State v. Pheil

• Decision Date: 03 October 1989
• Docket Number: No. 89-0179-CR,89-0179-CR
• Citation: 152 Wis.2d 523,449 N.W.2d 858
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Brian T. PHEIL, Defendant-Appellant. d . Orally
• Court: Wisconsin Court of Appeals

Page 858

449 N.W.2d 858

152 Wis.2d 523

STATE of Wisconsin, Plaintiff-Respondent, v. Brian T. PHEIL, Defendant-Appellant. ^d No. 89-0179-CR.

Court of Appeals of Wisconsin.

Orally Argued Sept. 12, 1989.

Opinion Released Oct. 3, 1989.

Opinion Filed Oct. 3, 1989.

Richard S. Gondik, Jr. (argued), Peterson, Cirilli, Moran & Gondik, Superior, on brief, for defendant-appellant.

Donald J. Hanaway, Atty. Gen., and Christopher G. Wren (argued), Asst. Atty. Gen. of Wis. Dept. of Justice, Madison, on brief, for plaintiff-respondent.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

CANE, Presiding Judge.

Brian T. Pheil appeals a judgment of conviction on charges of being a party to the crimes of first-degree murder, armed robbery, burglary, and theft. He contends that the trial court erred by failing to suppress certain statements he made to the police after he had invoked his rights to remain silent and to counsel. Because Pheil later waived his rights to remain silent and to counsel and volunteered the statements, we reject his arguments. He also contends that the trial court abused its discretion by not ordering a change of venue. We conclude that there was no abuse of discretion and therefore affirm the conviction.

John Ennis was killed in Superior, Wisconsin, on June 18, 1987. Pheil, then seventeen, broke into his neighbor Ennis' house with Vincent Dyleski, another juvenile, and Randall Rasmussen. They were low on cash and intended to rob Ennis. When they discovered an inebriated Ennis in his house, they beat him, discharged a fire extinguisher in his face, stabbed him in the chest and throat, and strangled him with a vacuum cleaner cord. ¹ The latter injury was found to have caused his death. After the murder, they robbed the home taking personal property worth approximately $6,000.

Rasmussen and Dyleski also took Ennis' car and fled the state. Pheil chose to remain in Superior. The three had not been particularly careful about concealing their roles in the murder and robbery, and police soon received information that Pheil had been involved in the crime. On the same day as the murder, the police picked up Pheil and asked him to come to the station for questioning. Van Turner, a family friend whom Pheil referred to as his stepfather, met Pheil at the station. Turner was present throughout the questioning. The police gave Pheil an opportunity to read his Miranda ² rights and then read and explained these rights to him. Afterwards, Pheil signed a waiver form.

During the initial interview on June 18, Pheil told the police he had seen two people driving away from the victim's home in the victim's automobile at about 5:30 a.m. After a break in the questioning, Pheil asked to end the interview and leave, but he was warned that if he did so he could be arrested for obstructing justice. Pheil stayed, and the police continued questioning him after again reading him his Miranda rights.

During this second round of questioning, Pheil's story changed. He told police that he had seen Rasmussen and Dyleski break into the Ennis home and had observed Rasmussen and Ennis struggling. Later, he saw Rasmussen and Dyleski take some items from the home to Ennis' car and drive away. In response to continued questioning, Pheil elaborated on the above story but did not change it in substance.

At about 9 p.m. the questioning terminated. The police asked Pheil to surrender his clothing and shoes and told him not to leave the general area. The police also instructed Turner to keep a close watch on Pheil. Pheil then turned over his clothing and left the police station wearing other clothes that Turner had provided for him.

On the following day, Friday, June 19, the police contacted Turner and asked him if Pheil would be willing to give them a further statement. Turner told them he would try to find Pheil and convince him to talk to the police. Later that day, Pheil and Turner went to the police station. Pheil told the police he wished to have an attorney present before he talked any further. The police gave him the telephone number of the public defender's office, but Turner was unable to schedule a meeting with an attorney until Monday. Pheil was allowed to leave the station.

On June 20, Pheil contacted the police to complain about threats being made against him by the victim's family. He did not give any further statements. Also on that date, Rasmussen and Dyleski were arrested in Houston, Texas.

The next day, two police officers went to the home of Pheil's girlfriend, where Pheil was currently living, and asked to talk to him. They informed him that Rasmussen and Dyleski had been arrested and were implicating him in the murder. Pheil, through Turner, advised the officers that he wanted an attorney present before talking to the police. The officers left without obtaining a statement.

About one and one-half hours later, Turner called the police station. The investigating officer returned his call, and Turner notified him that Rasmussen had contacted Pheil. The officer suggested that Pheil come down to the station and discuss the crime. Around noon, Pheil, his mother, and Turner appeared at the station. Pheil waived his Miranda rights and gave a further statement indicating that he had witnessed the murder and robbery, although he was not a direct participant in the crimes. At about 8 p.m., he gave a further statement reiterating his previous story. Pheil was eventually charged in the murder and robbery.

Pheil filed a motion to suppress the statements he had given to the Superior police during the period of June 18-22. The trial court suppressed the June 18 statements from the time Pheil asked to terminate the interview until he was allowed to leave the station. It, however, admitted the other statements made on the following days.

Pheil also moved to change the venue of the trial. The court refused that motion, but did agree to select a jury from outside Douglas County. It is these two rulings that are the subject of this appeal.

STANDARD OF REVIEW

The standard of review which we must utilize may vary and depends upon the circumstances. In general, we are bound not to upset the trial court's findings of historical or evidentiary fact unless they are contrary to the great weight and clear preponderance of the evidence. This is basically a "clearly erroneous" standard of review. Questions of law require independent appellate review, while questions of constitutional fact are also subject to independent review and require an independent application of the constitutional principles involved to the facts as found by the trial court. The reviewing court has the duty to apply constitutional principles to the facts as found in order to ensure that the scope of constitutional protections does not vary from case to case.

As such, we are permitted to independently determine from the facts as found by the trial court whether any time-honored constitutional principles were offended in this case. This is true whether we are examining the voluntariness of defendant's consent to search or whether we are deciding if defendant's confession was voluntarily procured. Independent appellate review is also required in determining whether the defendant's right to silence has been scrupulously honored since that inquiry requires an application of constitutional principles to the facts as found.

State v. Turner, 136 Wis.2d 333, 343-44, 401 N.W.2d 827, 832-33 (1987) (citations omitted).

RIGHT TO REMAIN SILENT

Pheil contends that all of his statements made after he attempted to terminate the interview on June 18 should be suppressed. The trial court did suppress statements made on June 18 after Pheil sought to end the interview and was informed that if he did so, he would be arrested for obstructing justice. However, the trial court allowed statements made on June 21 and 22 into evidence on the grounds that a significant amount of time had passed and that Pheil had been released from custody in the interim and had voluntarily returned to the police station to make a statement. We agree with the trial court's ruling.

The fifth amendment to the United States Constitution and art. 1, sec. 8, of the Wisconsin Constitution protect one's right to remain silent. The Wisconsin Supreme Court interprets this right coextensively under both documents. ³ Miranda and its progeny are aimed at dispelling the compulsion inherent in custodial surroundings. Id. at 458, 86 S.Ct. at 1619. Thus, the Miranda safeguards apply only to custodial interrogations.

Such a noncustodial situation is not converted to one in which Miranda applies simply because a reviewing court concludes that, even in the absence of any formal arrest or restraint on freedom of movement, the questioning took place in a "coercive environment." Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by the virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him "in custody." It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited.

Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977); see Oregon v. Elstad, 470 U.S. 298, 309, 105 S.Ct. 1285, 1293, 84 L.Ed.2d 222 (1985).

It is not seriously disputed that Pheil was in custody once police stated he would be arrested for obstruction of justice if he attempted to leave during the June 18 interrogation. Continued questioning in that...