November 18, 1968, at about 3:00 a.m. he went to the home of a friend, Ronald Winters at 1253 North 26th Street in the City of Milwaukee and in the home he had met the complainant, Raymond Olkowski, and he stated that it was his observation that the complainant was trying to make out or make a date with some of the girls at the party and shortly thereafter, that Ronald Winters approached him in the kitchen and stated that Raymond had about $400 in his wallet and asked him that if he would roll him, which he agreed to do.
'He stated he took the complainant's wallet and identification and the jacket and threw it in the car, but he stated at the time he--there was no money in this wallet and he then got into the car and returned to the home of Ronald Winters and just outside Ronald Winter's home that he had looked in the jacket and there he found about $30.00.'
It should be noted that no objection was raised as to this testimony at the time of trial. Immediately following Officer Zellmer's testimony the prosecution suggested that any testimony on the part of the defendant as to the voluntariness of his confession should be given at that point. The trial judge then noted that any objection as to admissibility should have been made as soon as the prosecution asked, 'What, if anything, did he tell you, officer?' but stated '* * * if counsel for the defense wishes to explore that further, I will accord him the opportunity to do so.' Defense counsel then expressly declined either to cross-examine the police officer or introduce additional evidence concerning the voluntariness of the defendant's confession.
Defendant's Right to Challenge Admissibility of His Confession.
In State ex rel. Goodchild v. Burke (1965), 27 Wis.2d 244, 133 N.W.2d 753, this court, in compliance with Jackson v. Denno (1964), 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, adopted the 'orthodox procedure' in determining the voluntariness of a confession. Under this procedure a separate hearing is had before the trial judge (outside the presence of a jury) and he alone determines the issue of voluntariness. If he finds that the confession is involuntary, the jury is not allowed to hear such confession. If, however, he determines that it was voluntary, the confession is admitted, and the jury is allowed to consider its weight and credibility. Goodchild, however, contemplated that this hearing on voluntariness be held prior to trial.
In the instant case no such hearing was conducted prior to or during the defendant's trial, because, as in Goodchild, no objection to the admission of the confession was raised. When faced with the question of whether one can waive a constitutional error concerning admissibility of a confession, this court in Goodchild held that such was possible if done as a deliberate defense tactic.
In so deciding, this court relied upon Henry v. Mississippi (1965), 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408. In Henry evidence which was admitted at trial without objection was attacked on appeal to the Mississippi Supreme Court as having been obtained as a result of an illegal search. The Mississippi court determined that failure to object was fatal to the defendant's appeal. The United States Supreme Court then held that Mississippi's contemporaneous-objection rule served a legitimate state interest by avoiding delay in the disposition of cases but remanded the case so that testimony could be taken concerning whether defense counsel knowingly waived objection to the evidence for purposes of trial strategy.
From a reading of Goodchild and Henry it would appear that this court could affirm the trial court based on defendant's having waived his right to attack the admission of his confession. However, unless this court finds the instant record sufficient to establish that defense counsel did not object because of trial strategy, it would be compelled to order a separate hearing such as was required by the Supreme Court's mandate in Henry. We do not think the record supports such a finding. We will, therefore, consider the defendant's arguments on their merits.
Admissibility of Defendant's Confession to Officer Zellmer.
In determining the admissibility of the defendant's confession it is necessary to consider the occurrences leading to its alleged utterance. The record indicates that following the robbery with which he was charged, the defendant was incarcerated in the county jail at Forest Park, Illinois. The record, however, is not clear as to the reason for defendant's arrest and incarceration in Illinois.
Having learned of the defendant's incarceration, Officer Zellmer and his partner went to Forest Park to execute the Wisconsin warrant for the defendant's arrest. Upon arriving at Forest Park, the officers were informed that before getting custody of the defendant, it would be necessary to initiate extradition proceedings. The defendant was thus taken before Illinois Judge JAMES BOYLE where he appearently signed a waiver of extradition.
Following release by the Illinois officials the defendant was driven back to Milwaukee. During the return trip which commenced in the early afternoon on December 5, 1968, Officer Zellmer discussed the charge against the defendant and questioned him concerning the charge. The allegedly tainted statements which formed the basis of Officer Zellmer's testimony were made by the defendant both while en route to Milwaukee and after his arrival at the safety building in Milwaukee.
The defendant's first attack upon the admissibility of his confession is that the state has not met its burden of proof concerning voluntariness. As indicated in Goodchild, the burden is upon the state to prove voluntariness beyond a reasonable doubt.
Relying on Davis v. North Carolina (1966), 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895, which also considered the voluntariness of a confession, the defendant contends that this court must make an independent determination as to whether his statements were voluntarily given. Such contention is, of course, contrary to this court's holding in State v. Carter (1966), 33 Wis.2d 80, 90, 91, 146 N.W.2d 466, 472, wherein it was held:
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