State v. Davidson, S

• Decision Date: 03 October 1969
• Docket Number: No. S,S
• Parties: STATE of Wisconsin, Respondent, v. Robert Jay DAVIDSON, Appellant. tate 52.
• Court: Wisconsin Supreme Court

Page 755

170 N.W.2d 755

44 Wis.2d 177

STATE of Wisconsin, Respondent, v. Robert Jay DAVIDSON, Appellant.

No. State 52.

Supreme Court of Wisconsin.

Oct. 3, 1969.

On the morning of Friday, October 14, 1966, the body of Leona Davidson was found in the basement of her New Berlin home by two police officers. The officers had been summoned by a neighbor, the sister of the deceased, whose suspicions had been aroused by a blood stain and a broken window on the rear door of the home. The officers entered the home to find the severely bruised and lacerated body of the victim lying in a large pool of blood. A large number of broken mason jars were near the body and there was broken glass throughout the area. Blood was found throughout the home.

The police officers at the scene telephoned their chief, who immediately phoned the defendant, informing him of the discovery of the body of his wife and requesting him to come to the home to identify the body. (At the time of her death, the defendant was separated from his wife, and an action for annulment instituted by her was pending in the courts.) When the defendant arrived at the house, he was met by a police officer and escorted to an unmarked police car. The defendant informed the officer that he had not been at the house since the previous Tuesday, October 11th, and that he had been at a convention in Madison until late the night before. In the car the defendant was joined by the sheriff, police chief and an assistant district attorney. The chief informed defendant of his rights, including the right to counsel before making any statement or answering any questions. Testimony is in conflict as to whether the defendant then stated that he had no objection to telling those present when he had last seen his wife or whether the sheriff immediately inquired when he had last seen his wife. In either event, the defendant stated that he had last seen his wife on Tuesday, October 11th, and that he had been in Madison until late the previous evening.

The defendant then identified the body as being that of his wife. He then became ill and was driven at his request in his car by one of the officers to his doctor's office. While at the doctor's office, he telephoned his attorney. He was then hospitalized. The defendant's car was left at the doctor's office that night, locked, and was towed to the sheriff's department the next day.

The police searched the premises on October 14th and again on October 15th and 17th. These searches, made without search warrants, produced blood samples, pieces of broken glass and a pair of blood-stained eyeglasses. A search warrant was obtained on November 7th and further search of the house conducted on November 9th. On October 15th, a search warrant was obtained and a search conducted of defendant's automobile; a number of pieces of broken glass were found and a blood stain on the horn rim. On October 15th a search warrant had been obtained and a search conducted of defendant's apartment in Milwaukee, netting certain pieces of broken glass.

On November 15, 1966, a complaint was filed and warrant issued charging the defendant with murder, first degree. Defendant was arrested, appeared in court with counsel and entered a plea of Not Guilty. On January 23, 1967, a preliminary hearing was held and on November 28, 1967 trial commenced before a jury. On December 9, 1967, the jury returned a verdict of Guilty of murder, first degree. On December 11, 1967, the trial court sentenced the defendant to life imprisonment. Defendant appeals.

Shellow, Shellow & Coffey, Milwaukee, for appellant.

Robert W. Warren, Atty. Gen., William A. Platz and Berry R. Brown, Asst. Attys. Gen., Madison, Roger P. Murphy, Dist. Atty., Waukesha County, Waukesha, for respondent.

ROBERT W. HANSEN, Justice.

The jury found the defendant guilty of murder in the first degree. The trial judge sentenced the defendant to life imprisonment. On this appeal the defendant raises a baker's half-dozen challenges to the judgment of conviction. All are carefully briefed and persuasively presented, but none require nor warrant a reversal of the judgment.

1. ADMISSION OF STATEMENT

The defendant claims that the admission into evidence of defendant's statement, made after his request for counsel, was improper.

At the trial a Goodchild-type hearing was held to determine admissibility of defendant's statement to the sheriff and police chief as to when he had last seen his wife and where he had been the night before the killing. The court held that the answer to the sheriff's question, i.e., 'when did you last see your wife?' was not admissible, but that the comment of defendant as to where he had been the previous evening was a volunteered statement and admissible. The ruling separated and distinguished between the two parts of the statement. Both parts are linked in time and relevancy. Both parts are related to the whereabouts of the defendant on the night of the crime. Both became less than the truth when the defendant took the stand to testify that he had in fact been at the home of the deceased on the night of October 13th.

The state responds that the defendant had not been placed in custody or significantly detained so that the warning as to constitutional rights was not required at that stage of the proceedings. It is true that the investigation was just beginning and the defendant was not placed under arrest for nearly a month after the incident involved. However, by giving the warning or admonition as to defendant's constitutional rights, the police chief apparently resolved the doubts as to custodial or detention status in favor of the warning being then given. A closer question, however, remains as to whether the statement made was a response to 'questioning initiated by law enforcement officers.' ¹

Here the police chief testified that he had informed the defendant that his wife was dead and that there were suspicious circumstances surrounding her death. He started explaining to the defendant his constitutional rights when the sheriff handed the chief a Miranda warning card which the chief read to the defendant. Asked if he understood, the defendant replied, 'Yes.' Asked if he cared to have an attorney, the defendant stated, 'I think perhaps I better talk to my attorney.' He added, 'However, I have no objection to telling you when I last saw my wife.' On this testimony the discussion as to when he last saw his wife clearly could be held to have been initiated by the defendant. He volunteered to give this information. The sheriff's inquiry as to when he last saw his wife was no more than an invitation to proceed. It was not an initiating of questioning. Holding the Miranda decision to its precise and expressed limits would make admissible both the defendant's statement that he had been with his wife the previous Monday and at the house the previous Tuesday, as well as his statement that he had been in Madison on Wednesday and Thursday at a business meeting. Both statements were part of a discussion initiated by him.

It is important to note that while the defendant objects to admission of the statement made by him to the chief, sheriff and assistant district attorney, he did not and does not object to the testimony of the police sergeant as to a nearly identical statement earlier made by the defendant to the sergeant. The sergeant was the officer who first encountered the defendant when he reached the scene of the crime. The sergeant testified that the defendant then told him that he was in Madison on the night of the crime and that he had not seen his wife since the previous Monday. No objection was raised to the admission of this testimony by the police sergeant either at the time of the trial nor is objection raised on this appeal. Since the statement made by the defendant to the sergeant is as inconsistent with defendant's witness stand account of his whereabouts as is the statement made by him to the chief and sheriff, we have no hesitancy in holding that, if it was error to admit a portion of the statement made to the chief and sheriff, it was harmless error.

2. INTERVIEWING OF WITNESSES

The defendant claims that the trial court improperly denied a mid-trial defense motion for the right to interview a particular state witness.

Early in the trial (after the jury had taken a view of the home where the defendant's wife was killed) the defendant's counsel moved that he be allowed to interview state witnesses, 'both before and after they testify.' The motion was denied, the judge adding that defense counsel would be permitted 'to make appropriate motions as circumstances develop.' That appropriate time in the judgment of defense counsel came after Dr. Robert Muggli testified for the state as an expert witness. His testimony linked the glass found in the defendant's automobile and apartment with glass found at the home of the deceased. After direct examination by the district attorney, cross-examination by defendant's counsel, re-direct examination by the state, re-cross examination by the defense, defendant's counsel moved the court for an order permitting him to interview Dr. Muggli. The doctor indicated he would prefer not to speak with defendant's counsel but would if the court ordered him to do so.

Defendant cites a recent case ² as supporting such mid-trial request to interview a state witness reluctant to be interviewed. That case termed it 'well settled law' in Wisconsin that:

'Accused and his counsel have the right to interview witnesses before the trial; and the state has no right to deny them access to a witness material to the defense, but a witness cannot be compelled to submit to such interview, * * *.' ³ (emphasis supplied)

The holding in Watkins is authority against, not for the position taken by defendant's counsel. We deal here with a motion to interview witnesses made after the trial got under way. We do not deal here with a pre-trial denial of access...