Theriault v. State

• Citation: 66 Wis.2d 33,223 N.W.2d 850
• Decision Date: 20 December 1974
• Docket Number: No. S,S
• Parties: Jeffrey Lee THERIAULT, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 143.
• Court: United States State Supreme Court of Wisconsin

Page 850

223 N.W.2d 850

66 Wis.2d 33

Jeffrey Lee THERIAULT, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 143.

Supreme Court of Wisconsin.

Dec. 20, 1974.

George K. Whyte, Jr., Stephen E. Richman, Milwaukee, for plaintiff in error.

Robert W. Warren, Atty. Gen., Christine M. Wiseman, Asst. Atty. Gen., Madison, for defendant in error.

WILKIE, Chief Justice.

The plaintiff in error, Jeffrey Lee Theriault (hereinafter defendant), after being charged and waived into adult court, pleaded guilty in November, 1972, to attempted first-degree murder in violation of secs. 940.01 and 939.32, Stats., and armed burglary in violation of secs. 943.10(1)(a) and (2)(a). He was sentenced to a prison term of not more than fifteen years on the attempted murder charge and a term of not more than five years for the armed burglary offense, the sentences to run concurrently. This court issued a writ of error to review the judgment of conviction for attempted murder.

The major issue raised on this review is whether a voluntary pre-judicial custodial confession, given to the police by a seventeen-and-one-half-year-old minor, without the presence of a parent or legal custodial, is barred from receipt in evidence by the trial court on the grounds either that (1) it is per se a denial of his right against self-incrimination or (2) the confession was given following police failure to comply with the requirements of sec. 48.29(1), Stats., requiring notification of parents. We conclude that it is barred on neither ground.

The attempted murder took place on the evening of May 22, 1972, at Custer High School in the city of Milwaukee. Defendant broke into the school by smashing a window with a tire iron, and once inside, pried open a teacher's locked desk and a food freezer. He then noticed the victim, Francis Bryant, a school janitor, standing nearby. Bryant assured defendant he would not call the police and the two conversed for a time. However, after a milk deliveryman came and departed, defendant, apparently afraid the janitor had informed the deliveryman of the situation, struck Bryant on the head with the tire iron while they were walking together. After beating the back of the janitor's head six to eight times, defendant left the school with his victim lying in a pool of blood, 85 percent blind in both eyes, totally deaf in one ear and partially deaf in the other.

The defendant was not arrested until a week later, on May 29, 1972. This was about 5:30 p.m. The police officers' version of what followed is that defendant was given a Miranda warning while in a squad car en route to the detective bureau. Defendant told the officers that he understood his constitutional rights. After arriving at the detective bureau, the defendant was again given the Miranda warning and he said that he understood his rights 'completely and fully;' and, in fact, he then even recited his constitutional rights back to the officers. The officers testified that, after answering preliminary questions, the defendant said he had 'something that he wanted to get off his chest.' The defendant then proceeded to give a complete confession concerning the attack on Bryant. This confession lasted from approximately 6:20 p.m. to 7:45 p.m.

The defendant's version of the facts is substantially similar to that recited by the detectives. The defendant did claim that he asked to see an attorney at the start of the questioning, but that the detectives made no response. He also said that the detectives promised they would help him if he confessed, by informing the court of his cooperation. The defendant admitted that no other promises were made and that he was treated properly. Although the defendant refused to read or sign the transcript of his oral statement, he admitted that the confession was given voluntarily because he wanted to confess concerning his involvement in the incident.

At the time of his arrest, defendant had been absent without leave from the Army and while his semi-invalid grandmother was his legal guardian, he had not slept at her house for at least two weeks prior to the arrest. Defendant's parents were divorced, married again, and lived with their spouses in different communities.

After the confession was completed at 7:45 p.m., the police detectives attempted to reach defendant's grandmother and parents by telephone. The mother was called at her home in Watertown, but a small child answered the phone and said the mother was gone. No message was left because the officer felt the child was too small to be trusted with the message. The officer tried to find a phone number for the father who defendant said lived in Caledonia, but no number could be found. Finally, at 9 p.m. the grandmother was called, against the wishes of the defendant who at first refused to talk to her.

Subsequently that evening, the police drove defendant to his grandmother's house to recover the clothes worn by defendant during the attack. At that time defendant's father, who had been contacted by the grandmother, called the house and told defendant to remain silent until talking to a lawyer. Defendant was then taken to the police station and confined at the city jail.

On June 15, 1972, defendant was found not mentally infirm or deficient, and on June 22, 1972, defendant was waived into adult court. On November 9, 1972, following a Goodchild hearing, the trial court ruled that 'based upon the totality of the circumstances,' the detention of defendant following his arrest was not illegal and that his confession was completely voluntary. On November 30, 1972, defendant entered his guilty plea and on December 6, 1972, he was sentenced.

There is no question here, and defendant so concedes, that under the totality of the circumstances the confession was the voluntary product of the defendant's free will and was in no way the result of coercion.

The narrow issue presented by the defendant here is whether we should adopt a per se rule against the use of a confession, which admittedly is voluntary, on the sole ground that the confession was given by a seventeen-and-one-half-year-old minor without the presence of a parent or legal guardian.

A. In re Gault.

The starting point for an analysis of the constitutional rights of juveniles is In re Gault ¹ where, in 1967, the United States Supreme Court held that in juvenile delinquency proceedings minors were entitled to the benefit of certain constitutional rights previously only accorded to adults. Among these rights is the privilege against self incrimination. ² Although the court expressly confined its ruling to questions concerning the rights of minors in juvenile delinquency proceedings, ³ the following language in the opinion is instructive here:

'We conclude that the constitutional privilege against self-incrimination is applicable in the case of juveniles as it is with respect to adults. We appreciate that special problems may arise with respect to waiver of the privilege by or on behalf of children, and that there may well be some differences in technique--but not in principle--depending upon the age of the child and the presence and competence of parents. The participation of counsel will, of course, assist the police, Juvenile Courts and appellate tribunals in administering the privilege. If counsel was not present for some permissible reason when an admission was obtained, the greatest care must be taken to assure that the admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair.' ⁴

Thus the court does not hold the presence of counsel or parents the sine qua non to a valid confession nor that waiver of the right to silence is impossible. Rather, the court recognizes that confessions of juveniles involve special problems that may require authorities to use different techniques from those used in connection with adult confessions and that require courts to use the 'the greatest care' in assessing the validity of the confession.

B. Wisconsin Cases.

This court has, on at least two previous occasions, judged the voluntariness of a juvenile's confession based on the 'totality of the circumstances.' ⁵ In Bradley v. State ⁶ an eighteen-year-old mother confessed that she strangled her two infant children. The court said:

'. . . We conclude, after a review of the constitutionally relevant facts that the confessions were a product of the free and unconstrained will of the defendant, that they were voluntarily given, and were properly admitted into evidence.' ⁷

It is true that in this case the defendant talked to her husband and minister before confessing. However, these conversations ended more than two hours before the confession took place, neither were present during the confession, and there is no indication that either was informed of defendant's rights. Moreover, the court only referred to her opportunity to consult with these two individuals as one of the factors dictating a finding of voluntariness; others included a Miranda warning, good treatment and lack of promises by police, and her 'sophisticated knowledge of the ways of the police.' Finally, the court rejected defendant's argument that a guardian ad litem should have been appointed for her:

'. . . Counsel for the defendant argues principally that a guardian ad litem is required by the principles of Gault because of the possibilities that a confession of a juvenile may be the product of coercion.

'We have concluded that Sherry's confession was deliberate and uncoerced. Moreover, a guardian ad litem could offer no more protection to a defendant than could the timely appointment of other counsel. Although Sherry was informed of her right to counsel, she did not ask for one.' ⁸

In other words, minors may have the capacity to waive constitutional rights and to confess.

In Mikulovsky v. State ⁹ a...