Wentela v. State
| Decision Date | 01 April 1980 |
| Docket Number | No. 77-376-CR,77-376-CR |
| Citation | 290 N.W.2d 312,95 Wis.2d 283 |
| Parties | James WENTELA, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. |
| Court | Wisconsin Supreme Court |
Howard B. Eisenberg, State Public Defender, for plaintiff in error.
David J. Becker, Asst. Atty. Gen., argued with whom on the brief was Bronson C. La Follette, Atty. Gen., for defendant in error.
Plaintiff in error James Wentela (defendant) was convicted, following a jury trial, of second-degree murder contrary to sec. 940.02, Stats., 1975. On review he contends that an alleged confession made by him to a polygraph examiner was impermissibly obtained and, consequently, was erroneously admitted into evidence. We agree and reverse the judgment of conviction.
In the early morning of June 7, 1976, defendant and five companions were drinking and driving around in defendant's bus. About 4 a. m. defendant began dropping his companions off in the following order: Sue Lehto, Debbie Irons, Gary Wade, and Kevin Laakso. When Laakso left the bus, Charmaine Louis (Louis), the victim was still on the bus with the defendant.
When Louis did not return home by morning, her mother contacted the sheriff's office. Detective Gene Starkey talked to the defendant on June 11, 1976, and the defendant confirmed that he, the victim, and others had been drinking beer and driving around in his bus. The defendant said he dropped Louis off one-half mile west of Iron River near the bridge because he could see the Iron River squad car sitting between two buildings in town. Detective Starkey testified he doubted the defendant could see the squad car from the position he described; and after checking the area and talking with Louis's mother, he concluded he was looking for a body and not a runaway.
On August 23, 1976, a Brule resident found a shallow grave and human bones scattered in a gravel pit. A jawbone found 16 feet from the grave was identified as that of Louis by the use of dental charts and X-rays.
While the record is silent concerning the circumstances of defendant's arrest, the parties have stipulated that at 6:30 p. m., on August 23, 1976, the defendant was arrested at his home pursuant to a request from the Bureau of Probation and Parole.
On August 24, 1976, at about 6 p. m., Douglas County Undersheriff Richard Lindberg (Lindberg) brought the defendant to an interrogation room in the Douglas County jail. At trial Lindberg testified that at that time he informed the defendant of his rights, under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and the defendant then signed a waiver of these rights along with an acknowledgment that they were understood by him. Below the list of defendant's rights but immediately above his signature appears the following paragraph:
Lindberg also discussed with the defendant the possibility that the defendant take a polygraph examination, and the defendant agreed to talk to the polygraph examiner. Following this discussion with Lindberg, the defendant was interviewed by Terry Lundgren (Lundgren), the polygraph examiner.
Lundgren began the interview shortly after 6 p. m. on August 24, 1976, and it continued, except for a ten- to twenty-minute break, until shortly after midnight. Lundgren and the defendant were alone in the interrogation room in which there was a one-way glass which Lundgren stated he had told the defendant about at the beginning of the interview. Lundgren started by explaining the forms which the defendant was to sign prior to the polygraph examination. They included a personal data form, an authorization for the polygraph examination, and a stipulation agreement concerning the admissibility of the examination results in court. The authorization form contained an acknowledgment that the defendant had been advised of his constitutional rights, as well as a statement that the defendant's consent to the examination was given of his "own free will," and authorized release of the examination results to Sheriff Johnson. The defendant provided the personal data and executed the authorization form. At the time the defendant signed the authorization, Lundgren told the defendant he would tell only Sheriff Johnson about their interview. During cross-examination at the suppression hearing, Lundgren conceded he may also have told the defendant he would not tell anyone. Lundgren then gave the defendant a stipulation agreement concerning the admissibility of the examination in court. When Lundgren read a part of the stipulation concerning the death of Louis, the defendant said he did not want to take the examination.
Lundgren testified at the preliminary examination and again at the suppression hearing that at this point the defendant said, " 'I think I need an attorney,' " or " 'I think I should see an attorney.' " Although Lundgren testified he did not consider this a formal request for counsel, he told the defendant he would see what he could do and got up and left the interrogation room. Lundgren testified that his effort to get an attorney consisted of his telling a "Pat" to tell the sheriff of the request because he did not know whom to call. Lundgren testified that, during the time he was out of the interrogation room, he and Sheriff Johnson agreed that Lundgren would return to the interview room and appear to be upset with Lindberg for talking with the defendant. This testimony suggests that Lundgren did not avail himself of the opportunity to tell the Sheriff firsthand of the defendant's request to consult with an attorney. He testified he believed he told the defendant he had passed on the defendant's request for counsel when he returned to the interrogation room.
While Lundgren was gone and the defendant was alone, Lindberg entered for security reasons. He and the defendant conversed, and he tried to get the defendant to agree to cooperate with the examiner concerning the polygraph examination. At the preliminary, Lindberg testified he was not in the room to interrogate the defendant. However, at the suppression hearing, Lindberg testified he asked the defendant if the defendant did something to Louis; the defendant responded, " 'I don't know,' " then added " 'I would have to talk to an attorney first.' " At trial, Lindberg responded, "Absolutely not," when asked if the defendant had requested an attorney during the break in the interview. When confronted with his testimony at the suppression hearing, Lindberg agreed the defendant had said something about an attorney, but declared that it was not a formal request.
When Lundgren returned to the interrogation room, he asked Lindberg to leave the room. Lundgren then began to go over the stipulation agreement again. The defendant still refused to take the polygraph examination. Lundgren then tore up the stipulation form and told defendant to tear up his copy. At this time Lundgren told the defendant that the defendant's refusal to take the examination meant that he had something to hide in this case and asked him, "if he in fact did cause Charmaine Louis' death." The defendant gave a gestured response that they had previously agreed would indicate an affirmative answer. 1
Immediately following the gestured affirmative response, Lundgren gave the defendant the Miranda rights form and had the defendant read the form. Lundgren explained the rights and warnings. The defendant placed his initials after each sentence and signed and dated the form. 2 Following the execution of the Miranda document, the defendant was questioned about the details of the death of Louis and gave gestured responses relating to the circumstances of her death. Lundgren testified that the defendant told him that he and Louis were in the bus, and when the defendant's sexual advances to Louis were rebuked, he became angered and hit her with a tire iron. He said Louis was nude and that he drove to the gravel pit, throwing her jewelry out on the way, and dragged the body to the grave site in the gravel pit. During the interrogation the defendant did not ask for an attorney. At the completion of the interrogation, the defendant asked for attorney Joseph A. McDonald, and McDonald was summoned.
A criminal complaint alleging the defendant had caused the death of Louis, contrary to sec. 940.02, Stats., 1975, was filed on August 27, 1976. A motion to dismiss was denied orally during the preliminary hearing. Following the filing of an information, a motion to suppress was filed. The motion asked the court to suppress all verbal statements made by the defendant to the polygraph examiner, Lundgren, and any other officers because they were coerced and were given prior to the defendant's receiving Miranda warnings.
Following the suppression hearing on February 11, 1977, the court filed its findings of fact and conclusions of law on the defense motions. The conclusions of law stated (1) the confession was not inadmissible because the defendant was told his rights and waived them after making the statement that he thought he needed an attorney; (2) the interrogation methods were not such that would induce a false confession; (3) the promise made by the examiner, not to tell anyone but the sheriff, was not likely to cause a false confession; (4) the circumstances required Miranda rights, each and all warnings were given, and defendant understood them; (5) the defendant's statement was voluntary; and (6) the statement is admissible in evidence beyond a reasonable doubt and as a matter of law.
At trial, before the jury was brought in, the state informed the court that there was a change of facts regarding the circumstances...
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...by the police and that the defendant's statements should not have been admitted as evidence at the trial. Wentela v. State, 95 Wis.2d 283, 292, 290 N.W.2d 312, 313 (1980); Micale v. State, 76 Wis.2d 370, 373, 251 N.W.2d 458 (1977). Nevertheless, the circuit court denied the defendant's moti......
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