State v. Shaffer

• Decision Date: 24 April 1980
• Docket Number: No. 79-1046-CR,79-1046-CR
• Citation: 96 Wis.2d 531,292 N.W.2d 370
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Scott David SHAFFER, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 370

292 N.W.2d 370

96 Wis.2d 531

STATE of Wisconsin, Plaintiff-Respondent, v. Scott David SHAFFER, Defendant-Appellant.

No. 79-1046-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs March 12, 1980.

Opinion Released April 24, 1980.

Opinion Filed April 24, 1980.

[96 Wis.2d 533] Louis B. Butler, Jr., Asst. State Public Defender, for defendant-appellant.

Bronson C. La Follette, Atty. Gen., with whom in the brief was Sally L. Wellman, Asst. Atty. Gen., for plaintiff-respondent.

Before DECKER, C. J., MOSER, P. J., and CANNON, J.

DECKER, Chief Judge.

Defendant Shaffer appeals claiming that: his confession was taken in violation of his Miranda rights; his confession was involuntary; the trial court erred in failing to give a requested intoxication instruction; the trial court erroneously allowed the state to ask leading questions of an expert witness; and reversible error was committed by the prosecutor's reference during closing arguments to facts not in evidence concerning prior misconduct of the defendant. We conclude that there was no error in Shaffer's trial requiring reversal and we affirm the judgment of the circuit court.

On July 15, 1978, at approximately 1:30 a. m., two armed men entered the Hideout Tavern in the city of West Allis. One of the men announced that "(t) his is a holdup," and everyone was told to "put your wallets on the bar." Both were carrying "shotguns," and aiming them in the direction of the bar. The owner of the tavern, Richard LaSavage, then produced a handgun, and told the two men to "freeze." Shots were exchanged and LaSavage was killed. One of the men was then subdued by a bar patron but the other escaped. The man who was subdued was identified as John Michael Kennedy. Scott David Shaffer, the defendant in this case, was charged as the other participant in the crime.

Shaffer was charged with first-degree murder, party to a crime, contrary to secs. 940.01 and 939.05, Stats.; robbery contrary to sec. 943.32(1)(b); and concealing identity, contrary to sec. 946.62. After a trial to a jury, Shaffer was convicted of one count of second-degree murder, contrary to sec. 940.02; one count of attempted armed robbery, contrary to secs. 943.32(1)(b) and 939.32; and one count of concealing identity, contrary to sec. 946.62.

THE CONFESSION

Shaffer challenges his confession on the grounds that his right to remain silent was not "scrupulously honored," and that his intoxicated state at the time of arrest prevented his confession from being voluntary. The confession was taken under the following circumstances:

At 5:11 a. m. on July 15, 1978, police officer Thomas Walloch arrested Shaffer outside his home for the offenses at issue. Officer Walloch advised Shaffer of his constitutional rights prior to any questioning by reading from a "Miranda card." Shaffer stated that he understood those rights, and stated that he would answer questions without an attorney present. Walloch then began questioning Shaffer concerning his whereabouts on the previous evening. Shaffer responded that he had been to some taverns and had then walked home. Shaffer also admitted that he owned a shotgun, but then stated that he did not want to answer any more questions. Walloch immediately stopped the questioning, which had lasted less than five minutes, and Shaffer was taken to the police station. During his encounter with Walloch, Shaffer never requested an attorney.

Upon arrival at the West Allis police department, Shaffer was turned over to Walloch's superior officers. Walloch failed to inform his superiors that Shaffer had exercised his right to discontinue questioning. Officer John Butorac testified that at approximately 5:20 a. m. Walloch brought Shaffer to him at the police station. Walloch then left the scene.

Butorac brought Shaffer into an interrogation room and told him to "sit down and relax." Another officer Detective Risse, was also present in the room with Butorac and Shaffer. Shaffer was again informed of his Miranda rights. Shaffer stated that he did not want an attorney. He also stated that he was willing to answer questions, but that he "didn't know what this was all about." Butorac then explained that this was a very "serious matter," and that a man had been shot and had died. Shaffer stated that he did not know how much he should say because he did not want to "hang himself." Butorac responded that Shaffer's answer indicated that he did "have something, some knowledge of what happened." Shaffer then gave a complete oral statement confessing his involvement in the crime. The entire session lasted approximately one and one-half hours. Shaffer's oral confession took approximately forty-five minutes of that time.

Concerning Shaffer's claimed intoxication, Walloch testified that he did not detect that Shaffer was experiencing any difficulty walking or standing, but that he did smell alcohol on Shaffer's breath after they entered the police vehicle. He testified that: Shaffer's demeanor was pleasant; he did not slur his words; and he was coherent and responded in an appropriate manner to questions. Butorac also testified that: Shaffer's eyes appeared bloodshot; he had an odor of alcoholic beverage on his breath; but he did not illustrate any other outward signs of drug or alcohol influence, such as loss of balance, slurred speech, or a staggering gait. Butorac's opinion, based upon his experience as a police officer, was that Shaffer was not under the influence of any intoxicant. Shaffer did not claim, at the time, that he was intoxicated.

Shaffer filed a pretrial motion to suppress the confession. A Miranda-Goodchild hearing was held prior to trial and the trial court found the confession to be admissible.

The Right to Discontinue Questioning

In Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), the United In Mosley, the defendant was arrested on robbery charges and taken to the robbery bureau on the fourth floor of the Detroit police department headquarters building. After being given his Miranda warnings, he declined to discuss the robberies. The defendant was then transferred to the ninth floor of the same building. After an interval of two and one-half hours, the defendant was given a fresh set of Miranda warnings, and questioned by another officer concerning a separate homicide offense. After a fifteen-minute interrogation, the defendant confessed to the homicide. 423 U.S. at 97-98, 96 S.Ct. at 323. The Court affirmed the trial court's ruling that the confession was admissible, and ruled that the defendant's right to cut off questioning had been "scrupulously honored." Supra at 104, 96 S.Ct. at 326.

States Supreme Court, interpreting Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), ruled that a defendant's right to [96 Wis.2d 537] cut off questioning during a custodial interrogation must be "scrupulously honored." Shaffer argues that since he was questioned at 5:11 a. m., exercised his right to discontinue questioning, and was again questioned at 5:20 a. m., his right to remain silent was not "scrupulously honored." While we view the nine-minute interval between questioning sessions as a serious constitutional question, we nonetheless affirm the trial court's ruling that there was no violation of Shaffer's Miranda rights.

The Supreme Court in Mosley was primarily concerned with protecting an accused's right to "cut off" questioning. Supra at 103, 96 S.Ct. at 326. The court rejected the argument that all subsequent interrogations were per se invalid under Miranda. Supra at 102, 96 S.Ct. at 325. Whether the right to cut off questioning was "scrupulously honored" depends upon a variety of factors, including the time interval between interrogation sessions, whether the subsequent interrogation was conducted by the same or a different officer or officers, whether it concerned the same or a different offense, whether it was conducted in the same or a different environment, and whether a fresh set of Miranda warnings was given. 423 U.S. at 104-05, 96 S.Ct. at 326-27. See also Leach v. State, 83 Wis.2d 199, 209, 265 N.W.2d 495, 499-500 (1978). An additional factor that was considered by the Mosley court, and is sometimes overlooked, was whether the subsequent interrogating officer knew about the earlier interrogation. 423 U.S. at 105, 96 S.Ct. at 327. We think it important that there be no careless, neglectful or intended lack of communication between successive interrogating officers designed to accomplish repeated interrogation in spite of the defendant's expressed desire to cut off questioning. We would not countenance such practices.

In this case, Shaffer was questioned by Walloch at the time of arrest. He was given full Miranda warnings, and the questioning ended as soon as Shaffer exercised his right to remain silent. He was transferred to the police station, and questioned there by Butorac. Walloch failed to inform Butorac or any other police officer that Shaffer had cut off questioning. He was given a fresh set of Miranda warnings and explicitly waived both his right to remain silent and his right to counsel. Although he was questioned concerning the same crime, he was in a different environment, and questioned by a different officer.

Most importantly, there is no evidence of collaboration between officers Walloch and Butorac to break down Shaffer's defenses. The record clearly indicates that Butorac conducted his examination without any knowledge of the prior questioning or Shaffer's prior exercise of his right to remain silent. There is no testimony from which one could infer that such lack of knowledge was carelessly, neglectfully or intentionally accomplished. Like Michigan v. Mosley,

(t)his is not a case, therefore, where the police failed to honor a decision of a person in custody to cut off questioning, either by refusing to discontinue the interrogation upon request or by persisting in repeated efforts to wear down his...