*1 Jr., error, Reyes Plaintiff in Barrera, Wisconsin, Defendant error-Petitioner. State Supreme Court Argued October No. 78-542-CR. 1, 1980. Decided November 1980.
(Also reported 820.) in 298 N.W.2d *3 error-petitioner the cause was For the defendant argued attorney general, Klos, R. assistant Michael Follette, was Bronson C. La at- with whom on briefs torney general. argued by plaintiff
For the in error the cause was Jack Schairer, public defender, E. assistant state with whom Cates, public on the briefs were Richard L. state defend- er, Paul, deputy public defender, Robert J. state defender, Vetzner, public Charles Bennett assistant state of counsel.
COFFEY, J. This is a of a review decision reversing appeals judgment court of a circuit court con- victing Reyes Barrera, Jr., party to the crime of first- degree robbery, contrary murder and armed to secs. 940.01, 943.32(2) 939.05, jury Stats. After trial the defendant was ordered committed to a term of imprisonment life charge on the murder and a consecu- tive years sentence not to exceed 20 for the armed rob- bery.
This action arose out robbery of an armed at Park Liquor Avenue Dam, Wisconsin, Store Beaver on October 1976. The liquor owner of store, Mrs. Bussie, Janis during was shot and killed the course of robbery. The facts adduced at trial establish that the defendant *4 friend, and his Garcia, Frederico Adrian, left Michigan, 13, 1976, October to travel to Antonio, San Texas, with a total of between them $80 to traveling be used for expenses. stopped The two en in route Beaver Dam, Wis- consin, to visit the brother, defendant’s Barrera, Eduardo on October 1976. The defendant’s accepted brother their invitation accompany to them on their trip to Tex- morning On as. of October 1976, the stopped men Liquor at the Park Avenue Store where the defendant and Garcia each stole a of wine. bottle countryside
The three men then drove into the to test shotgun. shells in Garcia’s sawed-off to Garcia testified with conversation Barrera at in about this time which going lady defendant he stated to rob in liquor if Shortly noon, store she was alone. before trio Liquor returned to Park Avenue Store.
Barrera drove to the back of the store and his told keep brother open engine the car door and to start gun when he put returned. He under his coat and went into the shortly store. He returned to the car thereafter, shotgun expended cocked the spent shell the car. Garcia testified ap- the defendant peared shaken high as he off speed. drove at a rate of gas stopped
Next Barrera the car at a station in Hori- con, Wisconsin, according and, Garcia, announced that he would rob the woman if attendant she were alone. alone, robbery She was not place. thus no took Shortly they Horicon, after left Garcia testified that the defendant told them proprietor that he had shot the liquor store in Beaver Dam as she reached for a telephone. then related the defendant
Garcia became ex- gas tremely angry in Missouri when a station attendant spilled gasoline ground some on the and declared that going pay for someone was the attendant’s mistake. gas Shortly thereafter, they stopped at another when Marston, Missouri, robbed, shot station the defendant Kathy Evans, woman, ap- and killed another attendant killing proximately twelve after in Beaver hours Dam. his although previously not to refer to
Garcia, advised prosecutor made reference polygraph examination explaining circumstances surround- to a “lie test” testify against ing for the state and Bar- his decision *5 the ab- for a mistrial in rera. The defense then moved claiming jury, a remark about sence of the that Garcia’s prejudicial. defend- “lie test” was The court denied the by request Barrera, ant’s motion and the absence of give sponte cautionary sua did not instruction. testifying trial, stated that defendant, when at shooting Dam accident- in Beaver was Bussie of Mrs. any in the Missouri involvement further denied al and gun
killing. pointing at Mrs. when He said trembling Dam) (Beaver he was nervous and Bussie “coming heroin” and that when he he off this was because gun, grabbed money, for the Mrs. Bussie reached during ensuing strug- causing accidentally it to fire gle. charged party and the defendant were with Garcia robbery, first-degree
to the crime of murder and armed agents in Texas F.B.I. under the unlawful arrested flight subsequently statute, U.S.C.A., §1073, brought back to Wisconsin stand trial.1 hearing pre-trial April 5, 1977, a Goodehild
On admissibility defendant’s held determine Anderson, the examiner statements to Robert hearing, officials. At this and certain law enforcement stipulated counsel voluntariness and the defense given admissibility all statements to Anderson. The during to Mr. Anderson were obtained two statements attempted unsatisfactory polygraph examinations, but pretest on March 7 and March and a interview on April April In the 1977. conversation the defend- shooting ant admitted Kathy Mrs. Bussie in Beaver Dam and in Missouri. Evans posi- trial, however,
At defense counsel reversed his challenged sition voluntariness of the statements suppress April and moved to 4 statement. The trial 1 The record is as to silent whether the defendant was extradited or waived extradition. *6 hearing the outside court a second Goodchild conducted recording jury tape of presence a and reviewed ruled the defendant’s April the 4 interview Anderson admissible. statements to were jury trial, judgment of en- After a conviction was the trial was April 19, A motion for a new tered on 1977. denied, filed a of error to heard and and Barrera writ judgment appeals review court the of conviction. The case for a reversed the circuit court and remanded the petitioned to new trial. The state this court review the appellate court’s decision.
Issues
1. trial in Did the court commit error ad- reversible mitting alleged prejudicial evidence of another crime?
2. Anderson, Was Barrera’s Robert the confession polygraph examiner, during pretest the interview on April 4, 1977, the admissible in absence a Stanislaw- stipulation? ski2 ruling
3. trial Was the court in error in the de- fendant’s voluntary? confession to Robert Anderson was
4. Did the trial court commit error in reversible fail- ing give sponte cautionary sua a instruction the jury in request absence for the after same Garcia, witness, made reference to a lie test?3 Other Crimes Evidence trial, prosecutor
Prior to informed the court and the defense counsel testimony that he intended to offer Stanislawski, State (1974). 62 Wis.2d 216 N.W.2d appellate An additional issue before the court involved a claim by the defendant prejudicial trial court committed error allowing picture depicting gunshot in wound to Mrs. Bussie’s go jury. appellate face to rejected court this contention and held that error respect. no was committed in this We do not address this because argument. claim it was withdrawn on oral killing incident, robbery, of the Missouri second showing purpose intent and for the absence mistake killing or in the of Mrs. Bussie in Beaver Dam. accident prosecutor proof trial, Before made an offer of in regard ruling and asked court for a admissi- bility after advised the court he make he intended to slaying opening reference to Missouri his state- proof prosecutor ment. In his offer of stated that testify way Garcia would that on their to Texas the filling stopped three Marston, men at a station Mis- souri, robbed, where the defendant shot and killed the killing female attendant within 12 hours after Beaver Dam. He also stated that Mr. Anderson would testify slaying that the defendant admitted to the *7 of the women, two in one Wisconsin the and in other Missouri. objected to
Defense counsel the introduction of the killing grounds of the on evidence Missouri the danger prejudice of unfair in its admission would sub- stantially outweigh probative its value. The court noted objection in its decision that required the defendant’s alleged prejudicial testimony to balance the of effect against probative and its value ruled this evidence “is ad- missible under the circumstances of which the court is making aware at this time and the court is this determi- nation, at introduced, not the time the evidence is but request attorneys at the attorneys because the are give opening about to jury, statements to the and it is necessity give out bom here that the court an indica- ruling viewpoint tion of concerning its and such evidence Further, on the trial.” the court informed the defense objection counsel he could renew his when the tes- timony was offered into evidence. trial, leading
At Frederico Garcia related the events killing up to service station attendant in Mis- part souri. Garcia testified that Barrera went into the gas shotgun station with the body tucked close to his
277 underneath killed at- his coat shot and the woman away register stepped tendant as she back from the cash handing money. after him stand, Anderson,
Robert the next witness called to the killing testified that Barrera Bussie admitted the robbing killing well as a service station attendant Missouri with shotgun, 12 same some hours later.
At object trial the defense not counsel did to this testimony challenge Anderson, Garcia and nor did he admissibility of this evidence his motion for a new trial. although appeals
The court of noted that counsel’s ob- jection robbery receipt Missouri evidence of the killing been or had renewed at trial raised as not ground for the trial motion relief in court for a new trial, court, own, discretionary its its exercised authority It to review claimed error. concluded that relevant, killing evidence of the Missouri not probative relevant, and that even if its value was out- weighed by danger prejudice. of undue On review court, in this the defendant reiterates decision of appeals. the court of governing
This court forth the the ad- has set rules missibility many crimes evidence” times. See: “other e.g., 81, State, 291 Vanlue v. 96 467 Wis.2d N.W.2d ; State, (1980) Hammen v. Wis.2d N.W.2d (1979) ; State, McClelland Wis.2d *8 leading dealing (1978). N.W.2d 843 case Wisconsin’s Whitty State, other evidence is with crimes Wis.2d (1967) cert. den. 390 959. U.S. N.W.2d Whitty adopted This court what come to be known has determining two-pronged test for as the admissibil- ity party seeking First, of other crimes evidence. to introduce this evidence must it demonstrate that is not being showing purpose offered the sole for of disposition commit defendant had to crime. Ham- McClelland, supra supra 798; That is men, at at 156. may pro- if say, evidence be admissible is other crimes specific intent, identity, of of or an element bative outweighs charged probative its crime and this value supra prejudicial Whitty, effect. at 292. This rule has (2) of the Rules of been enacted as sec. 904.04 Wisconsin Evidence: Evidence of crimes, “(2) wrongs, or Other acts. crimes, wrongs, prove other or acts is not admissible to person the character of a in order to show that he acted conformity
in the evidence when proof therewith. This subsection does not exclude purposes, for as offered other such motive, opportunity, preparation, plan, of intent, knowledge, identity, or absence of mistake or accident.” relevancy regarding other criminal con- of evidence The time, part place “depends upon nearness in duct its alleged sought crime or to the element circumstances supra supplied.) Whitty, proved.” (Emphasis at to be 294. relevancy determining question
However, after intent, etc., the trial court motive, opportunity, as to prejudice crimes of other must consider “whether also relevancy great compared with its is so evidence particular necessity case as for admission its supra Whitty, require at 295. 904.- exclusion.” Sec. its exclude relevant admit or decision Stats.4 engaged has the trial court after evidence crimes other weighing whether process determine requisite in the outweighed by its is of the evidence probative value Whitty incorporates facet of the 904.03, Stats., now See. test: grounds prejudice, con- evidence of relevant “Exclusion may Although relevant, be fusion, evidence time. or waste substantially outweighed by probative value is if its excluded misleading issues, prejudice, or danger confusion unfair delay, time, undue waste of or jury, or considerations presentation of cumulative evidence.” needless
279 discretionary prejudicial of the is a function trial effect Hough court, McClelland, supra; State, v. Vanlue, supra; Hutnik, 807, (1975); v. 235 70 534 State Wis.2d N.W.2d question 754, (1968), 39 Wis.2d 159 N.W.2d 733 appeal: on court, ruling initially . . on is not whether this
admissibility evidence, permitted would have it in, come court its but whether the trial discre- exercised legal accepted tion in with in accordance standards and McCleary State, with the facts record. v. accordance 263, (1971). 49 Wis.2d 512 The test is not N.W.2d agrees ruling whether court this with the trial court, appropriate but whether in fact discretion was ex- Wollman, 459, 464, ercised.” State Wis.2d (1979). N.W.2d according Thus, Whitty, we must first determine surrounding whether the evidence of the circumstances killing service station in attendant Missouri is motive, opportunity, intent, grounds relevant to etc. The support offered in of admission of this evidence was probative intent, plan that it was of the defendant’s killing lack accident in the appel- Mrs. Bussie. The slaying late court held the Missouri too remote space effect, spite time and to have this of the fact only occurred 12 hours later (time) the same trip (space, event) and that the Texas defendant and companions (intent). his were short of funds 904.01, Relevant Stats., evidence is defined sec. follows: “ having ‘Relevant evidence’ any means evidence ten- dency any to make the existence of fact that is of conse-
quence to
probable
the determination of the action more
probable
or less
than it would be without
the evidence.”
State,
In
Hicks v.
47 Wis.2d
Moreover, court has stated: “ proof ‘In intent, of criminal the conduct of a defend- closely ant on other occasions point connected of time plan may and defendant’s motives light at times be relevant to throw on the doing and intentions while the act complained State, of. Smith v. 555, 560, 195 Wis. 822; State Meating, N.W. 47, 50, 202 Wis. 231 N.W. 263. “The intention particular with which a act is done often constitutes the burden of inquiry, prove and to necessary, the intent it many becomes instances, beyond extend concerning particular the examination transaction upon which the accused is trial. pur- For the pose, therefore, proving intent, of proving not of the act itself, permissible it is often to show other criminal trans- actions springing same sort like mental con- of from ” Jones, ditions.” 2 (2d ed.), p. Evidence 624.’ sec. (Emphasis supplied.) supra State v. Hutnik, at 761-62. clearly The record demonstrates that the evidence ob- jected passes prong the first Whitty test and properly admissible under sec. 904.04(2), Stats., as distinguishing probative intent, element of is degrees degree murder from other crime first manslaughter. slaying only 12 occurred The Missouri shooting hours Mrs. in Beaver Dam after the Bussie operandi, i.e., and the defendant used the same modus shotgun, same alone and victims were females and initially weapon Barrera under his coat. concealed the shooting Thus, the was rele- evidence Missouri slayings sprang like vant to both mental show that from supra. Moreover, Hutnik, conditions. State v. the evi- consequence plan dence was of determination of *11 Simpson State, 494, 510, or scheme. 83 Wis.2d 266 (1978). Therefore, appel- 270 we hold N.W.2d that the ruling testimony regarding late in court erred that the shooting the in Missouri irrelevant.
Turning requirement the to that the trial court must weigh probative the value other crimes evidence against prejudicial admission, initially the effect of its we object note that defendant to at failed trial the tes- relating timony killing Rather, in Missouri. defense only objection ground counsel’s to this evidence on the prejudice of undue in was made in limine motion not trial. renewed at obliga-
This court has judge stated a trial that has no ground tion to preju- exclude evidence on the of undue objector dice when proper fails make the motion supra at McClelland, trial. at also: 158. See State v. Star wicki, 63, 93 74-75, (Ct. App. Wis.2d N.W.2d 1979). Hence, question receiving on the evidence of dealing other crimes with the probative issue of value prejudicial error, versus hold we the failure of the objection defendant to raise this at trial in his mo- tion for a trial in new the absence of constitutional di- predicating mensions bars defendant from error on the failure of the trial court balance these considera- Moreover, court, rul- trial
tions. we note its ing’ on the motion in limine made an initial determina- regarding probative testimony tion that the value killing outweighed prejudicial in Missouri its effect. uphold discretionary This court will decision trial court admit other crimes evidence if record supports State, supra 92; that decision. Vanlue v. at State, supra Thus, Hammen v. at 800. we conclude the record in this case there was no abuse of discretion part finding on the proba- of the trial court concerning killing tive value of the evidence the Missouri outweighed any possible prejudicial In effect. this re- gard, we note that the ap- record fails to reflect that the pellate court reviewed the trial court’s exercise of dis- admitting cretion Rather, this evidence. the court of appeals made its probative own conclusion that the value outweighed by of this evidence would inflammatory be its doing, appellate nature. In so usurped court function of the trial court. appellate We caution the against taking court on the role of the trier See, of fact. e.g., Fleischman, Wurtz v. 100, 97 Wis.2d 293 N.W.2d (1980). Stipulation Absence a Stanislawski In State v. Stanislawski, Wis.2d 216 N.W. *12 (1974), 2d 8 this court out stipulation .set the written standard for admission polygraph poly- tests and a graph interpretation examiner’s of the same in the fol- lowing language: “As to polygraph by tests taken and ex- defendant pert testimony thereto, polygraph related testimony is state, admissible in this as in Arizona under Valdez ‘. . . to corroborate other evidence of a defendant’s participa- charged,’
tion in the crime and, Tf he takes the stand such evidence is admissible to impeach corroborate or testimony.’ his own required preconditions quali- or testimony, fications for admission of such Valdez, as in state Arizona under are as follows: “(1) attorney, That the his district defendant and sign stipulation providing all counsel a written for defendant’s submission quent and for the test subse- graphs, admission at trial and the examin- opinion er’s thereon on or behalf of either defendant the state.” polygraph arrest, After his Barrera submitted to attorneys. examination with the consent of his How- polygraph ever, it was understood that the results of the parties test would not be admissible as the had not signed stipulation providing a written for same earlier, set out Stanislawski. As noted the defendant was examined Robert Anderson of the State Crime again Lab on March 7 and on March 1977. How- anxiety ever, Anderson determined that due Barrera’s any ratio, he was unable to reach definitive conclusions regarding advising results of these tests. After attorneys agreed his fact, defendant and of this Barrera April 4, to submit to third on test On 1977. this date pretest Anderson conducted a defendant, interview of the procedure preparation his usual for a ex- During amination. interview, the course of this Barrera admitted the Beaver Dam and Missouri At murders. hearing trial, and at the time of the on motion for a trial, new the defendant failed to claim that his state- April to ment Anderson on 4th was inadmissible for want stipulation. Stanislawski Rather, of a the Stanislawski appeals. issue raised for the first time in the court of pointed appellate earlier, As out court reached the stipulation question on its own because it felt that the admissibility issue of the of Barrera’s statement April likely Robert Anderson 1977 “is at arise disposed retrial if not of here.” It held that de- April fendant’s 4th statement was inadmissible under *13 holding logic of State interpretation their of the (1978). Schlise, 26, 271 N.W.2d Wis.2d supra, that the Schlise, In court stated Stanislaw- this applied stipulation elic- ski to information written rule “post-mechanical and thus in the ited interview” a stipulation, an statements made absence of a written during questioning post-examination held examinee were inadmissible. appeal Donald
Schlise an of the conviction of was degree The party murder. Schlise as to the crime first charges killing wife, out of Donald’s Irene arose a exami- Schlise. defendant submitted to Anderson, examiner, Robert nation and confessed to the during post-test course of In this in- interview. persuaded terview, Anderson Schlise to talk about of his wife death and confronted the defendant with just every the test he results had received time he sus- telling pected quot- Schlise the truth. The court not following example type questioning ed An- engaged derson in: “ chart, right, basically we four first concluded ‘The you
things. your one, kill did ask someone Number OK. OK, wife, also we concluded that. We concluded Ok, you to harm her. this is sort hired someone up. secondary concerned with the set relevant issue thing. you other Do know And we also concluded one for things. killed Irene. concluded those three who We sure Don, type I’ve in this Now been involved every long always for time work and there’s two sides to story. right I I know now for sure OK. What don’t you kill, know contracted with someone to not necessari- your ly wife, you kill harm but to her. Sometimes when go wrong up things make a contract like this a little bit maybe you say, had no and sometimes intentions of real- ly killing your you guy when wife hired this but what happened he awent little bit too far and she I died. Now point don’t for sure know at this whether that’s what happened you actually or in fact person ask did *14 Don, things many many It again, kill her. cause this. marriage. unhappy can be from an It can be caused pressure home, pressures In caused from at work. at words, get up saying you other in what I’m is sometimes morning something everything you the and touch and just shit, sort of to it. we turns doesn’t I think all have days. Don, you these visual the I look the can at now and some of signs beginning really in, dryness are set mouth, got eyes, you’ve the dilation of the on lot your logical now, thing get mind psycho- is Don that to some physical suggest and also relief from this I would you telling now that exactly start the truth. Tell me what happened, thing got how this started.’ “ OK, ‘Sure, you Now, wife that’s what I want to be. Don you I looking dispose your also feel that wanted to from your right you’re at charts and I think now rationalizing a little bit.’ “ Don, ‘Now you wait a say minute. before too much get yourself and you’re more limb, out on a I not know being you truthful why. and I’ll tell of the names Some you you I read to we to, know talked OK?’ “ ‘Sure, you them, we know talked to and we know July August the initial contact back in towas wife, your already kill OK? of these has One individuals given complete forward, come statement and this you’re is the reason down here. So we can more or less ” telling verify supra Schlise, if the truth.’ see he’s at 40-41. trial, testimony relating
At the Schlise Anderson’s polygraph the results of the examination and the defend- post-test ant’s statement interview were received objection grounds over defense counsel’s lack of voluntariness and the absence a Stanislawski stipulation. This court set aside conviction and re- manded case for a new as the trial test results and post-examination Schlise’s statement were admitted into stipulation evidence without a written we because regarding had serious doubts the voluntariness of de- psychologically fendant’s confession due to the coercive tactics of the examiner as detailed in Schlise, the record.
swpra respecting vol- recited our at 49. We concern following language: in the untariness issue upon the remand for a new further conclude “We by defendant, upon proper trial motion another Good- hearing child determine should be conducted to whether post-mechanical phase examination psychologically render so coercive the defend- involuntary, ant’s admissions whether the subse- voluntary quent prior or statements were so tainted *15 (if was) it statement to Anderson so be cannot given.” they freely voluntarily said were and Id. Thus, stipulation not the the written issue was sole con- regarding the cern in Schlise decision exclude the de- post-test in the fendant’s statement interview. important differences between
There are a number of Schlise, In we case and those Schlise. the facts of this applied stipulation rule that the Stanislawski concluded closely post-mechanical was “The interview so because: testing, with electronic the mechanical or associated content, that be both time and it must considered as to stip- one of the lack of a Stanislawski event and because (Emphasis supplied.) ulation excluded from evidence.” supra Schlise, at 48-44. The both close association in the the time and content between mechanical test and post-test interview in from the fact that Schlise arose only twenty minutes interview occurred after (time) mechanical test the examiner used con- psychologically results current test coercive tactics posed questions serious as to the voluntariness (content). statements Schlise’s Schlise, contrary interpre- no case,
In there this no concurrent test results as mechanical tation and use of confession, given to Barrera on date test was Thus, April 4, this case lacks close associa- 1977. of both mechanical the content test tion between Moreover, in since a Schlise. mechanical the interview
287 4, 1977, April in test was not this administered ease only test results that this interview asso- could be with ciated as to the time element are the inconclusive March, results obtained on the 7th and 17th of some days Thus, and 18 before confession. as contrasted twenty span require- Schlise, with the in minute time present ment of a close in time is association not Further, support this case. of our this conclusion that temporal case pretest lacks a association between the in- quote and a test, following' terview mechanical we language from Schlise: suggest is not post-examina- “This intended to all subject
tion interviews between a will examiner special category subsumed into be evi- and fall within State, dence Stanislawski. Turner v. (1977), Wis.2d N.W.2d 706 State, and McAdoo v. (1974) 65 Wis.2d N.W.2d ... are clear authority tual i.e., opposing view, for the that in certain fac- settings may such interviews be totally to be found discrete precedes examination which them. It from noted, regard, be should that the Anderson inter- place days view at issue in Turner took six poly- after the graph (Emphasis supplied.) test.” Schlise, supra at 42. *16 apparent quotation is from It this that the Schlise passage court determined that days of six in the Turner case between the administration polygraph of a examination and an interview with the examiner on the a date second was test scheduled was sufficient to ren- der the a interview previously “discrete” event. As noted, Barrera was tested on March 7 and March 28 days prior April and to the Thus, 4 interview. under holding in State, our Turner v. 76 Wis.2d 250 N.W.2d distinguished (1977) long as in Schlise, lapse time in this case between the administration of a me- chanical test and the confession, date of the rendered April 4th interview a discrete event in relation to tests, and, therefore, this interview prior two closely test. in time with a mechanical
not associated State, supra McAdoo Turner, supra, Schlise, (1974), demonstrate 596, 223 N.W.2d 65 Wis.2d concerned, stipulation rule is the written insofar as during of an the course made of statements admission upon dependent is polygraph examiner awith interview respect event with a discrete interview is whether Under portion a test. to the mechanical separate a Schlise, not considered be the interview will closely me associated with it is “so where event testing, min time both [20 or electronic chanical content, as one considered must be utes] only can .” Id. at 43. This determination . . event. totality of upon a careful consideration be made in case. In individual circumstances facts and Schlise, mechanical between the the close association produced the confession was the interview that test and supplied test results as noted above concurrent persuasive questioning techniques psychologically under consideration of the circumstances of which a appeared present post-test interview substantial compared Schlise, the voluntariness issue. As with con pretest in made this case was in a interview fession days after some the examiner’s last contact with the This, turn, precluded defendant. examiner from confronting with the defendant concurrent test results. But, disagree record, after search of the we with the argument defense counsel’s the examiner this questionable psychologically used case coercive tactics procure Barrera’s confession.5 Thus, the absence use of concurrent test results psychologically persuasive questioning tactics, lacks case the close association in content between a *17 discussion, See voluntariness infra. pres- pretest that was mechanical test the interview days repeat, fact 18 and 28 ent Schlise. To elapsed April 4 interview between time clearly previous Barrera’s tests demonstrate that this time with mechanical interview was not associated in distinguished supra. Thus, Turner, test. we have facts and circumstances in this from case those of April Schlise that the was a discrete and interview separate closely event and not “so associated with the testing, mechanical or electronic as to both time and content, . must be considered as one event. . .” supra Schlise, Therefore, at 43. we hold that the Stanis- stipulation lawski not, written rule does as the de- contends, receipt fendant bar of Barrera’s confes- sion this case.
Voluntariness hearing
At trial the court held a second Goodehild if the determine defendant’s confession to dur- Anderson ing the April course of the voluntary 4 interview was given rights. after a valid waiver of Miranda The April 4 tape interview was on recorded and the court tape prior hearing.6 reviewed this to the At the hear- ing, Barrera and Anderson testified to the content of interview, judge and the orally trial concluded given voluntarily knowing confession was after a intelligent rights waiver of Miranda and therefore review, admissible. On challenges the defendant ruling claiming that voluntary. confession was not
Anderson, commencing interview, before read the rights Miranda presence to Barrera in the of his at- tape was not up appeal. included with the exhibits sent knowledge transpired during Our of what the course of parties’ interview is limited to that related to us in the briefs and testimony Anderson and Garcia at both second Good- hearing child and trial. *18 signature
torneys and the defendant’s and obtained Miranda, attorneys waiver on a signature of one his minutes. lasted between The interview form.7 During thereof, Barrera confronted Anderson the course given that had test been the results with stating Garcia, had told that Garcia Frederico shot Mrs. Bussie. he the defendant truth when said that point that he sensed testified at this Anderson that pursue ready he decided to to confess and Barrera was Thereafter, the de- possibility. Anderson accused this shooting that he and stated Mrs. Bussie fendant frequently why. Anderson asked wanted to know engaged in a discussion to tell truth and defendant religious religion which ended convictions up to face to it would have that Barrera statement Up point, the his savior. to this defendant he met when giving responses. asked non-verbal Anderson had been tape if if talk to him recorder Barrera he would gave an defendant affirmative ver- turned off. The were off for about response and the recorder was turned bal During period Barrera cried con- minutes. five then on and turned recorder back fessed. Anderson tape. statement The de- capsulized the defendant’s attorney requested his who summoned then fendant immediately interview was terminated. hearing, Barrera indicated that
At the Goodchild his by talk about God and re- was induced confession really ligion stating my spot . . . I “that’s weak because poly- . . . the disclosure Garcia’s God love graph test results. “patroniz- claims Anderson was defendant that
ing” God, his Barrera and that references his inform- operating procedure and was This was Anderson’s standard the administration of the tests on March 7 and followed before 17, 1977.
ing when the defendant Garcia had been truthful shooting together Bussie, he denied Mrs. with his con- truth, brought requests tinued defendant tell overwhelming psychological pressure to bear coercive involuntary. on Barrera and thus rendered confession The trial court found Barrera’s statement *19 April 4, 1977, voluntary beyond Anderson on a rea- by questioning sonable doubt. Since the of an accused interroga- examiner constitutes custodial tion, State, 283, 292, v. Wentela 95 290 Wis.2d N.W.2d (1980), regarding 312 the rules the voluntariness of setting apply. Accordingly, in this statements this court respect will affirm a trial court’s determination with findings appears voluntariness unless it made against great weight preponderance were and clear 17; Turner, swpra of the evidence. State, at Grennier v. 204, 209, (1975); McAdoo, 70 234 316 Wis.2d N.W.2d supra at 605. by looking “totality
Voluntariness is determined to the surrounding making of the circumstances” of the Schneidewind, 110, statement. v. State 47 176 Wis.2d (1970). inquiry 203 pertinent N.W.2d The is whether product improper the confession was coerced or pressures by person persons exercised or conduct- ing interrogation. Turner, supra 18. This as- at balancing personal sessment for a calls of the character- brought pressures istics of the confessor with the upon supra 18; supra bear Turner, Grennier, him. at 210, citing Wallace, 66, at State v. 59 Wis.2d 207 (1973). N.W.2d personal
The characteristics of the that should accused age, be considered “. . are . his edu- balance his intelligence, physical cation and his and emotional con- prior experience police.” Gren- dition, with the and his Schneidewind, supra supra 212; at 117 nier, also: at See McAdoo, supra are to 606. These characteristics at against weighed “any inducements, methods and he stratagems persuade the accused which used to were citing Lynumn supra Schneidewind, at confess.” Illinois, (1963). a considera- This includes U.S. length questioning and conditions tion by pressures physical psychological exercised interrogator. supra Grennier, 212. is also at It apprised of his whether the confessor was relevant right rights, and his specifically his to counsel Miranda against privilege 210-211. self-incrimination. Id. at years The record defendant was shows background age, spoke and under- from Latino English very well and further that he was treated stood good physical and in con- well authorities Wisconsin does not disclose extent his dition. record prior law or whether he had involvement with education However, eminently officers. is clear enforcement *20 rights Barrera his constitutional as he that understood prior advised of them on at occa- had been least four had in sions and fact exercised them to terminate the April 4 interview. testimony hearing,
In his Bar- at the second Goodchild that rera stated it was the talk about God and Garcia’s polygraph results him that induced to confess. The con- against frontation the defendant with information may be, him “whatever that does not amount to the overwhelming psychology. utilization of force Krue- or ger State, 345, 356, 53 Wis.2d N.W.2d (1972).” Turner, Turning supra at 22. to the reference God, defendant does not refer us to a case8 and defendant, however, Williams, The did cite Brewer v. (1977), incriminating U.S. 387 which a confession and evi speech.” obtained dence was after the use of a “Christian burial any we have supportive been unable to find that are religion religious the claim that a discussion of concluding convictions with the Barrera statement up that he would have to face when he met his overbearing maker was so as to render his confession involuntary. Furthermore, totality under the of the cir- test, agree finding cumstances we with the trial court’s freely given voluntarily confession was thorough understanding after a rendition and rights Miranda and therefore admissible.
Lie Test Reference
The defendant’s final contention is that the trial court failing give erred in cautionary to order a mistrial or instruction principal witness, Garcia, after the state’s made reference to a test lie at the of his close direct testimony examination. The exact is as follows: “Q. your Freddie, attorney you told that we had an agreement regarding your testifying today: here didn’t he? Yes,
“A. he did. “Q. upon agreement, you Based what were to do ? “A. Tell the truth. “Q. you testify Were trial, in this also? “A. Yes. “Q. your testimony telling reason for truth, your attorney you you did tell whether or not prosecuted would be for murder? Right, “A. he prosecuted told me I wouldn’t be for murder. “Q. you you Did he prosecuted tell would be for robbery? “A. Yes, prosecuted he I told me would be for rob- *21 bery; upon my that testimony based and another lie test, telling the truth.” point, right This case is not in as it dealt with the waiver of the question to counsel and not the of voluntariness. jury, of the defendant, the absence for Counsel being court, informed The for a mistrial. then moved referring against to his warned that Garcia had been jury, advised the in front polygraph examination again mo- and denied the prosecutor Garcia caution that stating not believe that it did tion for mistrial prejudicial as “lie was “so to a test” reference Garcia’s request a did not Defense counsel that result.” to cause given. cautionary none was instruction consistently of a failure held that court has This disregard jury sponte sua instruct trial court to preju- support claim for testimony will not certain supra Wkitty State, cases at 290 and v. error. dicial placing policy of on the This rule is based therein. cited counsel, trying upon duty trial primary a lawsuit changing for judge. Id. see no reason not the trial We Thus, find no error in we rule in the case herein. this disregard jury to failure to instruct the trial court’s re- in the absence of a a lie test reference to Garcia’s quest defense counsel. whether the trial presented here is central issue denying defend- error committed reversible
court assuming or, conversely, mistrial, motion for a ant’s error, was whether reference to his lie test Garcia’s error. was harmless statement required argues be- is reversal
The defendant to his lie jury infer from the reference could cause the telling witness, major Garcia, state’s test truth. determining most harmless error was for The test 311, 290, recently State, in Pohl v. out Wis.2d set (1980) : 291 N.W.2d “ * trial not committed at should overturn “Errors might probably appears the result unless conviction have the party complaining had more favorable to been State, Hart not occurred.” 75 Wis.2d error
295
(1977).
State,
By appeals is of the court of the Court. —The decision judgment affirmed. reversed and the of conviction is *23 (dissenting). ABRAHAMSON, I J. SHIRLEY S. appeals’ hold decision and would affirm the court of poly- the that it court to admit was error for the circuit grapher’s testimony. this case is I so conclude because governed by the the admission of Schlise because testimony federal polygrapher’s violates the state and right guarantees and due constitutional counsel process. 619 Schlise,
In State v. 271 N.W.2d Wis.2d question (1978), the of the admis this court addressed inadmissible, testimony polygrapher’s held of a sion only stipulation, “not in the absence of Stanislawski opinion of the evidence and the examiner’s significant therefrom, but drawn the conclusions to be testimony concerning in post-mechanical also his supra, did Schlise, at 42.1 Schlise terview.” Wis.2d stipulation majority opinion that “The written The states regarding the decision issue not the sole concern in Schlise was post-test statement in the interview.” to exclude the defendant’s explains majority Schlise court at 286. The Wis.2d regarding the voluntariness of the defendant’s “had serious doubts psychologically confession due to the coercive tactics of the ex disagree analysis I aminer as detailed in the record.” with this excluding post-mechanical In Schlise. interview court did not consider whether Schlise’s statements tarily given. Anderson were volun possible aspect The court discussed the coercive remanding interview in its discussion of Schlise’s the case to police consider whether later statements Schlise’s officers were tainted the Anderson interview. The court said in Schlise: testimony hearing court, “After Anderson’s out of explicitly jury, found statement of Schlise Anderson was voluntarily given. prejudicial conclude that was error “We to receive the testi- mony polygraph examiner, Anderson, of the Eobert because a rendering inadmissible not establish rule a blanket concerning interviews; testimony post-mechanical all before, testimony Schlise, “to after about interviews tally examination which discrete from mechanical precedes remains admissible. them” of this in Schlise for exclusion
The court’s rationale acknowledgment an evidence under Stanislawski inseverability post-mechanical interview and of the polygraph. portion interview the mechanical of the closely testing, in time when related the mechanical content, Thus if must considered as one event. be allowing stipulation me- there is no Stanislawski evidence, into chanical results to be introduced there test post-me- can be no introduction into evidence explained: post- chanical “The interview. As court closely mechanical was so associated with interview testing, or as to time and mechanical electronic both content, one and be- it must be considered as event *24 stipulation excluded lack of a Stanislawski cause the Schlise, supra, 44. the 86 at from evidence.” Wis.2d depends upon a com- Schlise controls this case Whether parison and I conclude that of the facts in the two cases substantially that salient are similar and the the facts rationale, of time of the Schlise closeness characteristics testing, and mechanical and content between interview the pre-mechanical applicable the interview are case at bar. Stanislawski, required by stipulation
pre-examination State by (1974), the not entered into 730, 8 216 N.W.2d Wis.2d parties. by the the made “Because we have concluded that statements polygraph operator entirety in their must be defendant to the upon trial, a new from the evidence excluded the voluntariness except they to the extent statements need not be considered such subsequent given by may statements influenced the the de- have Schlise, supra, to the law enforcement officials.” fendant 42, at 44. Wis.2d preceded me- In case the interview the the instant testing given.2 but chanical which was scheduled never pre-mechanical post-me- or the interview is Whether chanical should make no to the result of the difference depends case. Admission or exclusion under Sehlise not precedes or succeeds the on whether interview me- testing chanical on interview and me- but whether testing procedure.” Schlise, chanical are unified “one court, relying supra, In at 43. Sehlise the Wis.2d polygraph testimony, (Anderson’s) examiner’s rec ognized post-mechanical part of interview is polygraph Schlise, 86 examination. at 43. Wis.2d again rely testimony, If we we are to on Anderson’s must pre-mechanical interview is an conclude inte gral exchange part polygraph examination. The between defense counsel and Anderson at trial re Anderson in the instant case considered the veals that preceding “mechanical” test and the interview to two be parts procedure. testified in one unified Anderson way you separate instant case that “there’s no can pretest post- from interview the examination they 327) examination, (Transcript p. test are all one.” part In Schlise said “The ‘mechanical’ of the the court preceded by lengthy pre-test test was interview as parties part polygraph sumed all to be of the examination.” ise, Schl at 42-43. Wis.2d In Sehlise and the instant case the both defendant part assumed the interview was In examination. both Sehlise and in the instant case assump- and confirmed Anderson shared defendant’s part tion that the interview was mechanical test. *25 2 only way say April post- The we can 4 was a interview coming consider it as March 7 mechanical interview is to after the polygraph argue, The or March 17 tests. defendant does not so interesting note, however, neither do I. It is and that Anderson April 4 did consider the interview as a continuation of the March testing. [April Anderson testified: “This is 17th a continuation 4] examination, Transcript p. not a new examination.” of an 326.
299 distinguishable case, Schlise, This like is on facts its 1, State, from Turner v. 250 76 706 Wis.2d N.W.2d (1977), State, and McAdoov. 223 N.W.2d Wis.2d (1974). In the Turner case Turner took an incon- days polygraph then, clusive test with six Anderson refusing later, refused to take a second test. After agreed test, second Turner nevertheless to talk with Anderson In in- and confessed. the MeAdoo case “the [with Anderson] di- terview followed the test almost rectly. However, this court MeAdoo made at specific appeared determination record that it from the over, test was informed defendant was conversing freely over, the test was and that he was Schlise, with the examiner.” at 42. Turner’s Wis.2d and McAdoo’sinterviews with were discrete Anderson polygraph from the defendants knew Ander- those questioning part son’s was not of the mechanical test. Anderson were Schlise’s Barrera’s interviews with thought related to a mechanical test and the defendants part the interview was of the test. majority opinion apparently position takes given mechanical because the test was never on
April April 4, the 4 interview be viewed as hav- cannot ing a close association in time content with a me- majority’s April chanical test. The conclusion that the separate 4 interview was “discrete” and from a mechan- ical test is contradicted the record. Anderson testi- fied that the interview he conducted with the defendant April integral part an on that the of the test agreed had to take and that Ander- defendant agreed give. Anderson, son had the defendant and part defense counsel all considered the interview a given mechanical Had the mechanical test test. been April pre-me- is clear that under Schlise the integral step part interview, chanical and an first test, of the mechanical could not be admitted evidence. *26 given That the defendant was not the mechanical test change pre-mechanical does not character in- pre-mechanical terview. The interview the instant part polygraph case was a scheduled of a examination and must be treated as such. Neither the rationale of provides Schlise nor the facts in this case a basis for distinguishing the Schlise from case this I case. con- pre-mechanical being clude that the interview, an in- tegral part polygraph examination, of a is inadmissible stipulation. in the absence of a StanislawsM majority April If the view is correct that Anderson’s interrogation, separate 4 interview was an and distinct polygraph from the test, mechanical I would exclude testimony Anderson’s grounds. on state and federal constitutional Despite testimony unity Anderson’s as to the of the pre-mechanical interview with the mechanical exam- ination, there is sufficient evidence in the record from having given prior which to Anderson, concludethat two polygraph giving inconclusive tests, no had intention of polygraph April the defendant another examination on 4 and that Anderson intended to use his time alone with the defendant to obtain a court, confession. The trial having tape recog- heard the of the interview, Anderson interrogatory nized the nature interview, of Anderson’s commenting “Now it’s true the examination has appearance tape police interrogation more of the by way preparation than it has for a ex- Although tape part amination . . . .” is not transcript proceedings court, record in before gives the trial court us a flavor of the interview supports the trial court’s characterization of in- interrogation, pre-mechanical terview as an anot inter- following view. testimony Defense counsel elicited the get from Anderson which showed Anderson’s intent to a confession: during [Counsel] I understand that but “Q. you you pre-
minutes were with Mr. Barrera were paring you trying for the test or were a con- obtain *27 fession ? setting proper psychological [Anderson] I was “A. set for the examination of Mr. Barrera. Before I started I test wanted Mr. Barrera to be aware of what Mr. Garcia’s examination results were. explain “Q. Did that take 45 minutes to too? “A. Once I made him I aware of it could Mr. sense position being ready Barrera and inwas to confess pursued I that. subterfuge “Q. Isn’t that a kind of then worked that’s upon are attorney the defendant and his when we think we going prepared poly- to be for and administered a graph yet your test and in mind that isn’t the case at all ? poly- “A. That’s not true. I came here to administer graph examination to Barrera. I Mr. also came here to [elicit] a confession from him if Mr. Barrera un- was (Transcript pp. 328-29.) truthful.” April
Anderson’s use of the 4 interview to obtain a con- duplicitous. having fession was Anderson, after con- suggested ducted examinations, two the third examina- (Transcript p. 325). tion Defendant and defense counsel agreed They every ato third examination. had reason polygraph think to that a third examination would be conducted a manner similar to the other two.
The first two tests had been conducted in Madison. testings through two-way Defense counsel watched both interrupted by tapping mirrors could have the tests April on the window. The 4 interview was conducted Juneau, and counsel could not view the test. There two-way no mirror and Anderson testified he testing during would not allow counsel room April interview or test.3 On counsel had to trust the your A.nd one of me [Defense comments to be Counsel] “Q. you correctly, fore the first one was if I recall if want interrupt any you rap glass, this interview at time on the isn’t ? true examiner to conduct the examination as he had in the past previously and in manner had been ex- which plained to the defendant and counsel. explained
Prior other tests Anderson had the defendant and the defense counsel various facets pre-mechanical interview and the test. Anderson signifi- explained he testified in this case that had pre-test cance of the interview to defendant and counsel pre-test and had conducted interviews with the defendant Al- in the March and March 17 sessions. though pre-test is, part he of Anderson’s interview “obtaining testified, full . . . admissions or confes- sions,” that he had not ex- Anderson further testified plained pre-mechanical to the facet of the interview help I or defense counsel. cannot but wonder defendant interrogate proper polygrapher is whether it for *28 subject pre-mechanical in a interview obtain a confes- goal polygrapher’s if is to obtain a valid me- sion Inbau, and chanical text Truth test. Reid their Deception: Polygraph (“Lie-Detector”) Technique The (1966), pre-mechanical disavow the use of a interview confession, explaining: to obtain a pretest during “At no time interview should indulge any interrogation examiner at deter- aimed mining subject’s deception truthfulness, or or at only obtaining guilt. exception a confession subject clearly a rule is where the evidences desire to confess before the test. subject by “A who is of com- accused the examiner
mitting investigation, the act or offense under or who “A. That’s correct. [Anderson] “Q. opportunity Didn’t have that here? You didn’t allow me to remain in the ? room No, anyone during “A. I would not allow to remain in the room polygraph testing. “Q. proper But had we had the facilities I would have had the opportunity rap stop on the window and the examination when thought ought stopped? I it to he Right.” (Transcript p. 334.) “A. though already interrogated re- he is considered is subject longer for a a suitable sponsible is no for by If truthful he is a polygraph examiner. test may the accusation so disturbed subject, he become interrogation display deception reactions that he will or on the test tracings Polygraph too will be or else the diagnosis deception permit or truth- a distorted to fulness. “Throughout at- pretest interview the examiner’s noncommital; objective completely titude should be subject’s impartial de- thoroughly as to the he must be adopt any will ception To other or truthfulness. attitude interrogator rather role of an place examiner in the Only and examiner. than that of interviewer test after only indi- completed, the results have is after any upon deception, the examiner embark cated should interrogation purpose for the of in or form of accusation obtaining (Emphasis 11-13. Id. at an admission.” original.) any event, April 4 the had come
In defendant test, polygraph a in connection with Anderson talk to interrogation general participate in a outside not to April 4, prior to the On presence counsel. of defense Laboratory signed a Crime interview, the defendant printed form Statement entitled Bureau standard signing ac- By the defendant the statement Consent. knowledged Anderson, examiner polygraph examina- Bureau, to administer Crime rights, he Miranda his tion, been read that he had attorney pres- agreed questions an without to answer explained the nature had ent, that Anderson consenting ato that he was polygraph examination *29 polygraph examination. administering test, polygraph guise a
Under operator, inter- polygraph experienced Anderson, an op- in closed room. alone rogated defendant disguised game engaged ob- in deliberately erator control; apparently in he operator was jective. The seeking to solicit tentacles his tightened and loosened guilt defendant’s admission of and to avoid defend- cry obviously ant’s for counsel.4 Anderson in- had no giving tention of polygraph a third examination that might prove goal inconclusive. Anderson’s was a con- fession, incriminating the defendant’s own words which deliberately Anderson would presence elicit outside the questioned counsel. The defendant was thus in a purpose contrary manner for a agreement to the defendant and defense counsel.
I
condoning
find it difficult
to reconcile this court’s
questioning
in the instant case with the
state
constitutionally guaranteed right
federal
to counsel.
I
questioning
believe the
in the instant
is
case
condemned
Williams,
Brewer
(1977),
U.S.
397-401
right
a denial of the
placed
counsel. The defendant
his
lawyers
in
trust
his
placed
who in turn
their trust
agreed
Wisconsin law enforcement authorities who
to conduct a
examination, not to conduct an
interrogation to elicit
presence
a confession outside the
“If,
long
counsel.
seriously
run we are
con-
cerned
representation by
about the individual’s effective
counsel,
permitted
the State cannot be
to dishonor
its
promise
lawyer.”
Williams,
Brewer v.
supra,
(J.
I also find it difficult to reconcile this court’s con- doning questioning in the instant case with basic concepts play, is, of fair concepts with the basic process. Convicting of due guilty is of utmost im- portance maintaining respect but so is public for and techniques police Anderson used recommended in manuals as interrogation methods, e.g., displaying effective understanding sympathy by gestures pat body urging as a on the while the de appealing fendant to tell the truth and to the defendant’s sense of morality discussing religion God and if the defendant is religious. Reid, Interrogation See Inbau & Criminal and Confes (2d 1967). sions 59-61 ed. *30 government.5 able Citizens should be our confidence government their rely upon officials to abide to fairly. defense Defendant’s to behave word and government understanding in this the with counsel’s admin- be that a examination would case was The government word. be held to its should istered. agreement government’s case vio- in this breach of its process. due lates decision forth, I would affirm
For the reasons set polygrapher’s appeals on issue the court testimony. Hef- S. Nathan that Justice
I am authorized to state joins in this fernan dissent. police in- Inbau, advocate of effective Professor staunch unduly tie
terrogation opponent rules which and an of court police police’s against speech crime, to in a hands in war said officers: police tendency part is “Too often there the rea- label as technicalities criticize all that courts do—to given any particular individual for decision that sons case police times, sure, that is when officer dislikes. There are be many there are when the are substantial true. But times reasons basically valid .... police you may “As a officer leave feel the courts should you your apprehend crim- law, alone in efforts to enforce protect Many public. like to be inals and to courts also would they please. Many legislators as like left alone to do would also Many left to be alone unchecked. the executive members of they please. branch . . would also like But in a . to function system, permitted government, democratic no branch of can be authority power. to exercise unbridled . . . any society rights “In democratic individual and liberties must preserved willing expense be ficiency and we are to do so ef- at the government principle your itself. To relate this situ- ation, put way. let me it this would We rather that some criminals escape punishment though police detection and you, as a —even officer, positively guilty know he is than sacrifice or —rather jeopardize rights great even and liberties of the mass of in- up society make dividuals who cept this democratic of ours. This con- Russia, is It is essential. There, course. different ef- ficiency paramount [emphasis is unpublished Inbau, added].” *31 Wisconsin, Plaintiff-Respondent,
State Kramer, Defendant-Appellant-Petitioner.† Lawrence
Supreme Court Argued No. 78-833-CR. October 28, 1980. 25, 1980. Decided November (Also reported 668.) in 298 N.W.2d College Law, Ore., reprinted address at Willamette Salem, Kamisar, Importance Fred Being E. Inbau: “The Guilty”, 68 C., 182, (1977). J. & Crim. L. 193 n. 68 Motion for denied, costs, January reconsideration † without 13,1981.