State v. LaFernier

• Decision Date: 22 December 1967
• Citation: 37 Wis.2d 365,155 N.W.2d 93
• Parties: STATE of Wisconsin, Appellant, v. George M. LaFERNIER, Respondent.
• Court: Wisconsin Supreme Court

Page 93

155 N.W.2d 93

37 Wis.2d 365

STATE of Wisconsin, Appellant, v. George M. LaFERNIER, Respondent.

Supreme Court of Wisconsin.

Dec. 22, 1967.

Bronson C. La Follette, Atty. Gen., William A. Platz and Betty R. Brown, Asst. Attys. Gen., Madison, Walter J. Swietlik, Dist. Atty., Ozaukee Co., Port Washington, for appellant.

Roland J. Steinle, Jr., Milwaukee, Lowell K. Levy, Cedarburg, for respondent.

HANLEY, Justice.

These two issues are presented by this appeal: (1) Did the trial court err in granting a new trial in the interest of justice; and (2) did the trial court err in holding that the oral and written confessions were inadmissible in evidence?

Order Granting a New Trial.

Sec. 270.49(1), Stats., provides that new trials may be granted on any of four grounds: (1) Errors in the trial; (2) verdict contrary to law or evidence; (3) excessive or inadequate damages; and (4) in the interest of justice.

Sec. 270.49(2) provides as follows:

'Every order granting a new trial shall specify the grounds therefor. In the absence of such specification, the order shall be deemed granted for error on the trial. No order granting a new trial in the interest of justice shall be valid or effective, unless the reasons that prompted the court to make such order are set forth in detail therein or the memorandum decision setting forth such reasons is incorporated by reference in such order. The court may grant or deny costs to either party.'

In all cases, with the exception of those in which a new trial is granted in the interest of justice, it is sufficient for the order granting a new trial to state the statutory grounds therefor. If the ground is 'in the interest of justice,' the reason that prompted the court to make such order must be set forth therein. Boughton v. State Farm Mut. Auto. Ins. Co. (1959), 7 Wis.2d 618, 97 N.W.2d 401. Thus, the order here is valid insofar as it grants a new trial for errors on the trial.

The trial court's 'incorporation by reference' of the oral opinion was apparently an attempt to comply with sec. 270.49(2), Stats., as it applies to new trials in the interest of justice. But no memorandum decision was on file at the time the order granting a new trial was entered, nor does it appear that such a decision was filed at any time. In this situation, Campbell v. Wilson (1962), 18 Wis.2d 22, 117 N.W.2d 620, is controlling and the oral decision is not incorporated into the order for it was neither transcribed nor filed at the time the order was made. Thus, the reasons for which a new trial in the interest of justice was granted must be restricted to the grounds set forth in the order, namely, the testimony of Mrs. Helen Hames on rebuttal that while Mr. La Fernier was in the Army his superior officers had sent him for a mental observation; testimony elicited from Mr. La Fernier on cross-examination indicating that he had an uncontrollable temper and that his sexual activities may have been unusual; and the closing argument of the district attorney regarding the defendant's guilt and the danger of his being permitted to return to society.

We see no merit to the state's contention that the reasons given by the trial court for granting a new trial in the interest of justice are insufficient. The trial court was of the opinion that Mrs. Hames' volunteered testimony to the effect that her former husband was sent to take a mental examination seriously damaged the defendant's rights. At the time the testimony was volunteered, defendant's counsel moved for a mistrial which was denied by the trial court for purposes of letting the case go to the jury. We think on this ground alone the order granting a new trial can be sustained. A doubt cast upon the mental health of the defendant could well have suggested to the jury that he was such a person who was likely to commit incest. The general run of mankind undoubtedly associates incest with a demented mind.

We think the instant case is a prime example of where the trial judge's discretion should be allowed to stand. This being the case, it is unnecessary to consider any of the other alleged errors.

In Quick v. American Legion 1960 Conv. Corp. (1967), 36 Wis.2d 130, 152 N.W.2d 919, the Supreme Court recently reiterated the principles applicable to review of orders of the trial court granting new trials in the interest of justice. An order granting a new trial in the interest of justice will be affirmed unless there is a clear abuse of discretion. On review the Supreme Court seeks not to sustain the verdict of the jury but looks for reasons to sustain the findings and order of the trial judge.

Admissibility of the Defendant's Statements.

The defendant was taken into custody at 3:30 p.m., on June 30th. He made the oral statement that the committed incest on June 16th, shortly after 9:45 a.m., on July 1, 1966. He had not yet been taken before a magistrate nor had he been advised of his constitutional rights. At the hearing to determine the voluntariness of the statements, only Officer Niesen testified. With respect to the oral statement, his testimony was that he had seen the defendant on July 1, 1966, at the Ozaukee county jail, that defendant had been arrested on June 30, 1966, on a charge of incest and that to the best of his knowledge, he had been incarcerated continuously since 3:30 p.m., on June 30th, until he (Officer Niesen) saw the defendant again on July 1st. The officer testified as to why he saw the defendant on July 1st:

'Q. What was the reason for your seeing Mr. La Fernier at 9:45 A.M. on the 1st of July?

'A. He had been contacted on the 30th of June after he was booked at the County Jail I had interviewed Mr. LaFernier and I had asked him to submit to a polygraph examination.'

When the defendant was first asked if he cared to take the polygraph examination, he stated he would be only too glad to take it. Thereupon Officer Niesen contacted a polygraph operator to set up an appointment for the following morning, July 1st. On the morning of July 1st, Officer Niesen arrived at the department at 9:45 a.m. and brought the defendant down to the interrogation room where the polygraph machine had been set up.

'Q. What happened when you arrived at the Port Washington Police Department?

'A. I brought Mr. LaFernier into the interrogation room and showed him a seat where he could be seated, and at that time he made a spontaneous statement that he was in the County Jail overnight and he was thinking about this, this charge against him, and at that time he says he believes that he did commit one of these offenses on the 16th of June, 1966.'

The officer stated that he personally had asked no question of the defendant prior to his making the statement nor had anyone else in his presence.

This was the only testimony at the hearing concerning the oral statement. At one point, defendant's attorney moved the court to rule that the written confession was inadmissible while attempting to reserve his right to cross-examine the witness, Officer Niesen, who was still on the stand. Thus the motion was considered analogous to a motion to dismiss at the end of the plaintiff's case for failure of proof. In the ensuing colloquy the court ruled that both confessions were inadmissible.

In Miranda v. State of Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, the United States Supreme Court has laid down procedural safeguards for the protection of an accused's right not to incriminate himself and has held that failure to observe such safeguards shall result in the inadmissibility of any statements he might make. The holding is as follows, at pages 444 and 445, 86 S.Ct. at page 1612:

'Our holding will be spelled out with some specificity in the pages which follow but briefly stated it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his...