State v. Hartwig, 83-1371-CR

Decision Date30 April 1985
Docket NumberNo. 83-1371-CR,83-1371-CR
Citation366 N.W.2d 866,123 Wis.2d 278
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Randy Lee HARTWIG, Defendant-Appellant-Petitioner.
CourtWisconsin Supreme Court

Mary E. Waitrovich, Asst. State Public Defender, for defendant-appellant-petitioner.

Barry M. Levenson, Asst. Atty. Gen. (argued), for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., on brief.

DAY, Justice.

This is a review of an unpublished decision of the court of appeals 119 Wis.2d 900, 350 N.W.2d 741 affirming the judgment of conviction entered by the circuit court for Green county, Honorable Frederick P. Kessler, Reserve Judge, presiding, against the defendant, Randy Lee Hartwig. The conviction was for second-degree sexual assault in violation of section 940.225(2)(a), Stats. 1981-82, 1 and for attempted first-degree sexual assault in violation of section 940.225(1)(d), 2 and section 939.32(1). 3

The issues raised on review are: (1) The defendant invoked his right to remain silent when he was questioned for the first time. Did the subsequent questioning by police under the facts of this case constitute a failure to "scrupulously honor" that right so that incriminating statements made by the defendant during subsequent questioning should have been suppressed? (2) Had the defendant invoked his right to counsel by inquiring if he had the right to a lawyer?

We conclude that, under the facts of this case, the police failed to "scrupulously honor" the defendant's right to remain silent when they subsequently questioned him after he had invoked that right. This was a violation of the defendant's fifth amendment right to remain silent. 4 Because of this conclusion, we need not address the issue of whether the defendant invoked his right to counsel. We therefore reverse the court of appeals and remand this case for a new trial.

On July 9, 1982, at approximately 7:00 a.m., Officer McClain arrested the defendant on a complaint of sexual assault and took him to the Brodhead Police Station. Officer McClain testified that upon their arrival at the station, the defendant asked "about having a lawyer." When asked what the defendant said, Officer McClain testified that he said "something to the effect, aren't you supposed to read me my rights and do I have the right to a lawyer, something to that effect." Officer McClain then testified: "I told him that after reading his rights he did have the right to a lawyer but first I must read him the rights." He then advised the defendant of his Miranda rights 5 which include the right to remain silent and the right to counsel. According to Officer McClain, when the defendant was asked whether he understood his rights, he answered "yes." When he was asked whether he wanted to make a statement or answer questions, the defendant answered "no."

Officer McClain testified that he then sent for a tape recorder and advised the defendant that he was going to turn it on. He told the defendant that the recorder was there so no mistake would be made in case the defendant said anything. According to Officer McClain the defendant then said "something to the effect that, if I say anything, they will use it against me and I will be in even longer."

No additional questions were asked during a period of approximately thirty-five minutes. Then Investigator Argue of the Green County Sheriff's Department arrived. He also advised the defendant of his Miranda rights. The defendant was again asked if he wished to make a statement. Officer McClain, who was also present when Investigator Argue asked the defendant if he wished to make a statement, testified as follows:

"[Mr. Merry, Defendant's Counsel]: And did you ask him at the Brodhead Police Station again if he wanted to make a statement?

"[Officer McClain]: I didn't, no.

"[Mr. Merry]: Did anyone else?

"[Officer McClain]: Investigator Argue did after he arrived and re-read the defendant his rights.

"[Mr. Merry]: At the Brodhead police station?

"[Officer McClain]: Yes sir.

"[Mr. Merry]: What was his answer then?

"[Officer McClain]: When Investigator Argue read him his rights he again answered, to did you understand your rights, he answered yes. To the second part he again answered no.

"[Mr. Merry]: He answered no, I do not want to make a statement?

"[Officer McClain]: Yes sir."

Investigator Argue testified that the defendant responded with "something like, I don't know what good that will do." Argue then advised the defendant that the police had enough to charge him and that they would take him to the Green county jail. The defendant remained mute and Investigator Argue left to talk to the victim.

At about 9:28 a.m., after the defendant had been transferred to the Green County Sheriff's Department, Argue again advised the defendant of his Miranda rights. These rights were read from a voluntary statement and waiver form on which the defendant initialed each line and then signed the form waiving his rights. Argue then took a statement from the defendant wherein he confessed to the sexual assault for which he was arrested and to other incidents of sexual misconduct. Later, the defendant was again advised of his rights and given a typed copy of the statement he made that morning. He read and signed the typewritten statement about 1:54 p.m. that afternoon.

When both Officer McClain and Investigator Argue sought to question the defendant, the offense for which he was arrested was the subject matter of their inquiry.

In its order filed November 9, 1982, the circuit court denied the defendant's motion to suppress statements made by the defendant to police officers. On January 20, 1983, the defendant entered a plea of no contest to the charges of second-degree sexual assault and attempted first-degree sexual assault and was convicted and sentenced. The court of appeals held that the defendant's right to counsel and right to remain silent were not violated and, therefore, the court affirmed the conviction. We accepted this review to determine whether the defendant's fifth amendment rights to counsel or to remain silent as set forth in Miranda v. Arizona, 384 U.S. 436, 444, 445, 86 S.Ct. 1602, 1612, 1613, 16 L.Ed.2d 694 (1966), were violated, requiring suppression of incriminating statements made by the defendant to the police.

In such cases, this court has stated the standard of review as follows:

"The standard of review by the appellate court of the trial court's findings of evidentiary or historical facts is that those findings will not be upset on appeal unless they are contrary to the great weight and clear preponderance of the evidence. (Cite omitted). This standard of review does not apply, however, to the trial court's determination of constitutional questions. Instead, the appellate court independently determines the questions of 'constitutional' fact. (Cites omitted). These questions are not questions of evidentiary or historical fact, but are rather questions that require 'application of constitutional principles to the facts as found....' [State v.] Mazur, 90 Wis.2d at 309 [280 N.W.2d 194] quoting Brown v. Allen, 344 U.S. 443, 507, [73 S.Ct. 397, 446, 97 L.Ed. 469] (1953) (Opinion of Frankfurter, J.)." State v. Woods, 117 Wis.2d 701, 715, 345 N.W.2d 457 (1984).

(1) RIGHT TO REMAIN SILENT.

The defendant asserts that the statements he made to the police should not have been admissible as evidence because, after he had invoked his right to silence, the state violated that right. We agree.

"Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of free choice." Miranda, 384 U.S. at 458, 86 S.Ct. at 1619. The intention of the Court in Miranda was to adopt a fully effective means to notify the accused of his right to silence and to assure him that the exercise of that right will be "scrupulously honored." Michigan v. Mosley, 423 U.S. 96, 103, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975). The critical safeguard of the right to silence is the right to terminate questioning by invocation of the right to silence. Mosley, 423 U.S. at 103, 96 S.Ct. at 326. The state may again interrogate the accused after the right to silence has been invoked provided that right to silence is "scrupulously honored." Mosley, 423 U.S. at 104, 96 S.Ct. at 326. Determining whether the right to silence has been scrupulously honored requires the application of constitutional principles to the facts of the case and is subject to independent appellate review.

In Mosley, the United States Supreme Court held, on the facts before it, that the interrogation of the defendant was properly resumed and that the defendant's right to silence was not violated. Mosley, 423 U.S. at 107, 96 S.Ct. at 328. In so holding, the Court focused on the following factors: (1) The original interrogation was promptly terminated. (2) The interrogation was resumed only after the passage of a significant period of time. (In Mosley it was two hours). (3) The suspect was given complete Miranda warnings at the outset of the second interrogation. (4) A different officer resumed the questioning. (5) The second interrogation was limited to a crime that was not the subject of the earlier interrogation. Wentela v. State, 95 Wis.2d 283, 294, 290 N.W.2d 312 (1980). 6

The absence or presence, however, of the Mosley factors is not exclusively controlling and these factors do not establish a test which can be "woodenly" applied. Wentela, 95 Wis.2d at 299, 290 N.W.2d 312. The essential issue is whether, under the circumstances, the defendant's right to silence was scrupulously honored. The Mosley factors provide a framework of analysis to aid in determining that issue. When that framework is applied in this case, it is apparent that the defendant's right to silence was not scrupulously honored.

First, the defendant did not have the benefit of having a...

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