On July 17, 1974, Raymond Berry was shot and killed while painting in the basement of the LaSalle Hotel, located in the city and county of Kenosha. On November 7,1974, an information was filed alleging that Maurice Franklin (hereinafter sometimes referred to as the defendant) was a party to the first-degree murder of Berry contrary to secs. 940.01 and 939.05, Stats., and a party to attempted armed robbery of Berry contrary to secs. 939.32, 943.32(1) (a) and (2), and 939.05, Stats. At the time of the offense the de
A tape recorded confession was given by the defendant to the Kenosha police the day following his arrest. In substance the defendant stated that on the night of July 17th he and three other youths went into the basement of the LaSalle Hotel, apparently intending to rob Raymond Berry. Berry was then engaged in painting a small room in the basement. One youth, fifteen-year old T. M., had a .25 caliber pistol in his hand. Berry put up a struggle when confronted by the group, striking T. M. with his paintbrush, and in the course of the struggle Berry was shot. Defendant never had possession of the gun and took no active part in struggling with the victim. The group fled the scene immediately after the fatal shot was fired.
Defendant moved to suppress this confession, and a hearing on the matter was conducted on February 21, 1975. At the hearing several police officers testified for the state, and that portion of the tape-recorded confession in which defendant was advised of his constitutional rights was played for the court. The defense did not dispute that
Miranda
warnings had been given, but presented the testimony of two psychologists in support of the theory that due to low intelligence and a poor vocabulary the defendant had not understood the rights he purportedly waived. The defendant himself took the stand and after brief background testimony (two pages in the record) he relinquished the stand to allow other witnesses to testify. The hearing was adjourned to 9 a.m.
When court was ready to reconvene at 9 a.m. on February 24th the defendant was not present, and his attorney left to get him. In the absence of defendant and his counsel the court reconvened at 9:12 a.m. and proceeded to deny the motion to suppress on the basis of its evaluation of the evidence presented on February 21st. The court then adjourned. Shortly thereafter defense counsel returned, this time with the defendant, and court reconvened at 9:30 a.m. Defense counsel stated that defendant’s car had failed to start and that when he arrived at the Franklin house the defendant and his mother were standing on the doorstep waiting for a cab. Counsel then made an offer of proof as to what testimony the defendant would give if allowed to testify. However, the court declined to take this testimony. The court simply restated its analysis of the evidence received on February 21st and redenied the motion to suppress.
At the trial the defendant’s recorded confession was played for the jury and, over a defense objection, the tape, together with a tape recorder, was sent into the jury room for use by the jury during its deliberations.
Two issues are dispositive of this appeal:
I. Did the trial court abuse its discretion in failing to reopen the hearing on the motion to suppress defendant’s confession for the purpose of allowing the defendant to testify?
II. Was it proper to send the defendant’s tape-recorded statement into the jury room during the jury’s deliberations?
I.
Defendant's first contention is that under the circumstances of this case the trial court’s refusal to allow him
In
State ex rel. Goodchild v. Burke,
Goodehild
was this court’s response to the constitutional requirements announced by the United States Supreme Court in
Jackson v. Denno,
“A defendant objecting to the admission of a confession is entitled to a fair hearing in which both the underlying factual issues and the voluntariness of his confession are actually and reliably determined.”378 U.S. at 380 .
An opportunity to present evidence is an absolute essential to a fair hearing on a disputed question of fact. We think it evident that the right to a fair hearing which Goodehild implemented included the right on the part of the defendant to a full opportunity to present evidence showing that his statement was not voluntarily made. We said in Goodehild (p. 265) that at the hearing on the issue of voluntariness
“. . . the defendant may take the stand and testify for the limited purpose of making a record of his version of the facts and circumstances under which the confession was obtained. By so doing, the defendant does not waive his right to decline to take the stand in his own defense on the trial in chief. Neither does he waive any of the other rights stemming from his choice not to testify.”
We find no such compelling reasons to justify the trial court’s action in the case at bar. The infringement on the defendant’s opportunity to testify was great; he was effectively prevented from testifying altogether. His counsel’s offer of proof reveals that the foreclosed testimony was material and, if believed by the trial court, might have led to suppression of his statement. The state has argued that much of the defendant’s offered testimony was cumulative of evidence introduced through other witnesses, but the record fails to support this assertion, and in any event we doubt that a court’s discretion to limit cumulative testimony would ever justify curtailing a criminal defendant’s testimony on the ground that other witnesses had testified to the same facts.
Cf. Mack v. State,
The delay in proceedings occasioned by the defendant’s late arrival was relatively small — thirty minutes, at the most. It was winter in Wisconsin; the judge noted the conditions and did not find them a sufficient excuse. “[T]he Court is aware of what weather conditions are . . . and I feel that the roads are sufficiently — in sufficiently good condition for the defendant to be here as
We are not unmindful that courts have a legitimate interest in maintaining order in their calendars. The press of other business was the principal reason why the court declined to take the defendant’s testimony in this case. At the close of proceedings on February 21st the court had warned the parties that it would have other matters pending on February 24th. We do not say that a defendant’s disregard for time schedules set by a court may never be such as to amount to a waiver of his right •to present evidence at a suppression hearing. However, under the circumstances of this case, the trial court should have made such adjustments in its calendar as would have been necessary to allow the defendant a reasonable opportunity to testify. The court’s failure to permit the defendant to testify stands in marked contrast to the solicitude for the defendant’s rights the court generally demonstrated. Nevertheless, the court’s failure to permit the defendant to testify constituted an abuse óf discretion and a denial of due process of law.
We cannot accept the state’s argument that the defendant is foreclosed from raising this issue because he failed to move the trial court to reopen testimony. It is true that no such specific motion was made and that it would have been better practice had counsel done so. However, an offer of proof was made, which would have had no purpose except as a request to present the testi
J — i
Defendant assigns as error the trial court’s decision to send the tape of his statement to the police, along with a tape recorder, into the jury room during the jury’s deliberations. We cannot approve of this practice which entails the risk of breakage or accidental erasure of the tape while it is beyond the trial court’s supervision and which presents the danger of overemphasis of the confession relative to testimony given from the witness stand. 1
We are of the opinion that the proper practice and procedure is that the trial court retain control of the
HH
Defendant also contends that the evidence was insufficient to sustain the verdict in two respects. We reach this question notwithstanding the fact that a new trial is required for other reasons, because the double jeopardy-clause of the Constitution may bar a second trial for an offense if a conviction is reversed for insufficiency of the evidence.
See State v. Detco, Inc.,
We have phrased the standard of review when a jury verdict is challenged as being unauthorized by the evidence in the following terms:
“ ‘The test is not whether this court or any of the members thereof are convinced beyond reasonable doubt, but whether this court can conclude the trier of facts could, acting reasonably, be so convinced by evidence it had a right to believe and accept as true.’ ” Garrella v. State,61 Wis.2d 351 , 352, 353,212 N.W.2d 101 (1973).
By the Court. — Judgment reversed and cause remanded with instructions to grant the defendant a new hearing on the admissibility of the confession and a new trial consistent with this opinion.