*1 345 raising does not or lowering rise fall or of the longer level, floating lake’s water it would not constitute bog.22 finding
While the peninsula commission’s floating bog is not one that this court would have made the evidence adduced before the examiner, com- we are pelled to finding hold supported by competent expert credible and opinion testimony of the department’s biologist. conservation By the Court. —The order is reversed and cause re- proceedings manded for further consistent with this opinion. Plaintiff error, v.
Bradley, Defendant State, error.*
September 6, 1967. 11 October 22 testimony In the court, adduced before the circuit it was brought out that a dam was constructed in at the outlet of substantially the lake which raised the level of the lake. If circuit court does remand to the commission for the adducement of testimony, imperative further it would seem this feature be portion peninsula examined further. If the above the water raising level level, remained same after the of the lake it would peninsula actually This, indicate that the however, floated in 1949. present peninsula would not be conclusive to the as character intervening years during bog may because morphosed have meta permanent swampland. into * rehearing denied, costs, Motion for 22, without on December 1967. *4 plaintiff
For the in error there and oral brief argument by Richard A. McDermott Milwaukee. argued by
For the defendant in error the cause was McCann, attorney E. Michael assistant district of Milwau- county, kee with whom the Bronson C. brief were La Follette, attorney general, Hugh O’Connell, R. dis- attorney. trict
350 J.
Heffernan, voluntary the Were confessions product deliberation? Sherry Bradley May stated that at about a. m. on 22, 1964, she returned home and discovered there was something wrong children. with two infant She neighbor, unsuccessfully attempted called a who mouth- to-mouth resuscitation. He called ambulance and shortly police appeared upon thereafter the scene investigation. together and commenced their Sherry, neighbors family, other of her members was questioned by apartment at the until about 3 a. Safety Building m. She then taken to the questioning. questioned further She intermittently approximately thereafter p. and at 2 m. on the afternoon May gave 22d, she an oral confession that she had strangled gave her two Thereafter, children. police a narrative statement and, of the murders a few later, permitted reporter minutes ques- court to take a tion-and-answer charged confession. She was thereafter degree with two counts of first murder.
Prior trial, objected defense counsel to the admis- sion of being involuntary as confessions and asked separate hearing that there be a prior trial, out of the presence jury, in order that the court could make that determination. directed, however, court hearing point held during at trial, out of presence jury, appeared when it the in- troduction of the appeared confessions into evidence im- hearing, minent. A before alone, the court was held during judge the trial and thereafter made the follow- ing findings: having “This Court heard the testimony regard- said
ing the exhibits marked for identification as Exhibits 4 and 5 and referred to as the confessions, the Court is *6 of and deliberate acts free that were the convinced the defendant. defendant that “The Court further convinced right food deprived any of eat nor to consume not to was but that it offered her. was to “The Court also convinced that she was asked given opportunity attorney. an to have an “The Court is from further convinced the said evidence given opportunity that fessor. con- an to talk with her was given opportunity also “She was talk to with own husband. “The Court is subjected further convinced she not any to promises. any any duress nor any threats nor or said force “The may Court rules 4 Exhibits 5 into received evidence.”
It should be noted procedure at the outset that the followed the court exactly does not conform to suggested in State ex rel. (1965), Goodchild v. Burke 27 2d 244, Wis. hearing 133 N. 2d 753, in W. the place during took prior voluntariness trial rather than addition, thereto. In having court, the trial the found voluntary, confession thereupon admitted confession in evidence jury, but instructed the in accordance with rule, Massachusetts which in we declined follow again Goodchild, to consider the voluntariness of the confession. add, hasten to however, We the trial herein was held in December of 1964 and the date of our mandate Goodchild 30, not, was March 1965. doWe therefore, procedure erroneous, conclude that particularly compliance in view of its substantial with procedure adopted later in Goodchild. While we have disapproved practice permitting of of jury pass on the of the confession, pointed voluntariness we out Phillips v. (1966), State 521, 531, 2d Wis. 139 N. W. 41, 2d that: “The trial court followed the Massachusetts rule not
knowing procedure adopt. Any which this court would submitting question error in voluntariness prejudicial jury rule was under Massachusetts voluntary.” found the to be the court had confession since applicable here. rationale to be conclude the same We to conform of the failure find no error on the basis We exactly Goodchild; rather, conclusion the court’s light voluntary in the must be tested the confessions were Goodchild, i.e., the state whether of the substance proving successfully voluntariness carried its “burden Supra, page beyond 264. a reasonable doubt.” 88, 80, (1966), 33 2d v. Carter Wis. in State We said 2d 466: 146 N. W. hearing question only at was that “The under of the defendant’s confession
voluntariness *7 ‘totality had of Thus the the circumstances’ test. state beyond prove a the reasonable doubt that the burden to and a result of of choice confession was deliberateness product of free and it was the unconstrained will.” (1967),
In the case of v. State recent Greenwald 146, 150, 507, 2dWis. 150 N. 2d we W. reiterated supra, pages Carter, 89-91, in the standards forth to set reviewing by court in a trial deter- be used court’s mination of said: voluntariness. We “ unquestionably power ‘While this court has the evidentiary de review the principles novo constitutional facts where involved, are it does not follow that we must appears so, especially adequate procedures do when it adopted by have been the trial court. . . . “ findings ‘Where the court has made detailed of fact evidentiary . . . our physical review of the or historical facts will be limited to the same review that in used disputes other factual heard and determined a trial judge. findings are The upset trial court will not be against great weight unless the pre- and clear ” ponderance of the evidence.’
Although findings the trial court’s spec herein lack the ificity procedure the Goodchild achieve, aims to nevertheless, it should be borne in mind that this case antedates forth so the set in directions Goodchild. As viewed, procedure we conclude that was the trial court’s highly commendable and the ob- attained substance jectives that case Goodchild strives for. Because in this dispute testimony the evidence not in the the of defendant and the of officers are almost com- plete agreement, on of the the come to basis record we the conclusion that the trial court’s decision that “free de- confessions were and deliberate acts of the weight contrary great fendant” is and clear preponderance of evidence. Sherry
A of review the events from time that was Safety Building gave taken to the to the time she her clearly confession shows that confession was volun- tary overbearing pressures and not the result of right deprived her of to the deliberate exercise unconstrained free will. hearing Sherry
The voluntariness revealed eighteen. just children, was She three mother of only one of whom claimed be the child of equivalent had husband. She received the of a ninth grade education. time she last attended school was Oregon, as inmate of the School Girls at Wiscon- apartment days Her sin. husband had left few before, distraught and had walked looking night murders, for him. streets On the looking apartment she had been out for him. She *8 days. claimed, had no food for several She and it was disputed, not that she had to been unable eat and had days prior not eaten three or four to her confession. questioned At time apartment shortly she at was her appeared very after a. m. she excited. At this time she police told at apartment that 1:45 she left about mother, Being to visit her who lived across the street. to mother, unable her arouse she returned and home that, claimed apartment, as she entered her a she saw initially man, who she husband, said was her run from the rear the flat. She claimed that then she returned something wrong with to the flat and realized there was turn, who, called neighbor, called a the children. She exception that she of the fact With the an ambulance. husband, not her the man she saw was later stated that giving that story until the confessions stuck with she inquiry. subject are the of this Building brought Safety At 3 a. m. she was to about interrogated fifteen 4 a. m. for about and was at of either not clear from the minutes. It is statements just 4 m. Sherry police happened between a. or the what morgue. The m., time of the and 7:30 a. visit interrogation testimony dur- police refers to no officers’ ing period. police officer was that Yet it clear that a Sherry, however, in direct Sherry all her with at times. periods testimony were stated that there substantial any questions. she was not asked when approximately m. taken At 7:30 a. was she strangled morgue of her children. to see bodies two stayed thirty-five approximately min- them for She interrogated by police of- At 9 a. m. two utes. she was “gave real nice” ficers. She that “talked and states learning upon and, had handkerchief” she a] [her gave headache, aspirin her also She was water. if or to food. declined asked she wanted to rest have She in- of food and offers rest. She testified terrogation persistent re- the officers peatedly said, you did it.” “We know She was shown signed by (the authenticity father of this statement her disputed) saying not document has been that he believed did she it. undisputed questioning
It that near also the start began which at 9 a. her m. the officers told need she any questions put her. answer She if mother, asked wished to she see but she declined to her. was asked if see She she wished to see her husband. said would “love to.” also She asked attorney, if she wanted but stated that she *9 would let them know about that after she saw her hus- During band. questioning Sherry course asked for change a police department clothes and the secured she apartment. dress wanted from her At 10 or 10:30 her minister was called. He arrived at about 10:45 and stayed with her for approximately hour, praying Sherry discussing problems and police with her. A present during officer was approxi- this conversation. At mately Sherry’s 11:10-11:15 arrived, husband and he talked twenty with her for fifteen or minutes. His visit interrupted by some questioning, further but he talked to her for a Though second time at about noon. the detectives on several occasions offered her food and rest, Sherry chance to offers, although refused these aspirin. she did take water and No claim is made that any force or threat of force that, was used. The claim is under the circumstances, repetitive questioning police, statement of the you it,” “We know did re- overbearing sulted in the of her will and induced an involuntary confession. Until some noon, after time Sherry story told a consistent strangula- and denied the tion of her children. approximately p.
At 12:30 m. the detectives went Sherry lunch booking and left at the desk the noon Sherry hour. booking claims kept repeat- clerk ing over, strangled over and “You your did it. You kids, you did it point with a cord.” Sherry It atwas said, “Yea, I did Sherry it.” jail. was then taken to the called, Detectives Jones and Brown were then questioning resumed approximately p. at 2 m. At the outset of the killing afternoon session denied However, children. question- after about ten minutes of ing, taking she admitted their murders. Prior confession felt, was asked how she and she said she felt better. She at this time advised of her rights against self-incrimination. Before a written state- *10 coun- wanted she asked whether taken she was
ment was Sherry at time this police testified officers The sel. and confused, alert mind, was not of was clear seemed any physical ailment. gave of lucid, no evidence and Sherry had afternoon 3:25 in the By approximately confessing to writing statement completed a narrative ex- strangulation her children with electric of the substantially given the same cord, had and also tension police response to reporter to court information interrogation. chronology the of the above
It
on the basis
was
free
as “the
admissible
found the confessions
trial court
of the defendant.”
and
acts
deliberate
procedures
police
agree
The
that conclusion.
We
The defend-
commendable.
in the main
herein were
used
and needed
opportunity
and food
for rest
offered
ant was
oppor-
given an
was
for her headache. She
medication
though
to,
mother,
not
her
tunity
did
wish
she
to see
pe-
There were substantial
husband, and her minister.
interrogated at all. She was
she was
riods when
brought
change
if
wanted
of
asked
she
clothes. She was
right
silent.
counsel,
of her
to remain
and
advised
any
of force.
at
time
While
no threat
There was
pa-
promised
a mental
treatment as
that she was
claims
officers;
confess,
was denied
the
if she
this
tient
would
promises had
specifically
judge
that no
found
and
to induce the confession.
made
been
police
cannot, however,
of
condone the conduct
We
girl
eighteen
morgue
taking
to the
to view
of
during
strangled
Counsel,
argument,
oral
found
babies.
impossible
reprehensible
to defend this
conduct.
it
legitimate police purpose. There
no
visit had no
might
required
question
identification
of
have
children.
mother to see these
testified:
they
Morgue,
me
took
there to the
“. . .
down
before
say
they
if
I heard the detectives outside
door
Morgue
kids,
me
to the
and let
take
down
her see
say
probably
she will
break down and
she did it.”
they
they
morgue
She stated that when
took her to the
my
talking
me
and
see
“showed
kids
started
about
you
your
what
did
kids.”
stated that she
She
broke
morgue
and
down
was unable
walk out
had to be carried.
One
officers stated:
Morgue
County
“I took
to the
the defendant
to view
of her children
bodies
....
when she saw
bodies,
crying
hugged
two
she started
and she
both
attempted
lay
them and
on the cart
where
children
stayed
approximately
*11
were.
35
We
down there
minutes
during
crying
and
kept
this time
continued
and
she
”
saying, ‘Mybabies, my babies, my babies.’
attempt
Had this crude
to overbear the will of this
confession,
defendant
in a
resulted
we would without
hesitancy
involuntary.
declare the confession coerced and
Supreme
theAs
United States
Court has said:
.“.
. coercion can be mental
physical,
as well
and
as
only
that the
of
blood
the accused
not the
hallmark of
is
an
inquisition.
unconstitutional
of
A
have
number
cases
demonstrated,
needed,
demonstration were
the
that
if
efficiency
the
of
rack and the thumbscrew can be
given
matched,
modes
proper subject, by
sophisticated
more
‘persuasion.’”
of
(1960),
Blackburn v. Alabama
199, 206,
Sup.
361
274,
U. S.
80
Ct.
We that police this bit of morbid wring work did not the confession from the defendant. enough This incident was far removed from the time of the final it confession that did not contaminate the other- wise commendable bureau, efforts the detective to the obliged extent that we are now to hold the confession inadmissible. that,
The fact despite harrowing experience being morgue remaining taken to the and there for thirty-five bodies, minutes Sherry dead did ghoulish not confess. This incident approxi- occurred at finally made at mately m. a. The confession was 7:30 res- p. had some approximately interval she m. In that see opportunity to interrogation, pite and had from totality and minister. As viewed her husband to circumstances, episode not sufficient this of the contaminate confession. eighteen, only Sherry young, a little over
While displayed procedures new her. were not She ways knowledge police. She sophisticated claim did know her constitutional no that she makes everyone her for the rights. claim Her is that blamed having and, her for al- after drummed into murders hours, at that time confessed because she twelve she most guilty had left felt she herself —and blamed —because apartment. alone in the children We, however, present of force do not find those factors likely psychological that would to induce or coercion gone involuntary Admittedly, had confession. sleep prior food and to the com- some time without interrogation. mencement There is no evidence sleep lack of food so affected the defendant or responses questions rational was unable make police, posed there is evidence to show permit police offered to her to eat and rest. We cannot hunger physical conclude condition of *12 fatigue interrogation prior that existed and which willing department to alleviate can now to exclude be used the confessions. findings contrary great
The the court are not to the weight preponderance evidence, and clear and are supported by without substantial contradiction the de- testimony. conclude, fendant’s own We a after review of constitutionally relevant facts that the confessions product of free and were unconstrained will of defendant, voluntarily given, were and were admitted properly into evidence.
359 Applicability Escobedo and Miranda. Ray language by (1967), v. State this court in used disposes 685, 687, 31, 2d 148 de- 33 Wis. N. 2d W. Escobedo fendant’s contentions that Miranda and both applicable. be We said should therein: (1966), 436, Sup. “Miranda v. Arizona 384 U. S. 86 1602, contrary (2d) 694, 16 Ct. L. Ed. to defendant’s assertion, commenced after June also invoke the 378 U. applicable, only applies since it to cases 13, 1966. The defendant would protection (1964), of Escobedo v. Illinois Sup. 478, 1758, (2d) S. 84 Ct. 12 L. Ed. 977. We have, however, repeatedly inap stated Escobedo prisoner plicable requested unless has counsel and request Simpson (1966), has denied. v. been State (2d) 195, 203, 32 v. State (2d) 206; Wis. 145 N. W. Neuenfeldt (1965), (2d) 20, (2d) 252; 29 Wis. 138 N. W. v. (1966), State Burnett (2d) 375, 30 Wis. 141 N. W. 221; (2d) Phillips (1966), (2d) 521, v. State 29 Wis. 139 (2d) 41; N. W. ex State rel. v. (1965), Goodchild Burke (2d) 27 said N. W. 244, Wis. (2d) recently 133 N. W. 753. We have Holloway (1966), v. State (2d) 559, 32 Wis. 146 (2d) 441, prior interpretations that our of Esco bedo, limiting applicability very facts, its to its have not been subsequent altered decision in Miranda.” guardian appointed Should litem ad have been for appear prior during defendant
course the trial? question This raised for time in the first briefs that are appeal. before frequently us this We have right said even the claim of a constitutional will deemed timely waived unless raised the trial court. (1963), Cordes v. 236, 19 Wis. 2d 120 N. W. 2d Hoffman 137; Goyer v. (1965), 244, State 2dWis. 131 N. W. 888; 2d Rafferty (1966), v. State 470, 29 Wis. 2d 2d have, N. W. 741. however, We concluded that may court nevertheless decide question a constitutional appears not raised if it justice below in the interests of *13 359a need factual issues are no there do and where so preclude fromus none which would are There
resolution. right a to have considering claimed defendant’s case of this However, the facts guardian litem. under ad argument has been meritorious that a fail to see we upon primarily the re- presented. defendant relies The Gault, re Supreme of In Court case cent United States juvenile is held that a who supra. That case essence respect adult charged to an would conduct least some entitled to at criminal is be considered protections an adult in a criminal afforded constitutional juvenile advised specifically held that a must be It case. right right remain and of his silent. to counsel his presently relevancy no to the one Gault Case has The Sherry Bradley prosecuted was not this court. before prose- 48, Stats., ch. the Children’s Code. She was under af- adult under the Criminal Code and was cuted as an proper protection. for constitutional Counsel forded the argues guardian principally that a ad litem the defendant principles pos- required is Gault because juvenile may of a confession sibilities product of coercion. Sherry’s have concluded that confession de-
We guardian Moreover, and uncoerced. litem liberate ad protection could offer no more to a defendant than could timely Although appointment of other counsel. right counsel, was informed of her did not ask one. requirement guardian
There no that a ad litem be appointed circumstances, in these nor has counsel called any authority our attention to which would authorize appointment. argu- such We conclude that defendant’s respect ment in this without also merit.
By Judgment affirmed. Court. — (on rehearing). plaintiff in error in Per Curiam rehearing argues her brief for (1) this court erred: concluding In freely confessions were voluntarily
359b *14 made, great-weight- (2) applying appeal in on and-clear-preponderance-of-the-evidence rather than test beyond-a-reasonable-doubt test. This court rested its grounds. decision of First, voluntariness on two independent investigation court made of the facts underlying the issue voluntariness concluded beyond voluntarily confessions were made a reasonable In procedure, required doubt. this this court itself was beyond be and was convinced of the reasonable doubt voluntariness of the confessions. true, opinion we
It stated also in the the trial court’s finding against great weight not pre- and clear ponderance But, indepen- evidence. in view of our dent determination statement, although this true, proper immaterial. Whether the test review a trial finding court’s of voluntariness when this court does independent investigation make an facts should stated terms of great-weight-and-clear-preponder- ance-of-the-evidence test or terms of whether say can court the trial court could have been con- beyond vinced a reasonable doubt or that no finder convinced, fact could be so we reserve for future con- Rehearing sideration. denied.