State v. Woods

Wisconsin, Plaintiff-Respondent, State Defendant-Appellant-Petitioner. Burdette Woods,

Supreme Court Argued No. 81-2297-CR. October 1983. Decided March 1984. 457.)

(Also reported in 345 N.W.2d petitioner William J. For there were briefs defender, public G. Tyroler, and William assistant state public and oral defender, state Retert, first assistant argument by Tyroler. Mr. argued by plaintiff-respondent

For was cause Marguerite attorney general, Moeller, M. with assistant attorney Follette, La whom the Bronson on brief was C. general. BABLITCH,

WILLIAM A. J. Burdette seeks unpublished appeals review an decision court affirming degree his conviction of murder and second manslaughter. argues oral confession should He that his suppressed have been it in viola- because was obtained statutory rights. tion of his constitutional and We hold admissible, that his oral confession and we there- fore affirm his conviction. presented

The issues for review are: (1) police probable Did the have take cause to custody charge regarding into on of a chain theft they saw? We conclude that did.

(2) charge taking custody Was of Woods into on illegal regarding the of a rendered be- theft chain saw question purpose cause it was the stated they Woods about another crime once had him in cus- tody ? We conclude that it was not.

(3) right Did Woods waive his to counsel? con- We clude that he did.

(4) during questioning Did Woods’ conduct before and right an silent, constitute assertion of to remain thereby rendering questioning the continued of Woods police rights? the a violation of his constitutional We conclude Woods’ conduct was not an assertion of right to remain silent.

(5) right Did waive his to remain silent? We Woods conclude that he did.

(6) circumstances, Under the of were Woods’ of his to waivers counsel and his to remain knowingly, intelligently voluntarily silent made? We they conclude that were.

(7) At custody the time Woods was taken into questioned, did have a counsel sec. under 48.23(1) Stats., (a), sixth under the and fourteenth amendments to the United States Constitution? con-We clude that he did not. We affirm the decision the of appeals. of court

Henry Beryl and- Schwab were beaten to death in their day county September 10, home on 1979. The Shawano found, reported after their were bodies it was police Woods, juvenile that Burdette who was sixteen old, years, vicinity nine had been in the seen months day the Schwab either on home the murders following day. subsequently Woods was observed closely watching investigate officers the scene of murders. Woods became murder investi- focus gation September 19,1979. on

During prior the course of the investigation, but time that it, re- became focus ceived from information source that reliable had made an attempt unsolicited sell a chain saw investigated and discovered nearby Officers resident. a earlier seventeen months been stolen had the saw 22, September the offi- store. On hardware a local from from the individual to statement a written obtained cers the saw. attempted to sell had whom Woods Thorpe Trombi and officers September On trailer, grandparents’ where Woods was went to Woods’ custody charge regarding on a living, him and took into knowledge officers, with the The of the saw. the theft worker, a de- Gage, juvenile had made intake David a question about prior to Woods to that time cision they immediately had Woods murders after Schwab car, squad custody. to their The took Woods officers warnings him. Trombi asked Miranda Trombi read rights, re- to which Woods if Woods he understood gestures making sponded by affirmative head that he an if he to consult at- did. Trombi asked wished Woods torney, which his head “no.” Trombi Woods shook questions or then Woods if he wished to answer asked respond. statement, which did not make a Woods taken him hour the officers had Within one-half after depart- custody, into Woods was taken to sheriff’s hearing, Gage ment, suppression where met them. At the Gage again of his informed Trombi testified that Woods rights. already had read indicated that he been Woods rights. Gage if an at- also asked Woods he wanted torney, replied suppression to which At the Woods “no.”1 suppression Gage hearing, At the testified as follows: I “And then him he about. asked if knew what this was [Woods] yes. rights?’ they you your he I And said And said 'Did read ‘yes’. they your rights?’ you And he And I And said said ‘Did tell they you he ‘Yes’. And I said said ‘Did the bottom of read you rights you out sheet ‘Yeah’. have?’ And he said you sign And I said ‘Did it?’ I said ‘Do And he said ‘Yeah.’ And you attorney?’ want an And he said ‘No.’ . . . Gage also testified that he told a Woods that had Woods lawyer. a Gage additionally hearing, asked testified that had thought if needed and he anything, Woods Woods cigarettes. Gage some then said he wanted filled “Request Physical Temporary out form entitled for Custody.” booking procedure,

After a 45-minute Trombi Thorpe took to a well lit and ventilated room they questioned approximately him for where 15 to 20 Thorpe minutes. Woods was seated a table and Trombi were seated near him. Woods was not hand- placed cuffed or restrained. otherwise had officers photograph on album a table the room. The album y%" pictures contained x 5" some the murder scene surrounding open pic- and the area. The album was to they murdered, tures the taken Schwabs after had been approximately placed and was two one to feet from where Woоds was seated.

During questioning, the Thorpe and Trombi asked Woods several if times wanted to Woods talk to them. respond did questions. Woods not to those Trombi and Thorpe concerning questions also asked Woods the point, why Schwab murders. At one Trombi asked Woods day went he into the woods the after the and murders replied, day.” Woods “I never went in the woods the next responses Woods no Thorpe made other verbal while and questioned Trombi him. questioning,

After Thorpe their Trombi left the room. Harker, Robert Ankenbrandt and Wendell investi- gators from the Wisconsin Division Criminal Investi- gation, then entered the room. Trombi had informed them that he had advised Woods of his constitutional rights. inside, Once Harker asked if he Woods had been rights by advised of Trombi, to Woods re- which sponded affirmatively. Ankenbrandt then and Harker began questioning Woods about the Schwab murders. response Woods made no questions approxi- their until mately twenty thirty questioning. minutes into the At point, gave statement, oral Woods an which he gave acknowledged that he had killed Schwabs facts about murders. detailed gave statement, again After oral Harker rights. him his Miranda advised Woods stated that any money attorney. did have to hire an Harker and Ankenbrandt then obtained a written statement from killing Woods, in which Woods confessed to the Schwabs. waived, jurisdiction was over Woods Juvenile court against him. complaint was filed Woods sub- a criminal suppress oral and written sequently motion to filed a to the murders. in which he confessed statements citing court, that he have statement did not trial Woods’ granted money any motion to hire an attorney, grounds suppress it the written statement on to counsel. in violation of Woods’ was obtained suppress However, court denied motion given prior to which had bеen Woods’ statement, oral inability attorney. pay for an statement about his pled He guilty, convicted and sentenced. subsequently appeals, af- appealed to the court of which judgment. petition for Woods then filed a firmed the granted. review, which we

TAKING INTO CUSTODY Take 1. The Have Probable Cause To Did Officers Custody Charge Regarding The A Into On Woods Theft A ? Chain Saw Of argues probable not have the officers did custody. our decision take him into cites

cause to State, 489, 495-96, N.W. 190 in Gautreaux v. 52 2dWis. recognized (1971), mere 542 that while 2d which we guilt, possession property of stolen no inference raises property unexplained possession recently stolen weight greater depending raises an inference of or less upon the circumstances. Woods contends that because attempted the chain saw he to sell was stolen seventeen earlier, months it could recently considered be stolen property, which could create an culpability. inference of

If the undisputed, probable historical facts are cause question for an arrest subject is law that is to in- dependent appeal, review on without deference trial Drogsvold, court’s conclusion. State v. 2d 104 Wis. 247, 262, (Ct. App. 1981). N.W.2d Because the facts in this undisputed, may case are independently we review whether the probable officers had cause take custody. Woods into 48.19(1) (d) Stats., provides

Section 3, that a child may custody taken into under circumstances in which grounds the officer believes on reasonable that the child committed an act in violation of a state or crim- federal 48.19(3) “Taking inal provides: law. Section into cus- tody except not an purpose is arrest for the of determin- ing taking custody obtaining whether the into оr the any challenges evidence is lawful.” Because Woods the lawfulness taking of the officers’ action in him into governing custody, probable the standards cause to arrest applicable an adult are to a determination whether taking custody of Woods into was lawful. grounds synony- probable Reasonable cause are “

mous, and are defined as ‘The “reasonable follows: grounds” prob- commonly or what is more referred to as cause, quantum able which lead of evidence would police a reasonable officer believe that defendant ” probably State, committed a Johnson v. crime.’ 75 Wis. 344, 348, quoting 2d Ball v. (1977), 249 N.W.2d 593 State, 57 Wis. 2d N.W.2d question is . . whether the “facts and circumstances . were such that of reasonable could officers caution probably committed the defendant have believed Johnson, 2d 75 Wis. at 350. crime.” Stats., 943.20(1) a (a), when of sec. occurs A violation away, uses, person “intentionally trans- takes carries conceals, possession property fers, of movable retains deprive his consent and with intent to of another without property.” possession of permanently such owner person A when intention- violation of sec. 943.34 occurs property. ally See J.I.— receives or conceals stolen Wis. prior Criminal, In learned case, 1481. this officers sec. custody taking he had an un- to into made attempt at for solicited to sell a chain saw valued $134.95 apparently to Davids. was not well Sheldon $20.00 know known Davids because Davids did even Woods’ correct surname. to Davids that Woods indicated given grandfather him saw. took had Davids stop later and told Woods that he back ‍​​​‌‌‌​​‌​​​‌​‌​‌‌‌​‌​​​‌​​​‌‌‌​‌​​​​​‌‌​​​‌‌​‌​‍so saw should learned pay father him. When Davids’ Davids would suspicious immedi- attempted sale, he became informing department, ately with the checked sheriff’s a chain department sell that Woods had offered gave subsequently the saw Davids saw to his son. Mr. department. officers The the sheriff’s officers the saw determined checked the serial on number that the saw that it matched the serial number of chain reported on stolen owner of a hardware store had facts, undisputed we March 1978. Based on these caution” could conclude that of “reasonable officers theft, committed crime have believed that Woods receiving contrary (a), 943.20(1) or the crime sec. property, contrary officers stolen 943.34. The sec. custody. probable therefore had cause to take Woods into Taking Custody On A 2. Was The Woods Into Of Charge Regarding Rendered A Chain Saw Theft Of 712

Illegal Purpose Because It TheWas Stated The Police Of Question To About Woods The Immediately Murders Thereafter?

Woods contends that the officers violated his under the fourth amendment to the United States Con- I, stitution and Article 11 sec. of the Wisconsin Constitu- protected tion to be from unreasonable searches and argues custody seizures. He that his and detention were unreasonable seizures because the officers’ motivation in taking custody him interrogate into towas him about the Schwab murders. support

In argument, of this Woods cites the discussion LaFave, in W. And Seizure, Search (1983 sec. 1.2 at 26 Part), concerning Pocket activity fourth amendment would not have been undertaken “. . . but for the ‘under- lying intent or which, standing motivation’ alone, could supply a lawful basis for the conduct.” These may suppression situations result in the of evidence ac- quired pursuant to the fourth activity amendment under- See, e.g., taken. Volk, State v. (Fla. App. 2d 643 So. 1974). taking determination whether the into Woods

custody illegal because it violated his fourth amend- rights ment question is a independently of law. We re- questions view Leasing Corp. of law. See First Nat. v. Madison, 81 205, 2d (1977). Wis. N.W.2d We conclude that the officers’ decision to him into take custody was lawful supported probable it was because cause. The Supreme United States Court has held that: “. . . the fact that the officer does not have state of mind hypothecated by which is the reasons which provide legal justification for the officer’s action does not stances, long invalidate the action taken as as circum- objectively, 436 justify viewed that action.” Scott States, United U.S. question Although concern- wanted Woods the officers custody ing murders, that does not render his the Schwab Thorpe Trombi and At the time or unreasonable. invalid grounds custody, were reasonable there took Woods into criminal law. had violated a state to believe to take for the provided lawful basis officers This custody. into Thorpe addition, a lawful In Trombi and had basis once custody, for them it was reasonable into to take Woods concerning the agents question to Woods and the state Trombi, that record indicates murders. The Schwab information Harker knew of Thorpe, Ankenbrandt and murders, they linking con- possibly Woods to Stats., provisions ch. suspect. of him a sidered juvenile expressly prohibit questioning after of a do not custody. is into he taken resulting from his also asserts that detention

Woods Gage’s Gage signed unlawful because order was that ordering alleged to allow detention was motivation in his Gage’s interrogate him, decision to the officers predetermined. was therefore order detention to Woods’ argument. was detention to Woods’ find no merit this We in cus- lawfully lawful, hаd Woods the officers once They not they question did tody, him. entitled to were Gage’s question Woods. need authorization to

THE ORAL STATEMENT argues Woods that his oral statement inadmissible was in fifth and because it obtained violation of the fourteenth amendments United Constitu- to the States tion,2 I, and Art. sec. 8 Constitution.3 of the Wisconsin pro The fifth to the United Constitution amendment States vides: person capital, “No shall be held to answer for a otherwise or crime, presentment infamous unless a a Grand on or indictment of Jury, except arising forces, in in the cases in the land or naval or right counsel, He did not waive contends his to did, Knowing if he it not and that even was and intelli- gent He waiver. also contends that his conduct consti- tuted an assertion remain silent. argues he did further not waive to remain through expressly conduct, silent either or a course of and that even if a waiver of his remain silent conduct, could be inferred from his the waiver voluntarily made. addressing issues, appropriate

Prior to those it is applicable reviewing discuss the In standard review. raises, appellate issues an court examines court, two applies determinations the trial made but First, different standard of review to each. the trial evidentiary court determines the or historical facts rele- case, namely, vant to the issue in this the circumstances Militia, public danger; when in actual in service time of War or any person subject nor shall be for the same offence be twice put jeopardy limb; compelled any of life or nor shall against himself, deprived criminal case be a witness nor be life, liberty, property, process law; without due nor shall private property public use, just compen- be taken for without sation”. The fourteenth amendment to the United States Constitution states, part: in persons “Section 1. All born or naturalized in the United States, subject jurisdiction thereof, the are citizens of the they United States and of the State wherein reside. No State any abridge shall make or privileges enforce law which shall the or States; any immunities of citizens of the United nor shall State deprive any person life, liberty, process of property, without due law; deny any of person nor jurisdiction equal within its the protection of the laws.” 3 I, Article of sec. 8 provides, the Wisconsin Constitution in part: “(1) person may No be held to answer for a criminal offense process without due law, person and no for the same offense may put jeopardy be may twice compelled of punishment, nor any against criminal case to be a witness himself or herself.”

715 Second, giving surrounding the of the oral statement. applies the then facts resolve con- trial court those the which, questions case, are whether in this stitutional rights, were and whether the waivers waived his intelligently voluntarily State knowingly, made. See 88-91, Carter, 96, 466 80, N.W.2d v. 2d 146 33 Wis. 284, 305-06, Hoyt, 2d 128 N.W. (1966); v. 21 State Wis. concurring). (Wilkie, J., (1964) 2d 645 by appellate court of of review standard findings evidentiary or historical facts trial court’s findings appeal upset on unless will not be is that those great weight they contrary pre- and clear are to the Mazur, 2d 90 ponderance of evidence. State Wis. v. 293, of re- This standard 194 N.W.2d however, apply, trial court’s de- view does not ap- Instead, questions. termination of constitutional questions of pellate independently court determines C., v. Fare Michael U.S. fact. See “constitutional” ques- (1979) ; 2d at 309-10. These Mazur, 90 Wis. fact, evidentiary questions or historical tions are not questions require con “application of rather but are Mazur, . . .” principles found. stitutional to the facts as Allen, 309, quoting Brown 344 U.S. 2d Wis. J.). (1953) (opinion Frankfurter, The rationale question of independent for an ultimate review of explained “constitutional” follows: fact has been as voluntarily “. made the con- . . Whether the defendant However, question of it fession is a of fact. matter independently deter- ‘constitutional’ fact which must be finding [appellate] of voluntari- A mined ness is a this court. as of a confession necessary the use condition of constitutional of federal state, evidence a matter as law.” representing scope protections, “The of constitutional vary society, cannot value commitments of our basic jury. jury court, trial or from from court to trial given Reasonable men can differ as to whether a confes- voluntary. sion was Whatever the ultimate substantive rights might they be, dimension of these must uniform throughout jurisdiction. accomplished This can be only if power one decision maker has the final of inde- pendent determination. It the task of this court by applying determine the voluntariness a confession certain standards articulated the United States su- preme given Hoyt, court facts of the case.” concurring). (Wilkie, 2d at J. Wis. 305-306 case, findings therefore, In this the trial court’s evidentiary surrounding interroga- or historical facts they tion of Woods will not be unless are con- overturned trary great weight preponderance to the and clear However, independently evidence. we must determine rights whether Woods waived to counsel and to re- his silent, did, main if and he whether under the knowingly, intelligently circumstances his were waivers voluntarily made. Right Did 3. Woods Waive His To Counsel? undisputed facts that after Trombi are read Woods rights squad car, his Miranda in the Trombi asked Woods if rights, he understood to which indicated Woods gestures affirmative head did. Trombi then asked if attorney, Woods he wished to consult an to which shook Woods head “no”.

Shortly county jail, after he was taken to the again by Gage attorney. asked if he wanted an orally responded court that he did not. The trial concluded that Woods waived his to counsel. We agree. findings Based on the trial court’s the un- disputed facts, beyond we doubt conclude a reasonable making prior Woods waived his to counsel the oral statement. Right By Did Woods Assert His To Remain

4- Silent His Conduct?

Woods contends that his asser- conduct constituted an therefore, tion silent, of his to remain questioning, which led to his state- officers’ continued rights. ments, was in violation of his constitutional We disagree. undisputed facts, We on the conclude, based right to silent. that did not assert his remain Woods right silent, Because did not assert his to remain Woods questioning to the officers were entitled continue their person under because a reasonable of circum- could have that Woods' conduct indicated stances believed determining process a state of mind that was in the to waive to whether his remain silent to answer questions.

Although silence held that a defendant’s have courts being is to remain silent advised of his after right,4 that equivalent express assertion of that an undisputed indicate that facts the case here. totally advised after he was did not remain silent Woods rights Miranda rights. his Trombi read the After under- squad car, he asked Woods if Woods Woods in the right, including silent, to remain stood each gestures head which indicated affirmative Woods rights. Thorpe also testified the Miranda he understod meaning huh”, “yes”, say after “uh that he heard Woods rights. Trombi his if he understood Trombi asked Woods squad to consult car if wanted asked in the Woods Wоods shaking his attorney, to which an indicated Woods head that did he not. informed had been Gage if he asked Woods

After an attor- to consult rights, if wished asked Woods he he did mute, stated ney. but did not stand later attorney. Ankenbrandt an When not wish consult constitutional of his informed if he had been asked Woods “yes”. by responding again spoke rights, Woods squad car rights After Trombi read Woods an to consult he not wish did and Woods indicated 1981); Chavez, State (Colo. e.g., People See, v. 632 P.2d Vargus, (R.I.1977). A.2d 150 attorney, Trombi asked Woods if he wished to answer questions respond or make a statement. Woods did not at during point. questioning Several times their station, Thorpe Trombi and asked Woods if respond wanted to talk to them. Woods did not questions, although previously responded those he had to questions, such other as when asked him Trombi in the squad rights. car if he understood his re Woods also question sponded concerning to a Trombi asked the why Schwab murders. Trombi asked he went into day the woods replied, after the murders. Woods day.” “I never went into the next the woods At no time during prior questioning or to did Woods indicate questioning that stop.5 he wanted the to suppression hearing, Thorpe At the testified as follows: “Q: any you At time between the time that arrived at department you sheriff’s until turned Mr. Woods over to the Department you agents, Justice did ever him he ask if wanted to you to ? talk “A: Yes. “Q: When was that? During questioning. “A: “Q: questioning you you How far into the when do said want talk to to us ? “A: during I think questioning. several times “Q: answering And that’s anything, because he wasn’t isn’t right ? “A: That’s correct. “Q: you And took from his silence that he didn’t want to talk you, right? (Emphasis to isn’t added). (Sic). “A: No. “Q: why you repeatedely, Then (sic) did ask him talk to us? him, “A: I you believe I asked ‘Don’t want to talk about it now?’ and all he would do is stare down at the wall. “Q: point At one ‘No, he you, told I don’t want to talk about it.’, right isn’t that ? only “A: No. any The response time that he made verbal what- soever was question. when Officer Trombi asked him “Q: About whether he wanted to talk ? nor was neither total silence conduct, therefore, Woods’ following undisputed However, responsiveness. total right to re- his did not assert that Woods facts indicate clearly a number of (1) on indicated main silent: silent. to remain his he understood occasions to have (2) he was aware indicated that He any (3) Woods police stop questioning time. him at stop. (4) questioning to wanted the indicated never he relatively (5) duration. questioning short of a The frequently whether wished police The asked Woods police It was from these facts to them. talk making up his mind whether Woods was had decide asserting them, in effect whether he was talk to remain silent. with was a were confronted situation responses suspect in- conduct difficult one: whose silent nor the desire neither the desire to remain dicated reason- conduct could answer. entire course of Woods’ weighing ably interpreted by police to abe have been the questions, as an by him to answer of the decision right Given the serious assertion of his to remain silent. might implication questions propounded, Woods up mind. His decision well have wanted time to make his hinged including may factors, a number on a have ques- know, police part the on to to the extent desire his police might indicate, had im- the tions what evidence by plicating supported at one the fact that him. This being during point questioning he in the woods denied day the the residence the after murders. Schwab right remain to Given that Woods was aware of right silent, stop question- that to the he understood his why (sic) No, to fol- “A: he asked him he went into the woods lowing day murdеrs, after he said ‘I went in the never day.’ only response he woods the next And verbal ever that’s myself made when Officer Trombi and were in there at first.” ing any desired, he time that he did not indicate gestures responses question- or verbal that he wanted the ing stop, responses, to he that did make some oral questioning relatively was of duration, short and that frequent made efforts to determine whether he right silent, to wished assert his to remain we conclude conduct Woods’ was not an assertion of his to silent. remain Right

5. Did Woods Waive His To Remain Silent? if contends even his conduct did not con- an stitute assertion of his silent, to remain the state beyond did not establish reasonable doubt that he right. disagree. waived that We constitutionally required It is not that a defendant orally writing expressly rights either or in waive his coupled to counsel or remain to silent. with an Silence understanding rights and a course of conduct con- may support finding with sistent waiver aof valid waiver. North v. Butler, Carolina 441 U.S. 369, ; (1979) Jordan v. 93 Wis. State, 2d 287 N.W.2d above, up point noted As Woods’ conduct to the when began give incriminating oral statement was through going person with consistent the conduct process determining questions. At whether to answer began point questions put that he answer him, clearly thereby himself, incriminate he was indicating waive his he had decided to above, remain silent. remain As noted Woods did not during totally orally period, responded silent this but police questions. Additionally, some of was Woods rights, informed on than and more one occasion of those separate he indicated on two that he under- occasions during stood questioning them. His conduct such was making to he a deter- it was reasonable believe was remain would waive his to mination whether he began fully Thus, respond ques- when he silent. informing implicitly propounded, he tions was he to waive to remain silent had made decision questions. The trial their court found and answer agree. remain silent. Woods waived We findings undisputed Based on the trial court’s and the facts, beyond a reasonable we conclude doubt Woods right to waived his remain silent. Totality Circumstances, 6. Under The Were Woods’ Of Right Right To His To His Counsel And

Waivers Of Voluntarily Knowingly, Intelligently Remain And Silent ?Made findings evidentiary

The trial court made several taken into facts, including: (1) was At the time Woods completed years old, one-half had custody, he was sixteen aver- grade high normal or above school, had of tenth English; (2) age At time intelligence, read and could during question- custody into and Woods was taken exhausted, appeared to he was not tired ing, During strain; questioning, (3) under no requests restraints; for food (4) made no findings, the trial on these and other or drink. Based capacity a know- to make found that Woods had court rights. intelligent ing court of his waiver findings of appeals evi- that the trial court’s determined weight dentiary contrary great to the facts were not do not review preponderance clear of the evidence. We Winkie, appeals. See that determination of the court Heritage Bank, Inc. v. 2d 299 N.W.2d Wis. however, independently do, examine those facts We whether, determine a matter of federal constitutional as law, knowingly, intelligently and Woods’ waivers were

722

voluntarily made. A determination whether an accused knowingly, intelligently voluntarily rights and waived his depends surrounding on of circumstances interrogation. “totality This analysis circumstances” applies interrogated even when the individual who was juvenile. C., is a See Fare v. Michael 442 707, U.S. (1979). Relevant to be factors considered include juvenile’s аge, experience, education, background, intelli- gence, capacity warnings and the to given, understand the the nature his rights, fifth amendment and the con- sequences waiving rights. Fare, those 442 U.S. at proving 725. beyond state has the burden of a rea- sonable knowingly, intelligently doubt an accused voluntarily and rights. waived his Miranda State v. Hernandez, Wis. 2d N.W.2d argues the waiver his to counsel knowing intelligent was not and waiver, and he cites support various reasons to his assertion. He contends knowingly intelligently he did not and his waive why to counsel because he was not told he had been custody questioning began, taken into until the and he did not interrogated know the reason he was be to when Thorpe he indicated squad car, Trombi attorney. Gage, later that he did not wish consult an Trombi, Thorpe There is no indication record that Gage specifically the time informed Woods at custody prior into taken waiver of counsel to his questioned that he be would about the Schwab murders. However, we conclude that is no merit there Woods’ assertion. Even if Woods did know that he would questioned time he waived about the murders at the counsel, not render oral statement that does Anderson, 533 F.2d United inadmissible. See States (D.C. 1976). 1210, 1212 n. 3 Cir. that his statement to Anken- also contends not afford and Harker to the effect he could

brandt attorney gave which he after he state- an made oral gave statement, ment but before the written reflects right fully that he did not understand his to counsel the time it. without merit. he waived This contention is point The fact that indicated at a later in time Woods gave after he the oral that he could not afford statement attorney way an in no indicates that he lacked the ca- knowledge knowing intelligent pacity or and to make a right prior madе waiver of his to counsel to the time he oral statement. trial The court determined knowingly intelligently right to Woods and waived his agree. conclude, counsel. We We based on the trial findings undisputed record, and the in the court’s facts that under the know- circumstances, Woods ingly right intelligently waived his to counsel. why also cites waiver of

Woods various reasons right voluntarily to remain made. We silent was separately. shall each address of the reasons he cites By Misrepresentations Police. Made The a. misrepre- argues made certain that the officers during questioning in an which resulted sentations involuntary The to remain silent. of his

waiver squarely ad- has never issue raised is one this court misrepresentation offi- made : the of a dressed effect during interrogation suspect the voluntari- on cers to a subsequent silent. waiver of to remain ness of a misrepre- reaching the effect the issue of Prior to silent, we remain of a on the waiver sentation statements officers’ must first whether determine misrepresentations. fact, were, in refers to that Woods during Thorpe’s undisputed Ankenbrandt’s It is questioning they effect to the Woods, statements made against they linking had more evidence him they actually to the murders than had. Schwab It is also during undisputed that Ankenbrandt’s and Harker’s Woods, questioning of Henry Ankenbrandt showed him fingerprint Schwab’s wallet and card with two circles prints. tapped drawn around the Ankenbrandt fingerprint something card and wallet said to Woods going pin you the effect “this is what’s down”. clearly misrepresentations, first statements were they because the officers later testified that knew them they to be at the time made false In statements. addi- tion, type reasonably the statements were of a that could misimpression have creatеd in Woods’ mind. The alleged misrepresentation second is of a somewhat dif- nature, ferent that the statement was an police indication that evidence existed which the at that positively time did not conclude, know to be untrue. We however, misrepresentation. that was this also The ‍​​​‌‌‌​​‌​​​‌​‌​‌‌‌​‌​​​‌​​​‌‌‌​‌​​​​​‌‌​​​‌‌​‌​‍of- regard ficers the truth, made statement without to its likely type it also of a misimpression was to create a in the defendant’s mind. misrepresentations

We now consider effect of these the right on the of Woods’ waiver of the voluntariness argues remain silent. that the voluntariness of any rights his Miranda of waiver and of his oral con- misrepresentations. fession was vitiated these language following cites Miranda support from the any his “. assertion: . . that the accused evidence was cajoled threatened, tricked, will, or into a waiver course, voluntarily show that the defendant did not waive privilege.” agree, 476. not how- U.S. at We do per ever, se rule any that this dictum established misrepresentation during questioning make automatically right renders a waiver of the to remain involuntary, silent or a confession inadmissible. Supreme the four in In cases the Court decided con- junction opinion with its court Miranda, involving confronted with factual the effect of situations alleged misrepresentations during inter- made custodial rogation right on the voluntariness of a waiver of the admissibility silent, subsequent of a remain or on the Cupp, (1969), confession. In Frazier v. 394 U.S. however, misrepre- the court considered the effect of admissibility police on of a confession sentations misrepresentations were insufficient and held that voluntary to render an otherwise inadmissible. confession Frazier, misrepresentations In in terms were viewed a confession of their on the voluntariness effect given admissible, would be the confession whether surrounding the confession. circumstances applicable a con- approach conclude that this We by police on misrepresentation effect of sideration a defendant’s of a waiver of the voluntariness Frazier, and the decision as well. Given remain silent voluntariness, be- we do not emphasis in Miranda on per rule adopted a se in Miranda the court lieve that during cus- by police misrepresentations existence interrogation automatically a waiver of renders todial given involuntary a confession to remain silent after a waiver of that inadmissible. 69, 271 N.W.2d 2d State, Schilling 86 Wis.

In to a murdered interrogating referred officer (1978), an suggested defendant wallet victim’s concluded we Because might on it. found fingerprints circum- under the misrepresentation was no there an of of the effect the issue stances, not reach we did interroga- during police misrepresentation actual noted, We silent. to remain tion on a waiver Supreme States Frazier, however, the United by an misrepresentation actual even an Court held interrogator ipso does not facto make a confession in- Id. admissible. (Iowa v. Cooper,

In State 1974), 217 N.W.2d Supreme Iowa Court mis- discussed the effect of representation rights on the voluntariness of a waiver of and concluded: “Deception any by representatives of nature of However, state decep- cannot be condoned. we conclude standing

tion alone not render a does waiver of con- rights involuntary stitutional as a matter of law unless deceiving deprivation process. acts amount to a of due Nevertheless, deception a faсtor to be considered becomes reviewing totality making of the circumstances in the determination as to the of voluntariness the waiver though per produce even the act does not se exclusion.” The court also indicated that the test of voluntariness is whether the officers’ behavior such as to overbear bring the defendant’s will and about a confession not freely self determined. 217 N.W.2d 596.

Other courts that have considered the effect of mis- representation on the voluntariness a waiver have addressed the test of in terms of “over- voluntariness bearing resist,”6 “deprivation the defendant’s will to process.”7 generally due These have held courts misrepresentation is but one factor to consider under the totality agree. mis- circumstances.8 We The effect of representation on the voluntariness of a waiver of the silent, to remain like a determination of effect misrepresentation confession, on the voluntariness of a dependent upon of circumstances.

We hold misrepresenta- that when have made a during interrogation tion suspect prior of a to a waiver Jacoby, See State v. (Iowa Thessen v. 1977); 260 N.W.2d 828 State, (Alaska 1969). 464 P.2d Cooper, See State v. (Iowa 1974). 217 N.W.2d 589 8 See, e.g., Jacoby, State (Iowa 1977). 260 N.W.2d 828 silent, suspect remain of the and the then waives beyond right, must state establish a reasonable totality circumstances, doubt that under the waiver voluntarily was made. test The of voluntariness whether the individual or cumulative effect of the mis- representations totality under the of circumstances cre- pressure suspect ated such on the as to overcome his free burden, will. If the meet state fails to its waiver of any involuntary, to remain silent is state- suppressed. ment obtained must be The of cir- cumstances that must considered include factors such be age, intelligence, education, suspect as whether the was rights, interrogation, advised duration of the interrogation conducted, under conditions which the was suspect’s capacity and the to understand the nature of the rights given consequences waiving rights. and the those weighed An additional circumstance to be considered and carefully misrepresentation when is involved is the nature misrepresentation is, whether the mis- itself, representation type was of a that would lead a defendant might necessary to believe that it to waive the protect to silence in order pro- to benefit or himself or to tect someone protect. he would have reason to want to

Whether misrepresentation the effect of the under the totality of pressure circumstances created sufficient suspect’s overcome a free will is a determination that must be made on a case case The de- basis. court must cide whether ability the defendant’s to make a free and Haynes impaired. reasoned choice v. Washington, In (1963), U.S. Supreme indicated Court that a requires determination of voluntariness an assess- ment of the police practice effect of the on the “mind and will of an pressures accused.” may created not be so great suspect’s may will be considered to be “overborne”, or capacity to make a rational choice

impaired. Miranda, (Harlan, J., See at n. 4 U.S. dissenting). holding with decisions other

This is consistent the issue effect courts that have addressed misrepresentation voluntariness of a confession. on the People (Ill. example, Boerckel, For 385 N.E.2d 815 1979), police misrepresented defendant that his to the fingerprints of the crime. had been found at the scene the crime and subse- The defendant then confessed to argued quently and in- that his confession was coerced voluntary. that of voluntari- The court indicated the test freely and ness of a confession is whether it was made compulsion. misrepre- without The held that court the involuntary. sentation did not render confession Similarly, Winters, (Ariz. App. in State v. 556 P.2d 809 1976), police misrepresented to defendant that his fingerprints the scene of those found matched argued crime, and confessed to the crime. The defendant involuntary. The court stated that confession his in relation to the must be viewed voluntariness circumstances, induced and that a statement trickery involuntary unless there is fraud or is not will was over- additional evidence that the defendant’s The rationale borne or that confession is unreliable. applying principles us is for those to the issue before same. totality of cir- case,

In that under the this we conclude in- cumstances, misrepresentations, the effect of the pressure dividually create such did not cumulatively, or will render free on Woods as to overcome his not of involuntary. misrepresentations were waiver to overbear type pressure create sufficient would ability will, make a free impair or to Woods’ nothing nature of the in the reasoned choice. There was fact, misrepresentations, implicit lead or in might necessary it to waive his believe silence protect protect in order to benefit or himself or to another protect. addition, would have reason to want In misrepresentations conjunction when the are viewed in case, with the other as circumstances in this such Woods’ age intelligence, during ques- his alert condition tioning, questioning, the short duration of the physical abuse, lack of threats or it is evident Woods’ ability to make a free and reasoned choice was not im- paired by misrepresentations fact were made. Photographs Of Victims.

b. Use Of Thorpe’s photo- argues that Trombi and use of containing pictures taken graph Schwabs album in- rendered his waiver confession after the murders lying voluntary. open on a in album was table The questioned, and was situated room in which Woods away trial feet from him. The approximately one to two compel used no force to court found officers pictures, the use look at the and concluded that Woods to photograph render waiver of the album did not Woods’ involuntary. photographs use of of the addressed the issue

haveWe of suspects in context during questioning of of victims confes- determining of a defendant’s voluntariness State, 154 N.W.2d McKinley v. 37 2d In Wis. sion. 345, 153 Bradley 2d State, 36 (1967), and Wis. 344 taking practice of we condemned (1967), N.W.2d ^identification”, morgue “corpse for a defendant to the might a con- practice render and indicated that such a 2d Wallace, Wis. involuntary. In State v. fession against officers’ (1973), we cautioned 207 N.W.2d for a substitute gruesome “. . . as photographs use of acts.” criminal morgue victims of identification of photo- of the use however, that held, 2d at 85. We Wis. interrogation defendant during corpse graphs of a involuntary. confession the defendant’s did render gruesome photographs of of the use do not sanction We conclude, during questioning an accused. We of victims photographs is one however, of such but the use when of circumstances in the to consider factor Miranda determining of a waiver of voluntariness subsеquent rights and of a confession. recognized in Wallace, is difference in there

As we morgue viewings photographs. The impact between viewing corpse much more the actual effect of sudden being photographs murder near of a than seated dramatic McKinley addition, Bradley, In both victim. viewings morgue who were either a rela- were of victims defendants, presumably which would friend of the tive or impact than if the victim was a more emotional create unknown to the defendant. case,

In the trial court found that Woods was this nothing photographs. forced look at the There is never at the record to indicate that Woods even looked pictures. photographs were of victims who were also neither nor It is reasonable relatives friends Woods. during questioning pictures assume that the use of a could victims who are friends or relatives defendant pictures atmosphere than if the create a more emotional personal are of victims who have no connection with the photograph defendant. We conclude the use resist, and did not album did not overbear will to Woods’ involuntary. render Woods’ waiver and confession Friendly c. Pretended Gesture. exploited personal

Woods also asserts that Harker his by putting characteristics a hand on his shoulder when began gesture cry, part Woods to that this was alleged techniques prompted coercive that him to waive rights During hearing, suppression his and confess. questioned Harker indicated that he knew at the time he “fatherly approach” might Woods that with effective gesture The trial court concluded that this Woods. did involuntary. agree. not render waiver Woods’ We fleeting gesture, Harker’s when under viewed having of circumstances, cannot as be construed an effect on Woods’ to waive decision remain silent give the oral conclude not statement. that it did We act overbear Woods’ will or render his waiver or con- involuntary. fession Alleged

d. And Promises Threats. finally that contends voluntariness Woods rights negated waiver of and of his oral confession was during promises the officers’ use and threats alleges questioning. Trombi that made comments for or “easier” it would be “better” the effect that suppression Trombi’s hearing, At the if he talked. undisputed, did testimony, that he indicated which is undisputed any promises or threats to Woods.9 make suppression hearing, as follows: Trombi testified At the any during your questioning “Q: did Mr. Woods At time you any promises ? to him make threats or No, I “A: did not.” Trombi also testified: anyone this who do you would “Q: that him [Woods] And told sick, that ? isn’t saying that. don’t recall “A: I you it that that he did “Q: if he tell told him that would You get help get help, ? you him isn’t would — saying Again that. I don’t recall “A: you ? talk to things would if he “Q: be better would That something effect. to that have said doubt “A: I no would you, Things go were to talk on if he “Q: easier him would right ? spe- line, along but may mention made some I have “A: cifically that, no. stay might you he you “Q: if talked Did tell him system an adult? as juvenile not be tried court (sic) No, “A: I do not.

732 promise indicate Trombi

facts that made no to Woods leniency legal system improved position or of an in the promises type may confessed, are that if he which subsequent See, e.g., White, a invalidate confession. Trickery Confessions, Inducing L. Police 127 Pa.U. Rev. when to Ankenbrandt’s statement refers

Woods also fingerprint card to the Woods the wallet he showed you going pin down.” This effect that what’s “this is threatening context. The not made in a statement was part fingerprint ploy that made as of the statement was that Woods’ Ankenbrandt used to create the inference fingerprints been on wallet. This had found Schwab’s normally that not be considered threat as term is could rights and a con- used to determine whether a waiver by promises were A threat for fession or threats. coerced normally conveys message purposes that some those will harm or detriment occur to defendant friends, or situation will worsen if the defendant’s he does confess. alleged promises or threats has cited no other during questioning, may have made

that the officers undisputed on the none. Based record reveals by facts, alluded we the statements conclude did his waiver invalid or his confession not render involuntary.1 you “Q: happen him in the Did to him what would talk about juvenile justice system? No, “A: I did not. . . .” portrayal surrounding The dissent’s this inter facts rogation requires response. presented impression The facts as the dissent create an atmosphere surrounding interrogation person of this nearly years intelligence average old with normal to above permeated psychological undue with force. Be- domination and impression dissent, cause could be created a reader inexorably suppress drawn to the the con- dissent’s conclusion: Statutory Have Did And 7. Woods ‍​​​‌‌‌​​‌​​​‌​‌​‌‌‌​‌​​​‌​​​‌‌‌​‌​​​​​‌‌​​​‌‌​‌​‍Constitutional Rights To Counsel?

Besides the to counsel referred to in the above sections, contends at he Woods that the time was taken by psycho- the state fession because logical “overcame mind will his and deprived domination and him the of freedom decide securing (See whether or to assist in not the state his conviction.” Abrahamson, J., dissenting op. 739). reading case, including However, in the record this a of entire questioning lengthy testimony by in all the officers involved the as worker, atmosphere than well the intake reveals far different as portrayed that dissent. The flavor that comes out of this scrupulous rights of entire record is that of adherence to suspect good . . . and for reason. These law enforcement officials They impasse had reached an were faced with a terrible dilemma. investigation. Although suspected they in their of Woods this they murder, double had no him the evidence to connect brutal slayings. They hoped guilty, double if that Woods was a confes- They they sion be could obtained. also realized that if obtained a confession, up through by a it would have to hold review trial court, appellate process, as well as the if thrown because it was out, go Woods would free. were determined officers who entire record reflects The appellate obtained, withstand it would if a confession was rights only accorded scrutiny; of were it be after all Woods’ would will, voluntary him, exercise and it be free and that would public They from the withheld evidence it would be reliable. give investigation during confession did de- so if Woods’ tail, only would know. the murderer alone it would detail that They rights once, twice, gave but a minimum of not during minute and 45-BO three times the course of detention seeing Woods, interrogation. worker, upon im- first The intake mediately that he from Woods asked for and received assurances every rights. re- The to Woods’ understood his officers acceded quest. place interrogation and well well The was ventilated any lighted. manner. Woods was not bound point”, but “cried at one states that The dissent gives a different testimony officers of the one uncontradicted dissent cheeks.” picture: down his . few tears rolled “. . a promises used threats officers that the law states enfоrcement testimony offi- confession, uncontradicted but the obtain to Woods. were made promises or threats cer Trombi is that no custody statutory into questioned, had and con- rights counsel, rights stitutional and that these were gruesome photographs The dissent states that displayed, were but photos question the record reveals were 5" in SVz" X placed photograph size were approximately in a album one to two feet from addition, where Woods was seated. In the trial court found that Woods was never forced to look at them. Woods him- any testimony self never contradicted offered the offi- suppression hearings. testify cers at the Never once did he that he coerced, frightened, intimidated into this confession. Never any give reviewing any once did he trial court or court sub- jective testimony mind, deny of as to the state his or that this freely voluntarily given. confession was and Never once he did testify any pictures friendly gesture any as to how or or of the things other referred to in the dissent overcame his free will. He suppression hearings any could have done so the at without in manner, shape, right waiving against or form his self-incrimina- tion. He chose not to do so. totality majority misapplies “the the of dissent states by isolating analyzing the test and in a vacuum each circumstances interrogations failing together, aspect . of the . . thus to consider interrogation totality, aspects personal i.e. in the all of the and the op. suspect.” (Abrahamson, J., dissenting characteristics of the totality 744). applying That is incorrect. In the of circum- test, done, stances we must at the whole record. When that is look through majority, as here is it was done what comes police taking greatest officers сare to make sure that Woods’ suggested, product ignor- confession was not or nor the of coerced rights fright fantasy, despair. ance of his nor of adolescent or Gault, In See re 387 U.S. suspects police are a from Efforts to obtain confessions police legitimate absolutely here) (as and essential sometimes wrong activity. nothing inherently unfair, suspect, in There is suspect, attempting from a those In to obtain a statement efforts. myriad frequently unforeseen of will be met with part complex their on for immediate decisions situations that call They guidance provided. not have do for which little has been quiet atmosphere Supreme nor benefit Court chamber of a They must thought weeks of reflective to make those decisions. court, hope immediately when make their decisions then circumstances, reviewing will their efforts under have We find their decisions to be reasonable and constitutional. and we do. argues statutory to counsel

violated. Woods 48.23(1) (a), He also asserts that from sec. Stats. stems Illinois, (1972), Kirby had a U.S. 682 under under the and fourteenth counsel sixth amend- to United because formal to the States Constitution11 ments adversary judicial allegedly proceedings were initiated Gage temporary detention. when ordered counsel sec. 48.23 We conclude under during (1), did not and sub- attach detention Stats., (1) provides, sequent questioning of Woods. Section 48.23 pertinent part: in legal Right “Right (1) of children counsel.

representation. subject proceedings under Children legal chapter representation this shall afforded as follows: “ (a) Any alleged delinquent child to be under s. 48.12 facility represented or held a secure detention shall be by years stages proceedings, a child 15 counsel at all but аge may provided the or older waive counsel knowingly court is such waiver is and voluntar- satisfied ily accepts . made the court the waiver. . .” (1) 990.01 “Proceedings” ch. 48. Section not defined construction, pro- statutory relating general rules ac- construed phrases be shall that all words and vides tech- except that usage, cording approved common peculiar having a phrases and others nical words and meaning. according that meaning construed shall be usage ain statute approved a word The common and recognized diction- may ato ascertained reference be 11 pro Constitution States amendment United The sixth part: vides, in enjoy the prosecutions, shall the accused “In all criminal for his defence.” of counsel to have assistance ... through due applicable to the states amendment is The sixth Gideon Wain- process amendment. See clause of fourteenth (1963). wright, 335, 342-43 U.S. ary. Adamany, Kollasch v. 104 Wis. 2d N.W.2d 47 Third

Webster’s New Dictionary International (1961) following includes the “proceed- definition of ings”: (1) “e . . procedure judicial . course of in a litigation: action or legal in a suit in action.” Black’s Dictionary Law (1968) “proceeding” defines as: “. . . the form conducting and manner juridical busi- ness judicial before a court or officer. . . .” These defi- nitions “proceedings” indicate that 48.23(1), within sec. Stats., legal proceedings are before the court. This inter- pretation is consistent language with the of sec. 48.23 (1), providing juvenile that a may waive counsel under provision only if the court determines waiver knowingly and voluntarily made, accepts the waiver. temporary custody

We conclude that neither the order Gage signed, interrogation nor the custodial Woods, “proceedings” meaning were within the of sec. 48.23(1) (a), Stats., required. for which counsel was juvenile alleged When a delinquent to have committed a custody act is taken into immediately released, and not he is performs referred to an intake worker who an in- inquiry. take 48.20(3) See secs. and 48.24. The intake worker reviews the juvenile custody. need to hold the 48.20(7) (b). Sec. If the intake worker does release juvenile, judicial hearing pursuant held is to sec. j 48.21 to determine if the court uvenile will order that the juvenile custody. be held in

If juvenile custody the time the is taken into he is alleged to delinquent act, have committed a the intake worker must juvenile also determine whether the should juvenile delinquency referred to proceedings. court for Upon determining necessary, that such referral requests intake worker attorney, the district cor- poration specified counsel, 48.09, other official in sec. Stats., petition pro- file a under 48.25. That sec. section vides, part: in relevant “Petition: authorization to file. petition initiating proceedings (1) chapter A under this knowledge signed by person has shall be a who alleged. juvenile (Emphasis added.) . . If facts alleged delinquent custody temporarily to be in is held hearing entitled to a 48.21, and detention under sec. delinquency petition by under 48.25 filed sec. must be hearing 48.21(2) proceedings date. Section also discusses “Proceedings concerning provides: ch. 48 under Proceedings con- delinquent RUNAWAY OR children. cerning jurisdiction a child who comes within the according . . court under s. 48.12 . shall be conducted (Emphasis added.) this subsection.” “proceed- provisions first indicate The above to counsel ing” would have entitled which Woods been at hearing under 48.23(1), Stats., a court was under sec. him to hold whether to continue sec. 48.21 to determine brought сustody custody. juvenile into When a is worker, there are no court ordered detained an intake hearing pursuant sec. 48.21. proceedings until a is held attorney requests that the district If the intake worker in- delinquency becomes petition, also the court file petition delinquency proceedings after in the volved hearings to determine are held is filed when formal juvenile’s proceedings before no status. There are juvenile 48, however, juvenile when ch. court under custody temporary placed after is ordered questioned custody, juvenile is taken into and if the officers that time. adversary ju- formal conclude that because alsoWe against Woods initiated proceedings been had not dicial four- custody, he no sixth had into he was taken when the time he to counsel at teenth amendment questioned. right and sixth fourteenth amendment applies only prosecutions. to counsel to Kirby criminal In Illinois, Supreme the United States Court held that only this to counsel at attaches or after the time adversary judicial proceedings that have been initiated against a defendent. 406 U.S. at 688. The court indicated prior involving in its decisions the and four- sixth teenth counsel, amendment to “. .. all of those points cases have involved of time at or after the initia- adversary judicial tion of proceedings criminal —whether by way charge, preliminary of formal hearing, indict- ment, arraignment.” information, or at U.S. 689. judicial

The court also noted the initiation of starting proceedings point system criminal is the of our adversary justice. only of criminal It is then that government prosecute, only has committed itself to . . positions government then “. that the adverse defendant have solidified.” Id. The court therefore de- import police investigation clined to into a routine a sixth and counsel, fourteenth amendment which historically it applicable only stated was after the onset proceedings.” “... formal adversarial Id. custody, into the intake worker When Woods was taken signed temporary custody mean, a order. That did “adversary however, judicial proceedings” criminal against point. had him that Under ch. been initiated analog prosecute” Stats., the “commitment Kirby filing delinquency cited is petition under of a filing petition juvenile sec. 48.25. The court a charge against juve- constitutes formal criminal nile, only charged point juvenile for it at that that the is violating with It or federal criminal law. is also state point “prosecut- at that state itself commits ing” gov- juvenile, positions adverse juvenile solidify. petition filed, ernment and Until the the state has no formal made decision commence de- linquency proceedings against juvenile. subject did not

We hold that Woods become the of a prosecution” meaning “criminal within the of the sixth petition amendment until a formal was filed under sec. Stats., alleged 48.25, delinquent. which him to be Be- subject any procedure approxi- cause he was not Gage signed mating prosecution at the time a criminal order, any temporary and fourteenth detention sixth right may to counsel he have had did amendment gave statement. The attach when he the oral statement in violation of that constitu- therefore was not obtained right. tional

By appeals of of court the Court. —The decision affirmed. (dissenting). ABRAHAMSON, Bur- J. S.

SHIRLEY age— juvenile years, 9 of months was a dette Woods —16 proceedings; he inexperienced criminal with murder; an un- detention on suspected his arrest and of illegal pretextual; charge at least theft were related during his present parents relatives were no or other misrepre- officers used questioning; law enforcement photographs threats, sentation, gruesome promises, questioning; inwas Woods death scene their of the before custody half hours approximately and one three negative making statement; responded in the a counsel, also said but he when if he wanted asked for counsel; remained silent could not afford allegedly waived questioning of about 50 minutes by right giving a statement. his to remain silent Burdette Woods in this whether issue case is right to voluntarily right his counsel and waived his to and will mind remain or the state overcame silent his. free- deprived psychological him domination and in secur- the state dom not to assist to decide whether or ing his conviction. In the absence of valid waiver of rights, sup- to the Woods’s statements must be pressed. constitutionally protected

Woods’s interest at issue in decide, pressure, this case is his free unfair from speak whether he wants to and whether he an at- wants torney. State, [*823], 3 Wis. Schoeffler (1854). The fundamental value at is that stake [*844] suspect deprived not be before trial unfair meth- interrogation rights guaranteed of trial, ods of him privilege e.g., testify, his not to not to be com- pelled against himself, be witness coun- determining question Thus in voluntariness, sel. of the court police practices evaluates impose whether degree an pressure upon intolerable will suspect contrary governmental and are standards play. fair gruesome perpetrator

This was a crime. The should be punished. gravity But the crime does not obviate police responsibility interrogation to conduct an relating conforms to constitutional standards. The law interrogation admissibility and the of confes- attempts competing sions resolve the claims of crime suspect. detection and fairness to the Both of victims government pro- and crime victims of excess must be by suspect tected courts. A the the must afforded safeguards jurisprudence developed our has ad- for the safeguards justice, ministration of criminal which are protective society. at once of the and of individual appellate the court The standard of review is twofold: findings trial of to de- first reviews the court’s facts they clearly appellate if termine are Then the erroneous. viewing court, totality circumstances, makes of the its of the own determination of the issue constitutional validity give weight of to the the waivers. need not It knowing, of conclusion trial A intel- court. waiver

741 appreciates voluntary suspect ligent, when the and waive.1 must in- decision to Courts consequences against every dulge presumption waiver reasonable Zerbst, 304 rights. U.S. Johnson constitutional 464 findings of the historical accept the trial court’s

I margin findings at in the note these I forth facts. set clearly They Indeed the historical erroneous. are 2.2 undisputed. facts are 1 coercion,” “voluntary,” irom fear or and “íree The terms range complex embrace “a wide “free and rational choice” and seeks to maxi confession law considers

values which modern Many pronouncements ‘volun- instruct us to construe mize. recent expression values.” indicative of these as a shorthand tariness’ 1970). 826, p. (Chadbourn Wigmore, rev. 3 Evidence sec. 350-51 (1973); 344, 353-54, State, 204 482 Wold v. 2d N.W.2d See Wis. Trickery White, Inducing in Rev. Police U.P.L. Confessions (1979); Comment, in Cases 593-96 The Coerced Confession: Develop Rationale, (1964); L. 31 U. Chi. Rev. Search of 140.4, ments, Confessions, (1966); L. secs. 150.2 79 Harv. Rev. Pre-Arraignment (6), Commentary, Procedure Model Code of 15, 1975). (Proposed Draft, April Official voluntarily, knowingly questions whether the waivers were intelligently voluntary, and whether the statement was made although inquiries, Both discrete often shade into each other. questions concepts intelligence, knowledge, similar involve governed are of the circum- voluntariness and both stances test. comprehensive decision The trial court issued a memorandum relating following finding it which made the of facts waiver and statements: beyond following rea- “The are made to a standard of facts they doubt, primarily to the issue sonable as address themselves given appropriate Miran- of whether or not the defendant was Rights they da or not were waived and whether fact defendant. time The court would find that the defendant alleged aged 16; the crimes had finished commission of classes; high school; one half of the 10th was in normal Grade of intelligence and as that he was at normal least normal or above by was that the defendant indicated his mother. It’s further found sleeping. approximately a.m., arrested at in bed 7:30 and was in-custody

Viewing the circumstances of this inter- using beyond rogation in their and the rea- majority forth, I standard the sets am not sonable doubt products persuaded that the waivers were the Woods’s was, therefore, this the court would infer that defendant From interrogation. at the time of the not tired or exhausted It’s found way Department that the defendant on the to the Sheriff’s was rights given prescribed in case his as the famous of Miranda approximately at Arizona. He arrived the station at and 8:00 a.m. Worker, by Gage. seen the Intake Mr. was finds that the defendant was Court further acquainted Gage, Mr. at with and Gage given rights that time Mr. asked if he had been if his and they him, had been read to as indicated on the bottom of the sheet they the defendant indicated had. He was asked whether attorney wished have an and he stated that he not. did Subse- quent Gage, Mr. Worker, his discussion with the Intake questioned by investigators defendant was then the two state approximately questioning lasting approximately Said 10:00. for gave statement, 20 minutes before the defendant him an oral fol- statement, lowed a written for which reasons cited has above suppressed. been agents The court would find also that the state previously given rights, asked defendant if he had been responded the defendant he had. The court further finds that both grandparents president tribal knew where the defend- custody. ant was at the time that he was in It’s found further acquainted Gage Gage defendant with Mr. and that Mr. rights. asked him and reminded him about his It is further found appeared that the time; defendant to be under no strain at the crying; appeared was not subdued. It’s further found requests defendant food, drink, any made attorneys, no for or indications that silent, exception he wished to remain with the concerning the remark the fact that he could not an afford attor- ney agents gave after rights the state him his after his oral state- prior ment but to his written statement. It’s further found during questioning restraints; the defendant was not in never indi- cated anyone; that he wanted to talk to wanted talk to a lawyer. It’s given cigarettes further found that the defendant was immediately upon request, and in addition was allowed immedi- ately go upon to request. bathroom “This beyond court will doubt, find evidence reasonable things addition to above, those found that the defendant was shown

743 whether free and rational choice of to make statement cooperate. Wisconsin, Greenwаld v. 390 or otherwise 519, (1968). 521 U.S. Supreme has said that

The United States Court “[i]f present permissible was not for some reason counsel juvenile], when an admission was obtained the [from greatest that care must be taken to assure the admission voluntary only that it was not the sense product suggested, coerced also that it was not the or but ignorance rights fright fantasy, or of adolescent despair.” (1967). 1, In re also Gault, 387 U.S. See (1979) ; Haley 707, Fare v. C., Michael 442 U.S. Ohio, 596, (1948). 332 U.S. the exercise did not enforcement officers

The law scrupulous ad- “greatest no There was care” in this case. rights. the law shows that The record herence to Woods’s deliberately unacceptable used officers enforcement interrogation” getting to waive “tricks of pictures There is which have been admitted into evidence. certain specific pictures shown, but were as to what no direct evidence showing deceased, they pictures as that were the one must assume they The court further finds that were found in their home. fingerprint card and a was shown the deceased’s wallet defendant something prints, around and was told with two circles drawn get him. The court would fur- the effect that this is what would beyond was no force used ther find a reasonable doubt that there compel pictures, and that there was the defendant ‍​​​‌‌‌​​‌​​​‌​‌​‌‌‌​‌​​​‌​​​‌‌‌​‌​​​​​‌‌​​​‌‌​‌​‍to look at the coercion, It is further found no duress or violence used on him. defendant, although the court the mother asked to see the already given before finds that he had his oral confession mother was in the station. It is further found interroga- pictures during were the first shown to the defendant by county fingerprint officers, card and tion and that is wallet There were to the the state officers. shown defendant away by put pictures no were dirеct evidence to indicate that hap- county officers, strong this but there inferences pened pages when on one considers the found testimonies pictures and 156. There were is no evidence whatsoever shown defendant the state officers.” 744- Arizona, Miranda v. to remain U.S. silent. I therefore dissent.

448-455 “totality requires of the circumstances” standard weigh pressures a court the tactics which the against suspect subjected to induce the waiver the was suspect’s power pressures. to resist such That which inexperienced, overpowering young, the would be the might mature, experienced weak not faze a crim- State, 204, 210, inal. Grennier v. 2d N.W.2d 70 Wis. 234 Wallace, ; 66, 81, State v. (1975) 2d Wis. N.W.2d 855 totality misapplies the circum- majority

The isolating analyzing each in a vacuum and test stances failing case, interrogations in this thus aspect of the totality, aspects i.e., all of the together, in consider interrogation personal characteristics and majority recognizes facets of suspect. that several The majority signal possibility of coercion. The the case together. Although however, no not, look at them does standing necessarily invali- alone one facet of this case together case, all facets a waiver in this viewed dates totality the circum- —and that is what we mean compel waivers the conclusion Woods’s stances — voluntarily. knowingly, intelligently, and were not made interrogations in-custody of these The circumstances following: in their are the to be considered years, 9 1: Personal characteristics. Woods was arrest; halfway age he months of at the time of his was through grade; according mother, he tenth to his average intelligence; speak he could had normal or above English; and re- he from a home and write came broken county grandparents. The sided in with his Shawano interrogating although was officers testified that quite during interrogation, also “became controlled previ- point. no emotional” and cried at one Woods had experience justice system. with ous the criminal sig- personal are defendant characteristics they him vulnerable to the render as insofar nificant pressure, type psychological particular inducement, or interrogation. age stratagem and his in the Woods’s used system justice inexperience made him criminal with the strategems police used this to the more vulnerable probability and increase the the waivers to induce case knowingly, intelligently, were not made the waivers voluntarily. custody was Custody interrogation. 2: making approximately an and a half hours before three officers Law enforcement or written statement. oral a.m. 7:00 and 7:30 home between arrived at Woods’s They sleeping. theft and arrested him for he was while arriving police station, at a.m. about 8:00 him took to the change clothes made to from street He was booked apparently jail not left alone into clothes. Woods Gage, any met with time at the He station. questioned juvenile in an worker, then intake and was by interrogation room, and two local officers first agents Department of Justice. then from two state gave just and an oral before 11:00 a.m. statement and 11:30 a written statement sometime between 11:00 a.m. relatively pe- interrogations a short

Here lasted probably riod, hour, there than in this time less an but relays interrogations, by officers, of with were two two relay. questioning of two two-on-one in each use relays doing questioning and the total of two officers length custody psychological when of indicate domination age, along iso- with as considered such factors Woods’s family crime, friends, lation from and the nature of grue- interrogation involving misrepresentation and photographs. some parent present. nor Neither mother 3: No Woods’s interrogation.

grandparents present were at the time of 746 attorney guardian present, or or parent

Without “inherently course, susceptible more is, juvenile of to re- the “will which “undermine” pressures” coercive “compel speak he would not other- him to where sist” Arizona, freely,” 384 U.S. Miranda wise do so although pres- (1966). has said that This court attorney guardian, an is not absolute parent, ence of or her to re- minor to waive his requirement for a silent, does raise the of adult advice the absence main in the possibility and should be considered of coercion State, totality Theriault v. 2d circumstances. Wis. of (1974). have 41, 44, Commentators 223 N.W.2d 850 parental urged of or other adult advice absence weigh heavily than other factors in the more should the circumstances evaluation.3 of Initially charge. Suspect not advised U: if orally asked said “no” when head “no” shook his attorney. waived an When Woods he wanted suspected yet counsel, been told that he he had not questioned murders. and would be about of murder may willing suspect to be without counsel Since charge another, more questioning not on on one but subject ignorance the in- one, of the exact serious terrogation significant evaluation of the the court’s Rights Bailey, Note, Miranda Is Waiver Juveniles: Necessary Safeguard?, Fam. L. 725 Parental Presence a J. (1982-83). presence of an adult For a discussion of the need for Bights: Grisso, Capacity An see Miranda Juveniles’ Waive Empirical (1980); Flicker, Analysis, Pro 68 Calif. L. Rev. viding (Institute Juveniles, 14 Judicial Counsel Accused for Implementation Administration and Juvenile Justice Standards Project, Justice) A.B.A. on Criminal Section According record, arrive at the Woods’s mother did police denied at 11 but station about a.m. and asked see Woods permission being interrogated. he After Woods made because was given mother, opportunity statement, his but his he was an to see he did not to do wish so. of counsel was of whether the waiver circumstances

total voluntarily. intelligently, knowingly, Carter made 1981). (4th also See United F2d 68 Cir Garrison, 656 v. 1981); (5th Cir Schenk McCrary, 643 F.2d v. States 1968). Supp. 26, (D. Ellsworth, F. Mont. inability Suspect counsel. asserts When 5: afford interrogation attorney, if he wanted an in the later asked attorney. not afford an responded that he could interrogation continued and a written nevertheless from The trial court cor- was taken Woods. statement rectly suppressed statement because Woods’s this written right had been violated. to counsel inexperience youth and with the view of

In Woods’s justice system, conclude, explained I I as criminal negative response initial point 4, made the that when he may counsel, question he wanted have whether to the going questioned thought theft he was to be about cannot saw, murder. Thus his waiver of a chain intelligently. I further made conclude said to have been response he could not afford later Woods’s indicates, counsel under all the circumstances described right herein, initial waiver of his to counsel understanding without that he was entitled to counsel expense. public by being Suspect

6: silent asserts remain waiving expressly stated silent. never he was remain no statement silent. Indeed he made interrogating approximаtely min- to the officers for interrogation response than one utes other isolated leading question. Despite to a silence and de- Woods’s warning spite Miranda the sus- which advises both pect and the law enforcement officers that the accused silent, persisted to remain has the officers questioning encouraging him and him to The ma- talk. jority total concludes that Woods’s conduct of neither responsiveness silence nor total did not an as- constitute indicated that he remain silent but of the sertion speak about whether to trying a decision to make was majority holds that Woods’s confes- The remain silent. interrogation con- to 60 minutes at least 50 after sion right to remain silent. of the his waiver stituted rights by Miranda must be protected of the Waiver 69, Schilling State, 2d v. 86 Wis. explicit.” and “clear (1978). I Woods’s conclude 271 N.W.2d an exercise of his his confession was conduct until Hayes, F.2d remain See United States silent. majority (4th 1967). fails to consider Cir. alleged silence and this waiver steadfast Woods’s light cumulative effect of all that occurred before of the light personal the confession. Considered in Woods’s techniques questioning, used in characteristics did not a waiver of his confession constitute Woods’s silent; did, product remain if it it not the was of free will. interroga- friendly gesture. Pretended One of

7: friendly in a placed shoulder tors his hand on Woods’s gesture. taking nonadversary interrogator’s is role

An on very recognized technique sus- to induce as a effective forget they adversary pects to are in an situation. See Trickery Inducing White, Confessions, Police 127 U. L. Rev. 614-17 Pa. considering circumstances,

In the age and the fact a broken Woods’s that he was from family friends, home and isolated from was especially likely strategy coоper- to this succumb significance gesture ate. The clear- in this is case ly set forth in the record. An officer testified he used gesture this would because he had told that been Woods likely “strong figure.” be more to talk to a father gave shortly gesture. his statement after this misrepresentations guilt Police known. 8: majority subjected what were concedes police police misrepresentations the had evidence guilt. establishing his suspect inter- impressing with the the

The device interroga- guilt very rogators’ certainty effective is a “yield designed suspect to technique make the to tion Trickery In- White, judgment.” Police majority 581, 624-25 Confessions, Pa. L. Rev. ducing 127 U. recog- majority opinion and the (1979). Both the state unacceptable po- misrepresentations are nize that such 81, 88-89, State, 2d Blaszke v. 69 Wis. conduct. See lice ; Cooper, (1975) v. 217 N.W.2d State 230 N.W.2d 133 age inexperience in 1974). (Iowa Woods’s gruesome along system, justice with the criminal friendly promises threats, and gesture, photographs, family, particularly vulner- from made Woods isolation technique a waiver of his to to induce able to this remain silent. displayed. photographs The

9: death scene Gruesome many gruesome in an photographs death scene had they questioning when were Woods. album on the table fact found a matter of historical trial court as photo- enforcement officers showed these the local law findings graphs of fact defendant. trial court to the See at note 2. officers has cautioned law enforcement

This court gruesome against photographs of the crime the use unfairly impair sus- photographs such scene because pect’s capacity State Wal- make a rational choice. lace, I conclude 59 Wis. 2d 207 N.W.2d such other photographs with combination —in family mem- youth, factors as the absence of Woods’s misrepresentations— ber, friendly gesture, whether impaired ability a rational choice to make speak. silent remain or used. Promises and threats was told some- 10: things thing would “be or the effect better” police. him” if he confessed talked to the for “easier going you told, pin is what also “This is going hang you,” down,” when or “This is what’s supposedly his, fingerprints, taken at was shown scene of the murder. imply prom-

The effect of these words which threat or light being judged in of their ise must be directed to a being juvenile questioned about who is murders and led guilt. to believe that the state has conclusive evidence of likely type pressure This to exert substantial influ- upon suspect’s ence will and cause the decision to rights pressure waive to be result of outside rather consequence than a of rational decision. This court has against strategies. warned the use of such tactics and State, 81, 88-89, Blaszke Wis. 2d N.W.2d 11: charge pretextual. on Regardless Arrest theft probable whether theft,4 there was cause to arrest for pretext. for Woods’s arrest theft a majority was The the state in effect concede that the authorities wanted custody question Woods to him not the theft about but about acknowledges the murders. The state’s brief that at the time of arrest the authorities had focused on prime suspect Woods as the in the murders but had no probable cause to charge. arrest on Woods that 4 Woods’s arrest for theft was invalid because it was not based probable on majority probable cause. The decides that cause ex to isted arrest receiving Woods property for theft and stolen be possessed cаuse Woods a chain saw that had been stolen 17 months earlier, attempted price, to sell it for attempt a low and his to sell was unsolicited and made to someone who didn’t even know Woods’s correct surname. Probable cause cannot be found under such tenuous probable circumstances. Because there was no cause Woods, to arrest suppressed statement should be as the fruit of illegal an arrest. pretextual the for not arrest or the nature

Whether statements, it the arrest the invalidate should theft eagerness to the law enforcement officers’ does indicate willingness custody get and their to use of the defendant question the in order to about devious methods Woods clearly The shows murders and solve record case. interrogators deception prepared were to use opportunity to a deprive make rational speak police. whether to choice questionable validity. detention order Juvenile 12: contrary worker, juvenile intake that the asserts obligations involved in the chapter under to his on pretext to detain Woods officers’ law enforcement charge about murders. question him theft but juvenile he was testified that The intake worker involved; testified enforcement officers the law so finding. made no The state circuit court he was. The make findi urges to review the record this court ng.5 majority issue. opinion is on this silent finding because

I cannot make believe this court testimony contradictory as wheth- the record contains league juvenile worker was in with er the intake subterfuge. their totality of purposes For of this circum- review of according that, stances, note it is for sufficient me reported are divided The state’s brief asserts decisions appellate supply a factual find on whether a Wisconsin court can following ing not made the trial The state cites court. supporting proposition appellate as can cases the that an court finding: Fillyaw, 711, 700, make 312 the State v. 104 2dWis. T.R.M., (1981); Rights N.W.2d Termination 795 Parental Kramer, 681, 688, (1981); 100 Wis. v. 2d 303 N.W.2d 581 State Walker, 306, 316, (1980); 99 Wis. 2d 298 v. N.W.2d 568 Walker 313, 319, 40 the Wis. 2d The state cites N.W.2d 898 following supporting ‍​​​‌‌‌​​‌​​​‌​‌​‌‌‌​‌​​​‌​​​‌‌‌​‌​​​​​‌‌​​​‌‌​‌​‍proposition appellate cases as that an the finding: Fleischman, 2d court cannot make v. Wis. the Wurtz 100, 3, Drogsvold, 107, (1980), n. 293 N.W.2d 155 and State 247, 1981). (Ct. App. 104 Wis. 2d 311 N.W.2d 243 record, juvenile intake worker did act the the not as the legislature Chapter chapter provides mandated in 48. person “taking custody a child into shall make immediately every child,” effort release the sec. 48.20 juvenile (2), intake worker make a must 48.205, probable determination, sec. cause 1981- Stats. juvenile as to release the child. The intake worker any here did make effort to release Woods immedi- ately probable did not make cause determination of jurisdiction whether child was within the of the court and, detained, away, required by unless would run as sec. 48.205, Furthermore, 1981-82. re- intake worker is quired allegations facing. to inform the what child he is 48.243(1) (a). knowing Sec. The intake worker’s fail- being ure to that he ques- tell Woods detained for tioning about the murders in- contributed Woods’s ability knowing, intelligent make waiver of his rights. appears juvenile it Since intake worker may comply have chapter 48, failed with violation of juvenile code is a factor to be considered in evaluat- ing strategem interrogators and the voluntari- ness of the waiver.

When the totality, circumstances are examined in their I am not interrogation satisfied particu of this lar 16-year-old, particular situation, this meets the constitutional waivers, standards. I conclude that if any, were not voluntary.6 I dissent. 6 I do not reach the issue of whether Woods had to counsel

under 48.23(1) (a), sec. Stats. 1981-82.

Case Details

Case Name: State v. Woods

Court Name: Wisconsin Supreme Court

Date Published: Mar 27, 1984

Citation: 345 N.W.2d 457

Docket Number: 81-2297-CR

Court Abbreviation: Wis.