State v. Michels

Decision Date19 August 1987
Docket NumberNo. 87-0254-CR,87-0254-CR
Citation141 Wis.2d 81,414 N.W.2d 311
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Franz MICHELS, Defendant-Appellant.
CourtWisconsin Court of Appeals

Review Denied.

Mark Lukoff, First Asst. State Public Defender, Milwaukee, for defendant-appellant.

Donald J. Hanaway, Atty. Gen., and David J. Becker, Asst. Atty. Gen., for plaintiff-respondent.

Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.

NETTESHEIM, Judge.

Franz Michels appeals from a judgment of conviction for manslaughter, heat of passion in violation of sec. 940.05(1), Stats. 1 The conviction resulted from the death of Michels' foster child, Richard Crivello. Michels argues that: (1) the state improperly filed an information charging second-degree murder after he had waived the right to a preliminary hearing on a criminal complaint which only charged homicide by reckless conduct; (2) his inculpatory statements were involuntarily made and should have been suppressed; (3) the admission of his wife's testimony regarding the death of their foster child violated the husband-wife privilege; (4) the trial court erroneously denied his request for an instruction on the lesser-included offense of homicide by reckless conduct; and (5) the conviction is not supported by the evidence. We reject all of Michels' arguments and affirm the conviction.

On February 11, 1985, Michels' foster child, Richard, was discovered unconscious at the Michels' home. Earlier that day, Richard and Michels' wife, Gisela, had an altercation involving profane language. This row related to Richard's unkept room. Gisela testified that when Michels returned to their home, she told him of Richard's behavior whereupon Michels became "kind of upset." Michels then confronted Richard about his behavior. Michels testified that he struck Richard with his hand and with a "catscratching" post after Richard denied using profane language. Michels also testified that when he left the room, Richard was sitting up and seemed all right. Gisela testified that she did not see her husband strike Richard and, because the child had epilepsy, she assumed that he had suffered a seizure when he was subsequently discovered unconscious. Richard was pronounced dead at the hospital as the result of a skull fracture and brain hemorrhage due to external trauma.

The Information

Michels argues that the state improperly filed an information with a higher charge than that filed in the criminal complaint after he had waived a preliminary hearing. The criminal complaint charged Michels with homicide by reckless conduct in violation of sec. 940.06, Stats. The information following Michels' waiver of preliminary hearing charged him with second-degree murder in violation of sec. 940.02, Stats.

Section 971.01(1), Stats., provides in relevant part:

The district attorney shall examine all facts and circumstances connected with any preliminary examination ... and ... shall file an information according to the evidence on such examination subscribing his name thereto.

Michels complains that because the legislature did not include the waiver of a preliminary hearing within the language of the statute, it did not intend to allow the filing of greater charges in an information following a waiver.

The construction of a statute raises a question of law. See State v. Clausen, 105 Wis.2d 231, 243, 313 N.W.2d 819, 825 (1982). As a result, we owe no deference to the trial court's decision. LePoidevin v. Wilson, 111 Wis.2d 116, 121, 330 N.W.2d 555, 558 (1983).

We note that sec. 971.01(2), Stats., clearly contemplates the filing of an information following the waiver of a preliminary hearing. It provides:

The information shall be filed with the clerk within thirty days after the completion of the preliminary examination or waiver thereof... .

When construing a statute, we will look to the language of the entire statute and not just to one section. See Arneson v. Arneson, 120 Wis.2d 236, 243, 355 N.W.2d 16, 19 (Ct.App.1984). Construing sec. 971.01 as a whole, we conclude that the legislature intended to permit a district attorney to file any charge in the information so long as it was based on the facts adduced at the preliminary hearing or on the facts set out in the complaint when a preliminary hearing is waived.

The state cogently points out that Michels' interpretation of the statute would lead to an unreasonable or an absurd result which we are to avoid when construing legislation. In re P.A.K., 119 Wis.2d 871, 881, 350 N.W.2d 677, 683 (1984). Michels' argument, carried to its logical conclusion, would preclude the filing of any information following the waiver of a preliminary hearing because sec. 971.01(1), Stats., only mentions the filing of an information based on the "facts and circumstances connected with any preliminary examination." Such an interpretation would be absurd.

We base our holding on Thies v. State, 178 Wis. 98, 189 N.W. 539 (1922), which we conclude directly resolves this issue. In Thies, the supreme court held that "a district attorney may, where a preliminary examination is waived, file an information for any offense or offenses growing out of or relating to the transaction charged in the complaint." (Emphasis added.) Id. at 105, 189 N.W. at 541. There, a district attorney, working under statutory authority similar to that found here, reduced a rape charge filed in a criminal complaint to an incest charge filed in the information following the defendant's waiver of a preliminary hearing. The court reasoned that a preliminary hearing is "but an inquiry made for the purpose of developing the facts and circumstances so as to enable the district attorney to proceed." Id. at 106, 189 N.W. at 542. Consequently, the court concluded that when a defendant waives a preliminary hearing, he or she waives any inquiry into the offense charged in the complaint and, as to any offense growing out of the events referred to in the complaint, a defendant is in the same position as if a preliminary hearing had been held on those charges as well. Id.

Michels attempts to distinguish Thies on the ground that Thies involved a reduction in the charge filed in the information from that filed in the complaint. Here, the charge was increased. This fact, however, does not appear to be relevant to the court's reasoning in Thies. Rather, the focus of the Thies holding is on whether the information charge is related to the same events set out in the complaint regardless of the level of the charge. Here, the information charge is related to the events set out in the criminal complaint regarding Richard's death. Consequently, the charge was properly filed under sec. 971.01, Stats., and Michels is in the same position as if a preliminary hearing had been held on the second-degree murder charge as well.

The Statement

Michels argues that statements he made to the police during noncustodial questioning were involuntary and should have been suppressed. 2 During questioning, Michels stated to the police, "I tell you I done it, I hit him real good." This statement came after Michels was shown a single autopsy photograph of Richard's body. 3

A confession is involuntarily made if it is procured by coercive means or is the product of improper pressures exercised by the police. State v. Clappes, 136 Wis.2d 222, 235-36, 401 N.W.2d 759, 765 (1987). A trial court's findings of evidentiary or historical facts will not be overturned unless they are contrary to the great weight and clear preponderance of the evidence. Id. at 235, 401 N.W.2d at 765. Stated otherwise, this is the "clearly erroneous" test. Sec. 805.17(2), Stats. However, whether any constitutional principles have been offended involves an independent review by an appellate court. Clappes at 235, 401 N.W.2d at 765. The ultimate determination of whether a confession is voluntary depends upon the totality of the circumstances. Id. at 236, 401 N.W.2d at 765-66. Some affirmative evidence of improper police practices deliberately used to procure a confession must be shown before we will conclude that a confession was involuntarily given and in violation of an individual's constitutional rights. Id. at 239, 401 N.W.2d at 767.

Here, the trial court's historical findings of fact are not challenged on appeal and are briefly summarized as follows: upon discovering that Richard's death was not caused by epilepsy, the police commenced a criminal investigation which focused primarily on Gisela due to the fact that both she and Michels' son told the police that Michels was not present when Richard was injured; the police requested that Michels and his son come in for questioning, which they did voluntarily; the police spent about one hour questioning the son while Michels waited outside; this interview did not change the focus of the police investigation with Gisela remaining the primary suspect; during his interview with police, Michels persisted in his story that Richard had suffered a seizure and possibly struck his head when he fell; about an hour after Michels' interview commenced, the police showed Michels the photograph which depicted the injuries to Richard's skull; the photograph was displayed to Michels in an effort to refute his opinion that the death was accidental; ten to fifteen minutes later, Michels made the statement at issue here; Michels was then placed under arrest and read his Miranda rights.

The ultimate determination of whether a confession is voluntary under the totality of the circumstances requires a court to balance the personal characteristics of a defendant against the pressures imposed on him or her by the police in order to induce him to respond to the questioning. Id. at 236-37, 401 N.W.2d at 765-66. The use of an autopsy photograph is but one factor to consider in the totality of the circumstances. See State v. Woods, 117 Wis.2d 701, 729-30,...

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