State v. Koput

• Decision Date: 11 February 1988
• Docket Number: No. 85-2244-CR,85-2244-CR
• Citation: 142 Wis.2d 370,418 N.W.2d 804
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Harold KOPUT, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 804

418 N.W.2d 804

142 Wis.2d 370

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Harold KOPUT, Defendant-Appellant.

No. 85-2244-CR.

Supreme Court of Wisconsin.

Argued Sept. 9, 1987.

Decided Feb. 11, 1988.

Sally L. Wellman, Asst. Atty. Gen., argued, for plaintiff-respondent-petitioner; Donald J. Hanaway, Atty. Gen., on brief.

Donna L. Hintze, Asst. State Public Defender, for defendant-appellant.

HEFFERNAN, Chief Justice.

This case comes to us by a petition of the state to review a decision of the court of appeals ¹ which reversed a judgment convicting Harold Koput (Koput) of first degree murder. The appeal was from the judgment of the circuit court for Milwaukee county, Ralph G. Gorenstein, Circuit Judge.

The principal issue for which this court accepted this case on review was whether, in the second phase of a bifurcated criminal trial, the jury verdict must be unanimous in determining that a defendant who, in the first phase, had been found guilty of criminal conduct was to be exonerated from criminal responsibility ² and whether, in the event of prejudicial error in the second phase of the trial, a completely new trial on all issues was required.

The court of appeals concluded that a unanimous verdict was required in the second phase of the bifurcated trial. Accordingly, it held that the verdict in which one juror concluded that Koput was not responsible for his conduct and eleven jurors did not so find was constitutionally defective for lack of unanimity.

The court of appeals reversed the circuit court's conviction and remanded the case for retrial on all issues, including a retrial on the first phase--the guilt issue.

We hold that, because the responsibility phase of the bifurcated trial is not an integral part of the criminal trial, but is rather a special proceeding in the criminal process in which the defendant has the burden of proof to establish his lack of responsibility to a reasonable certainty by the greater weight of the credible evidence, a unanimous verdict is not required. We also hold that a verdict in which five-sixth of the Because we conclude that no prejudicial error occurred in the responsibility phase of the trial, we have no occasion, and are not required, to determine whether such an error would mandate a retrial of the entire case. We conclude, however, in the exercise of our supervisory authority over courts, that, where the error is only in the responsibility phase of the bifurcated trial, there is no reason whatsoever for concluding that there should be a retrial of the error-free, guilty determination. Only a retrial of the responsibility phase is appropriate. ³

jurors agree that the person found guilty of criminal conduct in phase one is not responsible will exonerate that person from criminal sanctions for the conduct.

The defendant, upon our acceptance of the state's petition for review, in his brief raised an additional issue, decided adversely to him by the court of appeals--that the court of appeals erred when it affirmed the order of the trial court denying the suppression of certain inculpatory statements made by the defendant. ⁴ We conclude that the trial court correctly determined that defendant was not in custody before he gave the statement sought to be suppressed and, therefore, was not entitled to a Miranda warning and, for the same reason, had neither a right to counsel nor a right to silence that would be afforded to a person "in custody" undergoing interrogation.

Accordingly, we do not reach the basis justifying suppression utilized by the court of appeals, which assumed that the defendant was in custody but that his rights to counsel and to remain silent were not violated. We conclude, however, that the circuit court order denying defendant's motion to suppress was properly affirmed by the court of appeals, although we justify our affirmance on a rationale different from that utilized by the court of appeals.

We therefore reverse the court of appeals and, in effect, affirm the conviction of Harold Koput for first degree murder. We first discuss the question of whether the order denying suppression was correct and then consider the question of whether a jury verdict on phase two need be unanimous.

The record reveals the following uncontroverted facts, on the basis of which we determine that Koput was not in custody and therefore had no rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

On March 27, 1983, the stabbed, bludgeoned, and sexually mutilated body of Lucille Ann Nelson was found on the Milwaukee County Institution grounds. Because, despite the passage of several months, there were few, if any, leads concerning the killing, a television announcement was run on Milwaukee stations asking that anyone who had seen Lucille Ann about the time of the killing come forward. Motivated by this television announcement, on October 4, 1983, Koput went to a priest and gave information about having seen Nelson on the night in question. The content of the statement is not known. With Koput's consent, the priest called the Milwaukee police department. When the police arrived shortly thereafter, Koput gave a non-inculpatory oral statement that he had been with Nelson early on the evening she was murdered. The Milwaukee police determined that the murder took place in the Koput was directed to a records office, where the interview was conducted. The office was unguarded. The room had no door, and ingress and egress were unrestricted at all times. None of the officers interviewing Koput was in uniform, and the only one of them who was armed had his weapon concealed. No weapons were visible during the course of the interview. The record reveals no threats or accusation of crime. Koput was never restrained. The room had normal lighting--neither bright nor dim. He was invited to use the toilet facilities; and, although the officers accompanied him to those facilities when he wished to use them, the reasonable inference from the record is that this was only as an accommodation for the purpose of giving directions to Koput. He was given food and allowed to smoke. Whenever he indicated that he wished to be left alone, he was. There was testimony that, had he desired, he could have left at any time prior to giving his inculpatory statement.

territorial jurisdiction of the sheriff's department and notified that office. Koput was taken home by the Milwaukee police and was told that someone from the Milwaukee county sheriff's department would interview him. At about 12:45 A.M. on October 5, 1983, a sheriff's deputy visited Koput at his home, and there Koput reiterated the information given earlier in the evening to the Milwaukee police. At the conclusion of the interview, Koput told the sheriff's officers that he would be available for further interviews and could be reached the next day at his home until 9:30 A.M., after which time, he could be reached at work. Sheriff's deputies Smukowski and McVeigh met Koput at his workplace the next morning and, with his agreement, drove him to the sheriff's office. On the way Koput stated he needed cigarettes. [142 Wis.2d 377] He was dropped off to make the purchase while the officers waited for him in their car.

However, about three hours after coming to the sheriff's office, Officer Smukowski, because of Koput's "fidgeting" and inconsistent statements, reached the subjective conclusion that Koput was a "suspect."

At about 2 P.M., Koput was read his "rights" in accordance with the Miranda procedure. ⁵ It was at this point Koput stated, in the presence of Deputies Smukowski and McVeigh, " 'I don't want to talk to you guys any more.' " Smukowski and McVeigh then left and Officer Zens talked with Koput. After a brief conversation with Officer Zens, in which Koput stated he thought Zens was alright but he did not like the way the other two deputies looked at him, Koput was left unguarded in the doorless room for over two hours. In the late afternoon, Sergeant Tobiasz entered the room and asked Koput whether he wished to talk about the murder. Tobiasz read the Miranda admonitions to Koput. Koput stated he was willing to talk and then did so, giving a narrative statement to Tobiasz that he had committed the murder.

This conversation took place at about 4:15 P.M. on October 5, 1983. Counsel for Koput does not claim he was in custody from 9:30 A.M., when he arrived. Counsel, however, claims that Koput was in custody "by the time he gave the inculpatory statement to Tobiasz at 4:15 p.m." If the facts impel the objective conclusion that there was no custody prior to 4:15, there is no factual basis to conclude that a different objective answer should be reached in respect to the statement at that time.

Both the state and counsel for Koput agree that it is the objective standard that The objective test is stated with clarity in Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), a unanimous opinion in that respect. Therein, the court stated:

is to be utilized to ascertain "custody." ⁶

"A policeman's unarticulated plan has no bearing on the question whether a suspect was 'in custody' at a particular time; the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation." Id. at 442, 104 S.Ct. at 3151.

Footnote 35 to the paragraph above states in part:

"[A]n objective, reasonable-man test is appropriate because, unlike a subjective test, it 'is not solely dependent either on the self-serving declarations of the police officers or the defendant nor does it place upon the police the burden of anticipating the frailties or idosyncracies of every person whom they question.' "

We have previously held that, where the facts are undisputed, "custody" is a matter of law. State v. Clappes, 117 Wis.2d 277, 280, 344 N.W.2d 141 (1984). The circuit court, on the same undisputed facts that we find in the record,...