State ex rel. Van Ermen v. Burke

• Decision Date: 18 March 1966
• Citation: 140 N.W.2d 737,30 Wis.2d 324
• Parties: STATE of Wisconsin ex rel. Robert VAN ERMEN, Petitioner, v. John C. BURKE, Warden, Wisconsin State Prison, Respondent.
• Court: Wisconsin Supreme Court

Page 737

140 N.W.2d 737

30 Wis.2d 324

STATE of Wisconsin ex rel. Robert VAN ERMEN, Petitioner, v. John C. BURKE, Warden, Wisconsin State Prison, Respondent.

Supreme Court of Wisconsin.

March 18, 1966.

Peter Wheeler Reiss, Sheboygan, for petitioner.

Bronson C. La Follette, Atty. Gen., William A. Platz, Asst. Atty. Gen., Madison, for respondent.

PER CURIAM.

Robert Van Ermen petitioned this court for writ of habeas corpus, entered April 7, 1965. We determined that petitioner had made an arguably meritorious claim. The respondent was ordered to show cause why a writ of habeas corpus should not issue directing the release of the petitioner. A return was made by the respondent through the attorney general's office. We found that the petition and return raised issues of fact. These issues were submitted to the circuit court for the county in which the crime was committed, viz., the circuit court for Sheboygan county, FERDINAND H. SCHLICHTING, Circuit Judge. At the same time we appointed Peter Wheeler Peiss, of Sheboygan, to represent petitioner in this matter since petitioner was found to be indigent. On December 22, 1965, after a hearing, Judge SCHLICHTING made findings of fact and reported the same to this court. The attorney general has moved this court to confirm such findings of fact and deny the petition. Petitioner has moved this court to set aside certain of said findings of fact.

Van Ermen was prosecuted for first-degree murder, entered a plea of not guilty with the advice of counsel, received a jury trial, was found guilty of first-degree murder by the jury, and on August 22, 1961, was sentenced by the court, HONORABLE MERRILL FARR, Circuit Judge for the Twenty-third Circuit, presiding, to life imprisonment in the state prison. The petition for the writ of habeas corpus is based on the following alleged grounds:

1. Petitioner was not informed of his constitutional rights against unreasonable search and seizure.

2. Petitioner was not informed of his right against self-incrimination.

3. Petitioner was held incommunicado for fifty-five hours during which time he was deprived of his right to consult legal counsel, although informing the arresting officers of his desire to see counsel.

4. Petitioner was held almost fifty-eight hours before being charged.

Failure to inform petitioner of his constitutional rights

against unreasonable search and seizure.

Judge SCHLICHTING made the following finding of fact with respect to the issue of unreasonable search and seizure:

'That physical evidence obtained from the petitioner and from his residence and used against him in evidence was either taken from the person of petitioner with his voluntary consent and while he was under arrest and in custody or was obtained pursuant to voluntary written consents to search his residence signed by petitioner and his wife, Mrs. Donna Van Ermen, or was found in the yard and elsewhere outside the dwelling; that a pretrial motion to suppress evidence dated April 24, 1961, supported by affidavits of petitioner and his said wife Donna Van Ermen, was made by counsel for petitioner; that the state offered affidavits of Eugene F. Spelhaus, an officer of the Sheboygan Police Department, and of Detective John W. Zindar in opposition to said motion; that the motion to suppress evidence was submitted to the trial court upon the said affidavits without further testimony and was denied by the court; that the evidence in question was received at the trial without further objection by the defense.'

This finding is supported by ample evidence: Petitioner signed a written consent to the search of his home, the consent stating that he had been 'informed of my constitutional right not to have a search made of the premises hereinafter mentioned without a search warrant and of my right to refuse to consent to such a search, * * *.' Petitioner alleges that he did not read the consent before signing it and only signed it because he thought he had to. However, this testimony is contradicted by the two police officers present when petitioner signed the consent. Their testimony related that petitioner was advised he did not have to sign the consent and voluntarily agreed to do so. The weight of the evidence, therefore, supports the finding that petitioner freely consented to the search of his home.

Judge SCHLICHTING's determination, that the evidence obtained from petitioner's person by the officers was obtained with petitioner's voluntary consent, is also supported by the weight of the evidence. Petitioner alleges that he only agreed to the search because he thought the officers had a right to search and the officers only asked him if he had any objection. Again the testimony of the two officers present, Officers Zindar and Keitel, clearly indicates that the physical evidence obtained was obtained with petitioner's consent. Furthermore, we are not aware of any holding by this court or the United States supreme court that a person accused of crime must be informed of any right to refuse to consent to a search being made of his person or premises.

failure to inform petitioner of his right against self-incrimination.

Petitioner alleges that certain statements he made while in custody, testified to by police officers, should not have been admissible because the police failed to inform him of his right against self-incrimination and to remain silent. One damaging statement in particular, testified to by Officer Zindar, relates to the brick petitioner allegedly used as a weapon to kill his victim, Mrs. Florence Bruss, by striking her on the head. This statement was testified to at the trial during the following sequence:

'Q. Now, Officer, during the course of your interview with the defendant, Robert Van Ermen, will you tell us whether or not you informed him that the instrument you believed to be the weapon used on Mrs. Bruss had been found in his yard?

'A. I had informed him that we felt we had the weapon which was connected with Mrs. Bruss' death.

'Q. How did you put the statement exactly?

'A. I used the word 'weapon'. I did not explain in detail what discovery was made.

'Q. You said it was found in his yard?

'A. It was found in his yard. I did not state I had found it.

'Q. Officer, what did he reply to that?

'A. That was brought up to Mr. Robert Van Ermen and Mr. Van Ermen stated, 'There are a lot of bricks in my yard.'

'Q. Had you informed the defendant the weapon you were referring to was a brick?

'A. I had not.'

This court has never adopted a hard-and-fast rule that an accused must be informed of his constitutional right not to incriminate himself before he can be interrogated by police officers. ¹ In Holt v. State ² this court stated, '* * * that failure to do so will not render the product of the interrogation inadmissible unless it appears that the defendant by reason of his education, intelligence or other circumstances has been imposed upon.'

In the instant case petitioner was thirty-five years old, his education had extended into the seventh grade, and he had worked as an auto mechanic and welder. Petitioner also had a prior criminal record, and Officer Keitel testified that on other occasions when petitioner had been in police custody he had been uncooperative.

Judge SCHLICHTING made no finding on whether the police did inform petitioner of his right not to incriminate himself. However, the Judge did find that petitioner's counsel, Mr. Fessler, failed to object to any statements allegedly made by petitioner because counsel considered that petitioner voluntarily made such statements. This finding is expressly borne out by Mr. Fessler's testimony at the hearing that he did not object because he felt any statements made by petitioner were voluntary. Throughout the entire proceedings there was not one instance where petitioner's counsel, or petitioner himself, ever alleged that statements were coercively elicited from petitioner.

In considering the above totality of circumstances it does not appear that petitioner was imposed upon by reason of his intelligence, education, or other circumstances. It therefore follows that petitioner's constitutional rights were not violated by the alleged failure of the police to inform him of the right not to incriminate himself.

Holding incommunicado and deprivation of right to consult counsel.

Petitioner was arrested without a warrant at 9:55 a. m. on March 7, 1961, but a warrant was not issued until 5 p. m. on March 9: fifty-five hours after his arrest. Petitioner was then first taken before a magistrate at 10 a. m. on March 10. Petitioner was in police custody from the time of his arrest until his appearance before the magistrate.

Attorney Jacob Fessler, retained by petitioners's mother, first appeared at the police station at 9 a. m. on March 9, 1961, and requested to see petitioner. Officer Frank requested that Fessler leave and come back later that afternoon. After some discussion Fessler left and did not return until 1:30 p. m. that afternoon.

Certain statements made by petitioner during his interrogation while held in custody prior to the issuance of a warrant were offered at the trial and received in evidence without objection by petitioner's counsel. Petitioner at no time admitted the crime with which he was charged. In the subsequent hearing before Judge SCHLICHTING on the petition for habeas corpus, Attorney Fessler testified that he did not object to the testimony of petitioner's statements because he felt petitioner made them 'voluntarily.' In relation to the particularly damaging testimony concerning the weapon used in the murder Fessler stated he did not object because he was taken by surprise.

Judge SCHLICHTING made this finding with respect to the failure of Fessler to object to the admissibility of petitioner's admissions:

'That the reason why counsel for petitioner did not request any preliminary hearing on the admissibility of petitioner's admissions or...