Douglas Middleton appeals from a judgment convicting him of first-degree murder, arson, and armed robbery, secs. 940.01, 943.02 and 943.32(2), Stats. Middleton argues that the trial court should have suppressed his post-arrest oral and written confessions that he killed Hilda Miller. He asserts that his statements were inadmissible because (1) he gave the statements during interrogation after he invoked his right to counsel, (2) before questioning him the interrogating detectives failed to ask whether he had counsel, and (3) he was not told that the attorney he requested was present and attempting to see him.
SUMMARY OF ISSUES AND CONCLUSIONS
We conclude that Middleton did not invoke his right to counsel. The detectives were not required to ask whether he had retained counsel. Middleton had, however, asked his wife to call a specific attorney. Because the police knew that but did not tell Middleton the attorney had arrived during his interrogation, Middleton’s statements after that time were not made with a “voluntary and knowing” waiver of his Miranda rights and should have been excluded. Middleton’s written statements were made after the attorney arrived. Because, however, the record does not show whether Middleton’s oral confessions were made after the attorney arrived, we cannot determine whether those confessions were unlawfully obtained. We must therefore reverse and remand this matter to the trial court for evidentiary findings, since resolution of this issue is essential to determining whether Middleton, by taking the stand, waived his right against self-incrimination and whether harmless error occurred.
Whether Middleton waived his right by testifying turns on the analysis mandated by
Harrison v. U.S.,
HH
MOTION TO SUPPRESS
A. Trial Court’s Findings and Ruling
Following the hearing on Middleton’s motion to suppress, the trial court found the following facts, none of which are disputed:
Hilda Miller, age 72, was murdered late June 4 or early June 5, 1984. She was bludgeoned to death with a hammer, robbed, and her apartment set on fire. Middleton became a suspect June 5. Between 10:00 and 10:30 a.m. Lt. Toler of the Rock County Sheriffs Department met Middleton and gave him Miranda warnings, including his right to consult with counsel before and during questioning. A detective then took Middleton to the sheriffs department.
About 1:16 p.m. Middleton asked a deputy sheriff to place a telephone call from him to his home. The deputy did so, knowing that Middleton was calling his wife. The deputy heard Middleton tell his wife that he
After the telephone call the deputy took Middleton to the detective bureau. The deputy did not tell the detectives that Middleton had asked his wife to contact Attorney Hunsader.
About 1:30 p.m. three detectives began questioning Middleton. Lieutenant Toler first asked Middleton if he remembered and understood his Miranda rights. Middleton replied that he did. At no time did Middleton tell the detectives that he wanted to see an attorney or Hun-sader. 2 Between 1:20 and 2:30 p.m. Middleton orally admitted that he murdered Hilda Miller.
Meanwhile, Middleton’s wife called Attorney Hun-sader at 1:20 p.m. and left word that he was to see Middleton at the jail. Hunsader received the message about 2:10 p.m. He arrived at the jail at 2:20 p.m. and asked to see Middleton. A deputy told Hunsader to wait because no interview room was available. About 2:30 p.m. one of the three detectives was told that Hunsader wanted to interview Middleton. The detective relayed
Between 2:44 and 3:56 p.m. Middleton gave a written statement to the detectives. Before signing the statement, Middleton again received Miranda warnings and waived his rights in writing. He gave two additional statements that afternoon. Before each, the officers advised Middleton of his rights and he waived them in writing.
During his questioning, Middleton was alert and responsive. He was neither threatened nor promised leniency. He claimed that he told the interrogating officers he was exhausted and wanted rest, but the trial court believed the officer’s contrary testimony.
The trial court held that the deputy who overheard Middleton’s telephone conversation had no duty to notify the interrogating officers that Middleton told his wife to contact counsel. The court said that the deputy may well have concluded that Middleton would not answer questions until he had discussed the matter with Hunsader.
The trial court found that before the questioning and earlier that day Middleton had been advised of his
Miranda
rights and understood them. It found that before each written statement Middleton was again
B. Invocation of Right to Counsel
Middleton argues that he invoked his right to counsel when the deputy overheard Middleton ask his wife to contact Hunsader. Because he invoked his right to counsel, Middleton asserts that only he could initiate questioning. Since the detectives initiated the questioning, Middleton argues that his oral and written statements must be suppressed.
Middleton correctly asserts that once an accused invokes the right to counsel, interrogation must stop until counsel is present, unless the accused initiates further conversation. An accused person in custody has an absolute right to have counsel present during questioning.
Miranda v. Arizona,
A valid waiver of an invoked right to counsel is not established merely by showing that the accused responded to police-initiated interrogation after the accused was again advised of his rights.
Edwards,
Because the historical facts surrounding his telephone conversation are undisputed, whether he invoked his right to counsel is a question of constitutional fact. We decide constitutional fact issues independently of the trial court’s decision.
State v. Hartwig,
The
Miranda
Court said, that if the individual is alone and indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking, the police may not question him.
This state’s appellate courts have not required an explicit, unequivocal or unmistakable expression of the desire for counsel.
See Lampe,
Because, however, invoking the right to counsel is an expression of the accused’s desire to deal with the police only through counsel,
Edwards,
Although the suspect will usually communicate the desire for counsel directly to the police, we see no reason why indirect communication, such as to a police bystander, should be ineffective so long as the suspect has reason to believe the communication is effective. That is, the suspect must have some basis for believing that the bystander, as well as the person directly addressed, will understand that the suspect wants counsel. A suspect cannot expect the police to honor his or her desire for counsel unless the suspect has a reasonable basis for believing that the police realize that he or she has the desire.
The record fails to show that such a reasonable basis existed. Middleton must have known that the dep
The only reasonable inference from the facts of record is that Middleton intended his wife to know he wanted counsel but had no way of knowing whether the deputy understood this was the case. If, as here, only one reasonable inference from the undisputed facts is possible, an appellate court may draw it.
Vocation. Tech. & Adult Ed. Dist. 13 v. ILHR Dept.,
Because Middleton has shown no reasonable basis for him to believe that the police would understand that he wanted an attorney, we hold that Middleton did not invoke his right to counsel.
Middleton argues that before questioning him the detectives should have asked if he had an attorney. The detectives had no such duty. Middleton was given Miranda warnings, which included a statement of his right to counsel. Miranda warnings are just that. They are informational statements, not questions.
D. Suspect’s Right to be Told Attorney Present and Available
While this appeal was pending, the United States Supreme Court held in
Moran v. Burbine,
—U.S. —,
In Burbine the suspect had been arrested for murder and taken to a police station for interrogation. His sister contacted the public defender’s office to secure him legal counsel. A public defender attorney called the police and said she would act as the suspect’s counsel if they intended to interrogate him. The police later interrogated the suspect without telling him that the public defender had called. Unaware of his sister’s efforts and that an attorney had telephoned, the suspect waived his Miranda rights.
The
Burbine
court held that the waiver was valid. It said that an attorney’s unilateral effort to contact a detained suspect does not affect the suspect’s rights under the fifth and sixth amendments. The Court said
The question is whether the Burbine holding compels the conclusion that Middleton waived his Miranda rights. We conclude it does not. 6
Unlike the suspect in
Burbine,
while Middleton was in custody but before he was interrogated, Middleton telephoned his wife and asked her to contact Hunsader. Unlike the suspect in
Burbine,
Middleton knew and in fact initiated the events which led to a specific attorney’s coming to the jail. Unlike the attorney in
Burbine,
Hunsader did not unilaterally seek to contact Middleton. Unlike the facts in
Burbine,
a police officer guarding Middleton overheard the call for the attorney. The officer’s knowledge of that call is imputed as a matter of law to the entire police force, whether or not he failed to pass it on.
7
Consequently, the interrogating officers
A valid waiver of
Miranda
rights must be made knowingly and voluntarily.
Miranda v. Arizona,
But here the police failed to tell the suspect, Middleton, that the specific attorney he had directed his wife to contact had arrived. Had Middleton been told that the attorney had arrived but he nevertheless continued to give statements to the police, the waiver of his Miranda rights would have been knowing.
The knowing quality of Middleton’s waiver disappeared when the facts of his interrogation were changed without his knowledge. When the police failed to tell Middleton that Hunsader had arrived, they induced
That Middleton gave his written confessions after Hunsader arrived is undisputed. His written confessions should have been suppressed. If Middleton orally confessed after Hunsader arrived, then his oral confession should have been suppressed.
E. State Constitutional Claims Mooted
Having determined Middleton’s rights under the fifth and fourteenth amendments to the United States Constitution, we need not decide. whether his rights under the Wisconsin State Constitution have been violated.
H-i I — I i — C
HARMLESS ERROR ANALYSIS
A. Introduction
Middleton’s written statements and perhaps his oral statements in the interrogation room were obtained unlawfully. We cannot be certain whether all or part of
If Middleton freely testified, he may have waived any claim of prejudice arising from his unlawfully obtained inculpatory statements. Whether he freely took the stand turns on the analysis outlined in
Harrison v. U.S.,
If we conclude from our
Harrison
analysis that a reasonable possibility exists that Middleton’s testimony was improperly before the jury, then the question is whether harmless error occurred. When a federal constitutional right has been denied, the test for harmless error is whether a reasonable possibility exists that the error contributed to the conviction.
Chapman v. California,
B. Waiver — Harrison Analysis
In his opening statement, the prosecutor told the jury that the state would introduce an admission by Middleton that he used a hammer to kill Hilda Miller. During the state’s case in chief, Detective Dilly testified that when interrogated at the bureau, Middleton admitted he killed Miller by hitting her in the back of the head with a hammer, took her purse, and started a fire. The officer did not clarify which of those admissions were made orally or in writing or both.
When Middleton took the stand, he admitted he killed Hilda Miller but claimed he lacked the requisite intent for first-degree murder. “A defendant who chooses to testify waives his privilege against compulsory self-incrimination with respect to the testimony he gives, and that waiver is no less effective or complete because the defendant may have been motivated to take the witness stand in the first place only by reason of the strength of the
lawful
evidence adduced against him.”
Harrison v. United States,
The question is therefore why Middleton testified. If his testimony was, in fact, impelled by the prosecution’s use at the trial of his illegally obtained confessions, then his testimony is as tainted as his confessions.
Harrison,
The state asserts that the circumstantial evidence linking Middleton to the crimes was strong. It contends that to avoid a conviction on first-degree murder, he had to testify to establish his intoxication in an effort to negate the intent requirement for first-degree murder. The state urges that we find Middleton was not induced to testify by the state’s use of his illegally obtained confessions.
The state relies partly on the opening statement by counsel for Middleton made immediately after the prosecution’s opening statement. Middleton’s attorney told the jury that “the evidence in this case, including the evidence that he was drunk, will show that Doug Middleton is guilty of murder, armed robbery, and arson,
These concessions by Middleton’s counsel fail to meet the state’s burden to show that its illegal action in obtaining Middleton’s confession did not induce his testimony at the trial. Counsel’s concessions were made in response to the state’s opening statement. They may have been induced by the state’s earliest possible use at the trial of Middleton’s confessions. Moreover, if Middleton’s trial testimony was induced by the prosecution’s use of his illegally obtained confessions, then the same must be true of his attorney’s concessions made when outlining to the jury the evidence it would hear from the defense.
The state therefore also relies upon the circumstantial evidence itself to satisfy its burden under Harrison, supra. We of course limit our review to the evidence the state produced, excluding its use of admissions Middleton made when in the interrogation room.
The state presented evidence that Hilda Miller was a cautious person who kept the door to her Edgerton apartment locked and never let strangers in. She knew Middleton. He did small jobs for her. They sometimes socialized. There was no indication that the apartment was broken into on the night of the murder.
Hilda Miller was murdered during the night of June 4/5, 1984. She had received her social security check for $351 three days before. She had paid her $145 rent and made a few minor expenditures. She customarily kept her folding money in a small box and she kept jars of change in her dresser. The jars were gone after her mur
Middleton visited Hilda about 5:00 p.m. on June 4. He went because he needed $200 to post bond on a shoplifting charge. He had called his wife from the courthouse that afternoon and asked her to get the money from Hilda. Before he was a suspect, Middleton told the police that he went to Hilda’s to borrow $20 for beer. Later that night Middleton had over $100 in folding money and $19.90 in change. When he cashed in the change at a bar, he threw a handful of pennies on the floor saying he didn’t want them.
Middleton was seen leaving Hilda’s apartment about 7:00 p.m. on the night of the murder. He was walking quickly and carrying a small TV and some boxes or suitcases to his wife’s car parked outside Hilda’s apartment. The same car was also seen outside her apartment about 10:30 p.m. and 11:45 p.m. That night Middleton tried to sell a TV matching the description of that owned by Hilda.
A little after 1:00 a.m. on June 5 firemen responded to a call that Hilda Miller’s apartment was on fire. They found her in the apartment lying face down in a pool of blood. She was taken to Edgerton Memorial Hospital where she was pronounced dead. A doctor testified that death resulted from six or seven blows to the head with a curved object like a claw hammer. The claw hammer Miller kept in her kitchen was missing after her death. A fireman testified that when he arrived the drawers had been pulled out of Miller’s dresser and her clothes were scattered. Fire experts determined that the fire had been caused by arson, using gasoline.
At 3:35 a.m. the phone rang at Miller’s apartment. Telephone company records show that the call was
At 4:38 a.m. Middleton spoke to officers at the hospital. He told Officer Struebin that Hilda was like a second mother to him. About the same time Detective Dilly asked Middleton how much money he was carrying. Middleton said he had $15 and displayed the money, but when he was booked he had $495 which he said his wife had given him.
At 5:45 a.m. the police, with Middleton’s permission, searched Middleton’s car. At that time Officer Burdick saw what appeared to be several drops of blood on Middleton’s tennis shoes. Between 7:00 and 7:30 a.m. the police obtained warrants to search Middleton and his apartment. When seized, the tennis shoes had holes where the apparent blood stains had been.
A crime lab expert testified that she found traces of a stain around the edges of the holes in Middleton’s tennis shoes, but she could not positively identify the stains as blood. Experts found nothing on Middleton’s clothes nor fingerprints at the scene to connect him with the crime.
The question, as we have stated, is not whether Middleton made a knowing decision to testify but why he testified.
Harrison,
In spite of the strength of the circumstantial evidence we have just reviewed, and even though he faced possible conviction for first-degree murder, a reasonable possibility exists that Middleton would not have testified had the state refrained from using his confessions at the trial. He could have relied on the presumption of innocence and the lack of evidence directly linking him to the murder. But once the state showed the jury that he had admitted to killing Hilda Miller, taking money from her and starting the fire, a reasonable possibility exists that Middleton had no choice. He had to testify in hopes of establishing that, because of intoxication, he lacked intent to kill.
We conclude that it is reasonably possible that Middleton would not have testified but for the confessions which the state put in evidence. That another reasonable possibility exists does not meet the state’s burden. Whether Middleton in fact testified because the state used his confessions will be for the trial court to decide. We cannot say, at this point, that the state has demon
Consequently, we cannot conclude at this point that Middleton waived his privilege against self-incrimination by taking the stand. The factual basis for such a finding will be for the trial court.
C. Harmless Error Analysis
If the jury should not have heard Middleton’s admissions, the question remains whether the error, if any, in the state’s use of his admissions affected the verdict. The error may be harmless if the properly admitted evidence of guilt is overwhelming.
Harrington v. California,
We have already outlined the state’s case exclusive of Middleton’s statements. Strong circumstantial evidence suggests that Middleton murdered Hilda Miller. The state’s case, however, contains critical gaps. The state failed to produce evidence directly linking Middleton to the murder, the theft or the arson. Middleton’s admissions filled the gaps which the jury would have had to fill by inference.
Without Middleton’s admissions, the jury could have returned a verdict of not guilty. That possibility evaporated when the jurors heard his admissions. A reasonable possibility therefore exists that the error, if it was error, in the state’s use of his admissions, contributed to Middleton’s conviction and was not harmless. State v. Dyess, supra.
CONCLUSION
We conclude that we must reverse the convictions and remand. On remand the trial court shall make findings of fact regarding which of Middleton’s oral statements were given in the interrogation room after Attorney Hunsader arrived. If Middleton’s inculpatory statements the state used at trial were given by Middleton before Hunsader arrived, his convictions should be reinstated.
If any such statements were made after Hunsader arrived, then the trial court should make an analysis under Harrison, supra, to find whether Middleton’s testimony was impelled by those admissions. The trial court may hold an evidentiary hearing for that purpose.
If Middleton’s testimony was impelled by the state’s use of unlawfully obtained admissions, then a new trial is necessary. If Middleton’s testimony was not so impelled, then he waived his rights against self-incrimination, and the convictions should be reinstated.
By the Court. — Judgment of conviction reversed and cause remanded for further proceedings consistent with this opinion.
Notes
The trial court found that the deputy “heard Middleton tell his wife that he was in the Rock County Jail and further heard him request that his wife contact Attorney Gregory Hunsader. [Deputy] Barfknecht was aware that Gregory Hunsader is an attorney.” The context shows that the trial court did not intend to find that the deputy heard Middleton describe Hunsader as an attorney during the telephone conversation. The deputy, Middleton and Middleton’s wife testified at the suppression hearing. None of these persons claimed that Middleton referred to Hunsader as an attorney during the conversation. As will be developed, the point is significant.
This finding is undisputed, although Middleton claimed that he told the detectives he wanted to call Hunsader. The trial court disbelieved Middleton.
This right to counsel arises out of the protection against self-incrimination under the fifth and fourteenth amendments. The Supreme Court requires access to counsel under
Miranda
and Escobedo
v. Illinois,
The state erroneously relies on
pre-Edwards
cases holding that an accused could knowingly and intelligently waive an invoked right to counsel without initiating further communication, exchanges or conversations with the police.
Jordan v. State,
Compare
another bystander case,
State v. Elmore,
See People v. Houston,
Calif. Sup. Ct., Oct. 2, 1986, 40 Co. L. 2045. The
People
Court rejects the rationale of
Moran v. Burbine,
— U.S. —,
One officer’s knowledge of a fact is generally imputed to the entire police force. In some instances imputation benefits police.
See, generally, U.S. v. Clark,