State v. Schneidewind

• Decision Date: 01 May 1970
• Docket Number: No. S,S
• Citation: State v. Schneidewind, 176 N.W.2d 303, 47 Wis.2d 110 (Wis. 1970)
• Parties: STATE of Wisconsin, Respondent, v. Ronald SCHNEIDEWIND, Appellant. tate 20.
• Court: Wisconsin Supreme Court

Page 303

176 N.W.2d 303

47 Wis.2d 110

STATE of Wisconsin, Respondent, v.Ronald SCHNEIDEWIND, Appellant.

No. State 20.

Supreme Court of Wisconsin.

May 1, 1970.

On January 15th, 1969, Ronald Schneidewind was convicted by a jury of uttering a forged check in violation of sec. 943.38(2), Stats.The court sentenced him to prison for an indeterminate term of not more than three years and then suspended the sentence and placed him on probation for three years, directing that the first year be served in the Dane county jail.The appeal is from the judgment of conviction.

Percy L. Julian, Jr., Madison, for appellant.

Robert W. Warren, Atty. Gen., Betty R. Brown, Asst. Atty. Gen., Madison, for respondent.

HALLOWS, Chief Justice.

Schneidewind assigns as errors the denial of his constitutional right to equal protection of the law because of the refusal of the trial court to furnish his counsel a free copy of the transcript of the preliminary hearing; the admission of his confession in evidence because of the failure to give a Miranda warning; ¹ the admission in evidence of an inclupatory statement because of the lack of a Miranda warning and because the admission was tainted by an illegal confrontation; and lastly, it is contended the evidence is insufficient to sustain the conviction.

Free Transcript.

A preliminary hearing was held and Schneidewind was bound over for trial.Thereafter, counsel moved the trial court for a state-paid copy of the transcript which was denied on the ground the original transcript was on file and liberal rules of the court permitted it to be loaned to counsel for his use.Testimony at preliminary hearings must be written by the magistrate or under his direction, sec. 954.11, Stats.By sec. 256.57(5), Stats., every reporter upon the request of any party to a criminal action or proceedings shall make a typewritten transcript and may charge therefor the fee therein set forth.This statute is applicable to preliminary hearings.

A similar New York statute requiring a magistrate or his clerk upon demand to furnish a defendant a copy of the transcript of a preliminary hearing upon payment of certain fees was held to be in violation of an indigent's right to equal protection and to access to a transcript of his preliminary hearing if denied because of his inability to pay therefor.People v. Montgomery(1966), 18 N.Y.2d 993, 278 N.Y.S.2d 226, 224 N.E.2d 730.In ordering a free copy of the transcript for an indigent the court reasoned that when a state constitutionally or statutorily affords a defendant a right, the exercise thereof cannot be conditioned upon the defendant's ability to pay.This decision was referred to in Roberts v. La Vallee(1967), 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41, when the Supreme Court held the New York statute resulted in a difference in access to instruments needed to vindicate legal rights and was based upon the defendant's financial situation and was therefore contrary to the equal protection clause of the Fourteenth Amendment.The rationale of these cases is not confined to what is absolutely necessary in the exercise of a constitutional right because the court in La Vallee reiterated the statement first made in Smith v. Bennett(1961), 365 U.S. 708, 709, 81 S.Ct. 895, 6 L.Ed.2d 39, that 'To interpose any financial consideration between an indigent prisoner of the State and his exercise of a state right to sue for his liberty is to deny that prisoner the equal protection of the laws.'In Bennett the indigent was unable to pay a $4 filing fee and thus his right to appeal was denied.

The precise question here was not decided in those cases, namely, whether the reasonable access to the use of the original transcript satisfies the calls of the constitution.Counsel for Schneidewind argues that a rich man's counsel may have his private copy to use as he desires in the preparation of the defense and therefore appointed counsel for an indigent should have his personal copy.Beyond this, counsel argues his work habits in preparing for trial requires a copy of the transcript because he cuts it up into sections and classifies them on the basis of a particular point of law or particular witnesses and he frequently makes marks on the margins of the transcript.This method of working obviously could not be indulged in when using the original transcript.

We point out this argument is not based directly on Griffin v. Illinois(1956), 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, and the subsequent cases² although they are cited by the defendant for an analogy.The question here involves not the right to appeal or a transcript necessary for an appeal but rather a copy of a transcript as an instrumentality which is claimed to be needed by the indigent in defending himself as a rich man might do.The cases speak about 'the differences in access' to these instruments but we read this to mean not insignificant differences of access to both rich and poor but access to the one and no access of any kind to the other.

We think counsel is not entitled to a free copy of the transcript of a preliminary hearing when there is an original transcript reasonably available to him for use.Here, the original was on file in court and available for use on a loan basis for almost four months before trial.We conclude this to be reasonable access.The trial counsel was also counsel at the preliminary examination and he could have made notes.In both Montgomery and La Vallee neither an original nor a copy was available to the indigent and the question of whether the availability of an original transcript was a reasonable substitute for the possession of a personal copy was not considered.

We do not understand the equal protection clause of the Fourteenth Amendment to the Constitution to require that every indigent must have exactly the same instrumentality for use in the preparation of his defense that a rich man has.If this reasoning were applied to other constitutional guarantees this court would have to appoint only the most expensive and expert criminal lawyer to represent each indigent accused because a rich man could hire such a lawyer.It might even be argued this court ought to appoint two lawyers for every indigent because a man of means could hire two lawyers to defend him.

We think the constitutional requirement in this instance is met by making reasonably available the original transcript of the preliminary hearing.The marking and cutting up of a transcript of a preliminary hearing seems to us to go more to convenience than to a reasonable necessity for a client's protection.If in cases the original transcript is not available on loan, then an indigent accused is entitled to a free copy of such transcript or if a transcript is not ordered by the court the indigent is entitled to at least those parts which are necessary for him to prepare his defense, such as the testimony of all witnesses against him.Such testimony is useful in making motions and for impeachment at the trial.

Admissibility of Evidence.

Prior to the commencement of the trial the court conducted a hearing to determine whether Schneidewind had been afforded the procedural protections contemplated by Miranda v. Arizona, supra.The court found he had been given the Miranda warning and at the trial his confession and certain statements made by him were admitted in evidence.

The facts upon which this issue turns are quite simple.The check in question was cashed on July 4th or 5th, 1968, and Schneidewind was arrested at his home on July 18th.The detective who arrested him testified that he advised Schneidewind of his constitutional rights at the time of his arrest and thereafter took him to the police station in a squad car.On the way the detective stopped at the Martin Oil Service Station in Madison where the check had been cashed.The station manager without being asked any questions walked up to the police car, pointed to Schneidewind and stated he was the one who had cashed the forged check at the station.Schneidewind reacted by responding in effect that he had cashed the check at the station but had not prepared it.After arriving at the police station Schneidewind was taken to an interrogation room and given a form which set forth the Miranda rights.He was asked to read it and subsequently the warning was read to him and he signed the waiver form.He was interrogated and during the interrogation he wrote out answers to some general background questions and that he had told Detective Holtzman that he had cashed the forged check and split the proceeds with two other persons and had endorsed the name 'Carl Thompson' on the back of the check.The defendant claimed no Miranda warning was given him at his home and at the police station he did not understand what was read to him.The trial court believed the officer and not the defendant.We cannot say the trial court was in error.Credibility is for the trier of the fact.

But it is argued that an adequate Miranda warning could not have been given at the time of the arrest because the detective at the preliminary hearing could not adequately state the Miranda rights.It is true, the officer stated that the court may appoint an attorney for an indigent rather than the court would appoint one, but reading the warning in...