Upchurch v. State

Decision Date28 June 1974
Docket NumberNo. S,S
Citation219 N.W.2d 363,64 Wis.2d 553
PartiesThurman UPCHURCH, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 203.
CourtWisconsin Supreme Court

Patrick J. Devitt, Legal Aid Society of Milwaukee, Crim. App. Div., Milwaukee, for plaintiff in error.

Robert W. Warren, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., Madison, for defendant in error.

HALLOWS, Chief Justice.

The issues concern Upchurch's right to have a hearing before or during trial on the admissibility of an inculpatory statement and whether he waived that right during the trial.

The conviction arose out of an incident on May 30, 1972, in which an alleged drug dealer Robert Holleran and two other individuals were robbed at gun point in Holleran's apartment on the lower east side of Milwaukee. Upchurch is alleged to have made a statement to the police officers after his arrest that he is the company of Marshall Noel and three other black men discussed committing the robbery, the he drove the car, that Marshall Noel directed him to park the car in which all five persons were riding approximately one and a half blocks from the scene of the crime, that he observed Marshall Noel leave the car armed with a gun along with two of the occupants, and that Marshall Noel thereafter returned to the parked auto with the fruits of the crime.

Upchurch was first represented by private counsel; two weeks before trial the Legal Aid Society was substituted. On the day of trial, defendant's counsel moved for a Goodchild type of hearing 1 regarding the voluntariness of the alleged statement of the defendant, basing his motion on sec. 971.31(3), Stats. 2 The court was apparently under the impression the motion was not timely but stated that '. . . if in the course of the trial it suddenly appears that there is a constitutional issue of major proportions, then that the court will either take it up and order that the jury be excused and proceed with the risks attendant to having it prematurely disclosed as to the existence of a statement, declaring a mistrial, or doing what I am most reluctant to do and that is to handle a motion even though the motion hasn't been filed.' The trial proceeded; no evidence was introduced in chief regarding the alleged statement of Upchurch. When the state rested, Upchurch took the stand and no questions on direct examination were asked regarding the alleged statement. However, on cross examination the district attorney asked Upchurch whether he recalled making any statements to the police officers about his talking with others concerning robbing somebody to get money to buy marijuana. An objection to the question was sustained and an argument was had out of the presence of the jury. The court pointed out that no Goodchild hearing had been had on the voluntariness of the statement and therefore the district attorney could not lay a foundation for such statement. However, the court stated further that the voluntariness of the statement would be before the jury unless it appeared that the statement was involuntary as a matter of law and that he was not going to grant a Goodchild hearing because the motion therefor was not timely made. On rebuttal the state called Police Officer Drew Halversen who testified he had interviewed Upchurch and advised him of his constitutional rights. Halversen then testified as to what Upchurch told him about the planning and execution of the robbery. An objection was made. Te issue of voluntariness was also raised on a motion for a new trial on the ground the defendant was denied a Goodchild type of hearing on the involuntariness of his statement; the motion was denied.

There is no question Upchurch has a statutory right under sec. 971.31(3), Stats., to have before or during his trial a hearing on the voluntariness of his statement. This section expressly mandatorily requires a hearing at trial on the admissibility of a challenged statement of a defendant unless he has challenged its admissibility before trial. Sec. 971.31(4) 3 requiring motions to be made before trial, makes an exception for a statement of the defendant covered by subsec. (3). The requirement in sec. 971.31(2) 4 is impliedly qualified by subsecs. (3) and (4). This interpretation is supported by the legislative history of the statute. Sec. 971.31 is a product of a 1969 revision of the Wisconsin Code of Criminal Procedure. See L.1969, c. 255, sec. 63. In the reporter's note to the new criminal code, it is stated that this section is a restatement of sec. 955.09(3), Stats.1967, which was worded:

'Defenses and objections based on defects in the institution of the proceedings, insufficiency of the information or indictment, invalidity in whole or in part of the statute on which the prosecution is founded, or the use of illegal means to secure evidence (except confessions) must be raised before trial by motion or be deemed waived . . .'

Thus we find an exception for confessions to the rule in sec. 971.31(2) that the use of illegal means to secure evidence must be raised before trial by motion or be deemed waived.

In State ex rel. Goodchild v. Burke, supra, this court considered the effect of Jackson v. Denno (1964), 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, on the Wisconsin procedure for determining the voluntariness of a confession and concluded the 'orthodox' rule, providing for a separate hearing before the trial judge alone on the issue of voluntariness should be adopted. The suggestion was advanced that '. . . wherever practicable the prosecutor should within a reasonable time before trial notify the defense as to whether any alleged confession or admission will be offered in evidence at the trial (and) . . . where such notice is given . . . that the defense, if it intends to attack the confession or admission as involuntary, notify the prosecutor of a desire . . . for a special determination on such issue.' Id., 27 Wis.2d p. 264, 133 N.W.2d p. 763. In a footnote, the court observed that sec. 955.09(3), Stats., expressly excepted confessions gained through allegedly illegal means from the class of defenses or objections which must be raised before trial or be deemed waived, thus suggesting an objection premised on the claimed inadmissibility of a confession might be taken at trial. Id., p. 264, 133 N.W.2d 753.

This observation did not stifle later challenges, however. In Bradley v. State (1967), 36 Wis.2d 345, 153 N.W.2d 38, 155 N.W.2d 564, a Goodchild hearing had been conducted in the course of trial instead of before trial and the argument was made that such a procedure violated the dictate of State ex rel. Goodchild v. Burke, supra. This court commented that while the procedure followed by the trial court did not exactly conform to that suggested in Goodchild, the procedure was not erroneous. In Roney v. State (1969), 44 Wis.2d 522, 171 N.W.2d 400, this court clearly repudiated the notion that a Goodchild hearing must be held before trial to be valid. The court stated, '. . . it was not the intention of this court . . . to make mandatory the determination of a Goodchild matter only in a pretrial hearing.' The court once again reiterated, however, that such a hearing should be held before trial so as not to interrupt the orderly process of presenting a case to a jury. The unmistakable import of the cases is that a pretrial determination of voluntariness is not an absolute necessity. Such a determination may be made based on a hearing in the course of trial. The trial court was mistaken in its intimation just prior to trial that the request for a hearing then on the admissibility of the statement Upchurch allegedly gave police came too late. On this appeal, the state concedes that the admissibility of a defendant's statement can be raised for the first time during trial and that an evidentiary hearing might then be had.

As we see the record, Upchurch made an adequate motion to determine the voluntariness of the statement at the time of trial and the trial court should then and there have conducted a hearing on the issue. We find no waiver at that time on the part of Upchurch because counsel was willing to wait until Officer Halversen appeared during the trial and then hold a hearing.

But the state argues there was no error in admitting the inculpatory statement of defendant in evidence because the defendant made no request for a hearing at the time the statement was offered by the prosecution in rebuttal for impeachment purposes. Under the circumstances we think Upchurch was not under a duty to object because his original objection carried its force through the trial and the trial judge should have granted a Goodchild type of hearing before allowing any foundation to be laid for the introduction of the inculpatory statement. Under the circumstances the district attorney had a duty to disclose that he was about to lay a foundation for the statement. When there is a question of the voluntariness of an inculpatory statement, the prosecution should not be allowed to start laying a foundation for it but should disclose to the court its tactic so that a hearing can be had before the jury is given any idea by innuendo that there may exist a confession or an inculpatory statement.

In Goodchild, this court said a defendant can waive an objection to the admissibility of an allegedly inculpatory statement or admission by failing to object to its admission, but such inaction must constitute deliberate trial strategy on the part of the defendant. The court relied on Henry v. Mississippi (1965), 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408, which held the defendant was bound by his failure to object to the admission of evidence, allegedly obtained, if the failure to object was based upon 'strategic, tactical, or any other reasons that can fairly be described as the deliberate by-passing of state procedures.' Since Goodchild, this court has considered the doctrine of strategic waiver as it relates to...

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  • State v. Rewolinski
    • United States
    • Wisconsin Supreme Court
    • December 20, 1990
    ...murder and manslaughter are codified at sec. 940.01, Stats.1985-86 and sec. 940.05 Stats. 1985-86.12 See, Upchurch v. State, 64 Wis.2d 553, 219 N.W.2d 363 (1974).1 The parties debate who has the burden of persuasion in this case. The state contends that this case involves both adjudicative ......
  • State v. Monje
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    ...challenges the admissibility of a statement made by the defendant. According to the defendant, this court in Upchurch v. State, 64 Wis.2d 553, 219 N.W.2d 363 (1974), interpreted this section as mandatorily requiring a hearing unless the defendant challenged the admissibility of the statemen......
  • Barrera v. Young
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    ...118 Wis.2d 615, 348 N.W.2d 512, 521 (1984); State v. Wedgeworth, 100 Wis.2d 514, 302 N.W.2d 810, 818 (1981); Upchurch v. State, 64 Wis.2d 553, 219 N.W.2d 363 (1974), but a prisoner need not apply for such dispensations as part of the process of exhaustion of remedies. It is too late to rais......
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    ...new and sufficient Miranda-Goodchild hearing. After this hearing, he is entitled to a trial if he so desires."); Upchurch v. State, 64 Wis. 2d 553, 564, 219 N.W.2d 363 (1974) (if, on remand, the trial court determines "the statement was made voluntarily by Upchurch, then the conviction shou......
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