State v. Kramar
| Decision Date | 23 May 1989 |
| Docket Number | No. 87-2111-CR,87-2111-CR |
| Citation | 149 Wis.2d 767,440 N.W.2d 317 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Gerald B. KRAMAR, Defendant-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
Michael Yovovich, Asst. State Public Defender, for defendant-appellant-petitioner.
David J. Becker, Asst. Atty. Gen., argued, Donald J. Hanaway, Atty. Gen., on brief, for plaintiff-respondent.
This case is before the court on a petition for review of an unpublished decision of the court of appeals dated September 1, 1988, 146 Wis.2d 870, 433 N.W.2d 32, which affirmed a judgment of the circuit court for Rock county, Edwin C. Dahlberg, Circuit Judge, convicting the defendant of first-degree murder under section 940.01, Stats. 1985-86. 1 Three issues are presented for review. The first issue is whether a seizure of the defendant occurred, for fourth amendment purposes, 2 when the defendant went with the police officers to the police station for questioning. The second issue is whether the police violated the defendant's Miranda rights. The third issue is whether the circuit court erred by refusing to instruct the jury on the lesser-included offense of second-degree murder. We conclude that no seizure of the defendant occurred for fourth amendment purposes when the defendant went with the police officers to the police station for questioning. In addition, we find that the police did not violate the defendant's Miranda rights. Finally, we hold that the circuit court did not err by refusing to instruct the jury on the lesser-included offense of second-degree murder.
The facts of this case are as follows. On October 23, 1984, at approximately 1:15 p.m., Scott Alf was fatally shot, twice in the back and once in the head at close range with a .22-caliber rifle. The police learned that the defendant and an individual by the name of Troy Oltrogge may have been with the victim earlier in the day. Therefore, at approximately 5:00 p.m., three police officers, Detective Markley, Captain Pittner, and Captain Tilley, went to the defendant's home to question the defendant, then sixteen years old, as to his knowledge of the shooting. The defendant's parents were home and allowed the officers into the house. After approximately twenty to thirty minutes of discussion among the officers and the defendant's parents, the defendant's parents gave the officers permission to take the defendant to the police station for questioning about an "important matter." Most of the discussion among the officers and the defendant's parents took place outside the presence of the defendant, who, after observing five to ten minutes of the discussion, left the area of the house in which the officers were standing. The officers told the defendant's parents that the defendant would be returned shortly if everything worked out. The defendant's mother then attempted to call the defendant's attorney, Edwin Nash, and, when she could not reach him, she gave the officers the attorney's name and telephone number. The officers told her that they would contact the attorney.
The defendant's mother then called the defendant from his room in the basement and told him to go with the officers. On the way up the stairs from the basement, the defendant asked his mother to contact his attorney. No one asked the defendant whether he wanted to go to the police station. Before getting into the police car, one of the officers patted down the defendant. The defendant was not handcuffed. At 5:21 p.m., Detective Markley drove the defendant to the Beloit police station.
Upon arriving at the police station, Detective Markley advised the defendant of his constitutional rights as prescribed by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The detective read the defendant his rights from the standard Beloit police department waiver form. After reading the rights, Detective Markley asked the defendant if he understood them. The defendant responded, "Yes." Detective Markley then asked the defendant whether or not he wished to speak to him (Detective Markley). The defendant again responded, "Yes."
Detective Markley then had the defendant sign the waiver form. The defendant signed the form at 5:43 p.m. The waiver form that the defendant signed contained, in addition to the Miranda rights that had been read to the defendant, the following language:
I understand each of these Constitutional rights. I did [sic] not want a lawyer at this time. I wish to make the following statement voluntarily, knowing it can and will be used against me in a court of law. No promises or threats have been made to me and no pressure or coercion of any kind has been used to get me to make this statement.
After the defendant signed the form, Detective Markley performed a test on the defendant's hands for evidence of gunpowder residue. At the conclusion of the test, Markley spoke with the defendant for approximately five minutes. Markley described that conversation as follows:
A [Detective Markley] Basically I told Gerald that I felt that he knew something about this incident. Not--obviously I had apparently told him what the incident was.
. . . . .
Q So you said, 'I know you know something about the homicide of Scott Alf'?
A In so many words.
Q Okay.
A And his reply basically was, 'No, I don't.'
Q What else did you say?
A I believe about the only thing that was said that was the gist of the conversation. It may have been repeated both question and answer and then like I say, within five minutes I left.
While Detective Markley was with the defendant, Captain Pittner contacted the defendant's attorney. Captain Pittner told the defendant's attorney that he was calling in respect to the wishes of the defendant's parents, that the defendant was at the police station, and that the police were preparing to interview the defendant in regard to a homicide that had happened that afternoon.
After talking with the defendant's attorney, Captain Pittner asked Officer Edge to take a statement from the defendant. Consequently, at approximately 6:30 p.m., Officer Edge entered the room where Detective Markley was performing the gunpowder residue test on the defendant. Officer Edge ascertained from Detective Markley that the defendant had been given his Miranda warnings. Less than ten minutes after Officer Edge entered the room, Detective Markley left.
After Detective Markley left, Officer Edge began a conversation with the defendant. At the time, Officer Edge had the understanding that the defendant was a witness to a shooting. He believed that the main suspect in the shooting was Troy Oltrogge. Within the first ten minutes of the conversation, the defendant stated that he did not want to give Officer Edge a statement until he talked to his attorney. Officer Edge did not continue questioning the defendant about the incident after the defendant requested his attorney. Rather, Officer Edge attempted to contact the defendant's attorney. At 6:51 p.m., after ascertaining who the defendant's attorney was and determining where to contact him, Officer Edge attempted to call the defendant's attorney, but there was no answer.
After attempting to reach the defendant's attorney, Officer Edge went into the hall to get a soda for the defendant. There, Officer Edge encountered Detective Markley, who led Officer Edge to believe that the defendant was the one who had shot Scott Alf. Because of that development, Officer Edge decided to contact the defendant's father and mother. He advised them to come down to the police station to be with their son because he felt it would be better if they were more involved in the situation. The defendant's parents stated that they did not care to come to the police station because they believed the police would be bringing the defendant back when the officers were done talking to him, and the parents were both in poor health.
At 7:10 p.m., either as a result of Officer Edge calling the defendant's attorney again or as a result of the defendant's attorney calling Officer Edge, the two made telephone contact. The defendant's attorney talked not only to Officer Edge, but also to the defendant. After the defendant talked to his attorney, he told Officer Edge that he had been advised not to talk to him.
Officer Edge did not discuss the case further with the defendant. Instead, Officer Edge summoned a juvenile intake worker, Steve Fernan, to arrange for the defendant's processing. Mr. Fernan arrived at the police station at 7:43 p.m., followed by the defendant's attorney at 7:48 p.m. Officer Edge described what occurred between 7:10 p.m. when he and the defendant talked to the defendant's attorney by phone and 7:48 p.m. when the defendant's attorney arrived at the police station:
A [Officer Edge] Between the point of 7:10--
Q The phone call with [the defendant's attorney]--
A --and 7:48 after he talked to--after [the defendant's attorney] talked to [the defendant], nothing was said in between that time, nothing was said about the shooting, no.
Q Did you remain in [the defendant's] presence in that room between those two periods of time?
A Yes.
Q What did you do? Just stare at him for that period of time?
A Well, you notice that form you had here on the referral. I was probably filling that out. I was doing paperwork, probably that and making the phone calls. We were having small talk. The atmosphere was very comfortable. Nothing--we weren't talking about anything to do with the shooting because he stated he didn't care to talk about it and he was not going to. So talked about whatever would come up. If he wanted to talk about schoolwork, he wanted to talk about his parents, he talked.
Sometime between 7:10 and 7:48 p.m., Officer Edge had a conversation with Officer Thomas Fearn just outside the door of the office in which he was talking to the defendant. Officer Fearn told Officer Edge that they had evidence at...
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...adduced at trial permits the giving of a lesser-included offense instruction," as this is a question of law. State v. Kramar, 149 Wis. 2d 767, 792, 440 N.W.2d 317 (1989).¶52 This case also requires the interpretation and application of statutes, which this court does independent of the circ......
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