State v. Carter

• Citation: 146 N.W.2d 466,33 Wis.2d 80
• Parties: STATE of Wisconsin, Respondent, v. Conrad CARTER, Appellant.
• Decision Date: 29 November 1966
• Court: United States State Supreme Court of Wisconsin

Page 466

146 N.W.2d 466

33 Wis.2d 80

STATE of Wisconsin, Respondent, v. Conrad CARTER, Appellant.

Supreme Court of Wisconsin.

Nov. 29, 1966.

Louis W. Staudenmaier, Jr., Milwaukee, for appellant.

Bronson C. La Follette, Atty. Gen., Madison, Hugh R. O'Connell, Dist. Atty., Robert E. Sutton, Asst. Dist. Atty., Milwaukee, for respondent.

BEILFUSS, Justice.

Three issues are presented upon this appeal:

1. Should the trial judge have, upon motion by the defendant, disqualified himself from conducting the hearing on remand to determine the admissibility of the defendant's confession?

2. Should this court make an independent, de novo, determination of the voluntariness of the defendant's confession on review of the findings of the trial court after hearing?

3. Was the defendant's confession properly admitted into evidence against him at trial?

The defendant contends that certain remarks made by the trial judge after verdict and before sentencing indicate such prejudice toward the defendant that the trial judge should have granted defendant's motion to disqualify himself from conducting the hearing. The remarks which the defendant contends manifest prejudice appear in the record as follows:

'THE COURT: The verdict of the jury is accepted and received by the Court and ordered filed and recorded.

'Ladies and gentlemen of the jury, that completes your service in this case and you are discharged in this case.

'The verdict of the jury meets with my full approbation so far as my reaction to the testimony is concerned and the credibility of witnesses, * * *

'THE COURT: What was the nature of the violation of the probation that I gave you, Carter. Was that another narcotics matter?

'A Yes, sir.

'Q Are you a heroin user?

'A Yes, sir.

'Q Were you using it at the time that you were involved in this offense?

'A Yes, sir.

'Q By injection?

'A Yes, sir.

'Q Is that why you committed the robbery?

'A Yes, sir.

'THE COURT: You see, your trouble is your truth comes very tardily.

'THE COURT: By his tardiness in recanting of perjury and inducing others to similarly concoct a very patent fabrication in the nature of an alibi, he has just saved himself a consecutive sentence.

'Carter, I gave you a chance some years ago and you missed it. This heroin situation is not good. I must have told you that at the time.

'DEFENDANT: Yes, sir.

'THE COURT: And that apparently was your motivation here. You should have pleaded guilty, in my view. I think the evidence was very clear. You tried hard to escape twice. This time you have not escaped, thanks to the common sense and the perspicacity of the jury, and I know that they took this matter seriously.

'I submitted to them, properly, under the applicable facts and the law, the choice of another verdict besides not guilty. This business about a plastic gun, well, they didn't buy that and I am pleased that they had the vision to penetrate that kind of claim. Of course, that wasn't your claim, really, because you disavowed the confession, you claim it was made under duress and it wasn't true and you weren't there. That was an easy matter to see through.

'I don't think a man like you would use a plastic pistol and I doubt very much whether, being on the hunt for narcotics, whether you would equip your-self with this kind of an innocuous weappon. That was my reaction and the jury felt the same way, not knowing about the narcotics history, and I didn't either, until I saw this record here. * * *

'* * * And I intend, of course, to impose here the very maximum sentence, because you not only have compounded the two attempted escapes, which were serious enough, but you have also compounded the felony which you committed, which was very serious, by the position you took on this trial, until this very last anti-climatic moment, when you, by what you told me, acknowledged that you committed this robbery. You should have done that a long time ago.'

The remarks of Judge Steffes set forth above are taken out of the context of the record and were spoken to Carter in connection with the imposition of sentence.

At the trial Carter used two alternative and inconsistent theories of defense: (1) an alibi to the effect he was not present at the robbery, and (2) that the pistol used at the robbery was only a plastic imitation of a gun.

The record clearly demonstrates a dismal failure of these two defenses and justifies the comment of the trial judge at the time of sentencing. The alibi witness offered by the defendant did not in any adequate sense establish that Carter was not at the scene at the time of the robbery. The victim of the robbery unequivocally identified Carter as his assailant and the weapon as a gun. Carter struck the victim on the head twice with the gun with sufficient severity so that the victim required emergency hospital treatment to suture his scalp wounds.

Carter's past criminal record presented to Judge Steffes after the return of the verdict revealed Carter had a history of use and attempted sale of narcotics dating back to 1957. Thus the record of the trial and the information furnished to the court in aid of sentencing amply demonstrate that the trial judge's remarks were based upon judicially acquired knowledge and were justified in explaining to Carter the basis for the sentence. ²

The stipulation and order remanding the matter to the court for hearing provided that it be sent back to the circuit court for Milwaukee county. While the circuit court for Milwaukee county has several branches, the import of both the stipulation and the order is that it should be returned to the trial court that originally heard the case.

Because Jackson v. Denno, supra, is a very recent pronouncement of the United States supreme court (June 22, 1964), there is little authority on the question of which judge shall hear and conduct the supplemental hearing on the question of the voluntariness of a confession.

In People v. Huntley (1965), 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179, the Court of Appeals of New York held that, where possible, the supplemental hearing after trial required by Jackson v. Denno, supra, should be held before the judge who presided over the trial. ³

While we do not hold that in no instance should the original trial judge refuse to disqualify himself as a matter of proper judicial discretion, we are of the opinion that unless it can be clearly shown that the trial court has demonstrated a prejudice toward the defendant the original trial judge should, where possible, conduct the supplemental proceeding to determine the voluntariness of a confession. We wish to point out that judicial knowledge, properly acquired, concerning the defendant cannot be the basis of disqualification.

In accord with this view we find the following in United States v. Brooks (7th Cir.1965), 355 F.2d 540, 542:

'* * * This is a common function in the work of trial judges, and the absence of a rule requiring one judge to hear the testimony on voluntariness of a confession and another to determine guilt indicates satisfaction with the present practice. To hold otherwise would work an undue and unwarranted burden on district courts, especially in a case like this, where the issue of voluntariness does not arise until after the trial has commenced and defendant has waived a jury trial. Our jurisprudence postulates the ability of judges to dismiss from their minds, in reaching decisions, offers of evidence excluded by rulings after hearing arguments on admissibility of that evidence.'

We are of the opinion that it was not error for the trial judge, Judge Steffes, to conduct the supplemental evidentiary hearing to determine the voluntariness of Carter's confession.

The only question at the hearing was that of the voluntariness of the defendant's confession under the 'totality of the circumstances' test. Thus the state had the burden to prove beyond a reasonable doubt that the confession was a result of deliberateness of choice and that it was the product of a free and unconstrained will. Neuenfeldt v. State (1965), 29 Wis.2d 20, 138 N.W.2d 252. In the case at bar the trial judge applied these standards, made detailed findings of fact and conclusions of law in accord with State ex rel. Goodchild v. Burke, supra, and concluded that Carter's confession was voluntary.

The defendant argues that because a constitutional right is involved, this court should make an independent, de novo determination on the question of voluntariness. In support of this proposition the defendant relies upon the following statement in Phillips v. State (1966), 29 Wis.2d 521, 527, 139 N.W.2d 41, 43:

'But since the question is whether a constitutional right has been violated, it is the subject of our independent determination on this review.'

A closer examination of Phillips reveals that the quotation relied upon by Carter was made with reference to a mixed question of fact and constitutional law which was passed upon by the trial court at a hearing on the admissibility of the confession.

We further stated in Phillips:

'There is dispute in the evidence, however, whether the defendant was advised he could have counsel. At the conclusion of the testimony, the trial judge found the confession was a free and deliberate choice of the defendant, but more important on this issue, that under the circumstances the confession was 'constitutionally antiseptic and not in violation of any of his constitutional rights.' Thus while the trial court did not make a specific finding that a request was not made, it did make an ultimate fact-finding which we think under the circumstances negated the making of the request for counsel. From the record it is apparent such effect was understood by the defendant. The determination of the question of voluntariness turns primarily on credibility, and on this record we are inclined to agree with the finding of the trial court. We suggest, however, that for the aid of this court in its determination of a...