Opinion
No. State 59.
Argued: December 3, 1968.
Decided: December 20, 1968.
ERROR to review a judgment of the county court of Iron county: JOHN R. DICKERSON, County Judge of Vilas county, Presiding. Reversed.
For the plaintiff in error there were briefs by Thomas M. Anich of Ashland, attorney, and Roy T. Traynor of Wausau of counsel, and oral argument by Mr. Anich.
For the defendant in error the cause was argued by Betty R. Brown, assistant attorney general, with whom on the brief were Bronson C. La Follette, attorney general, William A. Platz, assistant attorney general, and Alex J. Raineri, district attorney of Iron county.
This case is before us on a writ of error to review the judgment of conviction of Ann La Claw for second-degree murder. That judgment provided that the defendant serve an indeterminate term in the state prison for a period of not more than ten years. The facts are these.
Ann La Claw (hereinafter referred to as the defendant) was thirty-eight years old and was a resident of Ironwood, Michigan, but worked as a waitress in Hurley, Wisconsin. Clyde Newman, the deceased, lived in Ironwood, Michigan, but at the time of his death had been working as a woodsman in the vicinity of Woodruff, Wisconsin. Ann and Clyde had been going together for several months and were planning to be married.
On the day preceding his death, Clyde Newman had been in Ironwood, Michigan, and had visited his sister and had also spent some time with the defendant. He was attempting to make some arrangements to get a ride back to his job at Woodruff, Wisconsin. It was planned, when the efforts to get this ride did not materialize, that the defendant would drive him to Woodruff, and it was also agreed, since Clyde did not wish Ann to return home alone in the dark, particularly because the car had been having gear trouble and it was sometimes necessary to "jiggle" the mechanism to engage the gears, that a fellow employee of the defendant, a Mrs. Mary Rozga, would accompany them. Subsequently, at about 11:15 p.m. on the evening of June 5, 1963, Mrs. Rozga decided that she would be unable to make the trip. At approximately one a.m., according to the testimony of the defendant, Newman left her apartment, stating that he was going to go to his sister's home and that he would call Ann if he didn't get someone to give him a ride to Woodruff. The defendant stated it was her intention to drive him to Woodruff the next morning if he were not able to secure a ride that evening. It was the defendant's testimony that she thereupon went to bed.
At approximately two a.m. on the morning of June 6th, a Noel Mattei, who was driving from Hurley to Wisconsin Dells, came upon Newman in a semiconscious state on U.S. Highway 51 approximately two and one-half miles south of Hurley, Wisconsin. Mattei got out of his car, heard groaning, and saw Newman lying on his back with his arms at his sides on the right side of the road, with his head toward the gravel shoulder and the rest of his body on the blacktop surface. Mattei returned to Hurley, where he informed a police officer, Officer Reed, who immediately drove to the place where Newman was lying.
Newman was fully dressed except for his shoes. The bottoms of his socks appeared to be clean. The testimony later at trial indicated that there was a rip or a slit in one the socks. Newman's head was resting in a pool of blood and, at the time the officer arrived at the scene, there was extensive bleeding from the right ear. Officer Reed stated that a thin stream of blood came from under the body and was running toward the center of the road.
Officer Reed and Officer Barto of the Iron county sheriff's department, who arrived later, searched the area where Newman was found, but they found no evidence of any scuffle or anything to indicate what might have happened, nor did they find any sort of an instrument. They were unable to find Newman's shoes. Newman was conveyed by ambulance to the Grand View Hospital at Ironwood, Michigan.
Since it was believed that the defendant and Newman were married, an attempt was made to locate the defendant, and a call was made to the restaurant where the defendant worked as a waitress. A fellow waitress, Ellen Vitich, at approximately 2:30 a.m. called the defendant at her apartment and told her that Newman had been injured and was in the hospital. Ellen Vitich testified that the defendant said, "Is he dead?" but later she acknowledged that the defendant might have said, "Is he bad?" The latter statement was the defendant's recollection and testimony.
The defendant immediately drove to the hospital. She was met there by Officer Barto, who assumed that Ann was Newman's wife. He told her of the circumstances of finding Newman on the highway and also, he claimed, told her that Newman had been without shoes and that an unsuccessful search of the area had been made in an effort to find the shoes. The defendant denied at trial that Barto told her about the shoes at this time.
The defendant stated that someone at the hospital told her that she had parked her car in the driveway the wrong way and she was asked to move it. She stated that she did so but that she also drove around for about ten minutes because she was nervous.
Eileen Sell, a sister of Clyde Newman, stated that, as she was driving to the hospital, she saw an automobile that looked like the defendant's driving the other way on U.S. Highway 2. Eileen Sell admitted that it was dusty. There was evidence that the road was under construction, and the side on which the defendant allegedly had driven was elevated several feet above the level of the other side of the road as a result of construction that was then in progress. Identification of the car was made only by the lights cast by the car's own taillights. The defendant denied that she had driven on Highway 2 — only that she had driven to the intersection with Highway 2 and returned.
Newman was a man of approximately 5 feet 10 or 11 inches in height and weighed about 200 pounds. It took four men to lift and carry Newman to the ambulance.
Dr. Percy J. Murphy was called to the hospital and examined Newman shortly after his arrival there. He found that Newman was breathing rapidly and that he was unconscious, although there was testimony that he moved and quivered. He was bleeding profusely from the right ear, and there was a laceration at the back of his head at the left side. This laceration was approximately an inch or an inch and a quarter long and it was surrounded by a soft and spongy area approximately six inches long and three inches wide. The examination showed that Newman's left shoulder and left arm were bruised, and there was fine road gravel in the material of his shirt. No such foreign material, however, was found in the wound at the back of the head. A tear was found in the shirt near the left shoulder.
An X ray revealed a skull fracture in the right occipital region of the skull. Dr. Murphy concluded that this was a contrecoup fracture, which resulted from the blow on the left side of the skull. He concluded that the blow was of great force. He stated that it could have been caused by an instrument, but he did not speculate as to what sort of an instrument might have caused the injury, and he also testified that the injuries could have been caused by a fall from an automobile. He stated, however, that there was no gravel in the wound on the head. At the preliminary hearing he testified that because of the deceased's heavy growth of hair, gravel would not necessarily be apparent in the wound. Newman never regained consciousness and died at about 10:30 p.m. on the evening of June 6, 1963.
The defendant told the officers that she had some of Newman's belongings, including a chain saw, in her automobile. An inspection was made of the automobile. She voluntarily permitted Officer Barto and Officer Reed to inspect the car while it was still in the hospital parking lot. They found no evidence of blood or of a struggle in the automobile. No tools or instruments were found in the car.
At about ten a.m. on the morning of June 6th, the defendant permitted the inspection of her apartment by the Iron county district attorney and the Iron county sheriff. Nothing relevant to Newman's death was found in the apartment.
Within the next day or two, a fifteen-year-old boy, who was fishing in Welch's Creek north of Ironwood, discovered a pair of shoes near the edge of the stream. These shoes were identified as belonging to the deceased.
The defendant testified that thereafter she had been questioned on numerous occasions, both at her place of work and at home, by personal visitations and by telephone calls. The import of these questions was that she was shielding someone else.
The defendant obtained an attorney and she, with her attorney's consent, volunteered to accompany the sheriff and the district attorney to Wausau for a polygraph examination at the Wausau police department.
The defendant testified that she arrived at the Iron county sheriff's office at approximately 6:45 in the morning of June 20, 1963, and was constantly in custody until 10:30 that night. It is undisputed that during this period her only nourishment consisted of part of a bowl of soup and a soft drink from a dispenser at the Wausau police department. She was given a polygraph examination and was interrogated by the polygraph examiner for approximately three hours.
She also testified that during the trip to and from Wausau she was constantly questioned by the district attorney, the sheriff, and the sheriff's wife, who served as the jail matron. She persistently protested her innocence during all questioning. Mrs. Sylvia Thomas, the sheriff's wife, however, stated that on the return trip from Wausau the defendant said, "she was guilty, `go ahead and put me in jail.'" The defendant said her statement was, ". . . if you think I am guilty, why don't you put me in jail? Why take me to Wausau?" It, however, is conceded by Mrs. Thomas that both before and after this alleged statement, the defendant insisted on her innocence. Upon the return to the sheriff's office she was again interrogated by the sheriff, the turnkey, and the sheriff's wife. She stated that at this time she was feeling sick because the bufferin she had taken for her arthritis upset her stomach. She stated, "I was very weak, I was sick to my stomach."
She eventually wrote and signed a statement which was allowed into evidence at her trial. At trial she testified that the district attorney assured her that her statement would not be used in court and that it was only taken at the suggestion of the district attorney that members of Newman's family might sue. Following the signing of the statement, the defendant was released, but ten days later she was charged with the second-degree murder of Newman and was tried before a jury, which found a verdict of guilty on June 19, 1964. It is from the judgment following this verdict that the defendant brings this writ of error.
The defendant's principal contention is that the court erred in permitting the introduction of the defendant's statement without a separate and prior determination by the court on the issue of voluntariness.
It is clear that the standards for determining voluntariness as prescribed by State ex rel. Goodchild v. Burke (1965), 27 Wis.2d 244, 133 N.W.2d 753, and Jackson v. Denno (1964), 378 U.S. 368, 84 Sup. Ct. 1774, 12 L.Ed. 2d 908, 1 A.L.R. 3d 1205, were not complied with.
Prior to the introduction of the defendant's statement, her attorney objected to its introduction on the basis that there "has not been a complete and thorough examination by the court . . . as to the voluntariness." When the court said that the statement would be admitted, it raised the question in defense counsel's mind whether it was being admitted as a confession or as an admission. In response to counsel's question, the trial judge stated, "I don't designate it one way or the other now, because I haven't read it." It is apparent that the trial judge made no determination as to voluntariness and left that entire question to the jury. Not only must there be a separate finding of the court that a statement is voluntary but also the fact that such a finding was made must be apparent in the record. Boles v. Stevenson (1964), 379 U.S. 43, 85 Sup. Ct. 174, 13 L.Ed.2d 109. The district attorney was then permitted to read the statement of Ann La Claw to the jury. The following is the excerpt from the testimony as it appears in the transcript:
"`My name is Ann La Claw. I'm 38 years old. I live at 208 E. Michigan Avenue. I was with Clyde Newman at 11 o'clock on the night of June 5th, 1963. We got into my car and Clyde was driving and we drove Mary Rozga to her home in Ironwood. We left her off then we were going into Lens Dairy Store and have pop. I said if we were going to Woodruff let's get started right away. Clyde said on second thought I don't want you to drive me back because I don't want you to drive back alone. I said O.K. good I don't feel good anyway so instead we went and had a beer at the Town Pump at 11:30 P. M. We talked to Elie Steppa about some book he was reading. I had finished a part of a tall bottle of beer and Clyde drank 2 bottles of beer. We weren't drunk. We left the Town Pump at 12:30. We got into the car and Clyde was driving and we drove to my apartment in Ironwood. We went to my apartment. I remember he kissed me goodnight and I went to the bathroom. When I came from the bathroom he was gone. But Clyde must have come back and asked me to drive him to Woodruff. So I must have got into the car and Clyde sitting beside me we drove off. I can't remember what route we took to Hurley but we went down U.S. 51. When we got 2 miles South of Hurley going around the curve Clyde fell out the door. I kept on driving. I don't know how I got home. But I was at home in bed when the telephone rang telling me about Clyde's accident. Ellen Vitich called me and said Ann I got bad news for you. Clyde is a victim of hit and run. I asked her is he dead. I dressed right away and got into my car. The first person I saw was the nurse and I asked is Clyde Newman here. She said yes. The police officers came and took me into emergency. The nurse and the officers asked if Clyde was my husband and I said no. The officers left and said they wanted to talk to me later. I went and got a drink of water then the nurse said I could go if I want to. She was a dark-haired nurse. I went outside walked around for a while drove down to the intersection turned around and went back to the hospital. I don't know how or when but I then disposed of the shoes at the creek on Sunset road. Then I went back to the hospital. After that I came back to the Sheriff's office. I had Clyde's saw and the rest of Clyde's clothing.'
"`I make this statement of my own free will — it consists of 2 1/2 half pages. I swear everything in this statement is the truth. I was not promised anything or threatened with any harm by any of the police officers to whom I gave this statement. I know I do not have to sign this statement. I am advised that anything I say in this statement can't be used as evidence in a court of law. [Emphasis supplied.] I am free to call an attorney before signing this statement.'
"`Dated at Hurley, Wis. "`June 20, 1963. "`s/ Ann La Claw "`s/ Louis Oberto Deputy Sheriff. "`s/ James J. Thomas, Sheriff, Iron County.""Added to this statement on the margin: `I give this statement on condition be given to anyone for the purpose of suing me for damages or money.'"
We conclude that the admission of this statement without a prior determination of voluntariness constitutes error under Goodchild, supra, and Denno, supra. The rule of those cases requires that the court make a separate finding of voluntariness following a hearing not in the presence of the jury.
In the instant case to conclude that the Goodchild rule is applicable we need not apply the rule retrospectively, for this conviction is now before us on direct review by writ of error, and the question of whether or not a rule of criminal procedure is to be applied retrospectively arises only for causes that have been finalized. In State ex rel. La Follette v. Raskin (1966), 30 Wis.2d 39, 48, 139 N.W.2d 667, we stated the cases were finalized only when "there has been a judgment of conviction, sentence and exhaustion of rights of appeal." This cause has not reached the stage of finalization.
We also point out that the trial court's procedure in respect to this statement failed to comply with the approved pre- Goodchild practice in this state. That practice is outlined in State v. Bronston (1959), 7 Wis.2d 627, 97 N.W.2d 504, 98 N.W.2d 468, Pollack v. State (1934), 215 Wis. 200, 253 N.W. 560, 254 N.W. 471, and Bosket v. State (1966), 31 Wis.2d 586, 143 N.W.2d 553.
In Bosket, at page 589, the pre- Goodchild procedure was described by Mr. Chief Justice CURRIE:
"Before this evidence was offered a hearing was conducted by the trial court in the absence of the jury to determine whether the confession and other admissions by defendant were so clearly involuntary as to require that they be excluded. After taking testimony at this hearing the trial court concluded that the confession and other admissions should not be excluded but that the issue of their voluntariness should be submitted to the jury. . . .
"This manner of handling the issue of voluntariness of a confession or admission by a defendant in a criminal prosecution was in accordance with decisions of this court prior to State ex rel. Goodchild v. Burke."
It is apparent that the failure to hold a proper hearing on the question of voluntariness was prejudicial to the rights of the defendant to have a fair trial. In Linkletter v. Walker (1965), 381 U.S. 618, 638, 85 Sup. Ct. 1731, 14 L.Ed.2d 601, in footnote 20, the court points out that the absence of a proper Jackson v. Denno, hearing "went to the basis of fair hearing and trial because the procedural apparatus never assured the defendant a fair determination of voluntariness."
In Roberts v. Russell (June 10, 1968), 392 U.S. 293, 88 Sup. Ct. 1921, 20 L.Ed.2d 1100, it was pointed out that Jackson v. Denno referred to a rule of criminal procedure "`fashioned to correct serious flaws in the factfinding process at trial.'"
It is apparent that the statement was highly prejudicial to the defendant, since it provided the connecting link which purported to place Ann La Claw at the scene when Newman sustained his fatal injuries. It is manifest from the facts of record that serious questions were raised as to the voluntariness of the statement which required a hearing and prior determination of the trial judge.
We are satisfied that the admission of this statement under these circumstances seriously infected the fact-finding process and was prejudicial to the defendant. Because of this error, we are satisfied that a new trial should be held, in which a determination of voluntariness is made in accordance with the standards laid down by Goodchild v. Burke.
By the Court. — Judgment reversed and the cause is remanded to the trial court to allow the state a reasonable time to afford Ann La Claw a new trial, failing which, Ann La Claw is entitled to her discharge and release.
The following memorandum was filed March 4, 1969.
The state has asked that this court change its mandate to, one ordering an evidentiary hearing on the voluntariness of the statement made by the defendant and used at her trial. In the alternative, the state has requested that, if this court determines that the total circumstances of this case warrant, it order a reversal in the interest of justice rather than order a reversal and a new trial on the basis of error in the admission of the defendant's statement. The defendant also urges that the mandate be changed to one ordering complete discharge and release.
We agree that the mandate should be changed. In its opinion, this court noted not only that the statement was not subjected to a Goodchild hearing, but that it also seriously infected the entire fact-finding process. However, even considering the statement as evidence, regardless of whether it was voluntary, there was not evidence which adduced, believed, and rationally considered by the jury was sufficient to prove beyond a reasonable doubt that the defendant was guilty of second-degree murder. In fact, the record clearly shows that the trial was conducted upon the theory that the defendant was obligated to prove her innocence.
Accordingly, a new trial, rather than promoting justice, would subject the defendant to undue hardship and the state to possible challenges for unconstitutionally subjecting the defendant to second jeopardy. Since from the total circumstances of this case as revealed by the record, it appears that a new trial would probably result in the defendant's acquittal, this court, in the interest of justice, concludes that the defendant is entitled to her immediate discharge and release from the supervision of the Department of Health Social Services.
The mandate is amended to conform with this opinion.
By the Court. — Judgment reversed.
Mr. Justice ROBERT W. HANSEN dissents from the change of mandate.