State v. Mendoza
| Decision Date | 06 May 1980 |
| Docket Number | No. 79-1192-CR,79-1192-CR |
| Citation | 96 Wis.2d 106,291 N.W.2d 478 |
| Parties | STATE of Wisconsin, Plaintiff-Appellant and Cross-Respondent, v. James Ray MENDOZA, Defendant-Respondent and Cross-Appellant. |
| Court | Wisconsin Supreme Court |
Review Denied.
Jon Peter Genrich, Asst. Dist. Atty., for Milwaukee County (argued), E. Michael McCann, Dist. Atty., and Thomas J. Hammer, Asst. Dist. Atty., on brief, for plaintiff-appellant and cross-respondent.
Stephen M. Glynn (argued), James M. Shellow, and Shellow & Shellow, Milwaukee, for defendant-respondent and cross-appellant; Waring R. Fincke, Milwaukee, of counsel.
This is an appeal by the state from an order suppressing two statements made by the defendant following his arrest. The defendant cross appeals from five other orders denying certain of his pretrial motions.
On November 11, 1974, James Ray Mendoza (hereinafter defendant) was convicted of two counts of first-degree murder in the shooting deaths of two Milwaukee police officers. Trial was held before the Hon. HUGH R. O'CONNELL, Circuit Judge. The defendant appealed, and in State v. Mendoza, 80 Wis.2d 122, 258 N.W.2d 260 (1977), this court reversed the conviction and remanded the case for a new trial.
Upon retrial of this action, the defendant filed numerous pretrial motions. In particular, on March 17, 1978, he filed an omnibus motion to suppress in which, among other things, he moved to suppress all statements allegedly made by him, on the grounds that they violated rights guaranteed to him by the Fourth, Fifth and Sixth Amendments to the United States Constitution. The defendant asserted that such statements "were involuntary, taken in the absence of counsel, taken prior to warnings being given to him sufficient to apprise him that he did not have to make such statements, and were obtained during a time when the defendant was under arrest in violation of rights guaranteed to him by the Fourth Amendment." This motion is almost identical to the defendant's omnibus motion to suppress dated August 26, 1974, which was denied by Judge O'CONNELL following a suppression hearing at the first trial.
At the hearings on the defense motions at retrial, which were conducted on and between March 24, 1978, and April 10, 1978, the state indicated its intention to use during its case-in-chief, or, at least, for purposes of impeachment, two statements made by the defendant following his arrest on July 10, 1974. The rulings of the retrial court relating to the admissibility of these two statements constitute the substantive basis for the instant appeal by the state.
The defendant had told Officer Jackelen of the Milwaukee police department that he had had his hair cut two weeks prior to the date of arrest. The other statement, made to Officer Adamczewski, was to the effect that the defendant had received a head injury as a result of falling down and bumping his head against a parked car while running from the scene of the shootings. The state argues these statements are important to its case on retrial in view of the fact that the defendant on direct examination at the first trial had testified that his mother had cut his hair within about eight hours after the shootings because he knew the police were looking for a tall Mexican with shoulder-length hair. The defendant had also claimed in the first trial that he shot the police officers in self-defense when they were beating on him and that his head was cut as a result of such beating. See : State v. Mendoza, supra, at 133-134, 258 N.W.2d 260.
The parties stipulated orally and in writing that portions of the original 1974 record could properly be considered by the retrial court in deciding the defense motions. The following facts were testified to at the suppression hearing held before Judge O'CONNELL in August and September, 1974.
Officer Nicholas Monreal of the Milwaukee police department arrested the defendant at approximately 3:30 p. m. on July 10, 1974, at 1303 South 9th street in Milwaukee. After informing the defendant that he was under arrest for the murder of two Milwaukee police officers, Monreal informed the defendant that he had a right to remain silent; that anything he said could and would be used against him in court; that he was entitled to an attorney; and that if he could not afford an attorney the court would appoint one for him. After so informing the defendant, Monreal asked him if he understood his rights, to which the defendant answered, "Yes." Monreal then asked the defendant if he understood English, and the answer was "Yes." Monreal then again advised the defendant of these rights in Spanish and asked the defendant in Spanish if he understood. The defendant answered, "Yeah." At the time the defendant was advised of his rights he appeared alert; Monreal did not threaten him, did not make any promises to him and did not use any force on him; and the defendant did not make any requests and was not denied any requests. The defendant was not interrogated at that time, nor did he make any statements. He did not ask to talk to an attorney, did not ask to have an attorney present, and did not state he was represented by Ness Flores or Robert Lerner.
While Monreal was advising the defendant of his rights he saw two lawyers, Ness Flores and Robert Lerner, standing outside the house at 1303 South 9th street. Monreal went outside and told the uniformed police officers standing outside to remove everyone from the property. Flores told Monreal that he did not want either the defendant or Jesus Fiscal (who was arrested shortly before the defendant was arrested) questioned and that he was representing them. Flores and Lerner both asked to be admitted into the house so that they could talk with the defendant and Fiscal, but they were not allowed inside because the police were conducting their investigation.
At approximately 4 p. m. Monreal put the defendant into the custody of Officers Jackelen and Steinke, who took the defendant outside and escorted him to a squad car. As Monreal was accompanying the officers to the squad car, Lerner told him that he was the attorney for the defendant, that he wanted to be present when the defendant was questioned, and that he did not want the defendant answering any questions. Monreal told Lerner and Flores that the defendant had not been interrogated and that the defendant was being taken to the Police Administration Building and they could talk to the defendant there. Lerner did not make any statements to the defendant. As the defendant was walking to the squad car, he did not stop to confer with Flores or Lerner, he did not ask for an attorney, he did not state that he was represented by Lerner, and he did not ask Lerner to represent him. Flores said words in Spanish to the defendant and Fiscal to the effect that they should say nothing.
The defendant was then taken downtown to the Detective Bureau in the Police Administration Building by Officers Jackelen and Steinke. No one questioned the defendant en route and he did not make any statements. When they arrived at the Detective Bureau the defendant was taken to a conference room where Officers Mattson and Loeffler were present, in addition to Officers Jackelen and Steinke. Jackelen noticed several strands of hair on the defendant's shirt and so he asked the defendant when he last had his hair cut. The defendant replied, "Two weeks ago." Loeffler then advised the defendant of his rights. Loeffler told the defendant that he did not have to say anything; that anything he did say could and would be used against him in a court of law; that he had a right to an attorney; if he could not afford an attorney, the court would appoint an attorney for him. Loeffler asked the defendant if he understood these rights and the defendant responded, "Yes." Loeffler then questioned the defendant for 5-10 minutes.
The defendant was in the conference room from approximately 4:10 p. m. to 4:20 p. m. During that time no promises were made by anyone to the defendant, no threats were made to him by anyone, no physical force or violence was used on the defendant, and none of his requests were denied. The defendant did not request to have an attorney present, he did not say that he did not want to make a statement or to be questioned, he did not ask to have questioning terminated, and he did not say he was represented by counsel.
Lerner arrived at the Detective Bureau in the Police Administration Building at approximately 4:10 p. m. and told the officer at the front desk that he was the attorney for the defendant and he wanted to talk to District Attorney E. Michael McCann or a detective. Lerner spoke to McCann at about 4:15 p. m. and told him that he did not want the defendant questioned by the police and that he wanted to see the defendant. McCann told Lerner he could not see the defendant until the police completed the booking process. Lerner was finally allowed to talk to the defendant when he was taken before a judge at 7:15 p. m.
At approximately 4:15 p. m. McCann told Lt. Roy Bachman of the Milwaukee police department that he had spoken to an attorney who requested that the interrogation of the defendant cease, and instructed Bachman to stop all questioning of the defendant, if any was occurring. Bachman then told Detective Gordon Adamczewski to order termination of the questioning of the defendant. This was done immediately.
At approximately 5:40 p. m. Detective Adamczewski saw the defendant in the Bureau of Identification room. He looked at the defendant's head, face and neck for any indication of an injury so that he could determine whether the defendant had been involved in a fight. Adamczewski observed blood on the defendant's hair and head and a laceration to his scalp, and then made the comment, "You've got blood on your head." The defendant stated that he had received the injury when he fell down and bumped his head against a...
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