State v. Cydzik

• Decision Date: 30 October 1973
• Docket Number: No. S,S
• Citation: 60 Wis.2d 683,211 N.W.2d 421
• Parties: STATE of Wisconsin, Respondent, v. Thaddeus A. CYDZIK, Appellant. tate 85.
• Court: Wisconsin Supreme Court

Page 421

211 N.W.2d 421

60 Wis.2d 683

STATE of Wisconsin, Respondent, v. Thaddeus A. CYDZIK, Appellant.

No. State 85.

Supreme Court of Wisconsin.

Oct. 30, 1973.

Shellow & Shellow, James M. Shellow, James A. Walrath, Milwaukee, for appellant.

Robert W. Warren, Atty. Gen., Thomas J. Balistreri, Asst. Atty. Gen., Madison, for respondent.

ROBERT W. HANSEN, Justice.

Eight issues are raised by the defendant on this appeal and each will be considered in turn.

SUFFICIENCY OF THE INFORMATION. The information charged the defendant with first-degree murder as a party to the crime. Defendant claims error in the failure of the information to set forth the specific subsection of the party-to-a-crime statute relied upon. ¹ The statute does not require that a defendant be specifically charged with violation of the section, stating instead, 'Whoever is concerned in the commission of a crime is a principal.' ² This court has held that it is not mandatory to refer to the party-to-a-crime section, giving as one reason the fact that 'it is often difficult to tell in advance of filing the information whether to charge the defendant as the principal or under this section as a party to the crime.' ³ This reason applies to reference to a subsection at least as much and as well as it does to reference to the section. Where reference to the party-to-a-crime section is not mandatory, we see no reason to hold referring to a particular subsection to be required. We see no relevance to the federal court case cited by defendant dealing with prejudice arising where there are 'two joined offenses which are clearly distinct in time, place and evidence.' ⁴ In the case before us, time, place and evidence relate to a single killing during a single armed holdup.

TESTIMONY CONCERNING DRUGS. A witness for the state was permitted to testify that on the day of the robbery the defendant stated he was going to take one or two pills because he had to stay up late that night. Trial counsel's objection was that such testimony was 'unconnected' and 'prejudiced defendant's rights.' On appeal, defendant contends the reference to defendant's pill-taking was prejudicial evidence of another crime. Evidence which tends to prove another crime is usually not admissible to prove the crime for which defendant is presently charged. ⁵ However, other-crimes evidence which tends to show intent may be admitted. ⁶ Where other-crimes evidence is relevant or probative with regard to the charge for which defendant is being tried, it may be admitted in the discretion of the trial court. ⁷ The test here is whether probative value was outweighed by 'substantial danger of undue prejudice.' ⁸ On the record here, there is every indication that 'pills' mentioned by defendant were to be taken to keep him alert and awake, and no necessary implication that such no-doze pills were illegal or dangerous drugs. Here it does not appear that the evidence admitted was '. . . of so little probative value as contrasted to its possible prejudicial effect that the trial judge abused his discretion in letting it in.' ⁹ On the corollary issue raised that the proper scope of recross-examination was exceeded, we find no abuse of discretion. ¹⁰ This court has given trial courts considerable latitude in determining what is proper cross-examination, ¹¹ and we see no reason for narrowing that area of trial court discretion when it comes to recross or redirect interrogation of a witness. Sound discretion was not here exceeded.

RIGHT TO COUNSEL. Police testimony was that the defendant was fully advised of his right to counsel and right to remain silent on three occasions: (1) When he was arrested by Milwaukee police officers outside his home at 10:50 p.m.; (2) when he was to be taken by Waukesha deputy sheriffs from the Milwaukee police station at about 1:45 a.m.; and (3) when he arrived at the Waukesha sheriff's department at about 3:00 a.m. The defendant's only challenge to this testimony is as to the second warning in the Milwaukee police department garage. The trial court found that the requirements of Miranda ¹² were met, and that finding certainly is not contrary to the great weight and clear preponderance of the evidence, ¹³ particularly not where the defendant himself testified, at the Goodchild hearing, that he was fully advised of his right to an attorney when he was first placed under arrest. There is no requirement that Miranda warnings be repeated once they are given. There is no reason not to repeat them, but no requirement so to do. ¹⁴ When defendant was first advised of his Miranda rights, he stated that before he incriminated himself he had better see an attorney. He was allowed to call his father with whom he spoke about getting an attorney. No subsequent request for an attorney was made by defendant. An individual in custody who has claimed the right to remain silent under Miranda has the right to change his mind and to decide to volunteer a statement. ¹⁵ Such individual in such situation may waive his right to remain silent and volunteer a statement. ¹⁶ The sole issue then is whether the defendant's statements to the police were voluntarily made. The defendant claims that the voluntariness of his subsequent statements was eroded by the fact that Detective Conway told him his cooperation would be to his benefit. Such statement by a law enforcement officer falls far short of creating the 'compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely.' ¹⁷ Even a promise of leniency would not, standing alone, do that. ¹⁸ Whether such statements by the defendant are voluntary or the result of coercion depends upon the 'totality of the circumstances.' ¹⁹ The advice of the police detective to the defendant to cooperate falls short of creating any coercive pressure for the self-incriminating statements of defendant which began soon after the advice was given. While the hour was late and the trial court noted the one and one-half hour stay of defendant at police headquarters in Milwaukee, there is here no indication of lengthy interrogation of any deliberate tactics to impel defendant to volunteer a statement. We affirm the trial court holding that defendant's statements were volunteered and entirely voluntary.

ADMISSION OF HAT. Defendant contends that there was no probable cause for issuance of a search warrant for a hat allegedly worn by the defendant during the armed robbery. Since this issue was not raised before or at the time of trial, it is waived. Objections to use of illegally secured evidence are to be made prior to trial, or, in case of surprise, at the time of trial. ²⁰ Incidentally, there is neither any indication nor argument that the defendant was surprised by the admission of his hat into evidence, so here the objection should have been raised prior to trial. It was not.

INSTRUCTIONS TO JURY. In three particulars, defendant on appeal claims error in the instructions given the jury by the trial judge. The trial court gave the standard instruction on aiding and abetting. ²¹ This instruction has been approved by this court. ²² No objection was made by defendant to this instruction either before or after it was made. Defendant now contends the trial court should have given an instruction on aiding and abetting third-degree murder. The trial court did instruct on aiding and abetting, following such instruction with instructions as to first-degree murder and third-degree murder. No request was made by defendant for such instruction, and no specific objection made at the trial to the instruction as given. Defendant now objects to the court's instruction on first-degree murder. While defense counsel did move for dismissal of the first-degree murder count on grounds of insufficiency of evidence, there was no objection at trial to the instruction as given on elements of the crime. While in post-conviction motions the defendant did generally claim that the trial court erred in instructing the jury, nowhere were the specific objections raised on appeal raised in the trial proceedings. This court 'has consistently held that it would consider the failure to timely object to jury instructions as a waiver of any alleged defects in those instructions.' ²³ We conclude that the defendant here has waived his right to object to the trial court instructions as given.

PROSECUTOR'S CLOSING ARGUMENTS. Defendant claims prosecutor's closing arguments were improper in four particulars: (1) That the prosecutor 'interjected his own personal belief on the defendant's guilt or on the credibility of his defense.' This court has rejected the strict rule against a prosecutor expressing an opinion based on the evidence. ²⁴ In this state a prosecutor may give his personal opinion limited to the evidence actually adduced at trial. ²⁵ That is what the prosecutor here did. (2) That the prosecutor sought to convince the jury that the defendant was 'the architect of the robbery.' The thrust of the prosecutor's argument was that the robbery was preplanned, and there was ample evidence in the record to support such contention. (3) That the prosecutor 'impliedly asked the jurors to consider the difference in penalties.' The prosecutor's argument, in its entirety, stressed the jury conforming its verdict to the evidence and not arriving at a less severe verdict out of sympathy. This was proper. ²⁶ (4) That the prosecutor referred to defendant as 'a long-haired criminal.' Defense counsel argued to the jury that young people have a code of conduct of their own. The prosecutor responded to the effect that young people--long hair or not--must conform to the same code of conduct as anyone else. Viewed as a response, ²⁷ we find no impropriety in the reference. Additionally, the statements here involved were not objected to by defense counsel at the time of trial. An objection to improper argument must be voiced when it...