State v. Weber, 90-0181-CR

CourtUnited States State Supreme Court of Wisconsin
Citation471 N.W.2d 187,163 Wis.2d 116
Docket NumberNo. 90-0181-CR,90-0181-CR
Parties, 60 USLW 2091 STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. John R. WEBER, Defendant-Appellant-Cross Petitioner. d
Decision Date25 June 1991

David J. Becker, Asst. Atty. Gen., with whom on the briefs, was Donald J. Hanaway, Atty. Gen., for plaintiff-respondent-petitioner.

Charles Bennett Vetzner, Asst. State Public Defender, for defendant-appellant-cross petitioner.

DAY, Justice.

This is a review of an unpublished court of appeals decision, 157 Wis.2d 505, 460 N.W.2d 447, which reversed a judgment of conviction of the defendant by the circuit court for Price County, the Honorable Gary L. Carlson, presiding. The defendant, John R. Weber, was charged with eighteen counts of criminal activity arising out of two criminal episodes: one involving his wife, Emily Weber, which took place on September 3 and 4, 1988, and the other involving his sister-in-law, Carla Lenz, which took place on November 12 and 13, 1986. The criminal activity included the murder of Carla and the attempted murder of Emily, and the sexual assault, kidnapping, and false imprisonment of both of them. While the police were searching the defendant's car and taking inventory of its contents, they played an unmarked audio cassette tape which was resting in the car's tape player. The tape contained a full confession by Weber, revealing the acts of torture and brutality he committed against Carla before killing her, two years earlier. The tape was subsequently admitted into evidence at the defendant's trial over the objections of his counsel.

The issues on review are, first, whether the playing of the unmarked audio cassette tape, found in the defendant's car, violated his constitutional right to be free from unreasonable search and seizure; second, if there was an unreasonable search and seizure, should this court adopt the good faith exception to the exclusionary rule or adopt a balancing test for the exclusionary rule's application; third, did the court of appeals violate the defendant's constitutional right to appeal his convictions when it concluded that the counts involving Emily Weber were not subject to appeal; and fourth, did the preclusion of appellate review of the counts concerning Emily Weber render the defendant's guilty plea unknowing and involuntary because it was premised on the right to such review.

We conclude that the playing of the unmarked audio cassette tape was not an unreasonable search under the fourth amendment. Because of our holding on the first issue, we do not reach the second issue. The basic issue of withdrawal of his guilty plea to the counts concerning Emily, involved in the third and fourth issues, we decide against the defendant.

The facts of this case are largely undisputed. On September 3, 1988, at about 5:30 p.m., the defendant induced his wife, Emily, to take a ride with him, representing that he had a "surprise" for her. After a short drive, the defendant stopped the car at his parents' vacant farm property. He asked Emily to turn her head and look out the window, which she did. The defendant then held a knife to her throat and proceeded to commit a variety of offenses against Emily, including taping her eyes and mouth shut, taping her hands so they were bound behind her back, beating her with his fists and a metal shovel, cutting her breast and legs with a knife, burning her with a lighted cigar on the body and in her vagina, and repeatedly sexually assaulting her with a wheelbarrow handle. Emily lapsed into unconsciousness. At dawn, on the morning of September 4, the defendant drove Emily home. The defendant fabricated a story which he ordered Emily to tell if she was questioned about her injuries. The defendant then attempted to wash Emily in the bathtub and tend to her injuries. When he realized that she needed medical attention, he called Emily's mother who took her to the Flambeau Medical Center where she was put in intensive care. She was in the hospital sixteen days.

At about 9:30 on the evening of September 4, the defendant stopped at the police department on his way home from the hospital to give the police the details of the assault as he claimed Emily had described it to him. He told the police that three strangers had attacked Emily. On September 5, at about 11:45 a.m., Phillips Chief of Police, Craig Moore, went to the hospital to interview Emily. She told him the same lie the defendant had fabricated. Chief Moore interviewed Emily again on that same day, at about 12:45 p.m. This time she told him it was her husband who had attacked her, and she described the assault in detail, giving a description of the defendant's car, the wooded area where he took her, and the clothing she had been wearing on the night of the attack. The defendant, who was also at the hospital at this time, was placed under arrest. The keys to his unlocked car were confiscated, and the car was moved by a wrecker service to the Price County Sheriff's Department.

At about 10:30 p.m., September 5, the search warrants for the defendant's car and house were obtained, listing various items of clothing worn by Emily during the assault and the knife with which she was threatened. A police officer and Chief Moore, accompanied by a deputy sheriff and two other officers, one serving as a photographer, began to search the defendant's car. Because it was such a mess, filled with so much debris, efficiency warranted emptying the car and logging each item as it was removed.

Chief Moore testified:

[A]t approximately 11 o'clock in the evening the search warrant was served on that automobile. I had my assistant chief Dennis Dosch do the actual search, in other words to go through the vehicle in search for the items on the search warrant. I then as he found an item I would then document it in preparation for the return to the Court.

When we first began that search warrant, we noticed the the car had a lot of items in it.

It was, there was a lot of junk laying around and we decided that at that time to then go through that car inch by inch and to remove all the items that were in the car and log and document all the items that were in that car.

Of course searching continually for the items listed on the search warrant.

(Transcript of Proceedings, March 14, 1989, p. 118).

The car was emptied, beginning with the front seat of the driver's side, floorboard to ceiling, followed by the front seat of the passenger's side. Two hours into the inventory of the car, an officer came across an unmarked audio cassette tape resting in the tape player. By this time, the knife and some, but not all of the items of clothing had been recovered. The tape was not sufficiently inserted in the player to cause it to play when the ignition key was turned. Chief Moore turned the ignition key to the accessory position and pushed the tape in the player, activating it. He immediately recognized the voice of the defendant, addressing his wife, detailing a series of brutal and vile acts of torture he claimed to have committed against Carla Lenz, Emily's sister. Carla had disappeared from the area two years earlier. 1

Prior to playing the tape found in the cassette player, the officers observed and inventoried another tape, which was listed on the warrant return as ".38 Special Flashback Tape, Neil Young Harvest Daken 'Under Lock and Key.' " At this same time, seven other tapes were observed on the floorboards of the front passenger side seat and set aside. These seven tapes, along with the remainder of the items later found in the car, were inventoried on the warrant return, packaged, and removed from the floor of the Sheriff's Department garage at approximately 1:00 the next morning.

Chief Moore listened to the entire ninety-minute tape, including the graphic recitation of the acts of brutality and mayhem the defendant performed on Carla prior to her murder. This description of the attack on Carla was in the form of a statement to Emily.

The defendant described how he got his sister-in-law, Carla Lenz, to go for a ride with him on a cold November day ostensibly to talk about his marital problems. He parked the car in a secluded area. Shortly thereafter he shoved a .25 caliber pistol in her mouth--forced her to disrobe, put duct tape over her mouth, tied her wrists together, burned her nipples with a lighted cigarette--slapped her breasts and head with a board. He then pulled her out of the car, hit her several times with a plank, forced her to perform fellatio and oral-anal contact on him. He then forced a wheelbarrow handle into her vagina, another handle into her rectum and stuck fifty pins into her breast and nipple. He then used a hypodermic needle to inject lighter fluid into her breast after which she became unconscious and he "stepped on her throat till she died." Two days before he had dug a grave to bury her in. He drove around with her body in the trunk of his car for five days and then buried her. He then described similar acts he planned to do to his wife.

After listening to the tape, Chief Moore had the defendant removed from his jail cell for interrogation. When the defendant denied having any involvement in the death of Carla Lenz, Chief Moore told the defendant he heard the tape he had made. The defendant then drew the officer a map which showed where the body of Carla Lenz was buried. The remains which were located, as depicted on the map, were identified as those of Carla Lenz.

During the interview with Emily Weber on September 5, 1988, she did not mention the cassette tape. But in a subsequent interview, on September 7, after the tape had been discovered, she mentioned the tape to Chief Moore. He described the conversation at trial:

I asked her if she had ever listened to the tape that was in the cassette player of the car. She stated that she had not. She observed a tape in the tape player, and at one time...

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