State v. Billings

• Decision Date: 03 February 1983
• Docket Number: No. 81-853,81-853
• Citation: 329 N.W.2d 192,110 Wis.2d 661
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Leroy William BILLINGS, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 192

329 N.W.2d 192

110 Wis.2d 661

STATE of Wisconsin, Plaintiff-Respondent, v. Leroy William BILLINGS, Defendant-Appellant.

No. 81-853.

Supreme Court of Wisconsin.

Argued Nov. 3, 1982.

Decided Feb. 3, 1983.

Louis B. Butler, Jr., Asst. State Public Defender, for defendant-appellant.

Kirbie Knutson, Asst. Atty. Gen., argued, for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., on brief.

ABRAHAMSON, Justice.

This is an appeal from an order of the circuit court for Kenosha County, William U. Zievers, Circuit Judge, denying defendant Leroy Billings's post-conviction motion for a new trial. The defendant appealed from this order, and the court of appeals certified the case to this court. We accepted certification. Secs. 808.05, 809.61, Stats. 1979-80. Because we conclude that the admission into evidence of the defendant's statements taken in violation of the defendant's fifth amendment right to counsel constituted prejudicial error, we reverse the order and remand the cause to the circuit court for a new trial.

The defendant was convicted of one count of second degree sexual assault contrary to secs. 940.225(2)(a) and 939.62(1)(b), Stats.1979-80, and one count of trespass to dwelling, repeater, contrary to secs. 943.14 and 939.62(1)(b), Stats.1979-80.

The defendant went to the Kenosha police station on August 19, 1978, at a detective's request. The police advised the defendant he had been accused of a sexual assault which had occurred on August 8, 1978. The police gave the defendant the standard Miranda warnings and asked whether he understood them. The defendant stated that he was willing to talk, and he signed a waiver of rights. The police officers asked the defendant a few questions and, according to the testimony of the police officers, at some point early in the questioning the defendant said something about an attorney. One officer testified that the defendant said either "Okay, I did it. Maybe I ought to see an attorney," or "I think I should get an attorney." In response to the defendant's comment about seeing an attorney a lieutenant of the Kenosha Police Department stated, "You need a doctor, not an attorney." The defendant then said, "Well, I will tell you all about it then."

No attorney was provided for the defendant. A police officer continued the interrogation in an interrogation room where the defendant was again given his Miranda warnings. A tape recording was made of the interrogation.

The circuit court (Judge Burton Scott) denied the defendant's motion to suppress his statements after concluding that the defendant had not specifically requested an attorney and that the defendant's statements to the police during the interrogation were a voluntary product of a free and unconstrained will reflecting a deliberate choice.

At trial the jury heard the tape recording of defendant's interrogation at the police station as well as the testimony of the police officers who investigated the scene of the crime and who questioned the defendant. The police officers testified as to defendant's comments during the interrogation and as to a photograph of a shoe print in the victim's basement which matched shoes the defendant owned. The jury also heard the testimony of three other persons: the victim, who identified the defendant and described the assault; the 14-year-old neighbor boy who said he saw the defendant outside the victim's house at about the time of the assault; and the defendant.

After conviction and sentencing, the defendant filed a sec. 974.06 post-conviction motion for a new trial. The circuit court (Judge William U. Zievers) concluded that the defendant had made a specific request for counsel which had not been scrupulously honored by the police and that the defendant's statements should not have been admitted as evidence at the trial. Wentela v. State, 95 Wis.2d 283, 292, 290 N.W.2d 312, 313 (1980); Micale v. State, 76 Wis.2d 370, 373, 251 N.W.2d 458 (1977). Nevertheless, the circuit court denied the defendant's motion for a new trial, because it was convinced that the evidence against the defendant was so overwhelming that the jury easily would have been able to find the defendant guilty beyond a reasonable doubt without considering the defendant's erroneously admitted statements.

The defendant appealed from the circuit court's denial of his motion for a new trial. On appeal the state concedes that the police violated the defendant's constitutional rights by failing to cease interrogating the defendant after he requested counsel and that the circuit court should have suppressed the defendant's statements. The state nevertheless asks this court to affirm the conviction, arguing that the defendant's statements were voluntary, that the harmless error rule applies to the erroneous admission of the defendant's voluntary statements which were taken in violation of Miranda rights (a fifth amendment denial of counsel), and that the admission of the defendant's statements in this case was harmless beyond a reasonable doubt.

In contrast, the defendant urges on appeal that the police officer's continued interrogation and failure to accede to his request for counsel make the defendant's statement involuntary per se; that the admission of an involuntary statement can never be harmless error, Schwamb v. State, 46 Wis.2d 1, 14, 173 N.W.2d 666 (1970); and that therefore the conviction must be reversed. The defendant further contends that even if his statements were voluntary, the harmless error rule does not apply because there is a fifth amendment denial of counsel. Finally, the defendant urges that if the harmless error rule applies, the error was not harmless in this case.

The court of appeals certified the following question to this court: "Can harmless error apply where a statement is taken after a defendant's right to counsel under Miranda was disregarded? As addressed by the parties on appeal, the issue might be accurately framed another way: Is a statement extracted in violation of an asserted right to counsel involuntary per se?"

Neither the United States Supreme Court nor this court has explicitly considered or decided whether a court can ever find harmless error when the state introduces into its case in chief statements made by an accused after he received Miranda warnings and after the police failed to honor his request for counsel. In Micale v. State, 76 Wis.2d 370, 251 N.W.2d 458 (1977), a case involving a fifth amendment Miranda denial of counsel, this court, without discussion, applied the harmless error rule. ¹ In a subsequent case, Wentela v. State, 95 Wis.2d 283, 290 N.W.2d 312, 313 (1980), in which the circuit court had admitted a statement obtained in violation of the defendant's fifth amendment Miranda counsel rights, this court reversed the conviction without discussing whether the constitutional error was prejudicial. ²

Because the record clearly shows that the constitutional error in this case was not harmless beyond a reasonable doubt, we need not reach the other significant constitutional questions of whether the defendant's statements were voluntary or whether as a matter of law it cannot be harmless error to admit defendant's statements which were given after the defendant received his Miranda warnings and the police failed to honor his request for counsel.

The standard for determining whether constitutional error is harmless, as that standard was formulated in Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967), reh'g denied, 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241, and as it has been applied by this court, ³ requires the beneficiary of the constitutional error, here the state, to "... prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained ... and the court must be able to declare a belief that [the constitutional error] was harmless beyond a reasonable doubt." The court determines whether the error is harmless by assessing the probable impact of the erroneously admitted evidence on the minds of an average jury, ⁴ Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 1728, 23 L.Ed.2d 284 (1969), that is, by assessing whether there is "a reasonable possibility that the evidence complained of might have contributed to the conviction." Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230, 11 L.Ed.2d 171 (1963). The court in Chapman explained that the "reasonable possibility standard" is equivalent to the "beyond a reasonable doubt standard," as follows:

"There is little, if any, difference between our statement in Fahy v. Connecticut about 'whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction' and requiring the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. We, therefore, do no more than adhere to the meaning of our Fahy case when we hold, as we now do, that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. While appellate courts do not ordinarily have the original task of applying such a test, it is a familiar standard to all courts, and we believe its adoption will provide a more workable standard, although achieving the same result as that aimed at in our Fahy case." 386 U.S. at 24, 87 S.Ct. at 828 (note omitted).

Although the Chapman standard is easy to state, it is not easy to apply. Courts must make an inquiry into the nature of all of the evidence that the jury heard to assess whether an error in admitting certain evidence was harmless beyond a reasonable doubt. The impact of the erroneously admitted evidence on the jurors cannot be assessed either by looking at the erroneously admitted evidence in isolation or by looking at the evidence unaffected by the error (hereafter referred to...