Wagner v. State

• Decision Date: 01 May 1979
• Docket Number: No. 76-700,76-700
• Citation: 89 Wis.2d 70,277 N.W.2d 849
• Parties: Richard L. WAGNER, Plaintiff In Error, v. STATE of Wisconsin, Defendant In Error. Cr.
• Court: Wisconsin Supreme Court

Page 849

277 N.W.2d 849

89 Wis.2d 70

Richard L. WAGNER, Plaintiff In Error, v. STATE of Wisconsin, Defendant In Error.

No. 76-700 Cr.

Supreme Court of Wisconsin.

Submitted on Briefs Jan. 31, 1979.

Decided May 1, 1979.

Howard B. Eisenberg, State Public Defender, on brief, for plaintiff in error.

Bronson C. La Follette, Atty. Gen. and Marguerite M. Moeller, Asst. Atty. Gen., on brief, for defendant in error.

ABRAHAMSON, Justice.

Wagner seeks review of his conviction of first-degree murder on the ground that his confession which was admitted in evidence was obtained during an unreasonably long detention. We affirm the trial court's judgment of conviction and order denying Wagner's motion for a new trial.

On January 1, 1975, the body of Suzan Reignier was found in a creek bed in Brown county.

On April 13, 1975, personal property belonging to the deceased girl was found in Brown county near property owned by Wagner's uncle and grandmother. At about 11:30 p. m., on April 14, 1975, Wagner and a friend arrived at the Green Bay Police Department bringing a purse belonging to the deceased girl.

Shortly after midnight on April 15, 1975 the police took Wagner and his friend to the Brown County Sheriff's Department where Wagner explained that they found the purse that evening. Wagner was asked to return later that morning. At about 9:15 a. m., April 15, Wagner and his friend returned voluntarily to the Brown County Sheriff's Department, and Wagner gave a statement about the purse to Captain Richard Schrickel. At about 10:15 a. m. Wagner was turned over to Lt. Van Straten to take a polygraph test. At about 11:00 a. m. Wagner and the lieutenant returned to Captain Schrickel. Wagner said that he did not want to take the test, but that he wanted to change his story. Between 11:00 and 11:24 a. m. Wagner was informed of his constitutional rights; he gave a second statement which indicated that he found the purse and a knife sometime soon after January 1, 1975. At about 11:30 a. m. Wagner accompanied the lieutenant a second time to take a polygraph test but then refused to take the test. At about 12:30 p. m. Wagner was asked to give a tape-recorded statement, and a statement was taken. Between 1:30 p. m. and 3:30 p. m. Wagner was driven to the boarding house where he resided at the time of the murder and he identified the location of the knife. At about 3:30 p. m. the sheriff's department called Wagner's probation agent to put a probation hold ¹ on him so that there could be further investigation of Wagner's involvement in the murder.

Herger, the probation officer, advised the sheriff's department that he would check Wagner's file to determine if he were willing to place a hold on Wagner. Herger authorized the hold, and Wagner was booked as a probation hold at about 3:40 p. m. on April 15, 1975. He was not interrogated again until the next morning (April 16) at 8:45 a. m. when, after being reminded of his rights, he made another exculpatory statement. This interrogation ended at 9:40 a. m., when Wagner accompanied sheriff's officers to investigate further evidence. It appears that Wagner was returned to his cell at about 10:10 a. m. where he remained until 2:15 p. m.

At 2:15 p. m., April 16, the interrogation began which led to Wagner's confession. From 2:15 to 3:00 Wagner was questioned by Green Bay police officers Rice and Steeno. Wagner repeated his previous story. At 3:00 p. m. Captain Schrickel and Sheriff Froelich entered the interrogation room. Wagner was told that his fingerprint had been found in dried blood on the knife thought to have been used in the murder and that such a print could have been left only when the blood was still fresh. Captain Schrickel told Wagner that "this is your Waterloo." Shortly after 3:00, Wagner requested that Schrickel and Froelich leave the room. After being given his rights again, Wagner told Rice and Steeno that he had killed the girl. Officer Steeno wrote down Wagner's account of the murder. Wagner signed the confession at 6:10 p. m., April 16. He was then charged with first-degree murder and was brought before a judge.

After a lengthy Goodchild Miranda hearing, ² the trial court denied Wagner's motion to suppress the confession and various other statements he had made to the police. Wagner entered pleas of not guilty and not guilty by reason of mental disease or defect. At a bifurcated trial, the jury found Wagner guilty of first-degree murder and found that he had not been suffering from mental disease or defect. Wagner was sentenced to life imprisonment.

Wagner contends on appeal that the confession was obtained during an unreasonably long period of detention and is therefore inadmissible in evidence.

This court has recognized that authorities may detain a person suspected of a crime for a period of time after arrest in order to determine whether to release the suspect or to make a formal complaint. Phillips v. State, 29 Wis.2d 521, 534, 139 N.W.2d 41 (1966). But an unreasonably long detention before release or initial appearance before a judge ³ constitutes a denial of due process under Art. I, sec. 8, of the Wisconsin Constitution ⁴ and renders inadmissible any confession, whether voluntary or involuntary, obtained from the suspect during the detention. State v. Benoit, 83 Wis.2d 389, 405, 265 N.W.2d 298 (1978); State v. Wallace, 59 Wis.2d 66, 75, 207 N.W.2d 855 (1973); State v. Hunt, 53 Wis.2d 734, 741, 193 N.W.2d 858 (1972); Reimers v. State, 31 Wis.2d 457, 468, 143 N.W.2d 525 (1966); Phillips v. State, supra, 29 Wis.2d at 534-35, 139 N.W.2d 41. Long detentions are looked upon with extreme disfavor by this court. State ex rel. Van Ermen v. Burke, 30 Wis.2d 324, 338, 140 N.W.2d 737 (1966).

This court has not established a set period of time beyond which the suspect must either be released or charged. We have said that post-arrest detention will be permitted as long as the detention is for a proper purpose, Phillips v. State, supra, 29 Wis.2d at 533, 139 N.W.2d 41, and the period of detention is not unjustifiably long under the circumstances of the case. State v. Wallace, supra, 59 Wis.2d at 77, 207 N.W.2d 855. Activities that the authorities might reasonably undertake in order to determine whether to release or to charge include interrogating the suspect or witnesses, checking out the story told by the suspect or witnesses, and gathering evidence. State v. Hunt, 53 Wis.2d at 742, 193 N.W.2d 858.

Because Wagner's contacts with the police and sheriff's officers were voluntary from the late evening of April 14 until he was placed on probation hold at about 3:40 p. m. on April 15, 1975, the trial court, Wagner, and the State compute the period of detention at issue in the case at bar as starting at the time the probation hold was placed. State v. Hunt, 53 Wis.2d at 742, 193 N.W.2d 858. After signing his written confession at 6:10 p. m., April 16, 1975, Wagner was taken before a judge early that evening. Therefore the period of detention at issue ran for about twenty-seven or twenty-eight hours.

Wagner asserts that a detention of this duration was unreasonable. In support of this contention Wagner maintains that his detention under a probation hold was a subterfuge and that the police and sheriff's officers "worked upon" him while he was in custody in order to obtain a "sew-up" confession.

Wagner first argues that the probation hold was imposed not because he violated a condition of probation but because the police needed Wagner in custody to question him about his involvement with the murder. Thus the use of the probation hold was a subterfuge or deception.

Captain Schrickel testified that he requested the probation officer to put a "hold" on Wagner because Wagner had changed his story, that "things weren't adding up" and the department needed time to complete its investigation. The probation officer testified that Wagner had been delinquent in contacting him for four months, that the officer had written Wagner several letters asking him to report in person and advising him that his failure to report was a violation of his probation agreement, and that it was rumored that Wagner was behaving oddly. The probation officer testified that he authorized a hold on the basis of these factors as well as on the basis of the information that Wagner was suspected of being involved in a serious crime.

The liberty enjoyed by a probationer is conditioned on his or her adhering to the conditions of probation as set forth in the probation agreement. State v. Evans, 77 Wis.2d 225, 230, 252 N.W.2d 664 (1977). The conditions of probation are supposed to be tailored to serve the dual purposes of probation, I. e. to protect the public from criminal conduct and to help the probationer become a useful member of society. Therefore it is a condition of a sentence to probation that the probationer lead a law-abiding life during the period of his or her probation. Standard 3.2(a) of the American Bar Association's Standards Relating to Probation (Approved Draft 1970), adopted in State v. Garner, 54 Wis.2d 100, 105-106, 194 N.W.2d 649 (1972). This court has said that it is an absolute obligation of the probationer to keep his or her probation agent informed of his or her whereabouts and activities when requested. State v. Evans, supra,...