State v. Ruud
| Decision Date | 04 March 1969 |
| Docket Number | No. 95,95 |
| Parties | STATE of Wisconsin, Respondent, v. Larry RUUD, Appellant. |
| Court | Wisconsin Supreme Court |
Jack McManus and Larry Haukom, Madison, for appellant.
Bronson C. La Follette, Atty. Gen., William A. Platz and Betty R. Brown, Asst. Attys. Gen., Madison, Burleigh Randolph, Dist. Atty. La Crosse County, La Crosse, for respondent.
Upon appeal the defendant makes three contentions:
(1) The incustodial statement of the defendant was not preceded by adequate warning of his constitutional right to have assistance of counsel.
(2) The prosecutor's remark in closing argument to the jury was prejudicial.
(3) Trial court's refusal to allow the defendant to be recalled to refute the testimony of his own witness was an abuse of discretion and prejudicial error.
On Monday morning, October 3, 1966, and again on Monday, October 10, 1966, crudely made 'traps' or devices designed to catch and remove bank deposits were found in the night depository of the First National Bank of La Crosse. The police were notified and agreed to provide surveillance over the weekend beginning Friday evening, October 14th.
Access to the depository is afforded by keys, which are issued to the bank's patrons desiring to make deposits during the hours when the bank is closed. On a normal weekend between 50 to 100 deposits are made. On the weekend of October 14th over $85,000 in cash and checks were deposited with the bank.
About 1:30 a.m. on October 15th, an automobile stopped and parked directly across the street from the bank. The defendant, Larry Ruud, who had shoulderlength hair, unusual clothes, and a paper bag under his arm, stepped from the vehicle and walked to the depository. He looked both ways, then opened the depository.
A police officer, who had just driven up, heard the depository door clang shut and saw the defendant drop a key and a trap. The defendant attempted to walk away but the officer arrested him. The police also arrested Lewis Lapof who was sitting in the car across the street. A short fish line with a fish-hook attached to it was discovered in the vehicle.
The defendant and Lapof were taken to the police station. The defendant was informed of his constitutional rights generally and signed the following statement of rights and waiver.
'Before we ask you any question, you must understand your rights. You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions, and to have him with you during questioning. You have this same right to the advice and presence of a lawyer even if you cannot afford to hire one. We cannot ourselves furnish you a lawyer, but one will be appointed for you, if you wish, if and when you go to court. If you wish to answer questions now without a lawyer present, you have the right to stop answering questions at any time. You also have the right to stop answering at any time until you talk to a lawyer.
'WAIVER'
(Emphasis added.)
The defendant attacks the italicized portion of the warning and argues that the warning did not inform the defendant that he was entitled to counsel during the interrogation.
A police officer and an agent of the Federal Bureau of Investigation questioned the defendant. The defendant first claimed that a friend, whose name he had forgotten, offered him $3.50 to put a trap in the night depository for the purpose of embarrassing the bank.
The officers also talked to Lapof who told them he had seen the defendant working on various 'traps.' The defendant then made a statement, exculpatory in nature, which was reduced to writing by the F.B.I. agent and signed by the defendant.
The statement was to the effect that the defendant was a third-year student at Wisconsin State University, La Crosse; that he took the depository key from his former employer, Henry's Hamburger Stand; that in September, 1966, he had made several 'traps' and had succeeded in getting three of them into the depository; that his intention was not to steal money but to show the manufacturer of the depository that there were problems they were unaware of and that he had written a 500-word theme for a college English class about it; that if he had obtained any money with the trap he would have dropped it back into the depository or would have taken it to the bank and said, 'Hey did you lose this?'; and that he wanted to prove to the safe company and friends that money could be obtained from a night depository.
At the trial it developed that the defendant had been but was not a student at Wisconsin State University, La Crosse. He was academically ineligible and was refused admission in September, 1966. He did, however, attend a few English classes in September. He had worked at Henry's Hamburger Stand for at least a few weeks prior to August 27, 1966, but had only worked there for a couple of hours on two separate days after that date. At no time after August 27th had the depository key been missing.
Prior to the commencement of the trial it was stipulated to by defense counsel, the defendant personally, and the state that both the statement and the signed waiver could be received into evidence.
'MR. COLE (Defendant's Attorney): We will not object to the admissibility of the confession.
'THE COURT: Then that confession should be marked as an exhibit to the end that your complete record is made.
'(Exhibits 1 and 2 marked for identification by the court reporter)
'MR. STOLTZ (Assistant District Attorney): We have marked for the record, Exhibit 1 which consists of a three page handwritten statement, dated October 15, 1966, of Larry Brian Ruud, and signed by him, and witnessed by James McArtyle, Special Agent for the Federal Bureau of Investigation, and Roger Schmuck of the Detective Bureau of the La Crosse Police Department.
In his opening statement defense counsel stated that the sole issue was the intent of the defendant and that defendant did not intend to steal but 'was engaged in a research project.' He specifically referred to the statement, and said: 'His statements given to the police immediately after arrest at two in the morning, 2:30 in the morning, in every detail exactly are the same explanations that he will give in the course of this trial for his actions.'
Defendant took the stand and testified in support of the statement.
In his closing argument defense counsel stated:
'Now, if as the District Attorney says that the defendant fabricated this statement I submit to you that he would have to have almost super human power under these circumstances to come up with a statement which bears out in every detail with everything that he has said in the course of this trial, and all the other evidence that has come in from the other witnesses.
'* * *
'I urge you to read this statement and judge for yourselves if there are any material discrepancies there.'
At no time throughout the trial was any objection made. Defendant argues that constitutional errors cannot be waived merely by a failure to object, citing Holloway v. State (1966), 32 Wis.2d 559, 146 N.W.2d 441. This case is...
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State v. GARY MB, 01-3393-CR.
...Thus, whether a defendant has strategically waived an objection is a question of law subject to de novo review. See State v. Ruud, 41 Wis. 2d 720, 726, 165 N.W.2d 153 (1969). One commentator has remarked that Wisconsin's strategic waiver prevents a party from counterattacking with otherwise......
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State v. Gary, 2004 WI 33 (Wis. 3/26/2004)
...Thus, whether a defendant has strategically waived an objection is a question of law subject to de novo review. See State v. Ruud, 41 Wis. 2d 720, 726, 165 N.W.2d 153 (1969). One commentator has remarked that Wisconsin's strategic waiver prevents a party from counterattacking with otherwise......
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Hayes v. State
...that Hayes voluntarily and understandingly waived counsel at the time of the line-up and this he could do. See State v. Ruud (1969), 41 Wis.2d 720, 165 N.W.2d 153; State v. Strickland (1965), 27 Wis.2d 623, 135 N.W.2d 295; Hack v. State (1910), 141 Wis. 346, 124 N.W. 492, 45 L.R.A.,N.S., Ha......
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United States v. Rawls
...v. Swift, 32 A.D.2d 183, 300 N.Y.S.2d 639 (1969), cert. denied, 396 U.S. 1018, 90 S. Ct. 584, 24 L.Ed.2d 510 (1970); State v. Ruud, 41 Wis.2d 720, 165 N.W.2d 153 (1969). See also Wright v. North Carolina, 483 F.2d 405 (4th Cir. 1973), cert. denied, 415 U.S. 936, 94 S.Ct. 1452, 39 L.Ed.2d 49......