State v. Verhasselt

• Decision Date: 06 June 1978
• Docket Number: No. 76-211-CR,76-211-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Gregory A. VERHASSELT, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 342

266 N.W.2d 342

83 Wis.2d 647

STATE of Wisconsin, Plaintiff-Respondent, v. Gregory A. VERHASSELT, Defendant-Appellant.

No. 76-211-CR.

Supreme Court of Wisconsin.

Submitted on Briefs April 6, 1978.

Decided June 6, 1978.

Henry B. Buslee, Fond du Lac, on brief, for defendant-appellant.

Bronson C. LaFollette, Atty. Gen., and Marguerite M. Moeller, Asst. Atty. Gen., on brief, for plaintiff-respondent.

CONNOR T. HANSEN, Justice.

Shortly after 2 a.m. on December 7, 1975, officers of the city of Fond du Lac police department were dispatched to the intersection of Cotton and North Main streets in that city to investigate a report of shots being fired. Near the intersection, they found a man by the name of Gary Hensen slumped over in his car with a bullet wound in his left shoulder. Nearby they apprehended the defendant, seventeen-year old Gregory A. Verhasselt, with a 30.06 rifle. Near an alleyway they found another rifle, a .35 mm pump-action Remington. The defendant was advised of his constitutional rights and taken to the police station. About ninety minutes later, after having been twice more advised of his rights, the defendant, in the presence of his parents, gave the police a statement concerning the events of the evening. He maintains that the statement was not voluntarily given because he was highly intoxicated at the time.

In his statement, the defendant said that he had spent the evening in a tavern, and had consumed about 30 glasses of beer in four hours. When he left the bar at 12:30 a.m., he was "really loaded," and had trouble finding his way home, he said. After roaming around at home, he took some ammunition and two rifles his own 30.06 and his father's .35 mm pump-action Remington from a gun case and walked to the area of Cotton and North Main streets, several blocks away. He loaded the guns and fired the .35 mm rifle toward what be believed to be a police squad car. He ran between some houses, returned to Cotton street and fired three or four more shots toward Main street. When he saw headlights approaching he ran north and was apprehended by the police, the statement concluded.

Gary Hensen, the man who had been shot, underwent surgery and subsequently recovered from the wound. The attending surgeon elected not to remove the bullet from Hensen's chest cavity, and it was therefore not identified. Hensen had no prior acquaintance with the defendant.

Additional facts are set forth in considering the issues, which are:

1. Did the trial court err in admitting the defendant's confession into evidence?

2. Was the verdict supported by the evidence?

3. Did the trial court err in refusing to instruct the jury on the offense of injury by negligent use of a weapon?

4. Did the trial court err in refusing to instruct the jury on the defense of intoxication?

The trial court conducted a Goodchild hearing ¹ to determine whether the defendant had voluntarily given his statement to the police. The statement was held to have been voluntarily made and therefore admissible in evidence.

The defendant asserts that his incriminating statement to the police should not have been admitted into evidence because at the time it was given, he was so intoxicated as to be incapable of making a voluntary statement.

At a Goodchild hearing, the burden is on the state to prove beyond a reasonable doubt that the confession was voluntary. Johnson v. State, 75 Wis.2d 344, 249 N.W.2d 593 (1977); Grennier v. State, 70 Wis.2d 204, 209, 234 N.W.2d 316 (1975); Blaszke v. State, 69 Wis.2d 81, 86, 230 N.W.2d 133 (1975); State ex rel. Goodchild v. Burke, supra, 27 Wis.2d at 264, 133 N.W.2d 753. On review, however, this court will not upset the trial court's finding with respect to voluntariness unless the finding is contrary to the great weight and clear preponderance of the evidence. LaTender v. State, 77 Wis.2d 383, 391, 253 N.W.2d 221 (1977); Johnson v. State, supra, 75 Wis.2d at 352, 249 N.W.2d 593; Grennier v. State, supra, 70 Wis.2d at 210, 234 N.W.2d 316; Norwood v. State, 74 Wis.2d 343, 364, 246 N.W.2d 801 (1976); McAdoo v. State, 65 Wis.2d 596, 223 N.W.2d 521 (1974). On review, any conflicts in testimony regarding the circumstances of the confession will be resolved in favor of the trial court's finding. Norwood v. State, supra, 74 Wis.2d at 364, 246 N.W.2d 801; McAdoo v. State, supra, 65 Wis.2d at 605, 223 N.W.2d 521; State v. Schneidewind, 47 Wis.2d 110, 116, 176 N.W.2d 303 (1970).

In determining whether a confession is voluntary under the totality of the circumstances, the personal characteristics of the confessor must be very carefully balanced against any pressures to which he was subjected to induce the confession. Johnson v. State, supra, 75 Wis.2d at 352, 249 N.W.2d 593; Norwood v. State, supra, 74 Wis.2d at 364, 246 N.W.2d 801; Grennier v. State, supra, 70 Wis.2d at 210, 234 N.W.2d 316; State v. Wallace, 59 Wis.2d 66, 81, 207 N.W.2d 855 (1973). Among the factors to be considered are the age of the accused, his education and intelligence, his physical and emotional condition, whether he has had prior experience with the police, whether the defendant was apprised of his rights, whether he requested counsel and the response to any such request, the length and condition of his interrogation, and any physical or psychological pressures, inducements, methods or strategies used by the police to obtain the confession. Norwood v. State, supra, 74 Wis.2d at 365, 246 N.W.2d 801; Grennier v. State, supra, 70 Wis.2d at 210, 234 N.W.2d 316; State v. Schneidewind, supra, 47 Wis.2d at 117, 176 N.W.2d 303; McAdoo v. State, supra, 65 Wis.2d at 606, 223 N.W.2d 521; Brown v. State, 64 Wis.2d 581, 587, 588, 219 N.W.2d 373 (1974).

Resolving conflicting testimony in favor of the trial court's finding, the record in the instant case shows that the defendant was advised of his "Miranda rights" ² at the time of his arrest. About an hour later he was taken to the office of police captain James F. Thome. Thome was acquainted with the defendant, having been his seventh and eighth grade football and basketball coach. The defendant agreed to make a statement, but asked that his parents be present, and they were brought in.

Captain Thome then read the defendant's rights to him, and further explained them in every day language. He also gave the defendant a copy of his rights to read. The defendant said that he had been given his rights previously, and said he knew that he did not have to make a statement and that he was entitled to have a lawyer present. He was asked if he waived his right to a lawyer, and he said that he did. A form waiver of his rights was read to him, and he read it and agreed to sign it. He signed and dated the waiver at 3:27 a.m., approximately seventy-five minutes after his arrest.

The defendant's rights were again read to him from a "Voluntary Statement" form used by the police. The defendant then made the incriminating statement previously described. This statement was given in narrative form, with some questions for clarification, first orally and then a second time as Captain Thome prepared a typewritten statement using a combination of the defendant's words and his own for greater clarity. At no time during the recitation or typing of the statement did either the defendant or his parents request an attorney, or ask to stop the interrogation. The defendant read the typed statement, making corrections as he did so, and initialed the corrections.

At this point, before the statement was signed, the defendant's parents asked Captain Thome whether they should have a lawyer present. He answered that that was up to them, and said he would not advise them because he would be biased in the matter. He left the room for five or ten minutes so they could discuss the question with their son.

When Thome returned, the parents felt that the defendant should have a lawyer, but he said he didn't want one and wasn't going to get one. He then proceeded to sign the statement. Although there was a telephone in the room, and the parents were free to call a lawyer, they did not do so. The parents had never employed a lawyer; they hesitated to call one in the middle of the night; they did not know who to call; and they were not sure if one was necessary.

At no point, however, did either the defendant or his parents ask the police to provide a lawyer. Mrs. Verhasselt testified, "We didn't request an attorney at the time; we wondered if we should get an attorney because we felt he wasn't right; that he should have somebody." She testified her husband had told the defendant it was up to him.

There is no suggestion that the defendant was subjected to any improper coercion or pressures by the Fond du Lac police. On the contrary, the interrogation was conducted in an exemplary manner. The defendant did not request food, medication, or an opportunity to sleep. He was offered and given a cup of coffee. The length of the interrogation, approximately an hour and a half, was not lengthy. See: Johnson v. State, supra, 75 Wis.2d at 357, 249 N.W.2d 593 (one hour and thirty-five minute interrogation not lengthy); and State v. Carter, 33 Wis.2d 80, 96, 97, 146 N.W.2d 466 (1966) (ninety-minute interrogation not unreasonable on its face). The defendant's mother agreed that he was treated well and was not coerced in any way.

Admission of the confession is challenged entirely on the ground that the defendant lacked the mental capacity to make a voluntary statement. The state has the burden of proving beyond a reasonable doubt that the confession was the voluntary product of a free and unconstrained will, reflecting deliberateness of choice. Norwood v. State, supra, 74 Wis.2d at 364, 246 N.W.2d 801; Triplett v. State, 65 Wis.2d 365, 222 N.W.2d 689 (1974); State v. Hunt, 53 Wis.2d 734, 740, 193 N.W.2d 858 (1972); State v. Carter, supra, 33 Wis.2d at 88, 146 N.W.2d 466. The question is whether the confession represents the uncoerced free will...