State v. Schultz

• Decision Date: 28 November 1989
• Docket Number: No. 88-0389-CR,88-0389-CR
• Citation: 152 Wis.2d 408,448 N.W.2d 424
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. James R. SCHULTZ, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 424

448 N.W.2d 424

152 Wis.2d 408

STATE of Wisconsin, Plaintiff-Respondent, v. James R. SCHULTZ, Defendant-Appellant-Petitioner.

No. 88-0389-CR.

Supreme Court of Wisconsin.

Argued Sept. 6, 1989.

Decided Nov. 28, 1989.

Daniel P. Bestul, argued, Robert S. Duxstad, and Duxstad, Vale & Bestul Law Offices, on briefs, Monroe, for defendant-appellant-petitioner.

Sharon Ruhly, argued, Asst. Atty. Gen., Donald J. Hanaway, Atty. Gen., on the brief, for plaintiff-respondent.

CALLOW, Justice.

This is a review of a decision of the court of appeals, State v. Schultz, 148 Wis.2d 370, 435 N.W.2d 305 (Ct.App.1988), affirming a judgment of conviction and an order denying post-conviction motions in the circuit court for Green county, Judge William D. Johnston. The jury found the defendant guilty of the first-degree murder of his wife.

The only issue before this court is whether a prosecutor's use of a defendant's Goodchild ¹ hearing testimony in an effort to impeach that defendant's trial testimony violates the privilege against compelled self-incrimination of either the fifth amendment to the United States Constitution or article I, section 8(1) of the Wisconsin Constitution. ² We conclude that a prosecutor may attempt to impeach a defendant's trial testimony with that defendant's Goodchild hearing testimony without violating either the federal or the state privilege against compelled self-incrimination.

On November 19, 1985, the defendant, James R. Schultz (Schultz), and his wife, Nancy M. Schultz, were found lying next to each other on the floor of their garage, which was filled with carbon monoxide. Schultz was breathing, but unconscious; his wife was dead. The autopsy revealed that the cause of his wife's death was carbon monoxide poisoning, although she had received at least two blows to the head prior to her death, which may have rendered her unconscious. A broken flashlight was found near the couple.

The Schultzes' five-year old daughter was at the Schultz home at the time of her mother's death. On direct examination at trial, the daughter testified that her mother and father were fighting in the garage, that her father hit her mother, and that when she peeked into the garage she saw her mother lying on the garage floor with her eyes closed and her father sitting on the garage floor with his eyes open.

On November 20, 1985, the day after Nancy Schultz's death, Investigator Randall Roderick of the Green County Sheriff's Department conducted two interviews of Schultz in Schultz's intensive care unit hospital room. During both interviews, which were held within approximately one and one-half hours of each other, Roderick asked Schultz about the events surrounding his wife's death. Some of the answers Schultz gave in the second interview were inconsistent with his answers from the first interview.

After being charged with first-degree intentional homicide in the death of his wife, Schultz filed a motion to suppress the statements he made to Investigator Roderick, arguing in part that they were involuntary and that they were obtained without a valid waiver of his Miranda ³ rights. On March 26 and 28, 1986, the trial court conducted a suppression hearing on this motion pursuant to State ex rel. Goodchild v. Burke, 27 Wis.2d 244, 133 N.W.2d 753 (1965), cert. denied, 384 U.S. 1017, 86 S.Ct. 1941, 16 L.Ed.2d 1039 (1966). At the Goodchild hearing, Schultz testified on direct examination that, because he was suffering from the lingering effects of the carbon monoxide poisoning on November 20, 1985 when Investigator Roderick interviewed him, he could neither remember being read his Miranda rights nor remember, at the time of the interviews, the events of the previous day. On cross-examination, Schultz began by again declaring that at the time of the November 20, 1985 interviews with Roderick he had no recollection of the previous day. Then, the following exchange, which has become central to this appeal, took place:

Q. When you state you can't remember anything about anything, are you referring to the events of November 19?

A. Yes.

At the conclusion of the testimony, the trial court ruled that the statements Schultz made to Investigator Roderick on November 20, 1985 were voluntary and that a valid waiver of Schultz's Miranda rights had been obtained.

At his jury trial, Schultz took the stand and testified as to what he remembered about the events of the night of his wife's death, November 19, 1985. This version of the events differed in several respects from the versions he related to Investigator Roderick during the November 20, 1985 interviews. On cross-examination, the following exchange took place as the prosecutor attempted to impeach Schultz's trial testimony with the testimony he gave at the Goodchild hearing:

Q. Do you remember me [ (the prosecutor) ] asking you the following question ... [at the March 28, 1986 Goodchild hearing]:

"Q. When you state you can't remember anything about anything, are you referring to the events of November 19?"

Your answer:

"A. Yes."

A. Yes.

Q. So your testimony today and yesterday is that now on April 17, you do remember the events of November 19, 1985?

A. Yes, I do.

The prosecutor was apparently attempting to impeach Schultz's ability at trial to remember accurately the night of his wife's death by showing that he could not remember that night at the Goodchild hearing.

Schultz objected to the use of his Goodchild testimony to impeach his trial testimony, arguing that Goodchild testimony is entirely inadmissible at trial according to the fifth, sixth, and fourteenth amendments to the United States Constitution and article I, sections 7 and 8 of the Wisconsin Constitution. ⁴ The circuit court ruled that the Goodchild testimony could be used at trial for impeachment purposes. The circuit court's basic reasoning was that, by taking the stand at trial, Schultz had waived his fifth amendment self-incrimination right and had placed his credibility in issue.

In his closing argument, the prosecutor noted Schultz's inconsistent memory:

[Schultz] goes from having a great deal of information on November 20 ... to knowing nothing in March [at the time of the Goodchild hearing], back to knowing a great deal here in court.

The jury found Schultz guilty of first-degree intentional homicide. The circuit court then sentenced Schultz to life imprisonment.

Schultz filed a post-conviction motion for mistrial and request for a new trial. In support of this motion, one of Schultz's arguments was that the prosecutor's use of his Goodchild testimony at trial violated the federal and state constitutional privilege against compelled self-incrimination. ⁵ In its order denying this motion, the circuit court ruled that, by deciding to testify in his own behalf at trial, Schultz opened himself to impeachment with any Goodchild testimony that was inconsistent with his trial testimony.

Schultz appealed both the judgment of conviction and the order denying his post-conviction motion. The court of appeals affirmed with one judge dissenting. The court of appeals addressed the issue of whether Schultz's privilege against compelled self-incrimination was violated when the prosecution used his Goodchild testimony in an effort to impeach him at trial. The court of appeals relied primarily on this court's decision in Wold v. State, 57 Wis.2d 344, 204 N.W.2d 482 (1973), and held that Schultz's Goodchild testimony was available to impeach Schultz after he waived his privilege against self-incrimination by testifying at trial. Schultz, 148 Wis.2d at 377, 435 N.W.2d 305.

In this court, Schultz argues, as he did in the lower courts, that the use of his Goodchild testimony in an effort to impeach him at trial violated his privilege against compelled self-incrimination under both the fifth amendment to the United States Constitution and article I, section 8(1) of the Wisconsin Constitution. Schultz insists that his Goodchild hearing testimony is compelled testimony. Because his Goodchild testimony is compelled, Schultz contends that it was inadmissible at trial for any purpose, including impeachment. ⁶

Schultz correctly asserts that, according to both federal and state law, compelled or involuntary testimony is inadmissible at trial for any purpose. In New Jersey v. Portash, 440 U.S. 450, 99 S.Ct. 1292, 59 L.Ed.2d 501 (1979), the United States Supreme Court decided whether the federal constitutional privilege against compelled self-incrimination prevented a prosecutor from using a criminal defendant's grand jury testimony, immunized by a New Jersey statute, to impeach that defendant's trial testimony. The Court determined that testimony elicited by a grant of legislative immunity is compelled testimony. The Court held that, according to the fifth and fourteenth amendments to the United States Constitution, such compelled testimony is inadmissible for impeaching the defendant's trial testimony or for any other use at trial:

[A] defendant's compelled statements ... may not be put to any testimonial use whatever against him in a criminal trial.

Portash, 440 U.S. at 459, 99 S.Ct. at 1297 (citing Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978)).

Similarly, this court has held that an involuntary statement is inadmissible against the defendant for any purpose at trial. Gaertner v. State, 35 Wis.2d 159, 173, 150 N.W.2d 370 (1967).

In contrast, the United States Supreme Court has drawn a distinction between trial use of a defendant's truly compelled statements and those that are properly viewed as less than compelled. For example, statements obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), can be used for impeachment purposes as long as such statements are not truly compelled or involuntary. In Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), the prosecution conceded that the defendant's statements were...