State v. Echols

• Decision Date: 05 May 1992
• Docket Number: No. 91-1446-CR,91-1446-CR
• Citation: 487 N.W.2d 660,169 Wis.2d 466
• Parties: NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. Veronica F. ECHOLS, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 660

487 N.W.2d 660

169 Wis.2d 466

NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.

STATE of Wisconsin, Plaintiff-Respondent, v. Veronica F. ECHOLS, Defendant-Appellant.

No. 91-1446-CR.

Court of Appeals of Wisconsin.

May 5, 1992. ^*

Appeal from a judgment and an order of the circuit court for Milwaukee county; Robert W. Landry, Judge. Affirmed.

Circuit Court, Milwaukee County

AFFIRMED.

Before MOSER, P.J., SULLIVAN and FINE, JJ.

MOSER, Presiding Judge.

Veronica Echols (Echols) appeals from a judgment of conviction and from an order denying her post-conviction motions. Following an incident in which a third party shot Echols' husband three times, Echols was charged with being a party to the crime of attempted murder ¹ based upon allegations that she paid the assailant $2,500 to carry out the murder of her husband. Following a jury trial, she was convicted and sentenced to twenty years in prison. On appeal, Echols raised the following issues: (1) denial of her motion for continuance, based upon her physical condition, (2) failure to suppress Echols' statement to interrogating officers, (3) exhibitions of unfair prejudice by the trial court against herself and her counsel, (4) failure to place sufficient reasons for sentencing on the record, and (5) improper influence on the jury, i.e., use of time constraints, by the trial court. We address each of these issues in turn.

I. Continuance Based Upon Defendant's Physical Condition

Echols requested a continuance of her scheduled trial because of her alleged "physical deterioration which had occurred based upon her not being able to meet personal hygiene needs, deprivation of food, and lack of sleep." Echols had been transferred from the county jail to the House of Correction, incurring disruption of her sleeping and eating schedule due to the routine of transfer times. Additionally, the activities of the other inmates at the House of Correction allegedly prevented her from sleeping. The specific allegation regarding personal hygiene was a temporary, but extended (approximately eight days), lack of hot water in the jail facility, which prevented showering. On the evening before the pretrial suppression hearing, ² her counsel observed that she was "just rambling and not [ ] very alert." ³

A trial court has discretion in ruling on a motion for continuance; such discretionary decisions will not be reversed unless an abuse of discretion is shown. ⁴ A discretionary decision of the trial court must be based upon the facts of record, the appropriate legal standard and a rational mental process linking the two. ⁵ However, there is no set test for determining the propriety of a ruling on a continuance; rather the determination is made on a case-by-case basis, resting upon the particular facts and circumstances at bar. ⁶

In this case, the trial court demonstrably balanced the defendant's lack of sleep and other discomforts with the effects of postponement on the defendant and the community and with the administration of the court. Furthermore, the trial court stated that its denial of the continuance was based upon a lack of medical testimony supporting the observations of counsel. The trial court indicated its willingness to hear both an offer of proof and medical testimony, if available. There is no record of an offer of medical testimony on this issue. ⁷ Echols did make a testimonial offer of proof, ⁸ which consisted of approximately sixteen transcript pages of examination, cross-examination, and responses by Echols. This record provides a factual basis that supports the determination that the defendant was able to understand questions and provide appropriate answers to them. Therefore, we hold that no abuse of discretion occurred.

II. Denial of Suppression of Statement to Interrogating Officers

When Echols was arrested, she denied involvement in the offense. After she was booked, she made a second statement admitting her involvement, i.e., that she had hired people to kill her husband. At the suppression hearing, Echols testified that the interrogating officer, Detective Barber, told her that what she told him was "between me and him and no one would ever know what I told him"; that her statement to him would be "sealed"; and that if she gave him her statement, she could go home to be with her children, ages fifteen and six, who were home alone. Detective Barber testified, in contradiction, that he did not make any promises to her in order to obtain her second statement.

At the suppression hearing, Echols argued that because of excessive promises made to her by police officers, the second statement was not voluntary. The trial court explicitly identified the dispositive issue regarding the voluntariness of the statement: "the dispute at this critical juncture is the inducement that was involved." After summarizing the testimony of the witnesses, the trial court stated:

This does not include everything that was stated that was either corroborative or in dispute by the parties but highlights those differences which are I think critical, which make up the substance of this hearing. It is my view that the State has met the burden of establishing by the proof required that, one, the statements were made, that is, the Miranda statements and warnings were given properly, completely and timely; further that the statements made were knowingly made, understandingly made, freely made.

The defendant indicated that the conditions under which she gave [the statement], while subject to special and obvious concerns, [such as the].... state of her children, ... injuries [to her husband], ... charges [against her and] ... lack of sleep she nevertheless was treated, she acknowledged most hospitably.... And there is no indication that she was under any physical condition that would be tantamount to pressure against her for making the statements.

On appeal, Echols argues that the defendant's belief as to the existence of a promise is a historical fact subject to the "clearly erroneous" test. ⁹ She also argues that because the trial court failed to make historical findings of fact on the issue of credibility, on the record, this court may not review the decision of the lower court but must remand for reconsideration by the trial court. ¹⁰

The Wisconsin Supreme Court has held that while the subjective belief of a defendant regarding allegedly coercive promises made by an interrogating officer is a matter of historical fact, ¹¹ the defendant's subjective belief is not dispositive in determining whether a confession is voluntary. ¹² Rather, to determine if a statement is voluntary, the courts are to look at the "totality of the circumstances surrounding the [statement]," with particular attention to improper action of the police. ¹³

Echols' subjective belief about promises allegedly made to her by Detective Barber is a matter of a historical fact, but one that is highly dependent upon the trial court's determination of the credibility of witnesses. It is clear from the record statement of the trial court that a comparison of the credibility of Echols and Barber was made. Wisconsin law does not require a recitation of "magic words" to indicate a trial court's finding of fact. ¹⁴ An implicit finding of fact is sufficient for review when the facts of record support the decision of the trial court. ¹⁵ The trial court's finding that "the statements made were knowingly made, understandingly made, freely made" is consistent with finding Barber's testimony credible and impliedly rejects Echols' version of her interrogation. ¹⁶

Where constitutional facts are at issue, independent appellate review is necessary because "the scope of constitutional protections, representing the basic value commitments of our society, cannot vary from trial court to trial court." ¹⁷ Because the line between historical fact and constitutional fact is "often fuzzy at best," ¹⁸ we also review, de novo, ¹⁹ the application of constitutional principles to the facts as found by the trial court. ²⁰ The record in the case at bar clearly shows both the "personal characteristics" of Echols and any "pressures imposed upon [her] by the police," i.e., the specific circumstances of the first and second police interrogations, including the physical setting and the demeanor of the officers. We hold that the protections of the "totality of the circumstances" test ²¹ for voluntary confessions were met in the case at bar. Applying both the "clearly erroneous" test to findings of historical fact, with due deference to the trial court's determination of witness credibility, and the correct legal standards for evaluating the voluntariness of a statement, Echols' statement is admissible. Accordingly, we affirm the trial court.

III. Exhibitions of Unfair Prejudice by Trial Court

Echols asserts three specific actions on the part of the trial court that show bias toward the prosecution: (1) failure to grant a recusal motion, (2) failure to allow effective cross-examination of Detective Barber, and (3) assisting the prosecution to "repel additional attempts to impeach Detective Barber." We will discuss each of these incidents in turn.

1. Recusal

Prior to the suppression hearing, Echols' counsel made an oral motion "to ask this Court to recuse itself," without citation to relevant legal authority. The factual basis for the motion was a statement made by the trial judge at a regular meeting of Milwaukee felony judges. At the particular meeting in question, the newly appointed police chief was present, and in the course of that meeting, the judge in this case made a statement later summarized by Echols' counsel as follows:

You [the trial judge] stated to Police Chief Arreola that years ago one used to be able to successfully challenge before a jury and in court the actions of the police officers in...