No. State 107.
Argued January 9, 1970. —
Decided February 6, 1970.
ERROR to review a judgment of the circuit court for Milwaukee county: HERBERT J. STEFFES, Circuit Judge. Affirmed.
For the plaintiff in error there was a brief and oral argument by L. William Staudenmaier of Milwaukee.
For the defendant in error the cause was argued by Michael Ash, assistant district attorney of Milwaukee county, with whom on the brief were Robert W. Warren, attorney general, and E. Michael McCann, district attorney.
This matter is brought on a writ of error to review a judgment of conviction for first-degree murder. After a preliminary hearing, a plea of not guilty and not guilty by reason of insanity, and a trial by jury, the plaintiff in error, Charles Frank Schwamb, hereinafter referred to as the defendant, was found guilty and sentenced to a mandatory term of life imprisonment. No post-trial motions were brought for the purpose of challenging the sufficiency of the evidence or to re-examine alleged errors.
Counsel appointed by this court for appeal now asserts that trial counsel were ineffective and that error resulted in the admission of involuntary confessions.
It is also urged that this court grant a new trial in the interest of justice under our discretionary powers of sec. 251.09, Stats.
Phyllis Schaefer was killed by bullets fired from a .25-caliber pistol at approximately 12:30 a. m. on May 11, 1965. The shooting occurred at the Inn America, a tavern on the northwest side of Milwaukee, Wisconsin.
Marie Gash, a friend of the decedent, testified that she was sitting next to Phyllis and saw the defendant walking across the dance floor in their direction. Marie said, "Phyllis, look who's behind you." Marie "didn't see anything until [she] heard the shot." Then Phyllis looked up, raised herself from the stool, and let out a scream. Marie heard at least two shots and saw sparks coming from the direction of the defendant.
Floyd Theis, a fireman seated at the bar with Marie and Phyllis, testified he saw the defendant walk up to the bar and stand directly behind Phyllis. Turning to take a drink, Theis heard something he thought was fireworks. At the same time, Theis heard the bartender holler, "`that man has got a gun, grab him.'" Theis saw Phyllis fall to the floor and the defendant walk out. Theis ran after the defendant. The bartender accompanied him and both stopped at the head of the stairs leading to the ground level when they saw the defendant standing at the bottom with his right hand raised and holding a gun.
Ralph J, Klotka, Jr., the bartender, testified he saw the defendant behind Phyllis with his arm around the "upper portion" of Phyllis' body. He heard someone say, "oh, no," and then the sound of a "firecracker," followed by three successive similar sounds. He saw Phyllis topple to the floor, the defendant leave, and he yelled, "somebody get the S.O.B., he shot Phyllis."
The bartender called the police and Officer George Fish responded to the department's radio dispatch. Upon his arrival, he saw Theis and another person holding the defendant to the pavement. Theis told Officer Fish the defendant had shot a woman upstairs, whereupon Officer Fish brought the defendant to his feet and placed him under arrest. Officer Fish testified that approximately one minute after placing the defendant under arrest he asked him, "What happened," to. which the defendant replied, "I loved that woman and she was cheating on me, and that's why I shot her."
When Officer Ralph Haase arrived at the scene with his partner, Officer Fish asked him to call a police car for the defendant and an ambulance for Phyllis. Haase testified that, after making the call and walking around the front of the squad car, "Mr. Schwamb blurted out to me, `yeah, I shot her.'"
Shortly thereafter, between the hours of 2 and 4:30 a.m. (the killing occurred at 12:30 a.m.), the defendant signed three statements. The first signed at 2 a. m. in the presence of Detectives Kenneth H. Darton and John J. Orlikowski read: "I loved her I didn't want to hurt her. I didn't mean to shoot her I just wanted to scare her. I wanted to marry her." This statement was written on a one-page form containing the following language in standard type at the top.:
"I, ______ make the following statement of my own free will, no threats or promises having been made; I declare that it is true and correct to the best of my knowledge and recollection, and I fully understand that what I say here may be used against me in a court of law."
The second written statement was taken at 3:05 a.m. in the Safety Building, Milwaukee, by Detective Sergeant William Fender. Present were Detectives Darton and Orlikowski, Patrolman Fish, and the stenographer, Mercedes W. Martin. The defendant was informed of his right to remain silent and that any statement given could be used against him. The defendant stated, in response to Detective Fender's questions, that he was making the statement of his own free will, that he had not been threatened or abused, and that no promises had been made. He stated that he had purchased the pistol on the south side and it was his intention to scare Phyllis. When asked what happened when he went to the Inn America (the tavern where Phyllis was shot), defendant said, "I don't know. All I know is she said, `You back here,' she said, `Oh, no!' and then they screamed, `You shot her, you shot her,' or something like that." When asked how much he had to drink, the defendant answered, "I don't know, Sir; I had a lot to drink today."
The final written statement was taken at 4:25 a.m. by Detective Sergeant Fender at the county morgue. The statement consisted of three questions and answers:
" Sgt. Fender: Charles, I am going to ask you, do you know this white girl you are viewing here in the Morgue? Can you tell me her name?
" A. Phyllis.
" Q. Do you know her last name?
" A. Schaefer.
" Q. Is this the girl that you shot at the Inn America early this morning, Charles?
" A. (Nods his head affirmatively.)"
The trial judge conducted a hearing outside the presence of the jury to determine the voluntariness of the three written statements and the two oral admissions given to Officers Fish and Haase. He concluded that:
". . . all of them were made freely and voluntarily, without any constitutional contamination. That they all were the free and deliberate choice of the defendant, and they are legally admissible, applying fourteenth amendment standards in assessing their admissibility."
The defendant took the stand and related his marital, drinking, and diabetes problems. He testified that on the evening of May 10, 1965, he was so disgusted with himself that he purchased a gun and contemplated suicide. The defendant left for a bar named Rieter's at approximately 10 p.m. Upon arrival, he learned that Phyllis had been there but had just left for the Inn America. When asked how many drinks he had while at Rieter's, the defendant answered at one point one and at another that he didn't know. The defendant was asked the next thing he remembered after shaking dice at Rieter's, and he replied:
" A. It's when I woke up — I was laying on the concrete and I said to Mike's kid, Mike's son, I said, `what happened, `and he said, `just take it easy,' and everybody was all right. They were saying, `he shot her, he shot her.'
" Q. Now, did you ever plan to shoot Phyllis Schaefer?
" A. No, sir, I loved her, I never hurt her. She would argue and I would always walk out.
" Q. Did you at any time, during the evening of May 10, make a plan to kill Phyllis Schaefer?
" A. No, sir. I never even thought of it.
" Q. Do you know today why you killed Phyllis Schaefer?
" A. No, I don't — all this while I was thinking why, and I don't know why.
" Q. At the time you were taken to the Police Station, did you tell them the truth about the events that led up to the killing of Phyllis Schaefer?
" A. Well, I told them everything they asked me, whatever I could, whatever they asked me I answered them, I told them.
" Q. Did you attempt to conceal anything from the Police concerning this killing?
" A. No, sir.
" Q. Have you attempted to conceal anything about this killing from this Court or this jury?
" A. No, sir."
The defense called Dr. Bernard Schaefer, a specialist in neurology and psychiatry, who testified that the defendant was suffering from a "mental disorder. . . a character disorder or behavior disorder, sometimes known as a sociopathic type of personality."
"This type of reaction in an individual would naturally result in execution of poor judgment in his behavior, with a deficiency of self-control, so that an individual of this type would perform acts which, by society, would be considered as being asocial."
On cross-examination, the district attorney asked:
" Q. Doctor, I understand from your testimony that you are not saying that this character disorder, which you classify as a sociopathic type of personality, is in anywise insanity?
" A. That's right, sir.
" Q. It is not insanity?
" A. That's right, sir."
Drs. Joseph Weber and Edward H. Schmidt were called by the court and questioned by the trial judge. Both gave opinions that the defendant was not insane, that he could distinguish between right and wrong, and that he knew the nature and quality of his acts.
The court submitted the verdicts of first- and second-degree murder, not guilty by reason of insanity, and not guilty, and instructed on same. The jury returned a verdict of first-degree murder.
It was following this verdict that on February 1, 1966, a judgment of conviction was entered and a mandatory life sentence imposed.
Various errors committed by the trial court are alleged in the briefs and were discussed at oral argument. They relate primarily to the contention that confessions were improperly admitted and that such confessions were highly prejudicial to the defendant's cause. Basic to defendant's argument in this court is that the two counsel who represented him at trial were incompetent, that proper objections were not made, and that, had objections either been urged or urged more forcefully, the trial judge would have desisted from admitting the questioned confessions and avoided committing what is now denominated as error.
We should state at the outset that, by the failure either to make objections or the appropriate motions for a new trial following the verdict, the defendant is precluded from raising such errors in this court. We pointed out in State v. Van Beek (1966), 31 Wis.2d 51, 141 N.W.2d 873, that we would not review the evidence in a case where there was a failure to move for a new trial or to set aside the verdict on the ground of insufficient evidence. Such rationale has been consistently followed by this court. In Finger v. State (1968), 40 Wis.2d 103, 161 N.W.2d 272, we extended the rule of Wells v. Dairyland Mut. Ins. Co. (1957), 274 Wis. 505, 80 N.W.2d 380. We pointed out that a similar rule applies in criminal jury cases. The discussion of the same problem in Jonas v. Northeastern Mut. Fire Ins. Co. (1969), 44 Wis.2d 347, 171 N.W.2d 185, made it clear that the rule was applicable to all claimed error and was not limited to questions of sufficiency of the evidence. In Jonas, page 351, we made applicable the Wells rule:
". . . that, where there was a trial to a jury, no error of the court `should be reviewable as a matter of right on appeal without first moving in the trial court for a new trial bottomed on such error, if the error is of a category that a trial court could correct by granting a new trial.' Wells, supra, page 518."
It is apparent that in the instant case none of the errors now alleged are reviewable as a matter of right. We nevertheless conclude, in view of the allegation of incompetency of counsel, that it is appropriate for this court to review the contention that incompetency of counsel necessitates a new trial in the interest of justice. As a consequence, the facts elicited at trial have been set forth in extenso.
In Commodore v. State (1967), 33 Wis.2d 373, 383, 147 N.W.2d 283, we summarized the holdings of this court in regard to the invocation of our discretionary power to reverse the conviction of a trial court and to order a new trial in the interest of justice pursuant to sec. 251.09, Stats. Therein we said:
"This power is exercised with `some reluctance and with great caution' and only in the event of a probable miscarriage of justice. Ferry v. State (1954), 266 Wis. 508, 511, 63 N.W.2d 741. Such grave doubt must exist regarding a defendant's guilt to induce the belief that justice has miscarried. State v. Fricke (1934), 215 Wis. 661, 667, 255 N.W. 724. In Lock v. State (1966), 31 Wis.2d 110, 118, 142 N.W.2d 183, we stated:
"`In order for this court to exercise its discretion and for such a probability [of a miscarriage of justice] to exist we would at least have to be convinced that the defendant should not have been found guilty and that justice demands the defendant be given another trial.'"
In Commodore we also indicated, for there to be a new trial on this ground, that there must be evidence to indicate that a different result would be obtained under optimum circumstances. Commodore, supra, page 383.
Applying these tests, we decline to exercise our discretionary powers. A reading of the evidence summarized above and a careful perusal of the transcript makes it clear that the defendant's guilt was overwhelming. There were numerous eyewitnesses to the shooting and witnesses to the defendant's prior statement that he intended to kill Phyllis. It is difficult to conceive of any theory under which this case might have been tried that probably would have resulted in a verdict of other than first-degree murder.
Defense counsel produced a psychiatrist in all attempt to show that the defendant was not legally responsible for his acts at the time the crime occurred, but the testimony was uniform that the defendant was not insane — that he knew right from wrong and the nature and quality of his acts. It is urged now that defense counsel should have asked for a "bifurcated" trial. This was prior to the mandate in State ex rel. La Follette v. Raskin (1967), 34 Wis.2d 607, 150 N.W.2d 318, permitting a sequential order of proof with respect to the issues of guilt and insanity upon a showing that the medical examination pursuant to sec. 957.27, Stats., elicited inculpatory statements within the protection of the fifth amendment to the United States Constitution. Moreover, it is difficult to see, where the defense of insanity proved to be most insubstantial and no inculpatory statements of the kind discussed in State ex rel. La Follette v. Raskin were elicited, that a different mode of trial would have in any way provided the defendant with greater rights.
The voluntariness of the confessions was determined in a separate Goodchild proceeding, as has been heretofore directed by this court. State ex rel. Goodchild v. Burke (1965), 27 Wis.2d 244, 133 N.W.2d 753. A review of the testimony elicited in that hearing shows that the judge's findings that the confessions were voluntary are not contrary to the great weight and clear preponderance of the evidence.
It is also apparent that certain objections to the confessions that were raised in the Goodchild hearing were not raised when the confessions were brought before the jury. This we believe, reflects the strategy of trial counsel and the defendant — to display an attitude of cooperativeness and contrition. In the direct examination of the defendant, Schwamb stated that he told the police everything they asked, that he did not attempt to conceal anything from the police concerning the killing, and he made no attempt to conceal anything from the judge or jury. There was no attempt to contradict the confessions or to impeach either their voluntariness or trustworthiness. The strategy was obviously one of cooperation with the court and the prosecution because the state's case made it most unlikely that the defendant could prevail upon the merits. Had there been a lesser charge than first-degree murder, the overwhelming nature of the prosecution's case might well have resulted in a guilty plea, but under the circumstances, where a life sentence is mandatory, either following a trial or plea on a charge of first-degree murder, defense counsel preferred to take his chances, slim though they were, on a possible second-degree verdict or an acquittal by virtue of the finding of insanity.
Looking at the record as a whole, we cannot conclude that the defense afforded by counsel was unreasonable. We have stated that the test of effective representation by counsel "is whether the representation was so inadequate as to amount to no counsel at all and to reduce the trial to a sham and a mockery of justice." Flowers v. State (1969), 43 Wis.2d 352, 365, 168 N.W.2d 843. See also State v. Willing (1968), 39 Wis.2d 408, 413, 159 N.W.2d 15; Kaczmarek v. State (1968), 38 Wis.2d 71, 84, 155 N.W.2d 813; State v. Cathey (1966), 32 Wis.2d 79, 86, 87, 145 N.W.2d 100; Eskra v. State (1965), 29 Wis.2d 212, 223, 138 N.W.2d 173; Pulaski v. State (1964), 23 Wis.2d 138, 148, 126 N.W.2d 625.
We see no evidence that counsels' conduct in this case in any way approximated this minimum standard. Defendant's counsel made a valiant effort to convince the court and jury that their client should be exonerated from the legal responsibility for his admitted act. Counsel not only presented what psychiatric evidence that was available but also attempted, by persistent questioning, to prove that persons who knew the defendant were of the opinion that he was not himself on the evening of the killing — that he was crazed or intoxicated — and that he lacked a felonious intent. This tack at least rendered possible a defense to first-degree murder by setting up facts which if believed could have led to a finding of guilty only in the second degree. The judge, because of this testimony, appropriately submitted a verdict of second-degree murder.
It is nevertheless now contended on this appeal that the entire course of conduct by defense counsel, particularly in regard to the hearing on voluntariness, was such as to show a lack of ingenuity or real comprehension.
We are mindful of the problem that confronts an able, conscientious, and experienced counsel, as we have on this appeal, whom this court appoints to prosecute an appeal. We expect a vigorous assertion of defendant's rights, and in the event of trial error or the rare case of incompetency of counsel, such errors should be presented in this court. We do not appoint counsel to "whitewash" the conduct of trial counsel or the trial court.
If, however, in the honest judgment of counsel, appointed for appeal, the proposed appeal is frivolous and wholly without merit, a "no-merit" report pursuant to Anders v. California (1967), 386 U.S. 738, 87 Sup. Ct. 1396, 18 L.Ed.2d 493, should be filed; and in the event this court agrees with the conclusions therein, counsel will be discharged and none afforded at the expense of the state.
In most cases it is easy, by hindsight, to fault trial counsel and to conclude on review that had different tactics been used a more favorable result would have been obtained. We cannot, however, say that such was the case here. No doubt, some trial counsel would have made far more obstreperous objection and persisted in pettifogging tactics, which would have delayed the course of trial without affecting the outcome, and without accomplishing the legitimate objectives of trial objections — that of assuring that due process is afforded and that conviction is obtained only after a fair trial.
Much of the content of the confessions admitted into evidence was exculpatory in nature, and even that which was inculpatory cannot be said to have affected the verdict of the jury. Even though all the confessions that are now objected to were excluded, there was overwhelming evidence that the defendant performed the very act with which he was charged, and that prior thereto, in the presence of witnesses, he stated he intended to kill Phyllis. As to these crucial facts there is no dispute.
We do not overlook the rule of law, stated in Payne v. Arkansas (1958), 356 U.S. 560, 78 Sup. Ct. 844, 2 L.Ed. 2d 975, and Chapman v. California (1967), 386 U.S. 18, 87 Sup. Ct. 824, 17 L.Ed.2d 705, and followed in McKinley v. State (1967), 37 Wis.2d 26, 154 N.W.2d 344, holding that the admission of a coerced confession cannot be deemed harmless error even in the presence of other evidence which might well have constituted independent proof of guilt beyond a reasonable doubt. The line of United States cases upon which McKinley rests is, however, immaterial herein, since sufficient weight of evidence was adduced at the Goodchild hearing to make a finding of voluntariness.
We weigh the evidence independent of the confessions only to the extent that such proof is relevant to. the exercise of this court's discretion under sec. 251.09, Stats., and is probative of our conclusion that justice did not miscarry.
A review of the record shows that the confessions were, in terms of proof, mere surplusage and could not be denominated even as sew-up confessions. They were highly redundant in the framework of the basic independent proof presented by the state.
Viewing this case from the vantage point of hindsight, we conclude that trial counsel most realistically appraised their client's position and worked to the utmost to secure an acquittal on first-degree murder and a verdict finding him guilty on a lesser charge. Nor do we conclude that the failure to make what are now deemed appropriate post-trial motions is indicative of incompetency. While it is important in a proper case, where prejudicial error has occurred or where the interest of justice has not been served, to make the requisite motions for a new trial, we hardly consider that either the cause of justice or the cause of the defendant is served by making pointless and time-consuming motions. It is the theory of our criminal law that the purpose of a criminal conviction is not merely to "punish" the guilty but to protect society from antisocial individuals during their period of rehabilitation. It is considered that the welfare of the defendant himself and of society is served by the expectation of rehabilitation in a corrective institution. This is considered by many to be the chief justification for our criminal process ( see Menninger, The Crime of Punishment). To make futile motions would merely stay the commencement of the rehabilitative process. We see no evidence that in this case the defendant requested or insisted upon any post-trial motions. Had defendant done so, he of course would have been within his legally afforded rights, but the fact that none were initiated by trial counsel is more to the credit of trial counsel than evidence of incompetency.
While we commend lawyers who vigorously protect their clients from prejudice and trial error, we also commend those who recognize the finality of a conviction and realize that it is in the interests of their clients and of society to put further criminal litigation at rest. We have no fault to find with trial counsel in this case, and we are satisfied that the interest of justice would not be served by a new trial.
By the Court. — Judgment affirmed.