State ex rel. Goodchild v. Burke

• Decision Date: 30 March 1965
• Citation: 133 N.W.2d 753,27 Wis.2d 244
• Parties: STATE ex rel. Earl Louis GOODCHILD, Jr., Petitioner, v. John C. BURKE, Warden, Wisconsin State Prison, Respondent.
• Court: Wisconsin Supreme Court

Page 753

133 N.W.2d 753

27 Wis.2d 244

STATE ex rel. Earl Louis GOODCHILD, Jr., Petitioner, v. John C. BURKE, Warden, Wisconsin State Prison, Respondent.

Supreme Court of Wisconsin.

March 30, 1965.

Patrick A. Dewane, Manitowoc, for petitioner.

Bronson C. La Follette, Atty. Gen., Wm. A. Platz and Betty Brown, Asst. Attys. Gen., Madison, for respondent.

WILKIE, Justice.

Five principal issues are presented by this petition and return:

1. Is the petition for habeas corpus premature?

2. Was it constitutional error not to appoint counsel for petitioner on his 'arraignment'?

3. Did admission of confessions and statements obtained between the first appearance in municipal court and the time counsel was appointed constitute constitutional error?

4. Was there constitutional error in the procedure on the trial where the trial judge did not make a determination as to the voluntariness of defendant's confessions before they were received in evidence?

5. If there was constitutional error in the manner of determining the voluntariness of the confessions, was such error waived when counsel, for strategic reasons, failed to object to their receipt in evidence?

Prematurity of Petition.

On April 4, 1961, petitioner was paroled. On July 10, 1961, Goodchild was convicted on his plea of guilty of an April burglary in the municipal court of Milwaukee, and sentenced (under the repeater statute) to not more than 18 years, the term to run consecutively to the murder sentences. His parole on the murder sentences was revoked on June 2, 1961, effective May 9, 1961. Petitioner has filed a habeas corpus (dated March 26, 1964) contesting his burglary conviction, and that petition is outstanding.

The attorney general contends that Goodchild's instant petition is premature since, even if the murder convictions were vacated, he would still be subject to the 18-year-burglary term and could not be discharged from custody.

Historically, habeas corpus was utilized to actually free the accused and it is true that, even if the writ Goodchild prays for here were issued, he would not be entitled to immediate liberty. Goodchild asserts claims of constitutional error that would invalidate the murder convictions. We have consistently held that such claims may be reviewed by habeas corpus. ³

There are at least three reasons why we should not consider this petition premature:

1. Although voiding of these convictions at any time prior to the length of the sentence imposed for the burglary could not absolutely result in Goodchild's release, if these two murder convictions were set aside, his parole and conditional release opportunities would then be based on the single burglary sentence and not in conjunction with the murder sentences.

2. Another reason for taking action on this petition now is that the legislature has provided no post-conviction procedure to adjudicate alleged constitutional errors surrounding a conviction once the time for appeal has passed, ⁴ unless it be by petition for the writ of habeas corpus addressed to this court. ⁵

3. Furthermore, where habeas corpus results in the delivery of a prisoner for an ordered new trial or other hearing years after his conviction either or both the prosecution and defense may be handicapped by the dimming memory of witnesses that may be still available and by the death or absence of other witnesses. Where constitutional rights may be involved it seems only logical to consider these grievances when presented rather than to postpone our consideration until years later when these difficulties may be aggravated.

We proceed then to a detailed consideration of the petition on its merits.

Denial of Counsel.

Goodchild did not have counsel at the March 17th and March 30th 'arraignments' in the municipal court for the second-degree murders of his father and Becker respectively.

These were not 'arraignments' although the magistrate so denoted them. The term 'arraignment' is reserved for an appearance in a court having jurisdiction to take a plea to an information or indictment that has been filed and to which the court asks the defendant to plead. ⁶ The municipal court here told the defendant that he had no power to take a plea and the appearances made by the defendant, either on March 17th or March 30th, were not at an 'arraignment' but appearances before a magistrate before whom the two complaints were returnable.

At both of these initial appearances Goodchild was advised 'of his right to the aid of counsel' and in open court he told the court he did not want counsel. After waiving the preliminary examination in each instance he was bound over to circuit court.

On March 20, 1953, the defendant was brought before the circuit court on the charge of the second-degree murder of his father. He did not plead to the information which had been read to him. In fact, the hearing was limited to a motion by the district attorney for a mental and physical examination of the defendant. At the hearing Goodchild did state he needed an attorney but after the court repeatedly advised him he could have such counsel, Goodchild stated he would wait until he came back from the examination before he took an attorney. The circuit court ordered a mental and physical examination of the defendant at the Bradley Memorial State Hospital at Madison.

On March 30, 1953, after waiving the preliminary on the charge of the second-dgree murder of Becker, Goodchild was brought before the circuit court for arraignment on this charge. Again he entered no plea. The court also entered an amended order directing a mental and physical examination of the defendant at the Central State Hospital at Waupun since the Bradley Memorial State Hospital at Madison had been unable to complete the examination. He requested the appointment of Attorney Patrick Dewane, whom the court, then and there appointed.

Mr. Dewane represented the defendant at all related and subsequent proceedings, either in the municipal court or the circuit court. Petitioner now contends that the failure of the court to provide him with an attorney at his 'arraignment' violates his Sixth amendment (U.S. Constitution) right to counsel.

From March 30, 1953, Goodchild was represented by counsel. Before Attorney Dewane was appointed as counsel to the defendant he had appeared at two preliminaries, where he refused counsel and waived the preliminary examination. At the two related arraignments in circuit court he entered no plea and on March 30th, when he asked for counsel the appointment was made immediately. Counsel represented him at the preliminary examination on the two amended counts of first-degree murder, the only preliminary held on charges on which the defendant was actually tried. Counsel represented him at the subsequent arraignment in circuit court when petitioner, for the first time, entered a plea, and in all phases of the circuit court proceedings, both before and after the trial. Thus, there is no merit whatsoever to his claim that he was denied counsel at the so-called 'arraignments' or at any other stage in the court proceedings.

Confessions Obtained Between First Court Appearance and the

Time Counsel was Appointed.

Goodchild, relying on Spano v. People of State of New York, ⁷ Massiah v. United States, ⁸ and Escobedo v. State of Illinois, ⁹ contends that any confessions made after his first appearance in municipal court on March 17th and before March 30th (when counsel was appointed) were inadmissible. Involved are three statements or confessions, all given on March 26th. Exhibit No. 23 is a tape recording of a statement made at the state crime laboratory and Exhibit No. 22 is a transcription of the recorded statement. Exhibit No. 26 is a confession he signed after he was returned to Manitowoc. The cases Goodchild cites are distinguishable. In Spano the accused despite repeated pleas to see his attorney and after approximately eight hours of continual questioning, was tricked into confessing by the repeated urging and misrepresentations of a friend who was a policeman. Massiah involved the planting of a hidden miscrophone in the car of a co-accused who had become a co-operator with the police. The co-operator then deliberately elicited incriminating statements from Massiah who was out of jail on bail. Not only was the accused in Escobedo, despite attempts to do so, not allowed to consult his counsel during a lengthy interrogation by the police, but his attorney, who was at the police station, was not allowed to see his client.

The opinions in the cases Goodchild relies on make it clear that the total circumstances must be considered when dealing with a particular situation. Unlike the defendants in these cases, Goodchild was in no way tricked or misled. No surreptitious or extended interrogations took place. He was not threatened or pressured. Goodchild admitted that he was well treated. There is no claim of brutality. He was never denied access to or the assistance of counsel; in fact, he refused counsel when he first appeared in municipal court on March 17th and there is nothing in the record indicating that he ever requested counsel until his arraignment in circuit court on March 30th. He was repeatedly advised of his right to counsel. A consideration of all the facts demonstrates a lack of extenuating circumstances such as were present in Spano, Massiah and Escobedo, which would render any statement taken before counsel had been appointed inadmissible.

This analysis is contrary to the holding and rationale adopted by the Supreme Court of California in the very recent case of People v. Dorado. ¹⁰ Dorado interprets Escobedo and Massiah as precluding the admission of a confession even when the defendant does not request counsel. The court held (in a four-three decision) that the confession had constitutional defects because:

'(1) the investigation was no longer a general inquiry into an unsolved crime but had begun to focus on a particular...