State v. Owens
| Citation | 436 N.W.2d 869,148 Wis.2d 922 |
| Decision Date | 27 March 1989 |
| Docket Number | No. 87-1854-CR,87-1854-CR |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Steven P. OWENS, Defendant-Appellant. |
| Court | United States State Supreme Court of Wisconsin |
Richard D. Martin, Asst. State Public Defender, for defendant-appellant.
David J. Becker, Asst. Atty. Gen., argued and Donald J. Hanaway, Atty. Gen., on the brief (in Court of Appeals), for plaintiff-respondent.
The issue in this case is whether the defendant's confession to armed robberies was prompted by an alleged coercive promise made by the interrogating officer and therefore involuntarily made.
There is no question that the defendant was offered a promise before he confessed. The state contends he was told that all of the armed robberies to which he confessed would be consolidated into a single proceeding in one county. The defendant does not contend that such a promise would be sufficiently coercive to render his confession involuntary.
The defendant argues that a promise of significantly more benefit to him was made. He alleges that the interrogating officer promised to consolidate all of the armed robberies to which he confessed into a single count. It is that alleged promise that the defendant asserts was coercive and produced the involuntary confession.
Based on State v. Edwardsen, 135 Wis.2d 208, 213, 400 N.W.2d 18 (Ct.App.1986), the defendant argues that in Wisconsin it is the defendant's perception and the effect this perception had on his decision to confess that is crucial. Thus, although he contends that the promise in question was in fact made and rendered his confession involuntary, he also argues that it is not necessary that he establish that it was made to succeed on his claim of involuntariness. The defendant argues that he only has to show that he believed that the promise was made and that that belief caused him to confess.
On initial appeal, the court of appeals remanded the case to the trial court for additional factual findings. After remand the trial court made the following additional findings of fact:
(1) that the defendant "was not promised that the armed robberies to which he confessed would be consolidated into a single count," and
(2) that his "testimony that he believed that the armed robberies to which he confessed would be consolidated into a single count is not believable or credible." The court of appeals certified the issue to this court under provisions of sec. 809.61, Stats. We accepted certification.
The defendant asserts that the appropriate standard of review is an independent review that examines the record in this case and makes a de novo determination of the factual circumstances surrounding the questioning of the defendant. The state on the other hand argues that the standard of review is whether the findings of the trial court are clearly erroneous, or stated another way, whether the findings are against the great weight and clear preponderance of the evidence.
In State v. Michels, 141 Wis.2d 81, 90, 414 N.W.2d 311 (Ct.App.1987), the court discussed the appropriate standard of review when reviewing the voluntariness of a confession:
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. [Citation omitted.] 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.
Similarly, in State v. Woods, 117 Wis.2d 701, 714-15, 345 N.W.2d 457 (1984), this court stated:
In reviewing the issues that Woods raises, an appellate court examines two determinations made by the trial court, but applies a different standard of review to each. First, the trial court determines the evidentiary or historical facts relevant to the issue in this case, namely, the circumstances surrounding the giving of the oral statement. Second, the trial court then applies those facts to resolve the constitutional questions....
The standard of review by the appellate court of the trial court's findings of evidentiary or historical facts is that those findings will not be upset on appeal unless they are contrary to the great weight and clear preponderance of the evidence. [Citation omitted.] This standard of review does not apply, however, to the trial court's determination of constitutional questions. Instead, the appellate court independently determines the questions of 'constitutional' fact.
The trial court's findings as to what occurred in the interrogation room when Owens confessed to the crimes concern evidentiary or historical facts. The trial court in this case found that no promise was made to the defendant to consolidate all the armed robberies into a single count as the defendant alleged and also found that the defendant's subjective belief that such a promise was made was not credible or believable. These findings of historical facts will not be upset on appeal unless clearly erroneous. See sec. 805.17(2), Stats. 1
Detective Leo Jadowski of the Manitowoc County Sheriff's Department testified that the only promise made to Owens was that if he cooperated "we would be willing to consolidate our robberies in Manitowoc County with Winnebago."
Jadowski's testimony was consistent that the promise was to consolidate all the charges in one county. The only exception was when he was asked on cross-examination:
Q. Now, in your discussions about consolidation, do you remember making a statement to Steven [Owens] that you didn't care if you had one charge or thirty, that all of these charges would be consolidated into one, would be one count?
A. I don't recall.
Q. Do you recall making that statement?
A. I did inform Mr. Owens that our charges would be consolidated with Winnebago's along with Appleton. I do not recall if I said it would be one charge. I did inform him they would be consolidated.
Q. And you don't recall if you said it would be one count or different counts or just consolidated?
A. I don't recall if I specified one. I did specify to Mr. Owens that they would be consolidated with Winnebago County. Ours would.
Q. So you could have made the statement that it might be consolidated into one and you didn't care how many there were?
A. I don't recall. I could have.
Detective Jadowski only stated that he "could have" stated that "it might be consolidated into one...." The question and answer elicited did not determine what the noun "one" meant.
Stating that he would consolidate all charges in Winnebago county is a promise. Stating he did not care if there were only one count is hardly a promise. Subsequently, Detective Jadowski testified his only promise to the defendant was to consolidate charges with Winnebago county charges.
Detective Edward McClone of the Neenah Police Department also testified that he was present while Detective Jadowski questioned Owens. He was asked:
Q. Were there any promises made as to the Winnebago County charges?
A. I recall Detective Jadowski stated that he would consolidate their charges with Winnebago.
Later he was asked:
Q. And it was at this point that Detective Jadowski talked about consolidation of charges?
A. Yes, sir.
Q. Do you recall Detective Jadowski making a statement to the effect that, 'I don't care if you have thirty armed robberies, it will be dealt with as one count'?
A. Yes, sir, I recall hearing that.
Q. So he told--Detective Jadowski advised Mr. Owens that consolidation would involve one count and presumably in Winnebago County?
A. Yes, sir, I believe so.
Other questions asked of Detective McClone were answered in terms of consolidation into one count.
Subsequently, Detective McClone stated he did not recall whether Detective Jadowski promised to have all of the armed robbery charges reduced to one single count of armed robbery but rather did recall Jadowski's statement to the defendant in terms of consolidation of the charges to one county.
Different witnesses' testimony may be contradictory and at times one witness's testimony may be inherently inconsistent. The trial judge not only hears the testimony, but also sees the demeanor of the witness and the body language. As a result, the trial judge hears the emphasis, volume alterations and intonations. The trial judge also has a superior view of the total circumstances of the witnesses' testimony. Consequently, the trial court's findings of fact are only upset when clearly erroneous.
If the testimony leads the trial court to a finding that is not clearly erroneous, such findings should and must be accepted by the reviewing court. Although an appellate court may have found differently, the standard is whether the trial court's findings were clearly erroneous. In this case, even with some contradictory testimony, it was the trial court's responsibility to make the findings of fact.
Confronted with the conflict of testimony, it was the trial court's obligation to resolve it. The fact finder does not only resolve questions of credibility when two witnesses have conflicting testimony, but also resolves contradictions in a single witness's testimony. In Thomas v. State, 92 Wis.2d 372, 381, 284 N.W.2d 917 (1979), the court stated: "Where there is conflict in a witness' testimony it is the province of the trier of fact, the court in this case, to determine the weight and credibility to be given her testimony." Accord State v. Daniels, 117 Wis.2d 9, 17, 343 N.W.2d 411 (Ct.App.1983). Here, the trial court resolved any conflict that there might have been in the testimony in favor of a finding that no promise had been made to the defendant to consolidate into a single count the armed robberies to which the defendant confessed.
Sorting out the conflicts and determining what actually occurred is uniquely the province of the trial court, not the function of the appellate court. Among the...
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