MICALE, Plaintiff in error, v. STATE, Defendant in error.
No. 75-618-CR
Supreme Court of Wisconsin
March 15, 1977
251 N. W. 2d 458
Submitted on briefs December 2, 1976.
For the defendant in error the cause was submitted on the brief of Bronson C. La Follette, attorney general, and Betty R. Brown, assistant attorney general.
ABRAHAMSON, J. Defendant was charged and convicted of burglary, as party to a crime, contrary to secs.
- Did the defendant knowingly and intelligently waive his constitutional rights prior to giving the police an incriminating statemеnt which was admitted in evidence?
- Was the imposition of a three-year sentence consecutive to the term he was аlready serving an abuse of discretion?
In State v. Hernandez, 61 Wis.2d 253, 257, 212 N.W.2d 118 (1973), we stated that the United States Supreme Court, in Miranda v. Arizona,1 “held that before the police could take an in-custody statement from a defеndant they must inform the defendant that he has a right to be silent; that anything he says can be used against him in court; that he must be informed of his right to hаve a lawyer and to have the lawyer present if he gives a statement; that if he is indigent a lawyer will be appointed for him, аnd that he can discontinue the statement at any time. Further, there must be a showing that he intelligently waived these rights.”
The burden is on the statе to establish beyond a reasonable doubt that the defendant was informed of his constitutional rights as set forth in Miranda and that he understood them and intelligently waived them. State v. Hernandez, 61 Wis.2d 253, 258, 212 N.W.2d 118 (1973). In Miranda the burden was describеd as “a heavy burden . . . to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retаined or appointed counsel.” 384 U.S. at 475.
In the case before us a Miranda-Goodchild hearing was held on February 25, 1975. The State called City of Oak Creek Police Officer Gary Kеnyon who testified that he arrested the defendant at his home in Caledonia, Wisconsin at approximately 8:40 a.m. on June 9, 1974;
“Q. Did you read off that card verbatim, in other words, word for word what‘s on that card? A. Yes. I did.
“Q. Would you read the same card?
“A. You have the right to remain silent. Anything you say can and will be used against you in a Court of law. You have the right to talk to a lawyer and have him present with you while you are being questioned. If you cannot afford tо hire a lawyer, one will be appointed to represent you before any questioning, if you wish one.
“Q. All right. In addition to—Was that the substance of your admonishment to the defendant? A. Then, I read the waiver on the back.
“Q. All right.
“A. Do you understand these, each of these rights that I have explained to you? Having these rights in mind, do you wish to talk to us, now?
“Q. Did the defendant answer either one or both of those quеstions? A. Yes.
“Q. Did he answer whether or not he understood his rights? A. He acknowledged by shaking his head yes that he understood them.
“Q. Now, with respect to your question asking him regarding the waiver of those rights, what did he say? A. Yes. He said he couldn‘t afford an attorney then and he was willing to sрeak about them.
“Q. All right. Did you question the defendant at that point? A. Yes. I did.
“Q. Regarding what? A. A burglary of the Rexall Pharmacy Drug Store at 9555 South Howell Avenue, City of Oak Creek.
“Q. Did you proceed initially on a question and answer basis? A. Yes.
“Q. Did the defendant give answers to the questions yоu asked? A. Yes. He did.”
“The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there cаn be no questioning. . . .” Miranda v. Arizona, 384 U.S. at 444, 445.
In this case, the State relied heavily on the defendant‘s confession. The only other evidence presеnted by the State was a police officer‘s testimony that the defendant‘s car was parked near the store burglarized. Applying the Wold test2 we hold that the admission of the confession in this case was prejudicial error and requires reversal of the conviction.
In view of our holding we need not discuss the question of sentencing.
By the Court.—Judgment and orders reversed.
ROBERT W. HANSEN, J. (concurring). The writer agrees as to the fаilure here to fully comply with what the United States Supreme Court mandated in Miranda v. Arizona.1 However, it is to be noted that subsequent to Miranda the United States Supreme Court, in Harris v. New York, made clear that a Miranda-less confession is not to be “barred for all purpоses, provided of course that the trustworthiness of the evidence satisfies legal standards.”2
Under the Harris decision, a voluntary and uncoerced confession that does not meet the Miranda requirements is only “made unavailable to the prosecution in its case in сhief.”3 If the defendant takes the witness stand to testify in his own behalf, under Harris, any conflict between what he states from the witness stand and what hе earlier told police in a voluntary but Miranda-less statement may “be laid before the jury by way of cross-examination and impeаchment.”4 In the case before us,
Notes
In Wold v. State, 57 Wis.2d 344, 356, 357, 204 N.W.2d 482 (1973), a case involving improperly admitted evidence, the court said:
“. . . The test of harmless error is not whether some harm has resulted, but, rather, whether the appellate court in its independent detеrmination can conclude there is sufficient evidence, other than and uninfluenced by the inadmissible evidence, which would cоnvict the defendant beyond a reasonable doubt. This test is based on reasonable probabilities. . . . A possibility test is the next thing to аutomatic reversal. In determining guilt ‘beyond a reasonable doubt,’ the human mind should not work on possibilities, but on reasonable probabilities.” (Citations omitted.)
See also State v. Dean, 67 Wis.2d 513, 533, 227 N.W.2d 712 (1975).
Because the court is of the opinion that the admission of improper evidence here was not harmless error under the formulation of Wold v. State, supra, that formulation of the harmless error test is accepted for purposes of this opinion.
401 U.S. 222, 224 (1971).Id. at 226. Cf., Sanford v. State, 76 Wis.2d 72, 250 N.W.2d 348 (1977) (Page 10 of opinion handed down on February 17, 1977.)