State v. Jacobus

Decision Date12 September 1996
Docket NumberNo. 95-2160-CR,95-2160-CR
Citation555 N.W.2d 410,205 Wis.2d 112
PartiesNOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.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. Brian A. JACOBUS, Defendant-Appellant.
CourtWisconsin Court of Appeals

Before EICH, C.J., VERGERONT and ROGGENSACK, JJ.

EICH, C.J.

Brian Jacobus appeals from a judgment convicting him of the first-degree murder of his wife and sentencing him to prison for life. He claims that the trial court improperly denied his motions to suppress various items of evidence, including a confession, and a motion to change venue. He also challenges several of the trial court's evidentiary rulings, the manner in which the jury panel was selected and the court's refusal to instruct on a claimed lesser-included offense.

We reject his arguments and affirm the judgment.

In September 1994, Jacobus, a resident of Boscobel, Wisconsin, reported to the Crawford County sheriff's department that his wife, Terri, was missing. The report gave rise to a well-publicized search in the Boscobel area, near the borders of Richland, Grant and Crawford counties. Jacobus was taken into custody for questioning when Terri's body was found in the Wisconsin River. Shortly after the questioning began Jacobus confessed, admitting that he had killed Terri with a hammer and thrown her weighted body into the river. He also gave his consent for deputies to search his house and property.

At about the time the search began, Jacobus's brother called an attorney who, being unable to get through to the sheriff's office, informed the district attorney's office by telephone that Jacobus had retained him and they were to cease questioning or trying to obtain evidence from him. This information did not reach the sheriff's deputies until after the search had been completed.

Jacobus moved to suppress his confession and the evidence seized as a result of the search on grounds that his interrogators coerced both the confession and his consent to the search. The trial court denied the motions.

Jacobus then moved to change venue from Crawford County, basing his motion on the media coverage of the search for, and discovery of, his wife's body. The trial court, citing the publicity, granted the motion and ordered the trial to be held in Richland County. Jacobus filed a second motion to change venue, citing the same reasons as in the first. The court denied the motion.

Prior to trial, the court advised counsel that the jury panel would be selected by a computer, as was the practice in Richland County. Jacobus objected, claiming that such a procedure would deny his right to be present during the selection process. This motion, too, was denied by the court.

During the trial, Jacobus unsuccessfully objected to several of the court's evidentiary rulings, among them one excluding expert psychiatric testimony that his obsession with his wife's marital infidelities may have overcome his reason to the extent that he acted on impulse, rather than intention, in killing her. Jacobus also unsuccessfully objected to (1) statements by one or more witnesses that Terri had told them Jacobus had threatened to kill her; (2) the court's refusal to allow the jury to hear tape recordings Jacobus had secretly made of his conversations with Terri and Terri's telephone conversations with another man; and (3) the admission into evidence of an audiotape of his confession.

Finally, the trial court denied Jacobus's motion to instruct the jury on the claimed lesser-included offense of first-degree reckless homicide.

Jacobus renews all his objections and challenges on appeal, and we consider them seriatim. 1

I. Standard of Review

Whether Jacobus's confession, or his consent to the search, were "coerced"--or, stated differently, whether he understood and validly waived his constitutional rights in these respects--is a question of mixed fact and law. It is the State's obligation to prove voluntariness and/or waiver by a preponderance of the evidence. Colorado v. Connelly, 479 U.S. 157, 168, 107 S.Ct. 515, ---, 93 L.Ed.2d 473 (1986); State v. Esser, 166 Wis.2d 897, 904-06, 480 N.W.2d 541, 544-45 (Ct.App.1992). And our assessment of that proof is governed by the familiar rule that, while we will not overturn the trial court's findings of evidentiary or historical fact unless they are clearly erroneous, we will independently apply the controlling legal and constitutional principles to those facts. Esser, 166 Wis.2d at 903-04, 480 N.W.2d at 543-44; State v. Owens, 148 Wis.2d 922, 926, 436 N.W.2d 869, 871 (1989).

Whether to change venue is a decision committed to the sound discretion of the trial court, McKissick v. State, 49 Wis.2d 537, 544-45, 182 N.W.2d 282, 285-86 (1971), as are rulings on objections to the admission, rejection or limitation of evidence. State v. Alsteen, 108 Wis.2d 723, 727, 324 N.W.2d 426, 428 (1982). "We will not reverse a discretionary determination by the trial court if the record shows that discretion was ... exercised and we can perceive a reasonable basis for the court's decision." Prahl v. Brosamle, 142 Wis.2d 658, 667, 420 N.W.2d 372, 376 (Ct.App.1987) (citation omitted). The term "discretion" contemplates a reasoning process that considers the applicable law and the facts of record, leading to a conclusion a reasonable judge could reach. Schneller v. St. Mary's Hosp. Medical Ctr., 155 Wis.2d 365, 374, 455 N.W.2d 250, 254 (Ct.App.1990), aff'd, 162 Wis.2d 296, 470 N.W.2d 873 (1991). "[A]nd while it may be that we would have decided the motion differently, that is not the test; it is enough that a reasonable judge could have so concluded...." Id. at 376, 455 N.W.2d at 255.

Finally, whether to instruct on a lesser-included offense--whether the evidence reasonably supports giving the instruction--is a question of law which we review de novo. State v. Lohmeier, 196 Wis.2d 432, 441, 538 N.W.2d 821, 824 (Ct.App.1995), petition for review granted, --- Wis.2d ----, 542 N.W.2d 154 (1995). Even when there is an instructional error, however, we will not order a new trial unless the error is prejudicial: there must be a "probability and not just a possibility that the jury was misled thereby...." Id. at 441-42, 538 N.W.2d at 824.

II. Suppression of the Confession

Jacobus claims first that he did not understand his Miranda 2 rights before he signed the form waiving them during his interrogation by two Crawford County sheriff's deputies. He also asserts that the officers coerced his confession by "engag[ing] in psychological pressures, promises and wrongful inducements."

A. The Miranda Waiver

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 Ohio Misc. 9 (1966), requires that Jacobus be advised of his right to remain silent, that any statements may be used against him and that he has the right to the presence of an appointed or retained attorney during his interrogation. Id. at 444, 86 S.Ct. 1602. He may, of course, voluntarily, knowingly and intelligently waive those rights. Id.

[T]he relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception.... [T]he waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the "totality of the circumstances surrounding the interrogation" reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.

Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, ---, 89 L.Ed.2d 410 (1986) (quoted source omitted).

Jacobus argues that his Miranda waiver should be held invalid because the record shows he did not understand his rights before signing the form. He bases the argument on a statement he made to the officers indicating that he did not understand his rights after they had been orally explained to him by the officers. That is true: when the officers, after reading the rights, asked whether he understood them, he responded no, and asked to read the card the officers had been reading from. Then, after reading the card, he was asked again whether he understood his rights. He responded that he did and proceeded to sign the waiver form.

If a suspect, who having been advised of his or her rights under Miranda, acknowledges that they are understood and is willing to make a statement, the State has made a prima facie case of proper waiver which, in the absence of countervailing evidence, renders the resulting statement admissible. State v. Lee, 175 Wis.2d 348, 360-61, 499 N.W.2d 250, 255 (Ct.App.1993). We agree with the State that Lee is satisfied in this case.

There is no question that Jacobus acknowledged that he understood his rights before signing the waiver, and we do not believe this acknowledgement is negated by the uncertainty he expressed moments earlier, before he had read the document. We think this is especially true in light of his subsequent actions: he proceeded to respond to the officer's questions, asking none of his own and making no request for counsel or giving any indication that he did not understand his rights.

Because we have not been referred to any evidence in the record sufficient to rebut the State's prima facie showing, we conclude that Jacobus's Miranda waiver was constitutionally valid.

B. Coercion

Jacobus cites the following "circumstances" in support of his argument that his confession was coerced by the officers: (1) the officers' reference to his membership in the Methodist Church and whether he agreed that "[w]e have all got to make things right with our maker"; (2) their statement that what had happened to Terri may have been a "mistake," and that they were there to "help" him and would not "judge [him] for...

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