State v. Mazur

• Decision Date: 30 July 1979
• Docket Number: 77-685-CR,Nos. 76-735-C,s. 76-735-C
• Citation: 90 Wis.2d 293,280 N.W.2d 194
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Donald T. MAZUR, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 194

280 N.W.2d 194

90 Wis.2d 293

STATE of Wisconsin, Plaintiff-Appellant, v. Donald T. MAZUR, Defendant-Respondent.

Nos. 76-735-CR, 77-685-CR.

Supreme Court of Wisconsin.

Argued May 31, 1979.

Decided June 29, 1979.

Reconsideration Denied July 30, 1979.

Michael R. Klos, Asst. Atty. Gen. (argued), for appellant; Bronson C. La Follette, Atty. Gen., on brief.

Michael Yovovich, Asst. State Public Defender (argued), for respondent; Howard B. Eisenberg, State Public Defender, on brief.

BEILFUSS, Chief Justice.

In the Washington County case, (# 76-735-CR), a criminal complaint was filed on October 29, 1976, charging the defendant, Donald T. Mazur, with felonious possession of a burglarious tool and theft of movable property in violation of secs. 943.12 and 943.20(1)(a) and (3)(b), Stats. The charges were based upon the October 3, 1976 burglary of the Hart Oil Station at West Bend, Wisconsin, where the defendant Mazur was employed as a station attendant. A preliminary examination was conduct on November 9-10, 1976, and the defendant bound over to circuit court for trial upon a finding of probable cause as to both counts.

At the preliminary hearing the manager of the station testified about $2,100 had been taken from a safe kept in the station. He also testified that Mazur had been employed as a station attendant for just a few days and that he was given a key to the station. Mazur had been alone at the station the night before and was to close the station about 10:30. The burglary was discovered the next morning about 5 a. m.

The state also called Detective Paul Hetebrueg who searched Mazur's car and seized a chisel found in the trunk. The state additionally called two expert witnesses. One, a safe technician, testified that the safe was in an unlocked position when the dial was broken off. The other, an FBI expert on tool mark identification, testified that the marks on the safe dial could only have been made by the chisel found in Mazur's car.

Prior to trial the defendant Mazur moved to suppress the chisel and the written and oral statements given to police officers while in custody in the Manitowoc county jail on December 8, 1976.

A hearing was held on May 27 and 31, 1977, before Judge MERRIAM. The defendant Mazur and Detective Paul Hetebrueg of the West Bend Police Department, the only witnesses, each testified about the circumstances which surrounded the search of the vehicle during which the chisel was discovered and seized and the giving of the statement on December 8, 1976 at the Manitowoc county jail in which the defendant admitted involvement in more than ten burglaries in Wisconsin, including the incidents in West Bend, Washington County, and Beaver Dam, Dodge County under consideration here. The testimony focused on two critical points: Whether the defendant consented to the search which resulted in the seizure of the chisel; and whether the defendant waived his right to counsel before making incriminating statements. The trial court found for the defendant on both issues. An order was entered on June 3, 1977 suppressing the chisel and the oral and written statements. The trial court, in a detailed decision read from the bench and entered on the record, set forth its reasons for the order. With respect to the chisel, the court found that while the defendant authorized the initial search of the car, the second search and the seizure of the chisel at that time was done without the defendant's consent and in violation of the defendant's constitutional rights. With regard to the statement made to the police officers at the Manitowoc jail, the court concluded that because the defendant had been bound over for trial after a preliminary hearing "(t)he state no longer had a right to interrogate him further." The court then ruled that there was a violation of the due process clause of the Fourteenth Amendment to the United States Constitution and that the statement was constitutionally contaminated and must be suppressed.

On September 13, 1977, a criminal complaint was filed in the County Court of Dodge County charging Donald Mazur with the burglary of Wodill's Tap, a tavern in Beaver Dam, Wisconsin, on September 7, 1976 in violation of sec. 943.10(1) (a), Stats. (Case # 77-685-CR) On the same day a warrant was issued for his arrest. A preliminary hearing was held on October 31, 1977. Lauren Wodill, operator of the tavern, testified that the tavern was broken into through the basement and that entry was gained to the bar by drilling holes through the cellar door. He also identified Mazur as the man who spent about eight hours in the tavern during the afternoon and evening preceding the burglary. Detective Paul Hetebrueg and Detective James Schwartz testified that the defendant in the statement given on December 8, 1976, admitted that in September, 1976 he entered a Beaver Dam tavern by drilling a hole through the basement door and tearing open the trap door between the cellar and the bar. On the basis of the evidence, probable cause was found and the defendant was bound over to the circuit court for trial.

As in the Washington County case, Mazur moved for the suppression of the December 8, 1976 statement on the ground that it was procured in violation of his Sixth Amendment right to counsel. As an additional ground the defendant asserted the Res judicata effect of the prior decision of the trial court in the Washington County action which suppressed the same statement on constitutional grounds. A full evidentiary hearing was not held on the motion in the Dodge County action. The parties stipulated that the circuit court could decide the matter on the relevant portions of the transcript of the suppression hearing for the West Bend service station burglary action held in the Circuit Court for Washington County and the relevant portions of the preliminary hearing for the Beaver Dam tavern burglary case held in the County Court for Dodge County. In addition, a limited hearing was held on January 18, 1978 to allow the parties to present further evidence regarding the circumstances surrounding the giving of the statement on December 8, 1976. Only the defendant testified at this proceeding.

In a written decision dated January 20, 1978, the trial court in the Dodge County action adopted the findings in the decision of the Washington County Circuit Court and made further findings based on the testimony of the defendant at the limited evidentiary hearing on the motion. Like the trial court in the Washington County action, the Dodge County Circuit Court determined that there was no proof to the degree of proof required that there was a knowing and willing waiver and emphasized that the fact counsel had been appointed was an important consideration in this conclusion. Although the applicability of the doctrine of collateral estoppel was raised by the court, the decision expressly stated that the court made its determination "independently, on all evidence before it." On February 1, 1978 an order was entered in the Circuit Court for Dodge County suppressing the oral and written statements on the ground that the defendant's right to counsel guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution was violated by the actions of the West Bend police officers in procuring the statements of December 8, 1976.

The issues for our determination are:

1. Must the appeal in # 76-735-CR be dismissed for lack of jurisdiction in light of the fact that the original notice of appeal by the state erroneously referred to the date of the oral decision of the circuit court?

2. Was the seizure of the chisel from the trunk justified on the basis that the defendant had given his consent to the search of the vehicle?

3. Did the state meet its burden to prove that the defendant knowingly and intelligently waived his right to counsel prior to giving the statement on December 8, 1976?

The defendant-respondent argues that the appeal in Case # 76-735-CR, which arises out of the burglary of the service station in West Bend, should be dismissed on jurisdictional grounds. This issue was previously raised by the defendant in a motion to dismiss which was denied by this court in an order dated December 1, 1977. The defendant asks the court to reconsider its determination of the jurisdictional issue. We decline to do so, the notice of appeal as amended clearly satisfied the appellate jurisdictional requirements.

The matter of the suppression of the chisel found in the trunk of the car that was in the defendant's possession pertains only to the Washington County case.

The basic constitutional rule applicable to searches and seizures is that warrantless searches are Per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well- delineated exceptions. ¹ One of the exceptions permits a search of property without a warrant and without probable cause, when there is proper consent voluntarily given. ²

In the present case the state maintains that the seizure of the chisel was incident to a valid and reasonable search undertaken with the consent of the defendant. When a prosecutor seeks to rely upon consent to justify the lawfulness of a search he has the burden of proving that consent was freely and voluntarily given. ³ The issue thus presented is whether the defendant freely and voluntarily consented to the search which resulted in the seizure of the chisel by officers of the West Bend Police Department.

Detective Paul Hetebrueg, the investigating officer, was at the Hart Oil Station on the morning of October 4, 1976. According to the officer's testimony, defendant Mazur arrived at the service station that morning at approximately 7 a. m. A short time thereafter, Hetebrueg asked Mazur if he would allow the police to search the 1972 Chevrolet he was driving. Hetebrueg testified that he explained to Mazur that he did not have to let him search the vehicle. Mazur...