State v. Hanson, 85-0918
| Decision Date | 06 March 1987 |
| Docket Number | No. 85-0918,85-0918 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Bradley S. HANSON, Defendant-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
Michael Yovovich, Asst. State Public Defender, for defendant-appellant-petitioner.
Thomas J. Balistreri, Asst. Atty. Gen., argued, for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., on brief.
The first issue in this case is whether the Wisconsin Constitution Article I, sec. 8(1) 1.. requires law enforcement authorities to inform a suspect that there is an attorney available and requesting to see him before the individual asks to see an attorney. Stated another way, can an attorney exercise the accused's right to counsel without any request for counsel by the accused?
Another issue is whether sec. 967.06, Stats., 2.. requires the defendant be advised that he is entitled to consult with an attorney even though the police are not then involved in any interrogation of him.
The defendant brought a motion to suppress before the Barron county circuit court, the Honorable John E. Schneider, presiding. The motion was denied. A trial was held in Barron county circuit court before the Honorable James Erickson, presiding, and Hanson was found guilty of the first-degree murder of his wife. Hanson appealed the judgment of conviction to the court of appeals on the grounds that his statements given in the hospital were inadmissible.
Bradley S. Hanson, (Hanson) the defendant, and his wife, Cindy, separated on April 26, 1984. She moved in with her parents who lived on a Rice Lake farm. On May 7, 1984, the defendant's probation agent telephoned him regarding threats he had made to his wife. Hanson informed his agent that he did not want to do anything to frighten her.
On May 8, Hanson stopped at a friend's house and borrowed a .357 Ruger and six shells and told his friend he was going on a fishing trip and wanted the gun for target practice.
The following day, the defendant visited his wife at 9 a.m. at her parent's farm. Approximately 90 seconds after his arrival, Cindy's mother, Mrs. Kurschinsky, heard Cindy exclaim, "for God's sake, Brad." Then she heard two shots. When she came into the kitchen, she observed her daughter lying on the floor near the refrigerator.
Mrs. Kurschinsky ran outside to get her husband. She saw Hanson and yelled at him, "My God, Brad, you just shot Cindy and she might even be dead." Hanson stated, "Well, I hope she is." After calling for her husband, Mrs. Kurschinsky heard another shot and observed Hanson holding himself and walking as if he were falling down.
Cindy Hanson suffered three gunshot wounds; one entered her abdomen and exited through her back; and a second one entered through the midportion of her back and exited at the right breast. She also sustained a wound to her right hand which could have been caused by the same shot as the one to her abdomen. Cindy Hanson died as a result of her injuries.
At approximately 9:25 a.m. Hanson arrived at the Lakeview Medical Center and informed a volunteer that he had been shot. When medical personnel asked how he was shot, he stated "My wife and I had an argument." Hanson suffered a gunshot wound in his abdomen which required surgery. While Hanson was in the recovery room after his surgery, the room was guarded by Deputy Sheriff Richard Miller of the Barron County Sheriff's Department. Hanson remained under guard when he was moved to a private room at approximately 3:35 p.m.
The police personnel who guarded Hanson at the medical center were under the following written instructions from Sheriff Wally Larson:
A Rice Lake attorney learned over a police call radio that someone named Hanson was being held by the police on a serious matter and would be having surgery. He telephoned the public defender's office and relayed the information to Assistant State Public Defender Lawrence Durning. Attorney Durning had previously represented the defendant when Hanson was placed on two year's probation in December of 1982 on a criminal damage to property conviction. In fact, Hanson was on that probation when the instant charge arose and was on a probation hold at his initial appearance. However, neither party claims the prior relationship has any legal impact on this case.
On May 9, Attorney Durning arrived at the Lakeview Medical Center in Rice Lake and identified himself to Deputy Miller. Deputy Miller also knew Attorney Durning and his position as assistant public defender through experience from other matters. At approximately 2:10 to 2:12 p.m., Attorney Durning asked to see the defendant at the first available opportunity. Durning stated that he was not the defendant's attorney at that time but appeared as a representative of the state public defender. At that time, the defendant was in the recovery room, and Durning was not allowed to see or speak to him.
At approximately 2:20 p.m. on the same date, the mother and father of the defendant spoke with Attorney Durning and asked him to represent their son. Durning filled out an affidavit of indigency sworn to by the mother and father as to the defendant's indigency; however, the defendant was an adult of 29 years of age. Durning found Hanson, through that parental interview, to be indigent and eligible for an attorney appointed by the office of the state public defender.
At 2:40 p.m., Attorney Durning advised Deputy Miller that he was Bradley Hanson's attorney, that he had been contacted by the defendant's mother and that he wished to speak with the defendant.
At 2:42 p.m., Deputy Miller and James C. Babler, the District Attorney for Barron County, had a telephone conversation at which time Babler told Miller not to allow anyone to speak to the defendant unless the defendant requested an attorney. This information was conveyed by Deputy Miller to Attorney Durning.
At 2:42 p.m., Durning requested that no one be allowed to talk to Brad Hanson unless he, Durning, was present. He specified that this particularly applied to law enforcement officers.
At approximately 3:20 p.m., Durning was appointed attorney for Bradley S. Hanson by Bradley Keith, First Assistant State Public Defender for the region in which Barron county is located. At this time, Bradley Hanson had not requested an attorney, had not been informed of his right to counsel, and had not been questioned due to his condition after surgery. Therefore, this appointment was made without Bradley Hanson's request, consent or knowledge.
At 3:35 p.m., the defendant was moved from the recovery room to a private room on the second floor of the hospital.
At 3:37 p.m., Attorney Durning gave Deputy Miller a written request stating that the defendant was not to be interrogated or to talk with or to law enforcement officers or anyone else without Durning's physical presence.
The written communication stated as follows:
Attorney Durning was in fact not allowed to see the defendant on the 9th day of May 1984. No visitors other than medical personnel were allowed to have contact with the defendant. On the morning of May 10, 1984, Durning again presented himself at the hospital and was not allowed access to Bradley S. Hanson.
The morning after his surgery on the day after the killing, Hanson was visited by two investigators from the Barron County Sheriff's Department. Hanson was then receiving morphine every three to four hours.
Prior to interrogating Hanson, the investigators checked with a nurse and another medical center official for approval to speak to Hanson. The testimony of Officer Thomas Avery, Nurse Judy Fischer and Deputy Alfred Lentz was that Hanson was coherent. Deputy Lentz testified the defendant
After informing Hanson of his Miranda 3.. rights, and asking him whether he understood those rights, Hanson stated, "Yeah, I think so." One of the investigators asked Hanson further questions, including ascertaining that he had had Miranda rights read to him in the past. When asked whether he was willing to answer questions or make a statement, Hanson replied "sure." Hanson then signed a written Miranda waiver form, which informed him:
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