State v. Hoyt

My is that it objection majority analysis looks to alone, side pressure of and equation suggests after has counsel interrogation silence it- urged self sufficient exclude a may I do resulting confession. agree with conclusion that majority’s Dona Hoyt was denied federal constitutional in this right respect, since the States especially United court ex- supreme has held total denial contact pressly any defendant by with counsel by does not in during interrogation coerced, itself render a confession if defendant had sufficient to resist ability without aid of pressure counsel at this point.18 Respondent,

State, Appellant.* Hoyt, 29, 1963.

October 4 October For appellant there was a Raskin, brief Max by at- counsel, S. torney, and Herbert Bratt Milwaukee, both oral Mr. argument Raskin. For the respondent the cause was argued by William A. Martinson, Plats and Robert D. assistant attorneys general, with whom the brief were George Thompson, attorney and William J. general, McCauley, district attorney of Aladin Brosso, Milwaukee A. De county. assistant district also attorney, argued. California, supra. Crooker v.

* rehearing granted. Motion for on this are presented Three issues major Wilkie, J. are: They appeal. case, was Mrs. of this all the circumstances

1. Under evidence, confession, into the which was admitted a free and unconstrained will? of voluntary product in the evidence to a reasonable basis permit 2. Was there verdict of manslaughter, to submit a the trial court possible ? sec. 940.05 Stats. to pursuant information admitted into evidence certain 3. Was Fourteenth clause the amend- the due-process violation of Const., such information was obtained ment, because U. S. search and seizure? as result an illegal a 28, 1962, the on shooting to leading May The events up victim, a that the Milwaukee On day police- are undisputed. He work. man, spent morning did not have to togo with a the late afternoon friend. golf playing part afternoon, a Mrs. noted trip, while on shopping Hoyt in and found outside a tavern. She went friend’s car parked bar with his friend. Aft- sitting golfing her husband words, left the tavern and Hoyt a few Mrs. exchanging er school, him to returned their their son from picked up hus- back to the to her home, join then went tavern deceased was to grossly insulting the tavern the band. At he remarked to him that had a nice wife. his wife. A patron effect, her, that if he would like didn’t why He replied, wife He remarked when his was born they take her. he her the afterbirth. He away kept should have thrown effect, that, in his remark sorriest day also made his the defendant. marriage to day life was the :30, about some picked tavern up left Hoyts stand near and malted milks at food their sandwiches their and ate returned to house a light home. They supper. husband, her the defendant went to who thereafter Shortly in the room. She sat to couch next living was lying asked him whether or on the couch. She could him of life. some kind he According live other testimony, “You can live replied, any kind life want —I don’t you care.” Mrs. he testified that said he sell would house, him, take their son with and leave town. She told him, remark, “Don’t talk so foolish.” In to this response said, knife, testified deceased “Get my me; Ime; cut shoot get gun, don’t care.” my Mrs. Hoyt “Don’t talk so responded by saying, stupid.” The defend- ant testified that at this point deceased knocked her off forward, the couch to the floor with his He legs. leaned put his hand her head and applied pressure, ostensibly her head attempt down to the he push floor. When couch, released this she then crawled to the pressure up leaned over him and that he suggested to bed. He re- go this, plied to don’t hell?” He his “Why you hand go put on her face her and backward. pushed What then happened was described the defendant as follows: “Well, when he did her I this [pushed just backward] know, him, lost and I ended balance from my away up you I fell just this then I and into way. got And walked out up the hall and I out I just wanted of the room and get just well, felt I like wasn’t it was like real foggy, you there — can’t even look out of the side of your eyes, something. hall, I and, well, And walked into the I was just afraid there, be in I didn’t know to do. what I in the go couldn’t see, kitchen because he was there and so he and I could was he afraid I would come after me if went in kitchen. And when I was bedroom, this —I was thinking already past this and I so into Rusty’s turned room —it was on the side me I and just in and I turned walked in room Rusty’s and I was there I just and was standing ahead staring straight as I walked in. And I saw the door it has a open, mirror on it, took door, and I and I my hand was going close and I looked and eyes this I up my saw don’t feel like gun. it, I even it just reached like I seemed was drew to mean, touch that and —I in a gun I fog, wasn’t I thinking, I wasn’t wasn’t planning, doing anything. “I just reáched this I and had gun it my hands and some leather of some covering sort fell down and I was look- and I hands, and I was just foggy at this ing gun my I steps, I two walked out And staring was at gun. hall, in the was, and I was of this room think it and I’m out I hall and had I I in the and realized was as soon as noise I heard little in back of me. And I it gun quick put so turned walked, hall is small—I outside and I turned —the standing Bill see and I was room and could me living ‘Have got And he said you with hands behind back. my my said And when he a knife—cut me. You got my gun?’ at me and was coming I didn’t he just say anything, ‘gun’ and he said and I front and he laid back down put gun ‘Shoot, it’s loaded—shoot.’ there, I there just I was froze and was standing “And now,’ matter, he what’s the matter

and he said ‘What’s the said, on,’ ‘shoot,’ on, said, said, bitch,’ he ‘come he ‘come on, bitch, I shoot.’ And said and you ‘quiet,’ he said ‘come ‘shoot, care, I care I he don’t I don’t about don’t you, said shoot, kids, shoot, I care don’t care about about anything, shoot, shoot, shoot!’ And his face came at me and it was all shot, I red back it and and contorted and and it stepped dull, Bill, I ‘What that?’ and I saw and thought first it looked like he mad but his again, then face ” ‘Bill, Bill, I laid I down and said Oh Bill!’ crumpled events in the home occurred some time between 6 m. Mrs. Hoyt brought After the her child shooting 7 p. outdoors, her to her fed and then went dog, from par- of Milwaukee. When the ents’ home defendant city entered, she her mother felt she looked were though her mother asked in an extreme state of shock. When with her she she had been husband fighting again, whether asked for drink She unresponsive. simply was vague her beer. there- mother gave Shortly her something his he his after, home. When saw her father returned to she that he had had another thought he testified daughter, he with her husband and togo planned serious argument still another home and reconciliation. attempt Mrs. mission, on this Mrs. Hoyt said to go As he attempted mother, effect, him it’s “don’t let too late.” Her go, her effect, father that as as there some replied, long of life there was still Mrs. “There spark hope. replied, is no From the of her tone voice and her hope.” general manner, her concluded that her parents husband was dead. case, if When asked her were they this she replied she had shot him. Both testified that parents during over, effect, she over and interchange kept repeating “He so, humiliated me he humiliated me so.” The victim and the marriage defendant had been This her stormy. They were married 1955. second child, Within the she had marriage. year one named boy Russell. The im- record reveals that the three during years mediately shooting, on occasions prior numerous subjected deceased both Mrs. son to physical abuse and humiliation. psychological testi- neighbors fied that on occasions were awakened in the night Mrs. that her Hoyt’s pleas husband her. stop beating They would observe her on day, bearing the indelible following marks of a Other physical beating. witnesses testified that occasion, if son, their small who was the time four old, or five talk out years would of turn or would food spill table, at the his father would respond him by striking utensils, the hands with eating him the by striking stomach with his fist with sufficient force to knock out breath. boy’s On one occasion a witness testified that the deceased beat his son over the head with a when pistol toy the child did him something offended and that those in the present room had to the father off the pull small boy. Another when, witness testified that the course of during a ball game, boy failed to young display physical attributes of an man, adolescent or father grown sub- him to jected psychologicalhumiliation. testified that Hoyt’s parents on numerous occasions

their son-in-law had beaten his wife and child. She would father them, and her them these events come to telling he if this way again would tell the deceased that he behaved However, him on each occa- would have to as well. fight sion, a reconciliation would effect parents attempt one oc- between and her husband. On at least Hoyt Mrs. wife, his had been beating casion which the deceased during re- were summoned. The testimony Milwaukee police officer gave vealed that at this time the deceased’s superior such him of his wife for down dressing presence that the deceased was conduct. also revealed Testimony Mrs. Hoyt his Although toward wife. indifferent sexually the family another child a means of shoring up desired child, when their other and as a relationship playmate re- he would that have intercourse she would suggest animal?” effect, kind “What are some you, ply, her entirely. would ignore request Mrs. her the shooting, After her had told daughter the Milwaukee department mother called police Hoyt’s Hoyt’s had been an accident at told them that there her hus- home, which Mrs. had shot course of call, im- police this the Milwaukee band. Upon receiving an ambulance to Mrs. dispatched squad mediately par- of Mrs. Hoyt’s home and home police squad car ents, was taken by squad Scheutzes. Mrs. en was advised of and while route station incriminate tend to say might right anything at the her. until she arrived station. She was silent at the interrogation period What during happened of her writ- surrounding making station and the events since are contested this strenuously appeal ten confession ob- received over defendant’s the confession was evidence of her under the violation jection rights amendment, S. con- clause the Fourteenth U. due-process stitution.1 This raises the first major issue to be considered on this appeal.

The Confession. confession, a in her document three-page own at 4:30 m. fol- handwriting, a. on the completed In her confession she lowing stated: morning.

“I Dona state as follows to Kenneth voluntarily Hagopian part [formal omitted]

“I’ve been married to William for the last seven I have one the years. three lovely boy during past years I’ve wanted more children. Instead of desperately helping it & Bill colder colder his attitudes me and never got to seemed to desire intercourse with me. He most of his spent off the I on him nights sleeping asked if our davenport. sex life could call then he’d me ‘animal’ improve just or say He fun ‘yah made yah.’ my appearance front of people. I was afraid of him because he had beat me many times. He seemed of the fact that he proud could ‘floor me’ as he called it. We had several calls trouble family the He wasn’t through years. interested in us taking movies or with us. TV When I watching tried to talk with him he’d either fall back to on the' sleep or else davenport On his off reading paper. days he was always gone. he went and I him Monday golfing picked at the up tavern. he There made remarks to insulting me front of every- wants body. ‘who that old ?’ Saying bag and ‘It was sorriest life when day his he married A friend said you’ve me[.]’ nice a wife and he said got in on ‘go Take her’ He’d to me say front ‘If everyone you don’t like it a transfer’ get On home we arriving argued little more then he was going on the floor after sleep I again spending Sunday night there him tried to make up and get go to bed and he started his arms at me swinging and I to talk trying nice to him and it was the final humiliation. He said to get out & 1Article XIV. “. . . nor any shall deprive State any person of life, liberty, property, process law; without due nor deny to any jurisdiction person within its equal protection of the laws.” reason I went I for some remember some other can’t things I saw the The door was open gun room. closet my boys back walked shelf, for it it behind my reached put on I’d him into room scare thinking stopping into living been He & must have ex- (it my me. looked insulting up knife. ahead you because he said ‘What Go got, pression) it me’ I ‘no’ said ‘Get Gun’ and I cut said & he my put and in front me. He started to I up. had both hands get I he’d me off. good. gun know have beat went gun. I “I don’t didn’t want remember pulling trigger. he I must been I kill him. think it have the beer drank and I to tell me to wish have had a lot get gun. only must never left a house. If left he’d have loaded I’ve gun because I’m so tired out its & sick. part anything [Formal omitted.]” into

This confession was admitted evidence after court the a determination such confession was made that prima facie In his to instructions the trustworthy.” jury “testimonially the trial court instructed testimony, on the completion evidentiary were consider the value of the to jury they if, if, and considered it to a state- confession the only made. ment voluntarily standards in deter- federal constitutional

We must apply received viola- or not confession was in whether the mining amendment, clause of the Fourteenth tion of the due-process of review of our constitution. The scope appellate S.U. or not a in whether confession determining particular court Connecticut,2 marked out Culombe coerced was court, Mr. Frankfurter, through In that case the Justice terms of three-stage of our review the scope outlined First, “historical” is task of the finding there process. external events the con- surrounding facts—the physical job there is the the defend- re-creating Secondly, fession. to facts. we those response Thirdly, ant’s psychological the first standards to two findings. must apply legal 1860, Sup. (2d) 6 L. Ed. 1037. S. Ct. (1961), 367 U. 317a station,

As the events which if transpired conflict, the witnesses is we must resolve testimony those the view which conflicts favor trial supports court’s confession determination voluntary which supports the that the confession was jury’s finding voluntary. our assessment of the defendant’s making psychological to her circumstances and

response stand- applying legal ards of to this we voluntariness consider response, may only are those which uncon- physical happenings supported However, tradicted testimony. the de- question fendant’s to these factors and on the psychological response of the constitutional of such question significance response, we are free make an redetermination of the independent of both the court trial and the findings jury.3 Before the merits claim it considering appellant’s is rationale a con- important emphasize excluding fession which deemed to have been coerced. The state maintains that even if we conclude that Mrs. confes- sion will, was not the of a free there product voluntary is no need to order new trial. The state contends that Mrs. took the stand and direct examination testified the same facts which virtually were stated in her confes- sion. Since this was obtained in testimony courtroom open under the of the protection court and under guidance of counsel, the state concludes that her confession cannot be If regarded being untrustworthy. rationale ex- coerced confessions was our fear cluding of their low evi- value, state’s contention would have dentiary merit. However, the rationale for excluding confes- involuntary sions is their predicated upon testimonial untrustworthi- ness. That this is so can be best demonstrated by an examination of the of the United reasoning States supreme

3 Connecticut, supra. Culombe

317b 4York In New Spano v. recent confession cases. court in the court said: con- use involuntary to the abhorrence of society

“The inherent untrustworthi- turn alone on their fessions does not that the police on the feeling ness. It also turns deep-rooted end law; in the that the law while enforcing must obey meth- from illegal can as much liberty endangered life and as from to be criminals ods used to convict those thought actions criminals Accordingly, the actual themselves. under scrutiny confessions have come obtaining cases.” series of long 5 the in Blackburn v. Alabama court said: Again, the Fourteenth amendment “It is also established wheth- ‘fundamental unfairness the use of evidence forbids er false.’ . . rejected true or . we have Consequently, an confession introduction of involuntary arguments is where evidence or cor- immaterial other establishes guilt the confession. ... roborates

“But neither the likelihood that the confession is untrue individual’s nor the of the freedom of will preservation interest stake. . . . Thus a the sole values complex use underlies the stricture the state of confessions against by which, shorthand, way convenient this Court terms by role each in situation involuntary, played any to the circumstances case.” according varies particular 6 court, v. Richmond Mr. Rogers through speaking said the critical as to the volun- Frankfurter, test Justice confession tariness of the is: the behavior the state’s law enforcement “[W]hether such petitioner’s

officials was as to overbear will to resist 4 (1959), 360 U. S. 315, 320, 79 Sup.Ct. 1202, 3 L. Ed. (2d) 1265. 5 207, 199, 206, Sup. 274, 80 361 U. S. Ct. 4 L. Ed. (2d) 242. 735, Sup. U. (1961), 365 S. Ct. (2d) Ed. 760. L.

317c and bring about confessions not self-determined. .. freely 544.) (p. confessions are excluded—(cid:127)

Involuntary . . “. not because such confessions are be true unlikely but because used the methods . . . offend an underlying in the principle enforcement of our criminal that ours law: is an accusatorial not an and inquisitorial system system —a in which the State must establish evidence inde- guilt by pendently secured and not freely may coercion by prove its charge an accused against out his own mouth.” 540.) (p. 6a

And finally, Haynes Washington court, 514, its page conclusion that the expressed confession was coerced these terms:

.“. . given the unfair and coercive context in inherently made, which that choice be make cannot [to confession] said to the voluntary product of a free and unconstrained will, as required by Fourteenth Amendment.” we see that the

Thus evidentiary reliability a confession critical factor of its under admissibility Fourteenth amendment. Under the rationale of present-day confessions, defendant, coerced the focus is upon his upon to the psychological response circumstances sur- him If rounding court, during an interrogation. record, determination of independent concludes that the defendant was overborne various interrogation techniques so his confession represents a surrender to overpower- then ing we must reverse psychological pressure, the convic- tion regardless value of the confession. evidentiary The exclusion of the confession is means in- checking which interrogation are quisitorial techniques incompatible with to human our commitments dignity responsibility

6a (1963), 1336, Sup. 373 U. (2d) S. Ct. L. 513. Ed.

317d amend- of the Fourteenth clause in the due-process expressed ment. of admissibility the test for

Therefore, the extent tes- to the is restricted our jurisdiction within a confession confession,7 such test such of trustworthiness timonial a Henceforth, in prima making inadequate. constitutionally aof admissibility or not of whether determination facie trial court jury, considered by to be confession ought have eviden- himself, Does the confession ask only must himself, it trustworthiness, Was likely he must also ask tiary a result of inquisitorial as was obtained confession case, not appear instant it does In the interrogation? consideration when factor into this latter trial took judge of ad- that the issue determination his prima he made facie However, in could togo jury. a confession of missibility in terms he framed their inquiry the jury, his instructions to was a that the confession product of a determination Therefore, error find no we prejudicial will. voluntary the confession determination that original the trial court’s to the jury. might go nevertheless, our own inde to make obliged,

We are voluntariness of the confession of the determination pendent review, made as- pre and independent on a broad based Culombe, supra. scribed

Thus, of the merits of the now to a consideration we turn her confession was not the voluntary claim that defendant’s unconstrained will. a free and product a confession is voluntary, whether determining has cited various factors which court supreme States United relevant. it has deemed of the interrogation.8 The length period

(1) 7 200, 215 253 (1934), Pollack v. State Wis. N. W. 560. 8 Connecticut, supra; Fikes (1957), v. Alabama Culombe v. 352 246; 281, 191, (2d) 1 Sup. L. v. Tennes 77 Ct. Ed. U. S. Ashcraft 143, Sup. U. S. Ct. 88 L. Ed. 1192. see

317e condition

(2) psychological of the suspect time interrogation.9 of aid or promises leniency Whether a reward

(3) were made officials in “co-operation” charge interrogation.1 are These factors not to be added and sub- mechanically tracted, are nor to be deemed as exclusive. In making our determination of the confession, voluntariness of the we must focus circumstances” “totality surrounding entire transaction with suspect’s police during interrogation period.11

The entire to confession interrogation leading is viewed more when the record reveals that at the closely time that an to confession interrogation leading began police already had in their substantial possession evidence tending con- firm the Under these suspect’s guilt. circumstances the court is to resolve willing ambiguities the vari- surrounding ous relevant factors favor aof con- inadmissibility fession. As the United States court noted in supreme Haynes 519: v. at supra, Washington, page “While shows that confessions have often history amply been to save law enforcement officials the trouble extorted evidence, and valid obtaining independent effort coercive devices used here were obtain admis- designed to sions incontrovertibly which would case in complete which obtained, been there had already ef- proper investigative forts, evidence sufficient to sustain competent conviction. here less The are no procedures constitutionally impermis- sible, more unwarranted because so unneces- perhaps sary.” 9 Alabama, supra; Haley v. (1948), Blackburn v. Ohio 332 U. S. 302, 596, Sup. 92 224. 68 Ct. L. Ed. 556, 10 Leyra Sup. v. Denno 347 U. S. 74 Ct. 98 L.

Ed. 948. 11 Connecticut, supra; Alabama, Culombe v. Fikes supra.

317f then How are we to the voluntariness of Mrs. appraise confession in view of outlined above? principles facts stand uncontroverted the record: following m., That from m. until (1) p. approximately May p. 28, 1962, Mrs. was about the circumstances Hoyt questioned such was surrounding shooting although questioning formal, confession; to obtain a designed written That (2) at about Mrs. beginning midnight, officer, one questioned by Kenneth for the Hagopian, pur- confession; a formal pose obtaining That such (3) continued from after questioning shortly 29, 1962, until 3 midnight a. m. on and that at May indicated point formal, that she wanted to make a confession; written such formal confession was not com- ; written until 4:30 a. pletely m. the 29th That from the commencement of (4) the interrogation by Sgt. until Hagopian the confession was finally written and she signed, examined about the persistently details of her husband’s shooting, to make a full urged confession; That

(5) during entire period look- interrogation confession, toward a ing Mrs. Hoyt said that repeatedly she was unable to confess because she could not recall the details of the but that if shooting, she were an given op- to rest and were portunity examined the next she morning be able to recall the might events more clearly; That Mrs. (6) Hoyt told the repeatedly officers that she ; was tired and confused

(7) That to the prior interrogation at mid- beginning Mrs. night, Hoyt had made numerous admissions to police officers the initial interrogation the bureau of iden- tification at the moreover, Safety her Building; had parents her reported admissions to them to the police officers who home; her apprehended at parents’ 317g that That to the defendant Sgt. Hagopian suggested

(8) if a confession he she would by giving try co-operated district to make the man- persuade attorney charge slaughter.

In court Washington, supra, Haynes supreme that officers police the United States noted had testified that “could not remember” whether or not the petition- if, iner this case had been told that he call could his wife if, he The court then only out that co-operated. pointed had testified that he unequivocally was told petitioner he that could contact his wife and if he only would family crime first confess to the with which he was charged. View- unit, and the defendant as a ing testimony said, the court 510: page can transmute such

“No legal alchemy wholly equivocal into a denial or refutation of the testimony petitioner’s recitation of events.” specific case, Mrs. the instant both and her tes- parents

tified that during period interrogation beginning around told them that if midnight, Sgt. Hagopian she would a full he and make confession he would co-operate see what could do to the district persuade attorney charge with direct manslaughter. Upon examination by denied prosecution, Sgt. Hagopian made state- having ment. counsel, cross-examination Upon by defendant’s However, he reiterated this initially position. con- cross-examination, tinued his final he testimony recall could not statements about making any other any examination, rebuttal conducted charge. Upon prose- cution, testified that he Hagopian did not Sgt. affirmatively about make statements murder. On this any second-degree rebuttal he did not state he testimony, affirmatively Therefore, relating manslaughter. made no statements his on rebuttal with testimony given his comparing general

317h cross-examination, recall could not that he on statements it we deem statements about any charge, made having any Sgt. on record that Hagopian suggested uncontroverted confession, he a that if Mrs. Hoyt co-operated giving make the district to attorney would try persuade manslaughter. charge circumstances a we cannot con-

Viewing totality, a self- confession was of clude that Mrs. Hoyt’s product true determination. It is period interrogation, hours, less seven to was considerably approximately eight than that in those decided cases where variable present deemed have rendered the confession inadmis- alone was 12 sible. there that Mrs. It is also true that was no evidence was insane or borderline Nor intelligence.13 possessed only deceitful. was the offer help outrageously Conceivably, sincere in his was offer of Sgt. Hagopian attempting the district a lesser offense.14 attorney charge persuade was not denied the to make face- opportunity to-face contact with to the family prior making confession as was the case v. Haynes Washington, supra.

However, which the various factors have been deemed to methods re evidence are to be inquisitorial as all-inclusive. Each case must garded be evaluated its facts, as own out v. clearly pointed Haynes Washing ton, the most recent United States supra, court supreme 514, case this area (pp. 515): 21 Tennessee, thirty-six supra, v. in hours of intensive Ashcraft Connecticut, terrogation; supra, suspect Culombe v. days held five incommunicado. 13 Alabama, supra, finding suspect Blackburn v. that the in during period interrogation; Gallegos

sane v. Colorado 49, 1209, Sup. 82 U. S. Ct. (2d) suspect L. Ed. boy. anwas adolescent Denno, Leyra supra, psychiatrist, purpose utilized for the confession, represented obtaining himself in the role aof therapist physician as a device to obtain such confession.

317i

“We cannot blind ourselves to what unmis- experience threat, teaches: that even from the takably apart express basic here —the secret and incommunicado techniques present detention and devices and used interrogation adapted —are to extort confessions from . . suspects. . Such questioning an essential undoubtedly tool effective law enforcement. The line between and proper permissible conduct and police best, is, and methods offensive to techniques due at process draw, one to difficult particularly cases such as this where it is make fine necessary as to the judgments effect of coercive psychologically pressures and inducements mind and will of an accused. But we cannot the de- escape of mands . . .” judging

The record reveals that at the time the final interrogation of Mrs. purpose a confession be- obtaining she had been gan, already questioned several officers by about the and had made shooting numerous admissions. By her this time husband’s had been body discovered lying room their home. living by Certainly midnight 28th the had May evidence to ample homi- support cide charge against Hoyt. a written confes- Obviously sion her would increase by the probative value of their case. It is reasonable to believe that it was to that end that the at interrogation beginning midnight at 4:30 in ending was directed. morning During from questioning m., until 3 a. Mrs. midnight her repeatedly expressed to make a unwillingness written confession. Her uncon- is that troverted she herself testimony could not recall the details immediately surrounding Yet shooting.. Sgt. The Hagopian persisted. interrogation during period as be viewed been may having conditioned by Sgt. Hagopi- an’s effort to seek a manslaughter charge for her if she would this was a co-operate. Certainly induce- powerful who, ment a woman while not insane or feebleminded, under stress great at the time psychological of the com- of the interrogation, mencement evinced her descrip-

317j her shooting, parents’ the time of the feelings tion of home, the reports in their her condition description 9:30 her between who examined officers of the police identification, effect she to the 12 in the bureau details of to recount any unwilling unable or in a dis- to their questions and generally replied shooting manner. and vague connected finally m. Mrs. Hoyt that at 3 a. record reveals com- She did not confession. make the written

agreed until approxi- document of this three-page the drafting plete wanted that she All testified 4:30 a. m. parties mately in fits and the task and that she completed her time take a complet- evidence of person this is starts. Surely graphic her Therefore, in view of task. distasteful a personally ing interrogation at the time the condition emotional vulnerable a mitigated a of efforts obtain in view of promise began, and in view if she would co-operate, of manslaughter charge question- least three hours of persistent of at of the impact crime, of a traumatic the circumstances in relation to ing a full confes- to make urgings the light persistent fact in view of the this three-hour period, sion during evi- the confession gave of writing that the process physical statement, a can- to make such we an unwillingness dence of Dona confession was an act not conclude ambiguities surrounding of the Many self-determination. in her resolved favor because of state are psychological evidence had their possession ample that the fact item of a before sought re-enforcing signed of guilt consideration of the totality Our attitude upon confession. this confession was well ex- surrounding of circumstances States court supreme Haynes the United pressed by : Washington, supra (p. 519) of the which overzealousness vitiates type

“Official below has deleterious effects. only conviction petitioner’s the substantial ex- has the State to additional Here it put 317k

pense the case prosecuting through the courts appellate and, now, will even require greater expenditure retrial, event as is But it is likely. deprivation the protected themselves which is rights fundamental and the most regrettable, not because of the only effect on the in- defendant, dividual but because of the effect on our system of law and justice. there Whether is involved the brutal ‘third degree,’ subtle, or the offensive, more but no less methods here official obtaining, misconduct cannot but breed law, disrespect well as for those with charged its en- forcement.”

Because the confession was not “constitutionally antisep- we tic” conclude that there was error in it into receiving evidence and a new trial must be granted to the defendant.

The Requested Manslaughter Verdict. trial, Upon completion counsel for the appellant made a motion to submit number of alternative verdicts other than of murder in guilty the second degree, the of- conviction, fense charged and not He guilty. proposed that the verdict include a question permitting jury find the defendant of manslaughter under guilty sec. 940.05 Stats.15 He also asked other (1), alternative verdicts: conduct, 940.06, Homicide reckless sec. by and homicide by use of a sec. 940.08. negligent weapon, trial court denied The these requests submitted only two verdicts to the jury: of murder possible Guilty in the second the offense degree, which the defendant was tried, and not guilty. standard for whether general determining or not al- to be

ternative verdicts submitted ought to the in a jury 1 5 Manslaughter. Whoever causes “940.05 the death of anoth being any following under of the human er circumstances may be years: more 10 imprisoned (1) not than Without intent to kill and passion; . .” in heat . while

317-1 occa- several announced on has been homicide prosecution sions. de- lesser whether determining applied

“The test request are to be submitted of the offense charged grees evidence, in the reasonable ground is whether there is some court, lesser for a conviction judgment State v. Stortecky, supra. offense. evidence, in reason- in another if the one it

“Putting way, view, guilt higher degree able would suffice prove doubt, if, different, but a reasonable under beyond view, reasonable the evidence would suffice to prove guilt doubt, a reasonable but leave a the lower degree beyond doubt as to some element included reasonable higher lower, should, if but not the court degree requested, 16 the lower as well as the degree submit higher.” whether or there is a To determine reasonable basis in the evidence to have an instruction justified submitting we must into what is the relating manslaughter, inquire state of mind of the defendant for conviction under required Stats.,17 940.01, murder in the first sec. murder degree, 940.02,18 sec. sec. manslaughter, the second degree, 940.05 (1). stated, the entire trial never throughout

As we have there had shot her about the fact dispute any husband. Neither was there doubt that any shooting her husband’s death. The matter the cause in fact of only 655, 668, (2d) (2d) 4 Wis. 91 N. W. 16 Zenou v. State 362, Stortecky (1956), 77 208. See also State Wis. N. W. State, ante, 721; p. (2d) 000 N. Brook v. W. 000. (2d) First-degree (1) Whoever causes death murder. "940.01 person being human with intent to kill that or another of another imprisonment. to life shall he sentenced chapter ‘intent “(2) purpose In this to kill’ means the mental being.” the life of another human take Second-degree "940.02 murder. Whoever causes the death imminently dangerous being of another human conduct to another mind, life, depraved evincing regardless may of human imprisoned years.” not less than nor more than 25 5 317m

at issue psychological state at the time she acted. so murder, For first-degree prosecution must prove the homicide was intentional. That is to say that de- fendant’s course of conduct was undertaken for the purpose about the victim’s death.19 bringing definition,

By murder is an unintentional second-degree The killing. overt behavior which death must be produces characterized as conduct mind. A “de- evincing depraved mind” praved has been defined in these terms: “The ‘a mind’ phrase depraved used murder defining in the second carries degree of an suggestion induced or mind, self-created condition of and is to be distinguished from a state of mind described as generally or feeble- insanity mindedness from resulting some disease or defect existing from birth or early childhood.” The definition of statutory manslaughter which is rele- vant here is: “Whoever causes the death of another hu- man .. . without intent to kill being and while in the heat face, . On passion; . its the statute treats manslaughter as an unintentional killing.

Thus, both manslaughter murder second-degree as- sume that the killing purposive. essential dif- ference between the two degrees of homicide does not lie conduct, nature the course of but rather in the state of mind with which the conduct is carried out. Criminal homicide constitutes when a manslaughter homicide which would otherwise be murder second-degree is committed un- der the influence of extreme emotional disturbance for which 19 Hogan v. (1874), Comment, State 36 Wis. 226. See Report Council, Legislative Judiciary Wisconsin Committee “ Report Code, p. Stats., the Criminal (4), 58. Sec. 939.23 With intent to’ ‘with or intent that’ means that actor either has a purpose thing to do the specified cause the result or believes act, successful, that his if will cause that result.” 668, 672, State v. Johnson 233 Wis. 290 N. W. 159.

317n The or excuse. reasonable- there is a reasonable explanation be determined from such or shall ness of excuse explanation in situation under of a the actor’s viewpoint person believes them to be.21 circumstances as he ourselves, formulation, must ask In we analyzing ? does make between homicides legislature grading Why be another should hold one who kills that Why simply punishment? Legislative an invariant subjected gradings different estimates of homicides recognize society places in defendant’s on the moral of the conduct reprehensibility homicide, of in and variations the defendant’s each type in be- character variations the sentence. Distinctions justify of of mind homicide the basis of state degrees tween moral the trier fact to make of defendant of permit character and within general evaluations of the defendant’s in determine For punishment. limits the proper example, Wisconsin, distinction first- between practical primary second-degree murder and murder manslaughter degree in sentence for conviction of lies the maximum permitted in for a con- each and parole eligibility person variations A of under of these convicted categories. person victed one first must be sentenced to life degree impris- murder for after eleven and one- eligible parole onment is only A convicted half incarceration. of murder person years term of serve maximum twenty-five second degree may is after two of con- years for parole only years eligible hand, man- convicted of finement. On the other a person at the end of one slaughter eligible parole year may incarceration, maximum not serve a term and may longer ten rational basis of a defend- than years. only placing another some evalu- ant one is to make moral category manslaughter formulation of This is the recommended test Institute, Code, Law Model suggested the American Penal sec. p. 1962), (official 210.3 draft 126. 317-o

ation his act of homicide. This can be done effectively if we consider the total which the crime oc- context only curred.

The state of mind of defendant at the time bears an shooting crucial because it inference his total character and this in turn to the different points homicide which he been degrees have may guilty. the end the will be whether the defendant’s loss of question control can be understood terms to arouse sympathy to call in the enough mitigation sentence.

This court recognized has that conduct previously normal- denominated as ly murder be second-degree may treated if there was manslaughter some justification excuse for the conduct under all the circumstances. v. State the court Radej said: for a

“Surely, to a loaded point revolver at a vital person it, another’s part of and an body discharge to perpetrate others, act imminently dangerous to if done without excuse or justification and in the heat of charac- passion some lower terizing degree of homicidal offense than murder in the second ‘a degree, ” mind, evinces depraved regardless of human life.’

A man reasonable could conclude that from her situation at the time of the shooting, loss of control was reasonably justified. Her own reports of feelings are of perceptions those a person suffering emotional great turmoil, or so a reasonable juror could infer. Her parents’ as to her testimony vacant and manner while distraught them, is further speaking evidence from which a jury infer could reasonably presence extreme emotional distress. Given the history physical and emotional abuse to which Mrs. Hoyt and her child were subjected by the deceased, a reasonable jury could find that the was shooting an act self-affirmation. desperate 503, 509, 140 (1913), 152 Wis. N. W. 21.

317p to sub- refuse not error to that it was The state contends the course because during manslaughter an instruction mit that she had acknowledged Mrs. Hoyt of interrogation contends that state also kill her husband. wanted such vividness able recall with fact that Mrs. no is evidence shooting surrounding the details The evi- been submitted. have should verdicts manslaughter intention to kill. an is of which the state points dence to murder first-degree with been charged the defendant Had force. Yet have had considerable the state’s argument may murder, second-degree with Mrs. Hoyt charging unintention- that the killing itself took the position state con- her course of undertake she did not sense that al her husband’s about bringing for the solely duct purpose second- to charge state cannot permitted death. The of manslaughter and then resist submission murder degree indicate that there was evidence grounds verdicts before manslaugh- was intentional that the killing indicate that the evidence must is justified, ter verdict as to totally so great emotional distress was defendant’s in the kill. murder second By charging an intention to vitiate to offer proof was under no obligation the state degree, inten- evidence of state use to kill. To intent permit submission of lower verdicts to avoid tion defensively only instance in which the state charged in every mean that would in there was some evidence murder which second-degree intent, of a verdict would submission manslaughter a specific jury unreasonable confront the be It is justified. never between murder or second-degree an choice with either/or as the basis Conduct which may regarded not guilty. murder less morally reprehensible second-degree appears condition and reasons the defendant’s emotional when evaluated the trier of fact. The for such condition are manslaughter of a verdict of permits jury submission this evaluation. make precisely

317q committed whether the defendant had considering murder the differences be-

second-degree manslaughter, in tween she stated her confession and her description what of how she ended in hand before.the shoot- with up gun as contained are of ing, testimony, some importance. In her confession she : wrote shelf, it, I

“. . . saw reached for it gun put behind back walked my and into the room thinking living him I’d scare into me.” stopping insulting On the witness stand she testified: I it, “And saw the door it has a I open, mirror on and door, took hand and I was close my and I going and I looked saw this don’t I up my eyes gun. feel like even it, reached for it just seemed like I was touch drew to mean, and —I I gun fog, wasn’t I thinking, wasn’t plan- I wasn’t ning, doing anything.

“I reached and I just gun this had it in hands and my some leather of some sort fell down and I covering hands, I looking gun my and was just foggy I was at this staring gun. And I walked out two I steps, was, think and I’m out of this it room and I hall, I and as soon as realized I was in hall I had that I gun put it back of me. And I quick heard a little noise walked, I outside and turned —the hall is so small—I turned to the room and Bill living could see me and I was standing with hands behind my my back.” difference to the emotional points state of the defend- time ant at the further shooting reason anwhy alternative verdict manslaughter should have been included here.

Therefore, conclude we that the jury should have been to evaluate Mrs. permitted conduct under the stand- ard above and suggested the chance given to conclude that the was an act under shooting emotional distress for which

317r fail- The trial court’s a reasonable explanation. there was error manslaughter verdict was the requested ure submit reason the reversing judg- an additional and constitutes a new trial. ment of conviction ordering the there no evidence on record conclude that We of alternative verdicts homicide by submission justify use of firearm. or homicide by negligent reckless conduct Search. The certain information admitted also contends Appellant in violation of the due-process was admitted into evidence constitution, be- amendment, Fourteenth U. S. clause result of an illegal obtained as a cause such information was search. facts search are not concerning disputed. at the home with

The officers who arrived door on the no one home. rapped ambulance found They looked through one but received no officer Finally, response. on a body side of home and saw lying a window at the the back door the floor. The then entered through locked, into the living house and went which room, body. Immediately adjacent where had seen the they these of- scene body observing was gun. Upon for their superi- ficers While superiors. waiting called their ors, Most home. made entire they exploration bedroom, where into the went child’s significantly, they the holster from which the used weapon discovered taken homicide had been Mrs. Hoyt. officers, the call these other response to policemen into

arrived the scene and took the their gun custody. also and of took of the They pictures position body the room had which occurred. shooting 317s counsel did raise his to the ad- objections not

Appellant’s of this evidence until the on the merits. The trial missibility ruled: trial court for one “Objection untimely, thing overruled— —over- Also,

ruled. reasonable that there was a situa- apprehension tion entry justifying —overruled.”

In he so relied on sec. 955.09 Stats.: doing (3), Defenses and on in in- “(3) objections based defects stitution of the proceedings, insufficiency of information indictment, or whole or invalidity part the statute founded, on which the or prosecution use of illegal means to secure evidence (except must be confessions) raised trial by before motion be deemed waived. But the discretion, court its may, entertain such motion at a later trial, stage of the in which case the defendant waives any that have jeopardy attached. . . may .” discretion, It is that trial apparent court his exercised receiving objection and on the ruling merits. We do believe that this is a case to rule proper whether a defendant fail to may make a objection timely provided Stats., sec. 955.09 but make (3), nevertheless his at the trial objection that constitutional asserting his would be rights violated the introduction of the evidence and that he raise objection could an evidence even at the later date. Because the trial considered court the merits we review his may determination.

We cannot with agree claim appellant’s that all of the evidence should have been excluded from trial because it was not obtained pursuant a search warrant nor as a result of a search incidental ato lawful arrest. 23 v. Ohio Mapp the United States supreme court held if evidence were seized in violation of the Fourteenth 643, Sup. 367 U. S. Ct. 6 L. Ed. (2d) 1081.

317t in state case would trial amendment, it then to admit of law. of due process be a violation a standard was until Ker v. It was not California evidence under which circumstances as to the laid down an search obtained by illegal have been be deemed to would ruled court Ker, supreme the United States and seizure. a search henceforth, or not particular whether that amendment would Fourteenth under the reasonable seizure is There standards. federal constitutional be determined by law federal constitutional fore, Ker, must look to under we to determine and seizures unreasonable searches relating in this case. was obtained evidence illegally whether the evidence has that recognized court States supreme United circumstances with under certain be obtained may lawfully has no valid arrest and even though a search warrant out This such evidence.25 at the of obtaining been made time was doctrine which again exceptional-circumstances is the supra. in Ker v. recognized California, officers were in instant case the the facts the police On had received They in home. entering justified accidental at her there had been an shooting a that report arrival, of their did not know they the time address. At an be the home injured or not there might person whether medical attention. immediate Upon observing who needed it was their to enter the home a on the floor duty body lying had received. of the light report previously Upon home, adjacent the weapon the immediately entering inwas full view of who stood anyone the and hence body 24 23, 1623, Sup. (2d) 10 Ed. (1963), 374 S. 83 Ct. 726. U. L. 25 10, (1948), Sup. 333 States U. S. Johnson United Ct. 436; 367, may be evidence seized if threatened with re 92 L. Ed. or immediate destruction the absence of a warrant or moval 132, Carroll States arrest. v. United 267 U. S. valid 543; may Sup. L. contraband be seized in the ab Ct. Ed. a search or valid arrest. sence of warrant 317u Therefore,

in the it room. cannot maintained that living as into the of the weapon brought custody police of a result search. The has supreme United States court held that full evidence the view a officer appear- scene, the taken into ing subsequently by custody him, is not into his control means of a search.26 brought by

We conclude that were because officers justified their into room original entry because living their of the into was not con- bringing gun custody search, amendment, of a the Fourth sequence binding upon the states clause of the through due-process Fourteenth amendment, Therefore, was not violated. weapon, description of the and the body, description the physical layout room were living obtained a result of a justified into the home and were entry ad- properly mitted. hold, however,

alsoWe exploratory search officers of room home viola- defendant’s was a every the sei- tion of searches and provision against unreasonable Even zures. that officers had a valid the made assuming arrest Mrs. in her en- Hoyt room at the time living home, the tered not to they would have had legal authority a entire conduct search general the exploratory throughout home, pursuant to that valid arrest.27 A offi- fortiori, the cers were not in search of the justified making general warrant, house without a search of a and in the absence Therefore, valid arrest. holster in the obtained the boy’s room a result of the search not admit- illegal validly into ted evidence.

We cannot with agree the state that consented to her having home searched by virtue of admitted having 26 56, United (1950), Sup. States v. Rabinowitz 339 U. S. 70 Ct. 430, 94 L. Ed. 653. 27 Rabinowitz, supra; United States v. Kremen v. United States 346, Sup. 353 U. S. (2d) Ct. L. Ed. 876.

317v turn, who, informed the police. her crime to parents the reasonable- now control standards federal which Under be seizure, search must consent to a a search and ness of v. Channel terms. in clear unequivocal expressed a statement made jail while suspect States United are “I no effect, my you the have stuff apartment court held that The search the whole place.” welcome go he circumstances, statement, made while under these this incarcerated, consent. did not constitute unequivocal statement of rather than calm court that the The concluded man, could have been expressing an innocent suspect It from a small time criminal.” appears “false bravado of a warrant must case consent to a search without this is on the prem- terms while suspect be given specific in Holt his conditions were present ises of These property. State.29 remanded reversed, and cause Judgment By Court.— new in accordance with for a trial opinion. court’s

GORDON, I concur While (concurring). J. I it suggest only add these remarks opinion, trial be the new rejected the confession which should may reasonably also all the blemished which by-products but such confession. have flowed from illegal fruits confession itself is tainted and so must thereof. sometimes be difficult to determine whether It may stemmed from the confession. Spe- certain evidence actually trial should the court cifically, permit prosecution into which Mrs. testimony gave evidence place stand first trial? has on the witness Such testimony her few variations from confession only may may induced not have been the erroneous of the con- receipt fession. 1960), (9th 285 Fed. 217. (2d) Cir. 468, 117 (2d) N. W. 626. (2d) Wis.

3l7w

However, I that it would be responsibility believe the trial court to whether Mrs. took determine her writ- witness stand for purpose primary opposing so, ten confession. If it seem to that this is a would me infection. fruit of the contaminated confession and bears its If, hand, on the other the trial concludes that she court took the stand for other reasons than counter or vary confession, it be would not to exclude tes- required at the first trial. timony given This “tainted fruit” would concept obviously require of Mrs. any rejection admissions offi- made cers in the early It would not a dismissal evening. justify her. In charges against respect, we would not need to so far did as which go Washington court recent- whose ly discharged prisoner conversations with his at- were a hidden torney taped with microphone. State Cory 382 Pac. 1022. (Wash. 1963), There (2d) the court said: “There is no to isolate the way prejudice from resulting

an such eavesdropping activity, as this. If the prosecution information which gained aided it in the of its preparation case, that information be would as available in the second trial as in If the first. the defendant’s con- right private once, sultation has been interfered with that interference is to a applicable second trial as to the first. And if the in- officers and vestigating the prosecution know that the most severe which consequence can follow from their violation of one of thé most defendant, valuable of a rights is that they twice, will have to the case try it can hardly supposed that very will be seriously deterred from in this indulging simple convenient method of obtaining evidence and knowledge of the defendant’s trial strategy.”

I am authorized to state that Mr. joins Hallows Justice in this concurrence.

Case Details

Case Name: State v. Hoyt

Court Name: Wisconsin Supreme Court

Date Published: Oct 29, 1963

Citation: 124 N.W.2d 47

Court Abbreviation: Wis.