State v. Miller

• Decision Date: 06 June 1967
• Citation: 35 Wis.2d 454,151 N.W.2d 157
• Parties: STATE of Wisconsin, Respondent, v. Milton MILLER, Appellant.
• Court: Wisconsin Supreme Court

Page 157

151 N.W.2d 157

35 Wis.2d 454

STATE of Wisconsin, Respondent, v. Milton MILLER, Appellant.

Supreme Court of Wisconsin.

June 6, 1967.

Owen F. Monfils, Green Bay, for appellant.

Bronson C. La Follette, Atty. Gen., Wm. A. Platz, Betty R. Brown, Asst. Attys. Gen., Madison, Robert R. Flatley, Brown County Dist. Atty., Green Bay, for respondent.

BEILFUSS, Justice.

The defendant upon appeal does not argue that the evidence was insufficient to convict him but does contend that the trial court did commit prejudicial errors. His allegations of error are summarized in the following issues:

(1) At the hearing on the voluntariness of admissions, did the trial court err in limiting the testimony of the police officers to the facts and circumstances under which the defendant's admissions were given?

(2) Does Miranda render inadmissible in evidence the oral admissions made by the defendant to the police officers?

(3) Did the trial court err in denying the defendant's pretrial requests:

(a) that the defense should be permitted to have the complaining witness examined by a qualified psychiatrist?

(b) that the guardian of the minor, a licensed child welfare agency, turn over whatever records it may have concerning the mental condition of the complaining witness; and

(c) that the state be ordered to turn over to the defense whatever records it may have concerning the mental condition of the complaining witness?

At the hearing conducted by the trial court on June 1st to determine the voluntariness of the admissions made by the defendant to the police, the police were not required to state exactly what the admissions were although they did state in general terms the content of the admissions. At the hearing defendant's counsel on cross examination demanded to know the exact statements made by the defendant to the officers. The district attorney's objections to these questions were sustained by the court. In so ruling the court stated that the sole purpose of the pretrial hearing was to determine the voluntariness of any admissions or statements given and that content of the statements or admissions, the truthfulness and the weight and credibility were to be determined by the jury if the court found that the defendant voluntarily made the statements to the police. The trial court suggested to the district attorney that he advise defense counsel generally as to the content of the admission. The district attorney did so and advised defense counsel and the trial court (on the record) that they had no written statements and that he intended to call the officers to testify at the trial and that their testimony would be about as it was in this hearing and that he proposed to show the defendant admitted he had had sexual intercourse with the complaining witness about 10 times.

In making its ruling the trial court relied upon State ex rel. Goodchild v. Burke, supra, at pp. 264, 265, 133 N.W.2d at p. 763:

'At the hearing on the issue, the trial judge sitting alone shall make a determination upon a proper record upon the issue of voluntariness. The state shall have the burden of proving voluntariness beyond a reasonable doubt. At this hearing the defendant may take the stand and testify for the limited purpose of making a record of his version of the facts and circumstances under which the confession was obtained.'

The sole purpose of the hearing was to have the court make an informed finding on the voluntariness of a confession or admission. It is not the function of the court at that stage to determine the weight and credibility of confession or admission nor the accuracy of the witness relating it at the trial. These are functions of the jury (or the court) at the trial. However, in order to make the hearing on preliminary determination of voluntariness informed and meaningful, at least the general substance of the confession or statement should be made known both for the benefit of the court and the defense counsel. In this instance the testimony of the officers and the statement of the district attorney on the record were sufficient to satisfy this need. The trial court was not in error.

In like situations the trial court must exercise its discretion as to how extensive the revelations of the state must be. The purpose of the hearing is to determine voluntariness and it is not to be converted to an adverse pretrial discovery hearing.

At the trial which commenced in July, 1966, and before the selection of the jury, the defendant made a motion to dismiss partly upon the ground that the statements and admissions made to the police officers were inadmissible in evidence under the rule of Miranda v. State of Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The defendant contends that after he told the police he wanted to contact his lawyer no statement or admissions of any kind could be taken.

Miranda was not made retroactive and affected only those trials which commenced after the date of the decision, June 13, 1966. (See Johnson v. State of New Jersey (1966), 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882.)

The state argues that Miranda does not apply because the ruling on the admissions was made by the court on June 1, 1966, which was before the effective date of Miranda.

Without belaboring the point, we conclude the United States supreme court in the Johnson Case meant the day the trial actually started. It was on July 13, 1966, after the effective date of Miranda, that the trial actually started. It was on this day when witnesses were sworn and testified against Miller so that he was put in jeopardy and not before. The rule of Miranda announces an evidentiary exclusionary rule. The motion was made before the actual commencement of the trial and the trial court could have reviewed its ruling on voluntariness in light of the Miranda decision without fatal procedural consequences to the state.

Even though we hold that this trial commenced after the effective date of Miranda, we conclude without hesitation that it has no application to the case at hand.

The summary of the rule of Miranda is as follows, at p. 444, 86 S.Ct. at p. 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 freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.'

In Miranda, at p. 478, 86 S.Ct. at p. 1630, explicity excepted volunteered statements:

'There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.'

In the case at bar the record is clear that the oral admissions of the defendant were given before he was questioned in any way by the policemen. On January 26, 1966, the police officers went to the defendant's place of employment near quitting time. The defendant met the policemen in the foreman's office, immediately indicated that he knew why they were there, and asked to call his lawyer. The defendant made three or four unsuccessful attempts to contact his attorney, and then was asked by the officers to come down to the police office, which the defendant agreed to do. The defendant was not questioned nor was he advised of his constitutional rights. When asked why the defendant was not advised of his rights at his place of employment, Detective Cuene explained what appears to be commendable police practice:

'Under the circumstances, when you go into a place of private employment we feel that it is none of the other people's business why we are talking to somebody. And if we stand there in front of other employees and start advising him of his rights of his constitutional rights, if he is involved in something; it gets kind of embarrassing. Many times the Foreman will ask us what's up; or why do the Police want him? We inform the people, the foreman or store manager, that we feel that the subject might have some information that would be of value to the Police Department. And we feel at the present time that is their own business, and we don't go into detail as to what this is about. And when a man would come into the station voluntarily, which he did; before any questioning would take place, he would be advised of his...