State v. Kunkel
| Decision Date | 05 February 1987 |
| Docket Number | No. 85-2402-CR,85-2402-CR |
| Citation | 137 Wis.2d 172,404 N.W.2d 69 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Craig KUNKEL, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Donald T. Lang, Asst. State Public Defender, for defendant-appellant.
Bronson C. La Follette, Atty. Gen., and David J. Becker, Asst. State Public Defender, for plaintiff-respondent.
Before GARTZKE, P.J., DYKMAN and EICH, JJ.
Craig Kunkel was charged with the first-degree murder of his infant son. The case was never tried. He stipulated that his preliminary hearing and evidentiary hearings provided a sufficient factual basis for a finding that he committed the offense. He nevertheless pleaded not guilty by reason of mental disease or defect. After receiving medical testimony, the trial court found that Craig was not guilty by reason of mental disease. The court ordered him committed to the Department of Health and Social Services for custody, care and treatment until discharge, as provided in sec. 971.17, Stats. Kunkel appeals from the commitment order.
The first general issue is whether the trial court properly refused to suppress Craig's statements to the police and the physical evidence they obtained as a result of those statements. This issue turns on whether Craig's Miranda rights were violated and whether a "rescue doctrine" exception exists to the Miranda requirements. We conclude that his Miranda rights were violated but because of the "rescue doctrine" exception, which we hold exists, Craig's statements and the physical evidence were admissible. The second issue is whether Craig's inculpatory statements were voluntary. We hold that because his statements were not the result of police coercion, they were voluntary. The third issue is whether Craig's right to counsel was violated. We hold it was not. The fourth issue is whether his statements to a priest were privileged and inadmissible under sec. 905.06, Stats. We hold that Craig's out-of-court statements were not privileged. The fifth issue is whether Craig's statements must be suppressed because the priest acted as the "tool" of the police. We hold that the priest was not a police agent. The last issue is whether information obtained by a warrantless search of Kunkel's luggage should be suppressed. We hold that because nothing was obtained by the search, the motion to suppress was properly denied.
We therefore affirm the commitment order.
Craig and Kathy Kunkel lived in Watertown with their 9-month-old son, Jason. About 4:30 p.m. on May 11, 1984, Kathy reported to Watertown Detective Quamme that Jason was missing from the Kunkel residence. When Kathy left for work at 9:00 a.m. that morning, Jason was with Craig, who was to deliver Jason to a neighborhood babysitter and then catch a bus to Wisconsin Rapids. The child never arrived at the babysitter's residence.
A man with five pieces of luggage had boarded a bus to Wisconsin Rapids but no one at the depot remembered seeing a child. The child's clothing and bottles were still in the Kunkel residence. Quamme requested that the Wisconsin Rapids police contact Craig at the bus depot at 5:45 p.m. to ascertain Jason's whereabouts. Quamme called Craig's parents in Wisconsin Rapids at 6:15 p.m., but Craig had not yet arrived. At 7:30 p.m. Kathy reported that Craig had called and informed her that Jason was fine. Kathy did not appear concerned and seemed satisfied with her husband's explanation, but she wanted the matter investigated further.
Quamme then spoke with Craig by telephone. Craig said Jason was with a friend and was being well taken care of, but he would not identify the friend. Craig said that he advised Kathy of Jason's whereabouts and that Kathy was going to withdraw her complaint. Quamme told Craig that the investigation would continue until they located the child.
Sometime after 7:00 p.m., Quamme telephoned the district attorney and subsequently drew a complaint which Quamme said the district attorney approved by telephone. Between 10:00 and 11:00 p.m., Quamme presented the complaint and warrant to Judge Schumann at the judge's residence. The complaint charged Craig with interference with the parental rights of one parent by another parent, contrary to sec. 946.715, Stats. A warrant was issued for Craig's arrest. At 11:07 p.m. Wisconsin Rapids police were asked to arrest Craig pursuant to the warrant and to hold him for the Watertown police. Quamme and Detective Roets then drove to the Wood county jail in Wisconsin Rapids.
About 11:30 p.m., two Wisconsin Rapids police officers went to the residence of Craig's parents to arrest him. The officers had also been asked to locate Craig's luggage. Craig was not at the residence. The officers asked Craig's father for permission to see Craig's luggage. The father agreed, searched the luggage, and found no sign of children's clothing. The officers did not have a search warrant.
Craig was arrested about 12:30 a.m. on May 12, several blocks away from his parent's residence in Wisconsin Rapids. About 2:00 a.m. Quamme and Roets began interrogation of Craig in Wisconsin Rapids. Before questioning Craig, Quamme read him his Miranda rights from a waiver form used by the Watertown Police Department. Quamme put the form in front of Craig so that he could view it. As Quamme read the form, he used a pencil to point at each word as he went down the line. The form consisted of separately stated Miranda admonitions followed by a waiver. After each admonition was read, Quamme asked Craig if he understood it. When Quamme received an affirmative response, he placed an X next to the admonition on the list.
The third admonition on the form advised Craig of his constitutional right to the services of an attorney to advise him, then or at any time he so desired, in connection with the investigation into his alleged criminal act or acts. When that admonition was read to him, Craig responded that he was unemployed and could not afford an attorney.
Rather than stop at this point, Quamme told Craig to listen to the fourth admonition. The fourth admonition states, "That if I do not have money to employ an attorney, all I need to do is to ask for one right now and the police will ask no questions until an attorney can be appointed for me by a judge at the expense of the county." After that admonition was read to him, Craig said he understood it. Detective Quamme next read to him the final admonition, that he could decide at any time to exercise his rights and not answer any questions or make any statements.
Quamme then read to Craig the waiver part of the form, which stated:
I hereby state that this waiver of my constitutional right to an attorney and constitutional right not to incriminate myself has been read to me by Det. Orval Quamme and I have read it myself and I understand fully what it means, and I further say that I now propose to make a statement or confession to the police or sheriff's department, and it is voluntary and made freely without threats or promises or mistreatment of any kind.
After hearing the waiver segment, Craig said he did not wish to make a confession. Detective Quamme told Craig he did not have to confess, and that Quamme only wanted Craig to understand his rights so that if he wanted to make a statement he could do so. At this point, Craig signed the waiver.
Quamme then asked where Jason was. Craig responded that Jason was with a friend but refused to say where or who the friend was. Craig was reluctant to speak and answered slowly. Because Craig appeared depressed and said he was a religious person, Detective Roets asked if it would help if he spoke to a priest. Craig said he wasn't sure but that possibly he would like to talk to a priest. At this point the officers decided to take Craig to Watertown.
Quamme, Roets and Craig left the Wood county jail for Watertown around 3:00 a.m. During the drive the officers continued to question Craig regarding Jason. Craig continued to refuse to disclose Jason's whereabouts. Craig and the officers arrived at the Watertown jail about 5:30 a.m. on May 12. Craig was booked and questioned by four officers: Quamme, Roets, Officer Suko and Chief Reynolds. Craig repeatedly refused to disclose Jason's whereabouts, saying only that Jason was safe and with good friends. Craig said he was seeing a psychiatrist, was being counseled, and was taking medication for nervousness.
Between 7:30 and 7:45 a.m. Craig said: "I thought you were going to get me a priest." The police contacted a priest, and told him that they were attempting to locate a nine-month-old boy, feared foul play, and that the child's father wanted to speak to a priest. The priest came to the interview room, and after a ten or fifteen minute conversation, the priest and Craig left the room and met the officers in the hallway. The priest said that Craig would take them to where Jason was and that the child was dead. Craig said nothing in the hallway.
The police questioned Craig further regarding Jason's whereabouts. Craig said that Jason was in a wooded area in Wisconsin Rapids, but refused to pinpoint the location.
Officers Suko and Quamme and Craig subsequently left for Wisconsin Rapids, where they met with local officers. Craig then led the officers to a wooded area where he pointed out Jason's grave. The officers testified that without Craig's assistance it was unlikely that they could have found the grave site.
About 2:15 p.m. on May 12 Officer Quamme and Wisconsin Rapids Detective Exner began further interrogation of Craig at the Wood county jail. When he was again advised of his rights, Craig said he did not know how he was going to pay for his attorney because he had no money or job. Quamme responded that if he did not have money the court would appoint counsel at state expense. Quamme made no effort to obtain an attorney for...
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