State v. Armstrong, s. 97-0925-C

Citation588 N.W.2d 606,223 Wis.2d 331
Decision Date21 January 1999
Docket Number97-0926-CR,Nos. 97-0925-C,s. 97-0925-C
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Tonnie D. ARMSTRONG, Defendant-Appellant. d
CourtUnited States State Supreme Court of Wisconsin

For the defendant-appellant there were briefs by Steven A. Koch and Seymour, Kremer, Nommensen, Morrissy & Koch, Elkhorn, and oral argument by Steven A. Koch.

For the plaintiff-respondent the cause was argued by David J. Becker, assistant attorney general, with whom on the brief was James E. Doyle, assistant attorney general.

¶1 N. PATRICK CROOKS, J

These cases are before the court on certification by the court of appeals, pursuant to Wis. Stat. § (Rule) 809.61 (1995-96). 1 Police officers investigating a homicide interviewed Tonnie D. Armstrong (Armstrong) at the county jail, where Armstrong was serving time for an unrelated offense. Armstrong made oral statements incriminating himself in the homicide. At the end of the interview, the officers administered the Miranda warnings 2 to Armstrong for the first time. About two hours later, they presented Armstrong with a written statement memorializing the earlier unwarned statements. Armstrong reviewed and altered the written statement, and after the officers read the Miranda warnings a second time, Armstrong initialed and signed it.

¶2 Based on Armstrong's oral and written statements, the State charged Armstrong with first-degree intentional homicide, theft from a person, and bail jumping. Before trial, Armstrong filed a motion challenging the admissibility of his statements. Following Circuit Court Judge Emmanuel J. Vuvunas' ruling that the oral and written statements were admissible, Armstrong entered into a plea agreement in which he pled guilty to second-degree reckless homicide, theft from a person, and bail jumping as a habitual offender. 3 Armstrong was convicted of all charges and was sentenced to a total of twenty-six years in prison. Armstrong appealed the portion of the final order which denied his motion challenging the admissibility of the statements, and the court of appeals certified the matter to this court.

¶3 This court is confronted with two primary issues on this appeal. First, we must determine the admissibility of the oral statements which Armstrong made before receiving his Miranda warnings. Second, we must decide the admissibility of the written statement which reiterated Armstrong's earlier unwarned oral statements and which Armstrong signed after receiving his Miranda warnings and after signing a form stating that he understood and waived his rights. 4

¶4 Upon review, we conclude that Armstrong's oral statements were inadmissible because Armstrong made the statements during custodial interrogation and before the administration of Miranda warnings. However, the circuit court properly ruled that Armstrong's written statement was admissible pursuant to Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). In light of our ruling that Armstrong's written statement was admissible, we conclude that the circuit court's decision to admit the oral statements constituted harmless error. Accordingly, we affirm the judgment of the circuit court.

I.

¶5 This case involves the admissibility of statements made by Tonnie Armstrong during two meetings with police officers on July 31, 1995. On that day, Armstrong was serving time at the Racine County Jail as a result of his conviction in an earlier case, case number 97-0925-CR. The conviction arose out of an incident on May 9, 1995, in which Armstrong snatched a woman's purse. Armstrong pled guilty to theft from a person and was convicted on June 1, 1995. 5

¶6 From June 1, 1995, until his sentencing hearing on July 13, 1995, Armstrong was free on bond. The circuit court, Judge Emmanuel J. Vuvunas presiding, withheld Armstrong's sentence and placed him on probation for three years. As a condition of the probation, Armstrong was required to serve four months in the Racine County Jail.

¶7 On the morning of June 29, 1995, Detective Steve Mich. of the City of Racine Police Department discovered the body of Donald Thomas. Thomas' body was lying on the floor of the bookstore he owned, and his wallet and keys were missing. An autopsy suggested that Thomas had died of asphyxiation and had probably been choked.

¶8 Police investigators soon learned that Armstrong had been in Thomas' bookstore the night before Thomas' body was found. Detective Mich. and another officer went to the Racine County Jail on July 31, 1995, to speak with Armstrong about the homicide. The officers met with Armstrong at about 2:15 p.m. in an interview room in the jail's main level intake area.

¶9 Detective Mich. began by telling Armstrong that the officers were there to talk to him about the death of Donald Thomas. Neither officer read Armstrong his Miranda warnings at the start of the interview. According to the officers, information they had received from an employee of Thomas' bookstore had caused them to believe that Armstrong may have witnessed something which would assist them in their investigation. 6 Detective Mich. later testified that the officers did not suspect Armstrong of involvement in the crime when they went to talk with him.

¶10 Armstrong proceeded to tell the officers that he was present when Thomas died and that he and Thomas had argued that night. 7 Armstrong admitted that he had choked Thomas with both hands for about ten seconds, stopped, and then grabbed him by the front of his shirt and shook him until Thomas went limp and fell to the floor. Armstrong also recounted his actions after Thomas died, including his removal of Thomas' wallet and keys and exit from the bookstore. At some point, Armstrong drew the officers a map showing where he disposed of the wallet and keys. 8

¶11 During the interview, the officers asked Armstrong questions. Detective Mich. told Armstrong that he did not believe some of Armstrong's statements, including his story about which route he took home from the store and his version of the events which transpired inside the store. According to Detective Mich, the first moment at which he began to suspect that Armstrong might have been involved in Thomas' death was when Armstrong told him that he and Thomas had argued and that he had placed his hands on Thomas. 9

¶12 At about 3:00 p.m., the officers administered Miranda warnings to Armstrong for the first time. 10 Detective Mich. read the warnings directly from a "Notification and Waiver of Rights" form. Armstrong signed the top portion of the form, which set forth the text of the warnings. 11 However, he refused to sign the waiver of rights printed on the bottom part of the form. 12

¶13 Nevertheless, Armstrong told the officers that he understood the Miranda warnings and would speak with them. The only conversation after the warnings, however, consisted of a brief discussion of whether Armstrong would accompany the officers on their attempt to locate Thomas' wallet and keys. It was decided that Armstrong would remain at the jail. Armstrong finished constructing the map and the officers left, taking the map with them.

¶14 In its entirety, the first interview lasted about an hour. Afterward, the officers left the jail and drove to the place depicted on the map, where they located Thomas' wallet and keys. Detective Mich. returned to the police department and reduced Armstrong's oral statements to writing in a document he labeled, "Sworn Affidavit." It is undisputed that this written statement was based completely on Armstrong's previous oral statements.

¶15 The officers returned to the jail at about 5:10 p.m. the same day, July 31, 1995, with the written statement, which they presented to Armstrong. Armstrong reviewed the statement and made some changes in it. 13 When he was finished, Detective Mich. administered the Miranda warnings for the second time, reading them from another copy of the "Notification and Waiver of Rights" form. This time, Armstrong signed both the top "notification" and bottom "waiver" portions of the form. Armstrong then returned to the written statement prepared by Detective Mich, initialed each change he had made, and signed the statement. Nothing further occurred in this second meeting between the officers and Armstrong. 14

¶16 In an information filed October 5, 1995, the State charged Armstrong with first-degree intentional homicide, theft from a person, and bail jumping, all as a habitual offender. 15 Armstrong filed a pre-trial motion on November 15, 1995, challenging the admissibility of his oral statements and the written statement.

¶17 Hearings on the motion were held on January 19, 1996, and February 2, 1996. The circuit court, Judge Emmanuel J. Vuvunas presiding, ruled that the statements Armstrong made at the first and second interviews were admissible. Judge Vuvunas began by stating that he found the police officers to be "credible" and that he believed them when they said that they did not think Armstrong was a suspect at the start of the first interview. Motion Hearing Tr., Feb. 2, 1996 at 18 (No. 97-0926-CR). In regard to the oral statements, Judge Vuvunas ruled,

I'm satisfied that when the officer realized that [Armstrong] was, in fact, making statements that might be incriminating, they gave him his rights. He did not - he did acknowledge ... the fact that his rights were given. He did not sign the waiver. I don't find that to be telling here. I believe the officers that even though he said he didn't want to sign the waiver, but he did want to continue talking, and did it's clear that he was talking and drawing and doing things both before this, these rights were given[,] and after, ... so I find that they did comply with Miranda ... once they were appraised and knew that he, in fact, was a suspect in this matter, and that the statements made on that occasion were voluntary by Mr. Armstrong.

Motion Hearing Tr., Feb. 2, 1996 at 19 (...

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