State v. Turner
| Citation | 401 N.W.2d 827,136 Wis.2d 333 |
| Decision Date | 09 March 1987 |
| Docket Number | No. 85-0215-CR,85-0215-CR |
| Parties | STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. Richard James TURNER, Defendant-Respondent and Cross-Petitioner. |
| Court | United States State Supreme Court of Wisconsin |
Stephen W. Kleinmaier, Asst. Atty. Gen., argued, for plaintiff-appellant-petitioner; Bronson C. La Follette, Atty. Gen., on brief.
James Bolgert, Sheboygan, for defendant-respondent and cross-petitioner.
This is a review of an unpublished decision of the court of appeals which was entered on October 23, 1985. The state and the defendant both seek review of separate portions of the appeals court's decision. The relevant facts are set out below.
On Sunday, June 24, 1984, an armed robbery and stabbing occurred at the Greyhound bus depot in Sheboygan, Wisconsin. The stabbing victim, Jeffrey A. Koenigs, twice singled out defendant Richard J. Turner from a photo array, stating that he bore some resemblance to the assailant. Subsequently, between 8:30 a.m. and 9:00 a.m. on Wednesday, June 27, detectives Dennis Korff and James H. Hoppe arrested the defendant on a probation hold. In response to defendant's initial inquiry as to the reason for his arrest, he was told by police that his name had come up in an investigation and that they would discuss it at police headquarters.
En route to the police station, the defendant indicated that he wanted his attorney, William Moir, and his probation officer, Wolfgang Schrauth, present before he was questioned. The defendant was not advised of his Miranda rights at this time; however, he was also not asked any questions.
The defendant arrived at police headquarters at approximately 9:30 a.m. The police then telephoned Schrauth and informed him that the defendant was at police headquarters and had requested that he be present at any questioning. The defendant was placed in an interrogation room where he was given his Miranda rights, orally and in written form. The defendant signed the Sheboygan Police Department's standard Miranda warning and waiver form. The defendant again requested that his attorney be present.
The defendant then unsuccessfully attempted to contact Attorney Moir by telephone. After defendant learned that Moir was unavailable, detective Korff handed him the telephone book, opened to the attorney listings in the yellow pages, and gave him the opportunity to contact other attorneys. The defendant declined and instead said he would talk to the police without his attorney present, but that he still wished to have Schrauth present. Detective Korff informed the defendant that Schrauth had been contacted and was en route to headquarters. While Korff remained in the room with the defendant, detective Hoppe left the room to check whether Schrauth had arrived. After several minutes of silence, the defendant said, "Come on, Korff, ask me questions you want to ask." Korff replied that they would wait until Schrauth arrived and left the room to check on the whereabouts of Schrauth.
Detectives Korff and Hoppe then returned to the interrogation room with Schrauth and advised the defendant that he was a suspect in the incident at the Greyhound bus depot. After approximately forty-five minutes of questioning, during which the defendant denied involvement in the crimes, the detectives left the room to allow Schrauth and the defendant to privately confer. The two spoke alone for about 20 to 30 minutes. At approximately 12:30 p.m., the defendant stated he did not want to answer any more questions. Police terminated the questioning. During the interview, the defendant was permitted to use the bathroom on several occasions and was also permitted to phone his wife. He tried to reach her several times, and on or about the third attempt he was able to reach her and have a brief conversation with her.
After the interview was terminated, the detectives asked the defendant for his consent to search his room at the halfway house where he was residing. The defendant signed the consent to search form. The defendant and Korff and Hoppe went to the halfway house, where a search of the defendant's room commenced at 1:27 p.m. and was completed at 1:49 p.m. Several items were seized.
The defendant was then transported to the Sheboygan county jail where he was booked on a probation hold. At the request of the detectives, the defendant was segregated from the general population, and his telephone calls were restricted to his family, attorney, and probation officer. Police testified that they segregated defendant from the general prison population in order to allow the police to investigate the defendant's statement about his activities over the weekend without affording the defendant the opportunity to contact potential alibi witnesses.
The following morning, Thursday, June 28, detective Hoppe went to Milwaukee to display pictures to Kelly Mittelstadt, a witness to the incident at the Greyhound depot. Even though she stated that she could not positively identify defendant, she had paused at a picture of the defendant when looking at the photo array. Mittelstadt could not positively identify anyone from the pictures, but she stated that she thought she could identify the assailant from a lineup.
At approximately 1:45 p.m. on June 28, detectives Korff and Hoppe again met with the defendant. They again advised him of his Miranda rights, orally and in writing, and the defendant again signed the waiver form. At this time he did not renew his request for counsel nor did he indicate in any manner that he would not talk to the officers. During the initial stage of the interview, the defendant again denied committing the crimes. However, after being confronted by officers with inconsistencies in his statements, the defendant broke down, started to cry, and said, "I did it." The admission came at 4:14 p.m. The defendant then proceeded to recount his activities over the weekend and describe the robbery. During the interview, the defendant was permitted to phone his wife. The interview was adjourned at 5:50 p.m. to allow the defendant to eat supper.
At 6:10 p.m., detectives Hoppe and Ralph Marcheske drove defendant to his room at the halfway house to get some clothing. From there, the defendant and the detectives went to the Greyhound bus depot, where the defendant "walked through" his activities on June 24.
The defendant was then returned to the police station, where he was again advised of his Miranda rights. Again, he signed a waiver form. Defendant was questioned between 6:47 p.m. and 8:50 p.m. Detective Hoppe reviewed defendant's oral statement with him, and then detective Marcheske and the defendant prepared a written statement. After Marcheske finished typing the statement, he read the statement to the defendant. Marcheske intentionally made some typographical errors to ensure that the defendant read the statement and to be sure the statement accurately reflected the substance of defendant's confession. During the reading, the defendant initialed some corrections and reread the statement himself.
While the written statement was being prepared, the defendant asked to phone his wife. At approximately 7:20 p.m., Marcheske gave the defendant the telephone and left the room. The defendant was left alone for approximately ten minutes to make the call. When Marcheske returned, he orally advised the defendant of his Miranda rights before further proceeding with the statement.
Approximately five minutes after the defendant signed the written statement, he repudiated it, stating he had fabricated the story to get the detectives "off his back." A short time later, however, he admitted that the statement was true.
The defendant was returned to the Sheboygan county jail, where he was charged with armed robbery, contrary to section 943.32(1)(b) and (2), Stats., and attempted first-degree murder, contrary to sections 939.32 and 940.01(1).
On June 29, after defendant had been formally charged, a public defender intake worker interviewed Turner and determined that he was entitled to representation by a public defender. The intake worker acted on his own initiative in interviewing defendant; Turner had not requested the interview, nor did he seek the aid of an attorney from the public defender's office. The public defender's office then appointed Attorney James Bolgert, who met with the defendant for the first time at 11:25 a.m. on Friday, June 29, more than fifty hours after the defendant had first requested that his personal attorney be present during any questioning.
The issues that must be addressed by this court are as follows:
(1) Did the court of appeals err in reversing the trial court on the question of whether the police honored the defendant's right to counsel and in determining that the defendant initiated conversations with the police during the police interrogation which occurred on June 27, 1984, thereby waiving his right to counsel?
(2) Did the appeals court err in affirming the trial court's holding that Turner's right to remain silent was not scrupulously honored on June 27 so as to render his consent to a search of his quarters at the halfway house invalid, thereby justifying the suppression of the evidence seized during that search?
(3) Did the appeals court err in holding that the police failed to scrupulously honor Turner's right to remain silent when they reinterrogated him on June 28, the second day that he was in police custody?
(4) Finally, did the appeals court err in reversing the trial court's decision that inculpatory statements made by the defendant during the second day of interrogation ought to be suppressed due to involuntariness?
At the hearing on the defendant's motion to suppress, Circuit Judge Daniel P. Anderson ordered the following: (1) that both written and oral statements made by the defendant on June 27 and 28 be suppressed because they were...
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