State v. Albrecht
| Decision Date | 26 April 1994 |
| Docket Number | No. 93-3280-CR,93-3280-CR |
| Citation | 516 N.W.2d 776,184 Wis.2d 287 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. James A. ALBRECHT, d Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Before CANE, P.J., LaROCQUE and MYSE, JJ.
James Albrecht appeals a judgment of conviction for first-degree homicide while using a dangerous weapon, as a party, in violation of §§ 940.01, 939.63(1)(a)2 and 939.05(2), STATS. Albrecht contends that the trial court erred by refusing to suppress incriminating statements he made to an undercover officer
and a subsequent confession because they were obtained through outrageous and coercive police conduct. Albrecht also contends that the trial court erred by allowing the State to play to the jury a tape recording of his incriminating statements to the undercover officer because it was obtained without a court order, in violation of § 968.29(3) and 968.30(8), STATS. Finally, Albrecht contends that the trial court erred by denying his change of venue motion because pretrial publicity precluded the selection of an impartial jury. We conclude that (1) the statements and confession were not obtained through outrageous police conduct, (2) the tape recording was admissible and (3) the trial court did not erroneously exercise its discretion by denying Albrecht's change of venue motion. We therefore affirm the judgment.
Albrecht was a suspect in the 1985 stabbing death of Michelle Koy, because witnesses had observed him near the crime scene the night of the murder and fire at Koy's apartment. Albrecht was not charged with the murder until March 1992. The arrest resulted from incriminating statements Albrecht made to Ron Jost, an undercover officer involved in a police stolen property sting operation.
Albrecht first contacted Jost in October 1991, when Albrecht sold Jost a graphic equalizer. Sometime after this first contact, Jost learned that Albrecht had been questioned about the Koy murder. After informing Appleton police officers about the contact, Jost read newspaper articles about the murder. Jost kept in contact with Albrecht and with Appleton police officers.
In late February 1992, Jost mentioned to Albrecht the possibility of Albrecht joining Jost's criminal organization. During that conversation, Jost asked Albrecht if Albrecht had ever committed any violent crimes or killed anyone, explaining that the organization needed "muscle" and that a violent background would increase Albrecht's chances of being approved for membership by the organization's higher-ups. Albrecht responded that he had not. Jost then took Albrecht on a two-night trip to Milwaukee, ostensibly to meet the higher-up to gain approval. During the trip, Jost told Albrecht that Jost knew Albrecht had been questioned in the Koy murder. Jost then asked Albrecht if Albrecht had been involved and if the police had any evidence against him, stressing the importance of answering truthfully. Jost explained that Albrecht's honesty about any involvement in the Koy murder was necessary for the organization's protection against possible discovery by police during a further investigation of Albrecht. Each time Albrecht denied any involvement in the Koy murder.
On March 24, 1992, Detective Patrick Geenen approached Albrecht in the parking lot of Albrecht's residence. Geenen introduced himself as the officer currently assigned to the Koy murder, for which Albrecht was still under investigation. Geenen told Albrecht that advances in DNA testing could lead to hard evidence in the murder. Geenen also informed Albrecht that Albrecht was under investigation for other crimes related to the sting operation. Geenen falsely stated that police had a videotape of Albrecht stealing a semi-tractor. Geenen also told Albrecht that Geenen was interested in information about others involved in receiving stolen property, including Jost. In response to Albrecht's questions and statements, Geenen affirmed that someone charged with all of the crimes Albrecht was under investigation for faced several felony counts and possibly a long prison sentence.
Later that evening, Albrecht met with Jost in Jost's apartment and told Jost about Albrecht's conversation with Geenen. Jost and Albrecht discussed the possibility that Jost's crime organization might help Albrecht leave the state. Jost then asked Albrecht again whether Albrecht was involved in the Koy murder, explaining that the organization needed the information to determine how far away from Appleton it should send Albrecht. After denying involvement several times, Albrecht admitted that he might have been involved, but was subconsciously blocking it out.
On March 27, Albrecht telephoned Jost. During that conversation, Albrecht admitted he had committed the Koy murder. Albrecht When Albrecht arrived at Jost's apartment, he was arrested and taken to the police station. Geenen told Albrecht that Jost was an undercover officer, and that his telephone conversation had been recorded. Geenen informed Albrecht of his Miranda rights, and Albrecht stated he understood them and was willing to make a statement. Albrecht then orally confessed to breaking into Koy's apartment, searching the apartment for money, attacking Koy when she unexpectedly came home, handcuffing her to her bed, repeatedly stabbing her with his knife and setting fire to her apartment to cover up the murder. Albrecht also described how he disposed of the handcuffs and the gloves that he had worn during the break-in and murder, and how he cleaned the knife with muriatic acid to remove evidence of the murder. These explanations matched Albrecht's statements to Jost on the telephone earlier that day.
explained to Jost how he had disposed of several items he used and the clothes he wore during the murder. Albrecht also told Jost he [184 Wis.2d 294] had set Koy's apartment on fire to cover up the murder, and later cleaned the knife he used to stab Koy with muriatic acid. Jost and Albrecht originally planned to leave the state several days later, but Jost later called Albrecht and stated they would leave from Jost's apartment at 5 p.m. that evening.
Albrecht was charged with first-degree homicide while using a dangerous weapon. Albrecht subsequently moved the trial court to suppress his statements to Jost and his subsequent confession. Albrecht contended that the statements and confession were obtained through outrageous and coercive police conduct, rendering them involuntary. The trial court refused to suppress Albrecht's statements and confession. The trial court stated it found nothing outrageous, offensive or improper in Jost's conduct of attempting to extract a confession to the murder from Albrecht, who had become entangled in a sting operation conducted for an unrelated purpose. The trial court also found that Albrecht's statements and confession were voluntarily made, noting Albrecht's prior experience with police, his ability to take care of himself and the noncoercive cajoling by Jost in an attempt to induce Albrecht to admit the murder.
Albrecht also moved the trial court for a change of venue, citing extensive prejudicial pretrial publicity. After examining newspaper articles and video reports of the murder, the court found the reports neither inflammatory nor prejudicial, but "factual, straightforward, and without any undue emphasis." The court also noted that many of the reports were seven and one-half years old.
During the seven-day trial, Albrecht's counsel placed Jost on the stand and, as part of Jost's testimony, had Jost quote substantially from the transcripts of his recorded conversations with Albrecht, which were admitted into evidence. The State then requested the trial court to allow it to play the tape recording of Jost's telephone conversation with Albrecht to the jury. Albrecht objected, claiming it would be repetitive of Jost's testimony. The trial court overruled Albrecht's objection, and the jury heard the tape. The jury found Albrecht guilty of first-degree homicide while using a dangerous weapon.
Albrecht filed a postconviction motion seeking a new trial, contending that the trial court erred by refusing to suppress his statements to Jost and his confession, admitting the tape recording into evidence and denying his change of venue motion. After a hearing, at which Albrecht testified, the trial court denied Albrecht's motion. The trial court again considered all of the circumstances surrounding Albrecht's statements to Jost and his confession, and found no coercive or outrageous police conduct. The trial court found that the tape recording, while repetitive, became relevant because of issues concerning inflection and the tone in which the words were said and that Albrecht had opened the door to the playing of the tape by asking Jost to read extensively from the transcript. The trial court also noted that, even if the admission of the tapes was improper because they were obtained in violation of statutes governing electronic surveillance, this admission was not prejudicial because the damaging evidence had already come in through Jost's testimony as elicited by Albrecht. The court also found that the
jury selection process was not difficult, that there were still other panel members available after the voir dire was complete and that the selection process produced a fair and impartial jury.
Albrecht contends that the trial court erred by refusing to suppress his statements to Jost and his subsequent confession because the statements and confession were obtained as a result of outrageous government conduct that violated his fifth amendment protection against compulsory self-incrimination. Albrecht argues that Jost's persistence in posing as a "confidante" and his repeated questioning about Albrecht's involvement in the Koy murder under the guise of determining...
To continue reading
Request your trial
-
State v. Agnello
...v. State, 75 Wis.2d 344, 352, 249 N.W.2d 593 (1977); Goodchild, 27 Wis.2d at 264-65, 133 N.W.2d 753. But see State v. Albrecht, 184 Wis.2d 287, 516 N.W.2d 776 (Ct.App.1994) (concluding that the standard is preponderance of the evidence). Technically Albrecht was incorrect in that determinat......
-
State v. Knapp
...light of the totality of the circumstances.17 ¶ 85. Knapp argues that the circuit court erroneously relied upon State v. Albrecht, 184 Wis. 2d 287, 516 N.W.2d 776 (Ct. App. 1994) in finding that the DCI interview was voluntary. In support of his position, Knapp cites United States v. Walton......
-
State v. Vice
...even when police engage in outright deceit, they may be "within the bounds of acceptable police practice." State v. Albrecht, 184 Wis. 2d 287, 300, 516 N.W.2d 776 (Ct. App. 1994).¶34 Our review also reveals cases in which courts have found police tactics to be coercive, such as when officer......
-
State v. Shallcross
...by confronting Shallcross with allegations that he drove the Honda, deceit and coercion are not the same.5See State v. Albrecht 184 Wis.2d 287, 302, 516 N.W.2d 776 (Ct.App.1994) (officer's conduct in giving suspect false information, while deceitful, was not coercive and therefore did not r......
-
Litigating miranda rights
...1351 (7 th Cir. 1993). 13. Deception does not, standing alone, render an otherwise voluntary confession involuntary. State v. Albrecht , 516 N.W.2d 776 (Wis. Ct. App. 1994). However, deception and misrepresentations do trigger an examination the totality of circumstances. Woods v. Clusen , ......
-
Litigating miranda rights
...1351 (7 th Cir. 1993). 13. Deception does not, standing alone, render an otherwise voluntary confession involuntary. State v. Albrecht , 516 N.W.2d 776 (Wis. Ct. App. 1994). However, deception and misrepresentations do trigger an examination the totality of circumstances. Woods v. Clusen , ......
-
Litigating Miranda Rights
...1351 (7 th Cir. 1993). 13. Deception does not, standing alone, render an otherwise voluntary confession involuntary. State v. Albrecht , 516 N.W.2d 776 (Wis. Ct. App. 1994). However, deception and misrepresentations do trigger an examination the totality of circumstances. Woods v. Clusen , ......
-
Litigating Miranda Rights
...1351 (7 th Cir. 1993). 13. Deception does not, standing alone, render an otherwise voluntary confession involuntary. State v. Albrecht , 516 N.W.2d 776 (Wis. Ct. App. 1994). However, deception and misrepresentations do trigger an examination the totality of circumstances. Woods v. Clusen , ......