HUEBNER, Plaintiff in error, V. STATE, Defendant in error.
Supreme Court of Wisconsin
December 2, 1966—January 10, 1967.
For the defendant in error the cause was argued by Betty R. Brown, assistant attorney general, with whom on the brief were Bronson C. La Follette, attorney general, William A. Platz, assistant attorney general, and Lee A. Bernsteen, district attorney of Oneida county.
HALLOWS, J. Huebner raises six issues, but five of them do not have sufficient merit to command a reversal. The first issue is whether the information charged Huebner with a crime. In its material part, the information alleged that “John J. Huebner, did wrongfully, unlawfully and feloniously, attempt to entice a child under the age of 18 years of age into an automobile for immoral purposes, contrary to
Huebner challenges the validity of the information on the ground there can be no crime of attempted enticement because
In the Criminal Code, crimes are divided into inchoate and completed crimes and are so designated.
Furthermore, we question the validity of Huebner‘s proposition that the state cannot create a crime out of an attempt to attempt a crime. This problem has been considered in connection with attempted assault with a dangerous weapon when the assault is considered an attempted battery and it has been held that such an attempt is a crime. State v. Wilson (1959), 218 Or. 575, 346 P.2d 115; Anno. Attempt to commit assault as criminal offense, 79 A. L. R. (2d) 597. In Wisconsin common-law crimes are abolished and the only crimes are those created as such by the legislature. Consequently, the legislature within constitutional limits may define what acts shall constitute a crime. No constitutional prohibition forbids the legislature from creating a crime of an attempt to attempt a crime if it can otherwise be done. We hold, however,
Huebner additionally contends the information does not charge a crime because the charge is not in the words of the statute and the phrase “for immoral purposes” is too vague and indefinite. There is no requirement the information in order to charge a crime must be in the language of the statute.
This section also furnishes the answer to Huebner‘s objection that the information was defective because it did not allege the name of the victim. Huebner argues the name of the victim is important in an information in order to enable him to prepare his defense and to allow him to plead double jeopardy in the event of a subsequent prosecution. There is no claim Huebner was unable to prepare his defense or was misled and there is no doubt of identity of the victim in the record. Whatever potential difficulty Huebner may have with double jeopardy merely points up the defect. The failure to state the name of a victim in an information charging a sex offense is a defect in form, State ex rel. Wenzlaff v. Burke (1947), 250 Wis. 525, 27 N. W. (2d) 475, and should have been objected to prior to trial.
The contentions are made that Huebner‘s arrest was unconstitutional because it was not based upon probable cause, and the inculpatory oral statements made by him at the police station were inadmissible at the trial because he was not advised by the police of his constitutional rights. The record does not bear out or furnish a basis for either of these contentions. The day after the incident a police officer stopped Huebner‘s car because it matched the description given to the police by Boote.
It is claimed the stopping of the car followed by questioning at the police station constituted an arrest. We think a law-enforcement officer may temporarily stop a person and request him to furnish information, to respond to questions or to appear at the police station without arresting such person or without such requested cooperation being considered an arrest. However, it must be made plain to the person he is not under arrest and there is no legal obligation to comply with the request to appear at the station, and the act of the person must be voluntary and uncoerced. However, if the law-enforcement officer by order or conduct indicates the person is obliged to remain in the officer‘s presence or to come to the police station, such person is for practical purposes arrested because of the imposition of the will of the police officer over the freedom of the person. The central idea of an arrest is the taking or detaining of a person by word or action in custody so as to subject his liberty to the actual control and will of the person making the arrest. State v. Phillips (1952), 262 Wis. 303, 308, 55 N. W. (2d) 384. The same result is reached by a voluntary submission to such custody. But there must exist the intent to take into custody and a corresponding understanding by the person arrested that he is in “custody,” although no formal declaration of arrest is required. 5 Am. Jur. (2d), Arrest, p. 695, sec. 1. Peloquin v. Hibner (1939), 231 Wis. 77, 84, 285 N. W. 380. For a discussion of Stopping to Question vs. Arrest, see
None of these conditions occurred or are inferable from the circumstances in this case until after Huebner had given an oral confession to the police and was told he was under arrest. Consequently the arrest stood on probable cause and not suspicion. Phillips v. State (1966), 29 Wis. (2d) 521, 139 N. W. (2d) 41; State v. Camara (1965), 28 Wis. (2d) 365, 137 N. W. (2d) 1.
The trial of this case occurred after Escobedo v. Illinois (1964), 378 U. S. 478, 84 Sup. Ct. 1758, 12 L. Ed. (2d) 977, but before Miranda v. Arizona (1966), 384 U. S. 436, 86 Sup. Ct. 1602, 16 L. Ed. (2d) 694, and therefore is governed by the Escobedo doctrine, which was limited by this court to the facts of that case. Phillips v. State, supra; Neuenfeldt v. State (1965), 29 Wis. (2d) 20, 138 N. W. (2d) 252, certiorari denied, 384 U. S. 1025, 86 Sup. Ct. 1973; State ex rel. Goodchild v. Burke (1965), 27 Wis. (2d) 244, 133 N. W. (2d) 753, certiorari denied, 384 U. S. 1017, 86 Sup. Ct. 1941; Browne v. State (1964), 24 Wis. (2d) 491, 129 N. W. (2d) 175, certiorari denied, 379 U. S. 1004, 85 Sup. Ct. 730, 13 L. Ed. (2d) 706.
When Huebner arrived at the police station, the officer informed him of the complaints which had been received. Huebner was told that anything he said could be used against him and that he had a right to counsel. He was also told the exact nature of the alleged offense and the statute was read to him. The officer then asked if the complaints were true and when Huebner expressed concern about the penalty the officer read that from the statute book. Huebner stated he wanted to talk to his
Since the crime was committed outside of the city of Rhinelander, the Oneida county undersheriff was called to the station. He also advised Huebner of his right to remain silent and his right to counsel. However, Huebner admitted he had committed the offense which involved Boote. The undersheriff suggested to the defendant that because of the seriousness of the offense he should call an attorney. Huebner declined a request to give a signed statement before consulting with his attorney. On this record, there was compliance with Escobedo as applied in this state at that time.
The next contention of Huebner is based on an alleged duty of the trial judge to make a specific finding that the inculpatory oral statements were made voluntarily and not obtained in violation of his constitutional rights. Huebner relies upon Jackson v. Denno (1964), 378 U. S. 368, 84 Sup. Ct. 1774, 12 L. Ed. (2d) 908. However, Denno is not entirely applicable because this case was tried to the court, not to a jury. In a trial to the court the trial judge must be satisfied the confessions or admissions of guilt are voluntary before he can consider them in the fact-finding process and when any doubt is raised or an objection to their admissibility is made, the court must formally determine and rule on their admissibility. Absent an objection to the admissibility of a confession, the court without a jury is not required sua sponte to rule or hold a hearing on admissibility.
Of course, if the trial is to the jury the procedure required by Jackson v. Denno and State ex rel. Goodchild v. Burke, supra, must be followed when the issue of admissibility arises unless waived as a matter of trial strategy. We recognized in Gauthier v. State (1965), 28 Wis. (2d) 412, 137 N. W. (2d) 101, and Topolewski v. State (1906), 130 Wis. 244, 109 N. W. 1037, that the
Huebner strenuously argues there is not sufficient evidence to sustain the conviction. He claims his activities consisted of no more than engaging in obscene conversation with Boote, he did no overt act to force him into the car, and there were no unequivocal acts showing an intention to engage in sodomy. We need not recount the sordid evidence. The crime charged was an attempt to persuade or entice a child under eighteen years of age into the vehicle with intent to commit a crime against sexual morality. There is no question of Huebner‘s intent and willingness to commit sodomy. There is no question Boote was under eighteen years of age. The only real issue is whether Huebner‘s words or conversation constituted an attempted persuasion or enticement to get Boote into the car. Factually, the record shows persistent acts of both persuasion and enticement. Since the evidence in the record which was believed and rationally considered by the trial judge was sufficient to prove Huebner guilty beyond a reasonable doubt, the conviction will not be upset. Lock v. State (1966), 31 Wis. (2d) 110, 142 N. W. (2d) 183; State v. Stevens (1965), 26 Wis. (2d) 451, 132 N. W. (2d) 502; State v. Johnson (1960), 11 Wis. (2d) 130, 104 N. W. (2d) 379.
We think here the moral strength and the resistance of Boote to the entreating and enticing of Huebner constituted an extraneous factor beyond Huebner‘s control which prevented him from successfully persuading or enticing Boote to get into the car. Huebner did everything in his power to persuade and entice Boote into his car for the expressed purpose of committing an act of sexual perversion. Huebner did not abandon Boote; Boote abandoned Huebner. The failure of Boote to get
The last contention of Huebner, and one which we think has merit, urges a constitutional invalidity of the statutory procedure under which he was committed to the department as a sex deviate for treatment at its sex deviate facility under the Sex Crimes Act rather than being sentenced to prison for his crime under criminal law. This act was held constitutional in State ex rel. Volden v. Haas (1953), 264 Wis. 127, 58 N. W. (2d) 577, against the claims the act operated to deprive one of his liberty without due process and was an illegal delegation of judicial power to the administrative agency.
The purpose of the Sex Crimes Act commonly known as the “Sex Deviate Law” is to protect society from the commission of dangerous sex crimes and to provide treatment for the dangerous sex offender. Because of lack of treatment facilities and of methods of treatment, and on policy grounds, a distinction was made between relatively nondangerous and dangerous sexual deviates, which is reflected in the mandatory and permissive presentence examination. Note, Criminal Law—Wisconsin‘s Sexual Deviate Act, 1954 Wisconsin Law Review, 324.
The Sex Crimes Act was enacted by ch. 542, sec. 2, Laws of 1951, and presently provides in
Huebner was committed for a presentence examination under this permissive section and the commitment for this purpose has not been questioned.
Upon a completion of the examination but not later than sixty days after commitment, a report of the examination with the recommendations of the department is sent to the court. If it appears from such report that the department does not recommend specialized treatment for the defendant‘s mental and physical aberrations, the defendant is sentenced for the crime on a punitive basis as any other criminal,
Upon commitment to the department, it has complete control over the defendant and may require his participation in vocational, physical, educational and correctional training and activities and make use of such methods of treatment as it may determine to be conducive to the correction of the person and to the prevention of future violations of law by him.
If on his conditional-release date the department has made a committing order to retain such defendant in its control and the court has confirmed such order, then the
The act provides the court shall notify the person whose liberty is involved in any committing order of the review and for an appointment of a guardian if he is not sui juris. A hearing is required and the person under commitment must be given an opportunity to appear in court with counsel and be afforded process to compel the attendance of witnesses and the production of evidence. He may also have a doctor or psychiatrist of his own choosing examine him and if he is unable to provide his own counsel, the court must appoint counsel to represent him. He is, however, not entitled to a jury trial.
While such a hearing is provided upon the expiration of the defendant‘s conditional-release date, no such hearing, safeguards or recognition of defendant‘s rights are afforded in the first instance. The determination of whether a defendant convicted of a sex crime is a sex deviate in need of specialized treatment and shall be committed under the Sex Crimes Act, or is not in need of treatment and sentenced as a criminal, is not made by the court as it is in subsequent hearings but is made by an administrative agency with no right provided in the statute for the defendant to confront the doctors making the report, to cross-examine them or to put in evidence in his own behalf on the issue. This was justified in State ex rel. Volden v. Haas, supra, on the ground the procedure was in the nature of a presentence examination, and upon conviction a defendant was “subject to whatever loss of liberty the legislature has prescribed for his crime, whether that be imprisonment in the state prison or commitment to the department.”
This rationale rested on the concept that a criminal trial terminates when the defendant is convicted and due
The report of the department bears no analogy to and is essentially different from a presentence report for penal sentencing except in the matter of timing. And, neither a commitment nor its procedure under
We consider this commitment procedure so essentially different from penal sentencing as to amount to an independent proceeding which determines such important rights of the defendant unrelated to the determination of guilt that due process requires a hearing thereon as much as it does for subsequent hearings on the same issue.
We do not think the failure of the statute to provide a hearing in the first instance can be justified on any theory that such a commitment is only the equivalent of being penally sentenced for the maximum time provided by law for the crime plus a requirement for medical treatment. The Sex Crimes Act is not predicated upon any such theory. It forbids a penal sentence where treatment is recommended by the department and commands a commitment for mandatory treatment, State ex rel. Copas v. Burke, supra, and has been so understood, 49 Op. Atty. Gen. (1960), 64. Even release is not according to criminal law but under the provisions of the act.
We think due process does not end with conviction any more than it begins only with the commencement of the trial of the issue of guilt. Of late, the constitutional rights to counsel, to equal protection of the laws, against self-incrimination, and to due process have advanced from the commencement of trial to the preliminary examination and into the police station. Miranda v. Arizona (1966), 384 U. S. 436, 86 Sup. Ct. 1602, 16 L. Ed. (2d) 694; Sparkman v. State (1965), 27 Wis. (2d) 92, 133 N. W. (2d) 776; Escobedo v. Illinois (1964), 378 U. S. 478, 84 Sup. Ct. 1758, 12 L. Ed. (2d) 977. Such rights now extend to postconviction remedies of appeal and writs of error. Douglas v. California (1963), 372 U. S. 353, 83 Sup. Ct. 814, 9 L. Ed. (2d) 811, rehearing
The circuit court of appeals for the third circuit in United States ex rel. Gerchman v. Maroney (1966), 355 Fed. (2d) 302, considered Pennsylvania‘s Barr-Walker Act unconstitutional in respect to a denial of a defendant‘s right to have and cross-examine witnesses against him. The act provided for an indeterminate sentence for certain sex offenses with a maximum life sentence. While the act, unlike the Wisconsin act, allowed the court to determine upon the psychiatric examination whether it was in the best interest of justice to sentence a person convicted of such a sex offense under the provisions of the act, no right of confrontation of witnesses was afforded the defendant. The court held the act constituted an essentially independent proceeding rather than being a part of the sentencing procedure because the court made a new factual finding which went substantially beyond the finding of guilt, and therefore the defendant was entitled to confront and examine witnesses against him. The court also considered psychiatric treatment for sex offenses as prescribing a new and radically different punishment, because release from the indeterminate commitment was dependent upon a determination by the board of parole.
While we do not rest our decision on a denial of equal protection of the laws, we are aware that initial commitments under the Mental Health Act,
We think the language in State ex rel. Volden v. Haas, supra, that due process does not require a hearing on the administrative report and recommendation for specialized treatment can no longer be approved and is hereby withdrawn. We hold that when a person is convicted of a sex crime and subject to a presentence social, physical and mental examination and the report of the department
This decision in its retrospective effect is limited to the instant case and to pending cases in which a report of the examination has not been made to the court or, if made, not acted upon prior to the date of rendition of this opinion, but shall not apply to any case tried wherein the court has acted upon such report prior to such date unless this question was raised and preserved for appeal. The commitment must be reversed and the case remanded for the purpose of holding a timely hearing on the question of whether Huebner has mental or physical aberrations within the meaning of the Sex Crimes Act which requires specialized treatment. Since the initial mental report of the state department of public welfare is now over a year old, we think the hearing should determine the issue as the facts exist at the time of the required hearing. The custody of Huebner shall
By the Court.—The commitment to the department of public welfare is reversed, and the cause remanded for further proceedings consistent with this opinion.
CURRIE, C. J. (dissenting). I respectfully dissent from that part of the opinion which holds that it is a denial of due process under the Fourteenth amendment to deny to a defendant convicted of a sex crime, who, pursuant to the Sex Crimes Act (
Implicit in the Sex Crimes Act is the fact that commitment for specialized treatment of sex offenders is a phase of the penalty imposed for the crime of which the offender has been found guilty. In practice the sex offender so committed is imprisoned and receives specialized treatment, psychiatric in nature, while so confined. In other words he receives imprisonment plus treatment.
The majority opinion rests on the fallacious assumption that the determination of whether a convicted sex offender shall be committed to the department for such specialized treatment must be made by the judiciary and that it is a denial of due process for the legislature to entrust it to an administrative agency such as the department of public welfare. This issue was laid to rest long ago when the courts upheld the constitutionality of indeterminate sentence laws.1 It is not a valid ground of constitutional attack that such laws vest the power to determine the length of sentence in an administrative
If the legislature can vest in an administrative agency the power to fix the length of a sentence it can also vest in an administrative agency the power to determine whether a person convicted of a sex crime should receive the specialized treatment provided by our Sex Crimes Act and bind the sentencing court to sentence in accordance with such determination. No claim is made that such treatment constitutes cruel or unusual punishment in the sense in which these terms are used in the state and federal constitutions.
Let us suppose that the legislature had provided that if, after sentence of any prisoner to confinement for a sex crime the department determines that such prisoner is in need of specialized treatment for physical or mental aberrations having to do with sex, it should provide such treatment. This clearly would be constitutional in the absence of any showing that such treatment was cruel or unusual. This being so, why is it a denial of due process for the legislature to require the department to make such determination of need for treatment before sentence, but after conviction, and to make it mandatory that the court in its sentence commit the defendant to the department for such treatment. This was the rationale of our holding in State ex rel. Volden v. Haas.4
The majority opinion seems to intimate that the holding in Williams v. New York,5 that the due-process clause of the Fourteenth amendment does not require that a person convicted after a fair trial be permitted to cross-examine witnesses as to his prior criminal record contained in a presentence report, is passé. This is an assumption I refuse to indulge in. The opinion in Williams was written by Mr. Justice BLACK and concurred in by Mr. Justice DOUGLAS, the only members of the court at the time Williams was decided who now remain on the court. It would be hard to envision a decision by the present court holding a denial of due process in a criminal case which would not command the concurrence of these two justices.
Furthermore, this court is committed to the holding in the Williams Case by our decisions in Brozosky v. State6 and Waddell v. State.7 As this court declared in Brozosky:
“When one has been found guilty of an offense against society, no constitutional provision guarantees him the right to produce proof or to try out the issue of what his punishment shall be.”8
The constitutional arguments now leveled against use of the department‘s report by the sentencing court without affording the convicted sex offender an opportunity to rebut the same were most carefully considered by this court in State ex rel. Volden v. Haas.9 I am no more impressed with the present arguments than I was then. The Volden Case was rightly decided and should be adhered to.
I would affirm.