State v. Whitman

• Decision Date: 08 January 1991
• Docket Number: No. 90-1455-CR,90-1455-CR
• Citation: 466 N.W.2d 193,160 Wis.2d 260
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Jeffrey P. WHITMAN, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 193

466 N.W.2d 193

160 Wis.2d 260

STATE of Wisconsin, Plaintiff-Respondent, v. Jeffrey P. WHITMAN, Defendant-Appellant. ^d

No. 90-1455-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Dec. 10, 1990.

Opinion Released Jan. 8, 1991.

Opinion Filed Jan. 8, 1991.

[160 Wis.2d 263] Leonard D. Kachinsky of Kachinsky Law Offices, Neenah, for defendant-appellant.

Donald J. Hanaway, Atty. Gen., and Michael R. Klos, Asst. Atty. Gen., for plaintiff-respondent.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

CANE, Presiding Judge.

Jeffrey Whitman appeals a judgment of conviction and an order denying him post-conviction relief. Whitman was charged with being a party to a crime of first-degree murder, first-degree sexual assault, kidnapping and false imprisonment contrary to secs. 939.05, 940.01, 940.225(1)(a), 940.31 and 940.30, Stats. ¹ As part of a plea agreement, he pled guilty to one count of second-degree murder and one count of first-degree sexual assault. The kidnapping and false imprisonment charges were dismissed.

Whitman contends that: (1) Because the offenses charged occurred eight and one-half years before a criminal complaint and warrant were issued, sec. 939.74, Stats., operates to bar prosecution of all nonhomicide offenses; (2) the trial court erred by refusing to reinstate the first nonprosecution agreement; and (3) the trial court should have suppressed certain statements Whitman made following his arrest because his waiver of Miranda rights occurred after he was subjected to a continuing pattern of coercive interrogation.

We conclude that because Whitman was "not publicly a resident" of the state within

the meaning of sec. 939.74(3), Stats., during the two and one-half years he was on active duty in the United States Army stationed outside Wisconsin, the state's prosecution of the nonhomicide charges was timely. We further conclude that the trial court ruled correctly that the first nonprosecution agreement could be vacated because Whitman materially and substantially breached the agreement. Finally, we agree with the trial court that the interrogation of Whitman on the date of his arrest was sufficiently removed in time and circumstance from earlier, impermissible interrogations and that his statements were made voluntarily. The trial court's judgment and order are affirmed.

STATUTE OF LIMITATIONS

Whitman first contends that the statute of limitations had run in his case because he was publicly a Wisconsin resident during the entire time he served on active duty in the Army stationed in Fort Polk, Louisiana. He enlisted in the Army on December 3, 1979, and was on active duty out of Wisconsin until December 3, 1982. The victim was assaulted and killed sometime between April 4 and April 6, 1980. The state filed a criminal complaint and warrant against Whitman on October 4, 1988. Whitman argues that because he remained a Wisconsin resident for purposes of voting, see sec. 6.10, Stats., was registered to vote and did vote once by absentee ballot during the time he was in the service, filed Wisconsin income tax returns during the relevant period claiming full-time resident status and returned to Wisconsin after his service commitment was completed, he should be viewed as "publicly a resident" of the state within the meaning of sec. 939.74(3), Stats., ² while he was on active duty.

We are asked to construe the meaning of the term "not publicly a resident within this state" in sec. 939.74(3), Stats. The construction of a statute is a matter of law that we review de novo. State v. Sher, 149 Wis.2d 1, 8, 437 N.W.2d 878, 880 (1989). The primary source used in interpreting a statute is the statutory language itself. Id. at 8-9, 437 N.W.2d at 880. Nontechnical words in a statute are to be given their ordinary and accepted meanings unless a different definition has been designated by the statutes. Id. at 9, 437 N.W.2d at 880. A statute will be construed so as to not render any part of it superfluous if such a construction can be avoided. Id.

Whitman contends that the term "resident" in sec. 939.74(3), Stats., should be broadly construed to include any individual who can establish legal "residence" within the meaning of the voting law, sec. 6.10, Stats., or who has unequivocally declared his intent to remain a state resident by filing state income tax returns and the like. He urges that such an interpretation would be consistent with the United States Supreme Court's statement that criminal limitations statutes are to be liberally interpreted in favor of repose. Toussie v. United States, 397 U.S. 112, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970).

The plain language of sec. 939.74, Stats., compels us to reject Whitman's contention. We conclude that such an interpretation would render superfluous other components of the clause, "publicly a resident within this state." Section 939.74(3), Stats. (emphasis added). The legislature chose to modify the residency requirement with the words "publicly" and "within the state." We decline to interpret the language of this statute so as to render these terms superfluous. The statute of limitations will run as long as the residency in question is both public and within the state. Absent these two conditions, as in the case of active duty in the armed forces outside the state, the statute is tolled.

Our holding here is consistent with that of the supreme court in Sher. While Whitman correctly distinguishes that case on the ground Sher did not claim Wisconsin residency for any purpose, the court in Sher noted that "public residents are the only group of persons for whom the statute of limitations does not toll.... Furthermore [the defendant's urged] construction would also render the words 'a resident within this state' without meaning." Id. 149 Wis.2d at 9-10, 437 N.W.2d at 881.

In Sher, the supreme court also noted a number of courts have held that the motivation behind a defendant's absence from the state was not an issue in determining whether he was publicly a resident for purposes of the tolling statute. See, e.g., State v. Ansell, 36 Wash.App. 492, 675 P.2d 614 (1984); People v. Edwards, 106 Ill.App.3d 918, 62 Ill.Dec. 701, 436 N.E.2d 727 (1982). The Ansell court noted that it adopted the majority view that mere absence is enough to toll a statute of limitation similar to Washington's, regardless of intent to evade justice. ³ Id., 675 P.2d at 617. In Edwards, the Illinois court ruled, as we do, that the limitations statute is tolled even where the defendant's absence from the state was occasioned by his duty in the armed services. Id., 62 Ill.Dec. at 704, 436 N.E.2d at 730.

BREACH OF THE NONPROSECUTION AGREEMENT

Whitman next contends that the trial court erred by refusing to reinstate the first nonprosecution agreement he entered into with the district attorney. ⁴ The parties orally agreed to the agreement's terms on July 5, 1988, and then both signed a written version of the agreement on July 8. The agreement stipulated in part "that at all times you tell law enforcement authorities and the criminal justice system the entire truth about the death of [the victim] including events before and after."

A nonprosecution agreement may be vacated where a material and substantial breach of the agreement has been proven. State v. Lukensmeyer, 140 Wis.2d 92, 103, 409 N.W.2d 395, 400 (Ct.App.1987) (citing State v. Rivest, 106 Wis.2d 406, 414, 316 N.W.2d 395, 399 (1982), for the proposition that a plea agreement may be vacated where a material and substantial breach has been proven). The party seeking to vacate the agreement must prove the breach by clear and convincing evidence. Lukensmeyer, 140 Wis.2d at 104, 409 N.W.2d at 400. One material breach is sufficient to release the state from a nonprosecution agreement. Id. at 107, 409 N.W.2d at 401.

On July 5, Whitman met with the Outagamie County district attorney and two Outagamie County officers at the Southhampton, Massachusetts police station. Prior to agreeing to the terms of the nonprosecution agreement, the two officers questioned Whitman. Although the trial court ruled that Whitman's statements were inadmissible at trial as statements made in connection with an offer to plead guilty under sec. 904.10, Stats., it further ruled that these statements were made voluntarily and that Whitman had been advised of his Miranda rights. Whitman does not contend on appeal that the trial court was precluded from considering these statements as evidence of a breach of the nonprosecution agreement.

Whitman told the police on July 5 that the victim was hitchhiking at the time he, James Duquette and an unidentified third party picked her up in their car, and that she entered the car voluntarily. This statement was not true. After the district attorney rescinded the nonprosecution agreement, Whitman told the police that the three men "jumped out of the car and physically grabbed [her]. She tried to scream and break away. James Duquette placed his hand over her mouth to prevent that. [The three men] forced her into the rear seat of James Duquette's vehicle at that point. She was fighting and struggling."

The officers also asked Whitman on July 5 what occurred after the victim entered the car. He did not mention any violent physical beating that preceded the sexual assaults. The trial court found that the physical evidence of an extensive beating was inconsistent with Whitman's claim on July 5 that his only observation of Duquette's conduct prior to the assault was that "while he wasn't ripping the clothes or tearing them a lot he was very rough about taking the clothing off...." We agree with the trial court's conclusion that Whitman's misrepresentations about the facts surrounding the victim's entry into the car as well as the violence that occurred prior to the sexual assault were substantial and material, and thus the state was entitled to rescind its first nonprosecution agreement.

ADMISSIBILITY OF POST-ARREST...