*1 еrror, State, in error. Norwood, Defendant Plaintiff Argued 75-508-CR. October 5, 1976. No. 16, 1976. Decided November (Also 801.) reported in 2d 246 N. W. *3 plaintiff in error
For there were briefs Howard Eisenberg, public defender, B. state Jack and E. Schair- er, argument public defender,. assistant state oral and by Mr. Schairer.
For argued by the defendant in error the cause was Betty Brown, R. attorney general, assistant with whom the brief general. La Follette, attorney was Bronson C. alleged HANSEN, J. The defendant T.
CONNOR another of into the side an automobile driven have Johnson, the (James) Jimmie at a time when automobile entering process in the the second car was driver of cars, the two the contact between a the car. As result body frame the door and the pinned between Johnson was entering. he of the car was state, testifiеd for the a witness Queary,
Robbie Lloyd in Mil- party street at West at a she was It a morning October waukee on party. Johnson was invited party by invitation. Queary the de- observed The defendant was invited. enter party also Johnson fendant at the and saw party; to leave premises. The defendant was asked defendant and out between the then broke scuffle the defendant leave party. at She observed others already left party had and run his car. Johnson Queary de- getting into his car. observed three car into car consecutive fendant run his Johnson’s door, pinning in the then observed times, Johnson leave. party he at the Johnson testified that when arrived involving Johnson, fight taking place. the defendant was observing fight, upon to the left the house to return nephew party. had to the car which he driven reaching Upon car, opened on the Johnson the door cigarette. lighting a He driver’s side and stood there nothing getting hit once then remembers remembers hospital up in four further until he woke three or *4 days he had later. Johnson testified never seen October that he had not defendant before and fought party. with him at the final
The third and witness Adam state was patrolman, Wojak, Department. Milwaukee Police He responded Lloyd testified that he to a call at 2124 West upon green and arrival street observed a Buick on the The car had sidewalk. been struck on the driver’s side Johnson, appeared unconscious, and who was trapped Wojak post. called between door and the door ambulance; an Johnson cut from was the vehicle morning, hospital. taken to the on that Later October he observed car the defendant. The driven damaged front end there was on both sides and were splatters of numerous blood on the hood.
Wojak further testified that he saw defendant later morning approximately that at 10:30 at the a.m. third police in; district station where defendant turned himself he rights; advised defendant of his constitutional that the defendant stated that: “. car, . he. did hit Mr. Johnson and his but he had only was thought hit him once because he Mr. Johnson getting gun stop from his vehicle and he wanted him.” Wojak days later, testified that 9,1972, two on October in attorney’s again office, being district after advised rights, his constitutional the defendant stated: right, “. . . All I hit him 3 times. I wanted to kill him beating up.” me Norwood, the defendant, tеstified his own behalf and only as witness for the defense. He testified that he thirty-five years old, grade-school was had limited education, epileptic was heart He had trouble. Lloyd party, getting at the street jumped remembered thing hit being and the next he remembered was telling car, home. He denied he hit officers Johnson’s but stated something that he told them he had hit because car Norwood bent. testified that he did not know Johnson, mad at striking wasn’t not him, did remember him, and that testimony. he did believe Johnson’s He making Wojak denied the statement to Officer on October 7,1972, making and further denied the latter statement attorney. the office of the district *5 348 trial His 1972.
The defendant was arrested October August 26, set Additional facts will be held 1974. presented review, considering forth when issues which are: right speedy-
1. to Was defendant denied trial? intelligently knowingly
2. Did the right jury trial ? waive his to a given 3. oral the de- two statements Were properly ? fendant into evidence at trial admitted
SPEEDY TRIAL. right The defendant claims that he was denied guaranteed trial as the sixth amendment I, the constitution of the United sec. 7 of States and art. Klopfer North Wisconsin Constitution. v. State of Sup. (1967), Carolina 386 18 L. U.S. Ct. Fredenberg Byrne 1; Ed.2d ex rel. 504, 123 is, necessary chronology
It therefore, forth a set commencing alleged the events with commission culminating crime and with defendant’s conviction. Those events are summarized as follows: alleged
October 1972: Commission of the crime of attempted first-degree approximately at murder 3:25 approximately At a.m. 10:30 a.m. the defendant turns police station, himself in to the third district makes a implicating stаtement himself to Officers Schoner and Wojak, placed custody. and is 9,1972: appears
October The defendant before the dis- attorney trict implicating and makes a further state- complaint against ment. The is sworn out the defendant. defendant, represented by Attorney Marola, makes appearance an initial branch of the circuit court. Judge complaint COFFEY finds the in order, finds probable cause hold the defendant pro- further *6 eeedings and motion, sets bail. On the defendant’s adjourned preliminary for case is examination to October assigned by The case is lot to branch of the county court. Preliminary hearing 18,1972:
October in held branch county of the court. Probable cause is found and the de- fendant bound over to circuit court for trial. 27,1972:
Octоber Information dated October in is filed circuit court. Arraignment
October 1972: in branch 11 of the reading circuit court. The defendant in- waives pleads guilty. formation and After denial defense modify bail, or motions to reduce the defendant demands speedy Judge adjourns a January trial. STEFFE to case jury
29,1973, for trial. permits Attorney 5,1972: December The court Marola appoints Attorney Styler represent to withdraw and to modify the defendant. to Motions reduce or are bail denied.
January Judge 15, 1973: Case transferred Chief L. J. FOLEY to branch 14 of the circuit court for trial. appears The defendant in branch 14 of the circuit court requests physical and mental examination relative ability Judge to his to stand trial. L. J. FOLEY finds probable suffering may cause to believe that the defendant defect,
frоm mental or disease and orders that Hospital the defendant be sent to Central State for ex- period days. amination for a not to exceed 60 February Hospital report 21, 1973: Central State on February the defendant dated 1973,received and filed with the circuit court. February Judge upon 26, 1973: FOLEY, L. J. review- ing Hospital report, the Central State determines testimony necessary
further medical is and orders Dr. Hurley report James to examine the and the defendant. hearing The case is to continued March 8, 1973, for competency. mental on the com- Hearing held branch March 1973: Hurley testi- stand trial. Dr. petency the defendant compe- the defendant not Judge finds J. FOLEY L. fies. The defendant own defense. participate tent Hospital pursuant 971.- sec. to Central Statе committed stayed time proceedings until such 14(5), are All Stats. competent. is found as defendant Attorney Styler to September 26, Court allows 1973: represent appoints Attorney Goulee withdraw defendant. pro se motions 5, 1973: The files
October lack of interpreter for dimissal because of hearing Judge motions on those L. FOLEY sets J. Hospital hearing receipt further Central *7 16,1973. reports for November Judge Acting 16, CANNON November 1973: Chief attorney Judge to District transfers case SULLIVAN. adjournment pending supreme requests court of case (State Dodge County decision ex rel. Haskins v. Court 575), 250, which will Judge object. The defendant affect this case. does adjourns proceedings 7, to December 1973. SULLIVAN agree adjourn- 7,1973: parties December All to further 15,1974. proceedings January ment of to above Judge 19, compe- March hears the SULLIVAN 197It: tency competent issue, finds the defendant to stand trial. requests assignment Judge defendant to L. J. The back pro previous hear the se motions. FOLEY’s to give Judge probably that he SULLIVAN advises could early upon April, trial date in Act- but consultation with agrees ing Judge O’CONNELL, Chief to the case send Judge to L. J. FOLEY. back 20, Judge
March Case referred from L. J. 197U: Judge FOLEY, to FOLEY J. branch 7 of the circuit F. Judge 26, March court. J. F. FOLEY sets for bail evaluation, April 3, hearing, 1974, for motion June jury 10,1974, for trial. Judge jury progress,
March Due trial to 1974: hearing April J. F. FOLEY to sets bail evaluation over 1,1974.
April Judge J. F. FOLEY hears and denies 1974: bail to have reduction motion. The defendant claims hearing speedy made an oral demand for trial this at but record does not reflect such a demand.
April 9, makes a for dis- demаnd 1974: covery inspection.
April 11,1974: Suppression of evidence motion sched- hearing Judge uled for before F. J. FOLEY. Defense engaged Suppression hearing counsel in another trial. ad- journed April 18,1974.
April Judge J. F. FOLEY denies hears and 1974: suppression of evidence motion. The defendant moves for further competency examination toas stand Judge appoints Studley J. F. FOLEY Doctors Weber and to examine the defendant.
May 10,1974: requests The defendant the court ex- amine jury its calendar to determine whether trial go Judge will on June 1974. J. F. FOLEY finds that May he has three murder trials between 1974, and June 1974. The defendant demands trial reassignment requests back to branch 14 or to the court Judge grants administrator. request J. F. FOLEY refers case branch May 16,1974: Judge Branch 14 refers case back to J. *8 Judge FOLEY. J. F. FOLEY F. refers case to court ad- reassignment. ministrator for
May 30, assigns Court administrator 1974: case to 11 of circuit branch court. 10,1974: requests
June The defendant a substitution of Judge judges. grants request SERAPHIM and trans- reassign- fers the to the case back court administrator for reassigned ment. Case to branch 12 of circuit court. Judge COFFEY, branch 12, orders the case transferred
352 Judge CANNON, for 4 of the circuit court, branch
Jum,e request, 17, to the defendant’s Pursuant 197k: Judge July 1974, 17, trial and sets CANNON sets July 3, reports 1974, from as date to receive medical Studley. Doctors and Weber
July 3,1971¡.: Reports and received from Doctors Weber 17,1974. Studley. July Trial date still set Judge July 17, congested calendar, Due 197k: July 25, 1974, CANNON continues case to for trial. Judge July 25, progress, trial Due murder 197k: August 1974, for trial. 26, CANNON case to continues from The defendant’s motion for release bail/incarcera- days May 10, tion trial because nоt set within 90 from 1974, speedy demand for trial denied.
August 26, 4, Trial branch circuit court. held 197k: first-degree attempted Defendant convicted of murder imprisonment to an sentenced indeterminate term years. not to exceed seven recently (1976),
As most
in Beckett v.
stated
State
73
472,
345,
principles
243
Wis.2d
N.W.2d
enunciated
Wingo (1972),
514,
Sup.
in Barker v.
92
407 U.S.
Ct.
101,
recognized by
33
Ed.2d
this court
L.
Day
(1973),
61
212
State
Wis.2d
N.W.2d
subsequent
disposi-
to the
cases
Barker decision
are
question
of whether or not
tive
a defendant has
right
been denied the
to a
trial.1
Barker,
Supreme
In
the United States
Court con
five-year
period
a situation
a
sidered
wherein
time
elapsed between the defendant’s arrest and trial. The
delay
presumptively preju
court there found
such
promulgated
balancing
applied
dicial and
test to be
1
(1975),
485;
v. Russo
233
Wis.2d
N.W.2d
Fostеr
(1975),
411;
v. State
70 Wis.2d
State v. Shears
Hadley
(1975),
103;
(1975),
68 Wis.2d
229 N.W.2d
v. State
461;
225 N.W.2d
Wis.2d
Watson v. State
264,
While speedy inquiry in trial cases that the court threshold held delay. always length it the of must concern Until length delay presumptively the of determined inquiring into the had to prejudicial, no could be resort pp. at 531: other factors. The court stated triggering length delay extent of to some some “The the is delay pre- there is which is mechanism. Until sumptively prejudicial, necessity inquiry there is no go Neverthe- into the balance. into other factors imprecision right less, because of of provoke inquiry length delay such trial, that will an of necessarily dependent upon peculiar circumstances added.) (Emphasis case.” legislative direction, that, absent no Barker held adopted period specific time be as condition would balancing precedent application test. In to the recog- supra, p. adopting Day, this court test Previously in State Kwitek the Barker rationale. nized this (1972), 53 Wis.2d adopted period specific of time is to be held that if a determining it speedy trial must done issues be legislature court would not “. . . fix such and that a upon judicial arbitrary it reasons.” and base an standard period elapsed of time that instant case from In the twenty-two months. to the date of trial was the arrest length delay that we examine this necessitates The delay. reasons for separated delay into three in this can case 9, 1972, to the
periods of time. The first from October *10 hearing 8, competency 1973, period first on March a of months; second, competency five the from the first hear- ing hearing competency on March to the second 1974, 19, period months; third, on March a of twelve the competency hearing 1974, the from second on March 19, August 26, to 1974, trial, period the date a of of five months. determining
In delay, reasons for a an initial inquiry delay? is, who delay caused the If can be to defendant, attributed the actions of the he cannot be period heard to claim that that of time be considered deciding speedy whether he has been denied a trial. If the delay state, can be attributed then the state must justify delay delay a be valid reason it delay must a Hadley, be that is intrinsic to case itself. supra, p. 362. If the justify delay, state cannot then period that deciding must be considered in the issue of speedy lack of period
As to the time, complaint, first of initial appearance, preliminary hearing, arraignment and initial setting January of trial date, all were expediently. carried out complains The defendant about six-day elapse a between the arraign- information and the ment, period reasonably but such a can be attributed to judicial ordinary system. demands of the Had the place January trial taken on 1973, there would be no cаuse for a trial claim. January 15,1973, however,
On requested the defendant physical a and mental ability examination relative to his period stand trial. The three-month before that re- quest delay. does not constitute Pursuant to the de- request upon fendant’s finding there probable cause to may believe that the defendant be suffering from mental defect, or disease the Hospital was sent to Central State pur- for examination to ch. suant explicitly Stats. The court set the time for examination at a days. maximum sixty The ex- completed prior time; to that additional animation was testimony necessary and was secured medical was deemed hearing court; competency and the was held days January sixty than from March less delay request a month initiated The two solely to the mental examination cannot attributed be finding probable Upon cause to doubt defendant. capacity trial, the court is re- the defendant’s stand quired by Stats., statute, 971.14(1), to take sec. appropriate steps question competency. to resolve the delay state, if can it But even attributed to the delay. Nothing justifiable could be in- and valid more *11 to a criminal case than a determination of the trinsic competency participate in to defense. defendant’s own are not here with situations like those cited We faced Calloway (D.C. United v. defendant in States Cir. 1974), In 311, (1st Fed.2d re Harmon Cir. and 1970), cases, Fed.2d 916. In those evaluation delayed duly Calloway, months, was for three itself —In Harmon, year. question in for one Here the of the and сompetency only prior raised defendant’s was two weeks competency to The examination eventual hear- trial. ing place took within months. of time two Such amount unreasonable, particularly specific in of the was view provisions 971, of ch. Stats. period time, period to of
As the second twelve elapsed. months On March defendant was incompetent trial, found to stand was committed to Cen- Hospital pursuant Stats., tral State to 971.14(5), sec. proceedings stayed all until were such time as the competent defendant was found to trial. stand holding Under of this court in State ex rel. Matalik v. Schubert 57 Wis.2d a re- examination of the competency defendant’s to stand trial original was mandated after six months from the com- 5, 1973, pro mitment. On October the defendant filed se for lack of motions for dismissal hearings receipt set on that issue and for Cen- further Hospital reports tral State November 1973. On date, requested pending state a continuance this Dodge County in State ex rel. court’s decision Haskins supra. object. Court, The defendant did not On Decem- 7, 1973, adjournment proceedings a further ber to agreed January parties. all The hear- eventually ing 19,1974. held on March Haskins re-evaluated the six month re-examination up criteria set Matalik and held that re- ultimate of a 971.14, tention under Stats., sec. should eighteen be limited not to months six but to months. applied Haskins to those cases such as the defendant’s original where individuals were still over the committed period Thus, six-month time enunciated in Matalik. under decision, the Haskins the dеfendant was not entitled to discharge September (six origi- 9, 1974 months after commitment) was, nal up date, but after validly committed.
Regardless periods of the time for commitment and re- up examination set Haskins, Matalik modified in following original is clear: From the time commitment on March the time of the March 19,1974, competency hearing, properly the defendant was Hospital committed to Central incompetent as *12 delay stand trial. If that state, to be attributed to the then a valid reason exists for If it. the defendant was competent to trial, stand no trial could held. It be delay is self evident that a caused a defendant’s in- competency to stand trial is intrinsic to the case itself.
The defendant was 8, on March committed 1973. The regained first indication that he had competency his occurred on court, March 1974. The within two weeks date, after competency held the re-examination. Of the delay twelve month caused the commitment of most, a trial, at incompetent to stand as the defendant days could be considered approximately 15 total of right determining was denied the defendant whether to a trial. time, of five months period a total third to the
As hearing competency and elapsed the second between During the defendant: August 26, 1974, trial. that time FQLEY’s reassignment Judge L. J. Requested back reduction/modification; court; for made motions bail re suppress evidence, which motion made a motion to adjournment hearing; requested an quired a Goodehild hearing defense counsel suppression of evidence as engaged trial; further made a motion for another trial; competency to made stand examination as request reassignment; request made a second judge. cannot be of a substitution delay complain by his own con about caused heard called requests need not The above on motions be duct. consuming time im delaying identified as tactics early (See pediments to an McGrath 292, 166 172.) (1969), 42 inexplicably opinion either or the state It is our delay trial of the defendant’s without valid reason caused delay day following periods of time. The seven for the originally March bail between scheduled April hearing; hearing the actual evaluation day reassigning delay in twenty the case after day May 1974, request; forty defendant’s delay July date for scheduled between August 26, trial date. trial actual summing periods time, Thus, up the three at the and under the most favorable considerations to maximum defendant, a total of less than six months could be delay pur- to the for the considered as attributable state determining poses the merits of the defendant’s asser- right. speedy trial tion of his *13 length case, the of this
Under facts prejudicial. delay delay does not constitute which is inquiring necessity there into the Therefore, is no go balancing Foster v. other that into the test. factors State, p. 18; supra, p. supra, Wingo, Barker v. 531. TRIAL. OF JURY
WAIVER jury Trial of the scheduled to defendant before a was August 26, commence on Prior to commence- its ment, defense counsel the court de- advised willing jury fendant was trial tried waive and be before questioning After court. extensive of the defendant by attorney accepted the court and the district the court proceeded the waiver and trial court. jury
Defendant now contends his waiver of trial knowingly intelligently was in that de- made condition, i.e., fendant’s mental almost no formal educa- IQ tion, previous finding a measured of in- competency, brought with combined facts out questioning, precludes finding court’s extensive such a waiver. involving
In two
jury
recent cases
waiver of
trial
issues,
(1970),
White
The record in the instant case reflects that on March 19,1974, competent defendant was declared stand competent up through His status as continued trial, to and fact, brought and as a matter of to the attention of just prior defense counsel to the defendant’s signing jury waiver. appeared
The defendant attorney with his who advised willing the court that defendant jury to waive a try trial and Upon case before court. initial *14 questioning by court, that he the defendant indicated really not had had time to think it Defense counsel over. stated, however, that had the matter with he discussed the defendant and that the defendant’s hesitation came [k]ind lack situation, down to a “. . . of fear then of knowledge going of of is lack understand- what or ing. I don’t think he to meet the wants situation.” gave try The court the defendant a the case choice— jury. the court that before or a The defendant he stated try would it before court. questiоned
The court the defendant as to his under- standing of the waiver. The defendant stated that he understood that his case could be tried 12 men before they jury, and women on a and that the ones would be guilty. who would whether or not he At one decide was point in the examination the he did defendant indicated given explanation by understand the court that jurors’ guilty de- vote of must be unanimous. Both explained fense counsel and the court further re- quirements jurors’ arriving as to the vote in at a verdict. The defendant then he stated wanted be tried court. response questioning by
In to further at- district torney, prom- the defendant indicated that no threats or attorney ises he made were to him the district and that judge jury rather wanted than the to hear the upon court, The trial based the statements of the de- accepted jury fendant, waiver, his and defendant signed by printing a written waiver name on it. his doing After so, defense counsel had the defendant state although on the record he write, could not read or signed saying paper he understood he had that he jury try wanted the court rather than the his case. impressed After our review of the record we are not argument with the of the defendant that the waiver aof jury intelligently, deliberately trial was not made right he waiv- voluntarily. The nature of the which repeatedly. ing depth There explained to him absolutely the existence on the record of no evidence finding negate any impairment mental such as would intelligent voluntary waiver. of an a matter that as If the intends contend finding precludes of intelli- law mental condition his gent waiver, fail. that contention must IQ relatively
Although are educational level his competent participate in own low, found he was Haskins, supra, p. cited defense. This *15 Dusky Sup. v. United States (1960), 362 Ct. U.S. defining competency to 788, 4 L. Ed.2d stand as trial: ‘“ pres- he “test must whether has sufficient he [T] ability lawyer ent a reasonable to consult with his with degree understanding he a of rational whether has —and understanding proceed- as factual rational as well ’ ”
ings against him.” having defendant, competent found to stand been trial, necessarily possessed must have intellectual right capacity jury to waive the to a trial.
The record this case leads to one but conclusion. knowingly intelligently The defendant and waived his right jury to a
ORAL STATEMENTS. having On October after turned himself in voluntarily police, orally to the the defendant admitted police to the that he He had struck Johnson’s car. only only that he done once claimed had so because thought getting gun he Johnson was a from his vehicle stop doing and the defendant him wanted from so. custody in the police On October while presence attorney, and in the of the assistant district orally he had hit admitted Johnson attempt his car three in an to kill times him because up evening. Johnson had beat him earlier that The state indicated its intention to use the above oral against statements as evidence The de- defendant. pretrial filed suppress fendant a motion to the statements. April 18, 1974, a combination Miranda-Goodchild On hearing was held. The court held that both statements voluntarily had been mаde he defendant after had fully been rights. advised of Miranda his and waived The court motion, denied the defense testimony and the Wojak Officer as to the content of the statements was admitted into evidence at trial.
The defendant now given contends that the statements in this case should not have been admissible because the they given circumstances under which were did meet requirements of Miranda v. Arizona 384 U.S. Sup. 694; Ct. 16 L. they Ed.2d nor were voluntarily given. In specific, the defendant contends personal that his own i.e., his own educa- characteristics, level, IQ tional only the fact five giving months after he statements in- found competent trial, weigh heavily against stand all finding that he intelligently understood and waived his rights Miranda against finding voluntarily that he *16 gave those statements.
Upon
proceedings
review lower сourt
involving
Miranda-Goodchild
hearings,
upset
this court will not
the
findings of fact and determination
on the issues in
appears
volved unless it
they
against
that
great
are
weight
preponderance
and clear
of the evidence. Gren
nier v.
State
(1975),
204,
70
209,
Wis.2d
234 N.W.2d
316;
Blaszke v. State
(1975),
81,
69 Wis.2d
86, 230 N.W.
133;
Jones v.
2d
(1975),
Wis.2d
343, 677;
State v. Carter
(1966), 33
80, 90,
91,
At a
Goodohild
the sole issue
de
cided is the voluntariness of the
at a
statements and
hearing
Miranda-Goodohild
are
issues
be decided
giving
statements,
proper
voluntariness of the
warnings
intelligent
the Miranda
and the
waiver of
rights.
Miranda
(1973),
State v. Hernandez
61 Wis.2d
Both Wojak Officer Schoner and Officer that testified rights defendant had been his Miranda read before questioning him and that the defendant that he stated understood them. Both officers also testified as to their general observations of the appearance defendant’s —he they seemed calm and relaxed and had no trouble commu- nicating with him.
On the other hand, the defendant testified that he talking remembered Wojak Officer on October but that he being did not remember advised of constitu- rights tional and that making he did not recall a state- hitting ment about He Johnson. testified he that was in- jured although at time, the officers testified that he appeared injuries. normal and no had
As to the October stаtement, Wojak Officer gave testified that he rights the same he given had 1972; October rights that those were given both prior taking himself the defendant into attorney’s assistant district office, the assis- tant attorney prior district to questioning; the de- fendant stated that he them; understood and there 2 State ex rel. Goodchild v. Burke 27 Wis.2d N.W.2d 763.
363 question defendant was in mind that no Ms was mentally competent. going into remembered that he The defendant testified gave attorney’s him that no one district office but attorney rights, told him or he could have an told his say anything. He he testified him have didn’t get attorney Wojak he after an told him he could Officer attorney. not The did talked the district making concerning deny any the crime to statement attorney. assistant district finding did re
The trial that the defendant court’s warnings proper Mirаnda that he did make ceive against great inculpatory not statements was two weight preponderance of the evidence. clear However,defendant he could also contends that rights intelligently have waived his Miranda because fully capabilities prohibited him from under own mental understanding standing fully them; them, he and not intelligently court, trial could not waive them. The based testimony Wojak Schoner, held on Officers rights. trial that the defendant did understand review, court, court believed the officers and this un weight greater preponderance and clear less say otherwise, cannot that the trial evidencedictates Credibility an for the trier of fact. error. is issue (1970), v. Schneidewind 176N.W.2d State Wis.2d (1972), 303; v. State Parker Wis.2d 197 N.W.2d intelligently not the or defendant could Whether rights question waivе those essence a voluntari ness. receiving
Even if made after Miranda warn inculpatory ings, made statements defendant are prosecution against criminal inadmissible in a un him they voluntarily. were made McAdoo less v. State 521; Parker, supra. proving The state has the burden of voluntari beyond review, ness reasonable doubt. On the standard *18 364 contrary findings of the trial court are
is whether the greater weight preponderance of to the and clear regarding Any testimony in the evidence. conflicts surrounding the be re circumstances statements must findings. McAdoo, in favor trial court’s solved of the supra; Hoyt 21 supra; (1964), Schneidewind, State v. 47, rehearing 310, (1964), 21 124 Wis.2d Wis.2d 284, 128 N.W.2d
The defendant here that the statements could contends because, totality voluntary not have been in the of cir- knowing, cumstances, precluded mental cоndition his intelligent understanding of Miranda waiver rights. re- Similar contentions have been raised supra; Grennier, supra; Blaszke, cent of cases supra. Schneidewind, The trial court in the Goodchild hearing voluntarily found that the statements were made. evidence, inculpatory
To be
into
an
admissible
voluntary product
statement must be the
of a free and un
reflecting
will,
constrained
of choice.
deliberateness
(1973),
135, 137,
v.
Pontow State
58 Wis. 2d
205 N.W.2d
question
775. The
is whether it was obtained under such
represents
circumstances that
it
the uncoerced free will
deprived
declarant or whether the circumstances
ability
him of
Roney
to make a rational choice.
v.
(1969),
State
44 Wis.2d
Whether or not a statement and not depends totality result of coercion on the of circum surrounding stances Grennier, the statement. supra, 210; McAdoo, supra, 605; (1974), Brown v. 64 balancing Wis.2d 219 A N.W.2d 373. careful personal must be made between characteristics of the pressures declarant and the subjected to which he was in order to induce the statement. State v. Wallace (1973), 66, 81, 207 59 N.W.2d 855. Schneidewind,
In suxpra, this court set forth the relevant factors which must be considered on both sides of the balance:
865 circum- ‘totality of the to the must look “. . . Courts ad- determining or a confession whether stances’ voluntary. examine A court must can called mission Haley age accused, v. Ohio factors as such 224; L. Ed. Sup 92 (1948), Ct. 332 U.S. accused, Townsend intelligence education and L. Ed.2d Sup. 745, 9 (1963), Ct. U.S. Sain interrogation took which the 770; under the conditions Sup. Ct. place, Fay 372 U.S. v. Noia 837; mental condition physical 822, 9 Ed.2d L. accused, (1960), 361 U.S. Blаckburn v. Alabama inducements, *19 242; any 274, 199, Sup. 4 L. Ed. and 80 Ct. persuade stratagems which were used methods and the accused Lymumn 372 v. Illinois confess, 922; the 528, Sup. 917, L. Ed.2d and what Ct. U.S. responses counsel, Haynes requests were to his Sup. Washington (1963), Ct. 373 U.S. 513.” 10 L. Ed.2d indicated, previously to the evidence
In addition voluntarily him- that defendant turned shows record searching police on the correct station self in after Wojak testified and 1972. Officers Schoner October rights, although that he of his constitutional was advised request attorney; that he did and the defendant an making anything promised or before was not threatened all of the facts established a statement which verified investigation in- by prior police and which contained culpatory closely followed utterances. The statement interrogation lengthy. warnings. wаs not Miranda The presence place booking It in the room in the of took Wojak perhaps one other de- Officers Schoner nothing ordinary out of the in the tective. There was configuration room, any oppressive nor were stratagems inducements, induce methods or utilized to the statement. Wojak promises
Officer that or threats testified no given prior made the defendant to the were statement on October 1972. On he turned both October when in, himself and on October he to the dis- when went attorney's office, trict accompanied the defendant was friends, although they present his wife and were not during questioning. The defendant was visited jail his wife in between October 7 1972. The threatened, that testified he was never but requested attorney. he and was an denied The court was made of the aware educational defendant’s level and mental condition. evidence, properly
On the basis view ing totality circumstances, the trial court given found that voluntary. statements were This finding against great weight was not pre and clear ponderance evidence. argument
The thrust of the defendant’s is that important considering totality factor in of circum- capacity stances is the mental of the declarant.
While the admittedly defendant’s capacity mental low, convincing there was no presented evidence at the hearing Goodchild that would indicate that the defend ability ant’s rights to waive his Miranda on October impaired. 7th and 9th was presented, evidence the issue of mental incompetency, considerably less convincing presented than that in the cases cited for *20 support by the defendant. See Blackburn v. Alabama (1960), 361 Sup. U.S. 80 242; Ct. 4 L. Ed.2d (Pa. Commonwealth Jones 1974), 10; 327 Atl.2d People v. (1972), Stanis 41 App. Mich. 565, 200 N.W.2d 473. though
Even evidence of level, defendant’s educational IQ rating, finding of incompetence to stand trial five giving months after statements, pre- was sented, the main issue to be decided in a Goodchild hear- ing is voluntariness. Since the in decision Goodchild, supra, question of the trustworthiness of a state- ment (i.e., whether it is true credible) has been left for the trier of fact after the statement has been received in evidence. Hernandez, supra, 259; Bergenthal State v. Roney, 16; 2d 178 N.W.2d Wis. supra, 582, argument
The defendant’s in issue, this while voiced voluntariness, mainly terms of one is addressed to totality The of the trustworthiness statements. circumstances leads us to conclude that the statements voluntarily. trustworthy they were made Whether were court, fact, was for the trial as the trier of to decide at the time of trial. inculpatory
The properly statements were admitted into evidence.
By Judgment and order affirmed. Cowrt.— HEFFERMAN, (concurring) J. I concur in the court’s affirming judgment mandate appealed and order agree from. I that there was no denial of the con- right disagree, however, stitutional I methodology making with the majority utilized in that determination.
In v. Ziegenhagen, 245 N.W.2d balancing this clear made factors originally set forth in Wingo, Barker v. 407 U.S. (1972), were not passage to be utilized unless the time presumptively prejudicial. period triggers of time presumption which is unrelated to the balancing factors utilized test. delay A which on shocking its face is inordinate or the court elapsed terms of time before defendant brought trial, irrespective therefor, of the reason is in compel itself sufficient the court to conclude that delay presumptively prejudicial.
Conversely, obligation go court has no into the delay if reasons on the face appears of the record it although delay, unexplained, unreasonably is not long. Hence, the determination presump- of whether a prejudicial tively delay nothing has occurred has to do with the delay. reason for period If the of time
S68 delay presumptively long, unreasonably
elapsed is is though weighing prejudicial factors the Barker of even delay may ex- that the was in the determination result because, from circumstances it resulted here, cusable as to the case. intrinsic majority delay case, of finds In the instant twenty-two examination of necessitates an months finding presumptive delay. of for the This is reasons considering prejudice. Yet, for the after reasons presumptively delay delay, not it concludes that the is delay twenty-two prejudicial. not of months was If the prejudicial, presumptively no then there need have been delay. inquiry into the reason for the quarrel I with the of the court have no substance what reality, delay twenty-two In it finds the of months does. prejudicial. triggered inquiry presumptively its This balancing into the first of the factors—reason for delay. properly principal It that the concludes reason delay, incompetency to finding trial, to the stand was intrinsic case itself. That presumption prejudice, and the court con- rebuts delay that the that cludes was caused circumstances infringe right upon did not the defendant’s constitutional obligated proceed trial. It not to a was further balancing Barker. with factors of going through rationale, however, After it is logic contrary delay to then conclude that the was prejudicial. actually presumptively the court What presumptive prejudice dispel to find does is and then analysis presumption it facts. The contrary any analysis rebutted, it rational point the court at presumption conclude that there no prejudice. inquiry that true, Were no delay necessary into the for the reasons have would been appropriate. or
I am to state that Justice authorized Abrahamson joins in this concurrence.