State v. Jones, 92-1316-CR
| Decision Date | 18 November 1993 |
| Docket Number | No. 92-1316-CR,92-1316-CR |
| Citation | 514 N.W.2d 53,180 Wis.2d 467 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.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. Jason A. JONES, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Before GARTZKE, P.J., and DYKMAN and SUNDBY, JJ.
DYKMAN.
This is an appeal from a judgment convicting Jason Jones of first-degree intentional homicide and burglary. We certified this case to the Wisconsin Supreme Court to permit that court to consider the potential effect of State v. Camacho, 176 Wis.2d 860, 501 N.W.2d 380 (1993), on battered women and other victims of prior abuse. The court denied our certification.
Jones asserts that the trial court erred by refusing to suppress evidence obtained during a search of the residence where he was a guest, and by refusing to suppress statements taken in violation of his fifth amendment right to remain silent and his sixth amendment right to counsel. He also claims that the trial court erroneously exercised its discretion by excluding evidence and by sentencing him to terms which deny parole eligibility for more than fifty years. We find no error and, therefore, affirm.
FACTS
Around midnight on May 16, 1991, Gerald Szymanski was attacked in his apartment by two assailants who repeatedly stabbed him and cut his throat. He managed to walk to a gas station where he collapsed and died. Before dying, he mumbled words to the effect that "Crease did it" or "Sinsay did it."
The police put Kim Mathews's house under surveillance almost immediately because they determined that she had associated with Robert Crease. Mathews was Szymanski's daughter. Between 2:30 and 3:00 a.m. on May 17, the police notified Mathews of her father's death and asked her to come outside. She was taken across the street to the police station where she made a telephone call. An officer then asked her to have a seat in a squad car. The officer was "bothered" because Mathews showed no signs of emotion upon being told of her father's death. He told Mathews that he might have to get a search warrant for her residence. The officer noted that she began shaking and halfheartedly crying, but she said nothing. By then it was about 3:00 a.m., and the officer left to obtain a search warrant for Szymanski's apartment.
About 5:30 a.m., the officer returned with a permission to search form. He showed Mathews the form, informed her that he believed that an individual known as "CC" was in her house, and told her that he would like to search her residence. Mathews looked at the form and signed it. Several officers entered the residence. While they were searching, a deputy sheriff arrived. One of the officers searching the residence came back out and, in Mathews's presence, told the deputy that he had found something in the house he wanted the deputy to look at. The deputy said to Mathews: "[T]here is a permission to search signed, is that right?" Mathews looked at the deputy, but did not respond. The officer told the deputy that there was one, and both went into Mathews's residence. Both CC and Jones, then seventeen years old, were found there, along with evidence which decisively incriminated them in Szymanski's murder. Jones was waived into adult court.
CONSENT TO SEARCH
The state concedes that Jones has standing to attack Mathews's consent to the search. Jones argues that Mathews's consent to search her residence was not voluntary, and, therefore, the fruits of the search, including statements by Jones and CC, should be suppressed.
The state bears the burden of proving that consent to a search was freely and voluntarily given. State v. Nehls, 111 Wis.2d 594, 598, 331 N.W.2d 603, 605 (Ct.App.1983). Voluntariness of a consent search is a question of fact which must be determined from the totality of the circumstances. Id. Here, the trial court did not consider whether Mathews's consent to search was voluntary because it concluded that Jones lacked standing to raise this issue. Because there are no findings, this court may determine whether the consent was voluntary when the evidence is clear. See Milwaukee Journal v. Call, 153 Wis.2d 313, 319, 450 N.W.2d 515, 517 (Ct.App.1989). Here, the evidence is clear and undisputed. Jones and the state differ only as to the inference to be drawn from that evidence. We will consider the voluntariness of Mathews's consent.
Jones asserts that the state failed to prove that Mathews could even read, let alone understand, the consent form. That, coupled with her failure to respond to the deputy's question, resulted in a failure of the state to satisfy its burden. We disagree. Mathews looked at the form before signing it. The presence of the officers is no basis to find a lack of voluntariness. Nehls, 111 Wis.2d at 599-600, 331 N.W.2d at 606. Though one of the officers earlier told Mathews that he might have to obtain a search warrant for her premises, that statement was not repeated several hours later when the officer presented Mathews with the consent form. Mathews could have questioned the form, but did not. Instead, she signed the consent form, opened the door for the officers and told them where they could find CC. In view of those affirmative acts, the inference Jones asks us to draw from Mathews's failure to respond to a question directed to her is unwarranted. We conclude that Mathews's consent was voluntary.
But Jones contends that the trial court improperly prevented him from showing that the consent was involuntary. He points out that when he attempted to question Mathews at his suppression hearing, Mathews refused to answer his questions because her answers might tend to incriminate her, a right given her by the fifth and fourteenth amendments to the United States Constitution.
This issue arose after Mathews had refused to answer several questions Jones asked her. At this point, Mathews's attorney interrupted the questioning, and said: A discussion ensued between the court and CC's counsel.
The court noted that Mathews had a right to rely on her attorney's advice to refuse to answer any questions. It questioned whether a witness may selectively invoke his or her fifth amendment privilege. It concluded that Mathews had not waived her privilege by answering a question asking what her name was. But it made no ruling on Mathews's "selective invocation" of the fifth amendment. And the defendant did not ask the court to rule on that issue. Because he did not do so, we need not address this issue.
But Jones did ask the trial court to consider an unsigned affidavit with a signature line for Mathews as an offer of proof. The trial court refused to do so. Jones's assertion that this was error misperceives the nature of an offer of proof.
An offer of proof is used when a trial court sustains an objection to testimony or other evidence. An offer of proof shows an appellate court what the testimony or evidence would have been had the trial court overruled the objection. This permits an appellate court to consider whether the refusal to admit proffered evidence requires a new trial or whether a trial court's error was harmless. An offer of proof is not a substitute for evidence.
Here, Jones did not present any evidence which the trial court excluded, except for the affidavit. We agree with the trial court that an unsigned affidavit is evidence of nothing. Exclusion of the affidavit as evidence of Mathews's lack of consent was not an unreasonable exercise of discretion.
SUPPRESSION OF STATEMENTS
Jones made several statements to the police about his involvement in Szymanski's murder. Prior to trial, the court denied Jones's motions to suppress the statements. Jones asserts this to be error. We disagree.
Jones's first statement was signed at 8:36 a.m. on May 17. Jones had been awakened shortly before 6:00 a.m. by police officers, one of whom had drawn a handgun. He was handcuffed and taken to a police car where a sheriff's deputy read him the rights guaranteed to him under Miranda v. Arizona, 384 U.S. 436 (1966). The deputy told him that he was not under arrest, but that he would be by day's end. Jones waived his rights to an attorney and to remain silent. Jones and the deputy talked in the squad car for about an hour. When Jones asked to go to a rest room, the deputy took him to the police department. After Jones returned from the rest room, the deputy did not give him another Miranda warning, and began asking questions about the murder. Jones gave answers that placed him at the scene of the homicide.
Jones asserts that the deputy was required to again read him his Miranda rights when he returned from the rest room. He further asserts that because he was told he was not under arrest when read his rights, though he had in fact been arrested, the original reading of his rights was inadequate. We see no harm in warning a suspect of his or her Miranda rights prior to the suspect's arrest. The purpose of suppressing statements taken in the absence of Miranda warnings is to insure that police will read those warnings to arrestees. That purpose is served even if the warnings are given prematurely and a suspect is incorrectly told that he is not under arrest. And, police officers are not required to repeatedly recite Miranda warnings during an investigation of the same person for the same crime. State v. Fillyaw, 104 Wis.2d 700, 725, 312 N.W.2d 795, 808 (1981), cert. denied, 455 U.S. 1026 (1982). The trial court properly declined to suppress Jones's first statement.
Jones gave his second statement at 12:07 p.m., about three and one-half hours after he gave his first statement. Prior to the questioning that resulted in...
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