Zelenka v. State
| Decision Date | 06 June 1978 |
| Docket Number | No. 76-145-CR,76-145-CR |
| Citation | 266 N.W.2d 279,83 Wis.2d 601 |
| Parties | , 4 Media L. Rep. 1055 Robert Steven ZELENKA, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. |
| Court | Wisconsin Supreme Court |
The plaintiff in error (defendant), Robert Steven Zelenka, was convicted of first degree murder as a party to the crime contrary to secs. 940.01 and 939.05, Stats., and of armed robbery contrary to secs. 943.32 and 939.05. The trial was before the court and a jury. The defendant was sentenced to life imprisonment on the murder charge and three years concurrently on the armed robbery charge. Writs of error were issued to review the judgment and the order denying postconviction motions.
Jack E. Schairer, Asst. State Public Defender, argued, on the brief was 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.
James P. Brody, Jon P. Christiansen, and Foley & Lardner, Milwaukee, on brief amicus curiae for Newspapers, Inc., Wisconsin Associated Press, and Sigma Delta Chi (Milwaukee Chapter).
Upon this review the defendant contends the trial court erred in failing to suppress the defendant's pretrial oral and written statements; in failing to receive polygraph results of the defendant's father at the suppression hearing; and in sustaining a newsman's privilege not to divulge his sources. He further contends the trial court lost jurisdiction after the case was remanded to the county court for supplemental preliminary hearings, and that the evidence is not sufficient to sustain the verdicts finding the defendant guilty as to both counts.
The deceased, Michael Posthuma, lived with his wife in rural Dodge county. He had, on occasions at least, bought and sold drugs in the Dane county area.
In early June of 1975, Posthuma discussed purchasing about one-fourth of a ton of marijuana from Ronald Schilling. There were at least two discussions between Posthuma, Schilling, Tom Stanton, William Cook, and Robert Zelenka, the defendant in this case, concerning the purchase. The deal was arranged. The marijuana was to be picked up near Wisconsin Dells on June 9th.
On June 9th Posthuma borrowed a van-type truck from a neighbor and left his home with $2,100 in cash. That was the last time Mrs. Posthuma saw her husband alive. Posthuma met again with Schilling, Stanton and Zelenka for the final details. While there Posthuma went to the bathroom and, according to Zelenka's testimony, he was told by Stanton and Schilling that they were going to "rip-off" Posthuma and he was asked to "hit" Posthuma. Zelenka states he understood "hit" to mean "strike" Posthuma on the head and he refused to do so. He agreed to go along. Zelenka was to drive the truck to a remote area where the robbery was to take place. Schilling, Stanton, Zelenka and Posthuma entered the truck, with Zelenka driving. He drove to a rural area near Sun Prairie. On St. Albert Road, Stanton said "here" and Zelenka heard a thud and stopped the truck. He saw Posthuma lying on his side and saw Stanton strike Posthuma on the head with a hammer. He also saw Schilling stab Posthuma several times with a knife. Zelenka testified he tried to stop Schilling and became sick to his stomach. Posthuma was not dead when he was pulled out of the truck. His body was dragged into the woods and left there near a creek. Zelenka states he did not help drag the body but Schilling or Stanton claimed he did. Zelenka cleaned the blood out of the truck and the truck was driven to the East Towne Shopping Center in Madison and abandoned in the parking lot.
Zelenka received $1,000 from the proceeds of the robbery. Stanton, Schilling and Zelenka went to a clothing store in the shopping center and purchased new clothing. The clothes that all three were wearing were wet and muddy. Zelenka knew one or more of the employees of the store, had some drug deals with one of them, and repaid a $200 loan.
The next day Zelenka purchased three one-way air fare tickets to Florida for himself, his wife and child.
On June 10th, a twelve-year-old boy found Posthuma's bank book, a claw hammer, paint cans, rags and other items in a plastic bag which had been thrown in the creek near Rieder Road. These items were turned over to the police. The bank book indicated a withdrawal of $2,500 on June 9th.
Posthuma's body was found in a wooded area near St. Albert's Road on June 12th. An autopsy was performed. It revealed that Posthuma suffered three severe blows to the head and 24 stab wounds in his body. Posthuma bled to death from a stab wound which lacerated the thoracic aorta.
On June 14th Zelenka returned to Madison from Florida by bus. He called his father. Zelenka and his father voluntarily came to the Dane County Sheriff's Department at about 10:30 p. m.
The defendant Zelenka was advised of his constitutional rights. He signed a waiver form indicating that he understood his rights, did not want a lawyer, and wished to make a statement. Zelenka asked if he could get a lawyer later on. In response Detective Grann read back the portion of the statement of rights which stated that if he decided to answer questions without a lawyer he could still stop the questioning at any time, and that if he could not afford a lawyer one could be appointed.
Questioning continued from 10:40 to 1:04 a. m. Zelenka's father was present for most of this period, entering the room at 10:49 p. m. The interview was taped and transcribed. The tape recorder was turned off and the questioning stopped at 1:04 a m., because Zelenka and his father were discussing whether he should have a lawyer before any additional statements were made.
After the initial questioning ceased, Zelenka was informed that he was under arrest for the first degree murder of Posthuma. During the interval between 1:04 [83 Wis.2d 608] and 1:35 a. m., a conversation continued but it was not taped. Zelenka took the position that the charge of first degree murder was not right and that he wanted to show facts to reduce the charge. Zelenka and his father discussed the advisability of obtaining counsel. Zelenka's father stated that Zelenka should have counsel before he made any additional statements. However Zelenka decided that he wanted to continue the statement which resumed at 1:35 and lasted until about 3:30 a. m. Zelenka did not deny involvement in the incident but indicated that he had tried to stop Schilling from stabbing Posthuma. A suppression hearing was held, the motion to suppress the statements was denied, and tapes and transcripts were given to the jury at the trial.
Detective Grann testified at the trial that he had interviewed Schilling who agreed that Stanton had wielded the hammer and that he had stabbed Posthuma. Detective Charles Lulling also interviewed Schilling and the story was the same. Additionally he talked to Stanton who admitted using the hammer. Neither Stanton nor Schilling volunteered any information about Zelenka trying to stop the murder.
Michael Fellner, a writer for the underground newspaper "Take-Over," was called. He refused to divulge his sources for an article about the murder. The trial court did not order him to do so.
Zelenka was found guilty and convicted on both counts on December 11, 1975. His postconviction motions were denied on June 7, 1976. This court issued writs of error on June 28, 1976.
The defendant Zelenka's first challenge concerns the failure of the trial court to suppress the statements he made to the police on the night of June 14-15. This challenge can be separated into two parts: (1) The initial reading of his constitutional rights, and (2) the resumption of the interview after Zelenka had indicated that he wanted a lawyer.
After informing Zelenka of his rights, Zelenka asked if he could still get an attorney after signing the waiver. Zelenka contends that the trial court erred by finding that Detective Grann complied with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), by re-reading the portion of the warnings dealing with Zelenka's continuing right to counsel rather than by affirmatively stating that yes, a defendant always has a right to demand counsel at any time. The defendant cites Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938):
"The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused."
Zelenka points to the facts that he was a twenty-one year old man, just returned from Florida, whose father accompanied him to the station but who was not present when the waiver rights form was signed. The state correctly contends that these facts do not aid the defendant. Zelenka was a legal adult at the time he signed the waiver, and clearly his father's presence or absence was of no legal significance. This court has held that, even in the case of a minor, a parent's presence is not an absolute requirement for a valid waiver of constitutional rights. 1
The defendant does not contend that he did not understand the meaning of his right to counsel after the portion was re-read. To the contrary, Detective Grann asked the defendant if he understood his rights at that point and Zelenka answered in the affirmative. Miranda does not dictate that all questioning must stop if the defendant merely raises a question as to the extent of his rights. There is no reason to conclude that a defendant does not understand his rights when he indicates that he does understand them, at least under the facts of this case.
This court has stated that the standard of review in determining compliance with the safeguards of Miranda and the determination of voluntariness is that the...
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