State v. Schultz

• Decision Date: 22 December 1988
• Docket Number: No. 88-0389-CR,88-0389-CR
• Citation: 148 Wis.2d 370,435 N.W.2d 305
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. James R. SCHULTZ, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 305

435 N.W.2d 305

148 Wis.2d 370

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

No. 88-0389-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Oct. 10, 1988.

Opinion Released Dec. 22, 1988.

Opinion Filed Dec. 22, 1988.

Robert S. Duxstad and Ewald, Duxstad & Vale Law Offices, Monroe, for defendant-appellant.

Donald J. Hanaway, Atty. Gen., and Sharon Ruhly, Asst. Atty. Gen., for plaintiff-respondent.

Before GARTZKE, P.J., and DYKMAN and SUNDBY, JJ.

DYKMAN, Judge.

James Schultz appeals from a judgment of conviction of first-degree murder and from an order denying his post-conviction motions. The issues are: (1) whether the trial court properly applied sec. 971.175, Stats.; (2) whether the state violated Schultz's right against self-incrimination by using his Goodchild testimony for impeachment purposes; (3) whether Schultz was denied effective assistance of counsel; and (4) whether Schultz is entitled to a new trial. ¹ We resolve all issues against Schultz and affirm.

FACTS

Schultz was convicted of the first-degree murder of his wife, Nancy Schultz. Police had found Schultz lying unconscious next to his dead wife in their carbon monoxide-filled garage. An autopsy revealed that although carbon monoxide poisoning had caused Nancy Schultz's death, before death she had received at least one blow to the head with a blunt object which may have rendered her unconscious. Schultz's five-year-old daughter testified that her mother and father had been fighting in the garage.

Sec. 971.175, Stats.

Schultz pled not guilty and not guilty by reason of mental disease or defect and was tried pursuant to sec. 971.175, Stats., which provides for a bifurcated trial in such situations. After the first phase, the jury found him guilty of first-degree murder. Schultz withdrew his plea of not guilty by reason of mental disease or defect, and the trial court sentenced him to life imprisonment.

Schultz argues that the trial court followed the procedure outlined in sec. 971.175, Stats., and thereby denied him due process of law and equal protection of the laws. Since this question involves the interpretation of a statute, we review it de novo. City of Waukesha v. Salbashian, 128 Wis.2d 334, 347, 382 N.W.2d 52, 56 (1986).

Section 971.175, Stats., provides:

When a defendant couples a plea of not guilty with a plea of not guilty by reason of mental disease or defect, there shall be a separation of the issues with a sequential order of proof before the same jury in a continuous trial. The guilt issue shall be heard first and then the issue of the defendant's mental responsibility. The jury shall be informed of the 2 pleas and that a verdict will be taken upon the plea of not guilty before the introduction of evidence on the plea of not guilty by reason of mental disease or defect. This section does not apply to cases tried before the court without a jury.

We interpret this provision to require that both phases must be tried before a single jury, and that the jury must be informed of the insanity plea before the guilt phase of the trial. Schultz claims this deprives him of the presumption of innocence. In State v. Sarinske, 91 Wis.2d 14, 29-30, 280 N.W.2d 725, 732 (1979), the supreme court rejected this argument, asserting that a properly instructed jury will follow instructions even where there are inconsistent pleas. Schultz's problem is similar to the "insoluble problem" of a defendant who asserts that a homicide was accidental or justified, i.e., that of "maintaining the latter stance without seeming to concede he did the killing." Id. at 30-31, 280 N.W.2d at 732-33. Like such defendant, Schultz is not entitled to a separate jury for each inconsistent defense he raises. Id. at 31, 280 N.W.2d at 733.

Schultz argues that Sarinske implied that where a defendant presents a substantial defense on the merits or where substantial prejudice would result from the same jury trying both issues, a defendant should be entitled to a second jury on the issue of his or her mental responsibility. We need not address these assertions because the essence of Schultz's argument on this issue is that the trial court prejudiced the jury against him by following the mandate in sec. 971.175, Stats. The trial court found otherwise.

The trial court granted Schultz's motion for individual and sequestered voir dire of potential jurors. At Schultz's post-conviction hearing, the trial court found that the "thorough searching voir dire process" on this issue cured any possibility of jury prejudice. The court noted that any "juror that had any problems or any difficulty" with the two pleas was "discovered and was, on motion, then released." On appeal, Schultz does not claim that this finding is clearly erroneous, but merely asserts that the jury must have been prejudiced against him, thereby denying him the presumption of innocence. Because Schultz shows no error we affirm as to this issue.

Goodchild Testimony

Schultz claims that the trial court violated his fifth amendment right against self-incrimination by allowing the state to impeach him with his Goodchild ² testimony. Where the historical facts of a case are undisputed, we review the constitutional significance of those facts de novo. State v. Stevens, 123 Wis.2d 303, 313-14, 367 N.W.2d 788, 794, cert. denied, 474 U.S. 852, 106 S.Ct. 151, 88 L.Ed.2d 125 (1985).

Schultz had requested a Goodchild hearing on his motion to suppress statements he made to police because he claimed he had not knowingly waived his Miranda rights. During the hearing, Schultz claimed he had no recall of the events of November 19, 1985, the date of his wife's death. The trial court concluded that Schultz had knowingly and understandingly waived his right to remain silent, and denied his motion to suppress. At trial, the court prohibited the state from using the Goodchild testimony in its case-in-chief. After the state rested, Schultz testified that he remembered the events of November 19, 1985. On cross-examination, the state impeached Schultz with his Goodchild testimony.

In Wold v. State, 57 Wis.2d 344, 356, 204 N.W.2d 482, 490 (1973), our supreme court held that "evidence excluded on direct should not be used for impeachment unless the accused takes the stand and testifies to matters directly contrary to what is in the excluded statement." The exception to this rule is if the excluded statement is untrustworthy, i.e., coerced or involuntary. Id. at 355, 204 N.W.2d at 489-90. Schultz does not claim that his Goodchild testimony was coerced or involuntary. However, he claims that Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), bans any state use of his suppression hearing testimony. We disagree.

In Simmons, the police found two suitcases containing crime evidence after a warrantless search of a defendant's mother's house. 390 U.S. at 380, 88 S.Ct. at 969. To establish standing for his suppression motion, a defendant asserted that one of the suitcases was similar to a suitcase he owned, and that he owned the clothing found inside it. Id. at 381, 88 S.Ct. at 970. The trial court denied his suppression motion, and the court allowed the state to use his suppression motion testimony against him at trial. Id.

The United States Supreme Court reversed. It noted that the suitcase was strong evidence against the defendant, and that the government might have found it difficult to prove it was the defendant's without defendant's suppression motion testimony. Simmons, 390 U.S. at 391, 88 S.Ct. at 975. The Court also noted that the dilemma the defendant faced "is most extreme in prosecutions for possessory crimes, for then the testimony required for standing itself proves an element of the offense." Id. The Court reasoned that "a defendant with a substantial claim for the exclusion of evidence may conclude that the admission of the evidence, together with the Government's proof linking it to him, is preferable to risking the admission of his own testimony connecting himself with the seized evidence." Id. at 393, 88 S.Ct. at 976.

The Court concluded that a defendant should not be "obliged either to give up what he believed, with advice of counsel, to be a valid Fourth Amendment claim or, in legal effect, to waive his Fifth Amendment privilege against self-incrimination." Simmons, 390 U.S. at 394, 88 S.Ct. at 976. The Court held that "when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection." Id.

In Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), the state used some of the defendant's statements taken in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), to impeach defendant's testimony. 401 U.S. at 223, 91 S.Ct. at 644. The Court upheld this practice. "Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process." Id. at 225, 91 S.Ct. at 645 (footnote omitted).

Here, the state did not use Schultz's Goodchild testimony for proof of guilt, but to impeach him with his prior statement that he did not remember what happened the day of his wife's death. Schultz waived his right against self-incrimination when he testified in his own defense at trial. The state's use of Schultz's prior testimony to impeach him was allowable under Wold, 57 Wis.2d at 356, 204 N.W.2d at 490. We affirm as to this issue.

Ineffective Assistance of Counsel

Schultz claims that he was denied effective assistance of counsel in violation of the sixth amendment to the U.S. Constitution. Whether counsel's actions constitute effective assistance of counsel is a mixed question of law and fact. State v. Johnson, 133...