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COURT OF APPEALS DECISION DATED AND RELEASED December 27, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-1929-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
ROBERT H. WICHMAN,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Brown County: DONALD J. HANAWAY and WILLIAM C. GRIESBACH, Judges. Affirmed.
MYSE, J. Robert H. Wichman
appeals his conviction of battery and the denial of his post-trial motion for a
new trial. Wichman contends the trial
court erred by admitting his statement made to the investigating officer, which
Wichman contends was inadmissible because of the officer's failure to
administer Miranda[1]
warnings. Wichman further contends he
is entitled to a new trial based on newly discovered evidence consisting of a
witness's refreshed recollection that the victim of the battery had a set of
keys in his hand at the time Wichman struck him in what he alleges to have been
self-defense. Because this court concludes
that there is sufficient evidence to support the trial court's finding the
statement made to the officer was made at the investigative stage of
proceedings while Wichman was not in custody, no Miranda warnings
were required and that the newly discovered evidence is insufficient to warrant
a new trial, the judgment of conviction and denial of Wichman's motion are
affirmed.
The incident giving rise
to this charge occurred at Lambeau Field during a Lions-Packers football game
on December 31, 1994. Both Wichman and
Todd Schafer drove charter buses to the game and had lunch at a nearby
restaurant. They were returning to
Lambeau Field when Wichman struck Schafer.
At that time, officer Daniel Bennington was escorting one of the Lions'
coaches to a press box when he observed a woman standing near some parked
vehicles hollering for assistance.
Bennington observed a man later identified as Schafer, who appeared to
be injured, stumble out from between the vehicles with his hands to his
face. Bennington also observed Wichman
walk from between the vehicles. As
Wichman attempted to walk away from the scene, the woman communicated in some
way that he was involved in the incident.
Bennington approached Wichman and asked him what was going on. Wichman responded that he was just getting
even. Bennington asked for
identification, investigated the offense and ultimately placed Wichman under
arrest for his assault on Schafer.
Wichman contends that when Bennington approached him, Wichman asked
Bennington if he was under arrest, to which Bennington responded
"yes."
From this, Wichman
argues he was in custody at the time his statement was given to the officer and
Miranda warnings were required.
Wichman filed a motion for a new trial following his conviction alleging
that one of the State's witnesses now recalls that at the time Wichman struck
Schafer, Schafer had keys in his hand.
Wichman now contends that the witness's recently refreshed recollection
is a material fact in support of Wichman's contention that he struck Schafer in
self-defense based upon his fear that Schafer was going to strike him with a
fist in which he was clutching a set of keys.
Wichman first contends
that the court erred by admitting Bennington's testimony as to Wichman's
statement that he was getting even with Schafer when he struck him because
Bennington had not given Wichman Miranda warnings prior to his
interrogation. The admissibility of a
statement by a defendant raises a question of constitutional fact, which this
court reviews without deference to the trial court's determination. State v. Turner, 136 Wis.2d
333, 343-44, 401 N.W.2d 827, 832 (1987).
In this case, Bennington indicated that the statement was made during
the preliminary stages of an investigation conducted in response to a woman's
call for assistance. Bennington
testified that the statement was made following his first inquiry as to what
was going on, that Wichman had not been placed under arrest at the time of the
inquiry and that Bennington at that point did not fully understand what had
happened in the incident to which his attention had been drawn. Wichman, however, contends that his answer
to Bennington's inquiry was to ask whether he was under arrest. Wichman testified that Bennington said he
was.
Miranda
warnings need not be given to an individual who has not been placed in
custody. Miranda v. Arizona,
384 U.S. 436, 444 (1966). A person
temporarily detained as a result of an officer's reasonable suspicion under Terry
v. Ohio, 392 U.S. 1 (1968), is not entitled to Miranda
warnings. State v. Leprich,
160 Wis.2d 472, 476-77, 465 N.W.2d 844, 845 (Ct. App. 1991). In this case, the trial court concluded that
Bennington's version of events accurately reflected the events in
question. By finding Bennington had
only temporarily detained Wichman to investigate the incident, the court
properly concluded no Miranda warnings were necessary. Questions of historical fact are reviewed
under the clearly erroneous standard and only after the historical facts have
been determined does the de novo standard involving a constitutional issue
apply. See State v.
Johnson, 177 Wis.2d 224, 233, 501 N.W.2d 876, 878 (Ct. App. 1993).
In this case, there is
adequate evidence to support the trial court's conclusion that Wichman was not
under arrest at the time the statement was made to Bennington. Bennington testified to the facts as they
transpired at that time. The court
accepted Bennington's version of events and thereby implicitly rejected
Wichman's contrary version of the facts that he alleges occurred at the time of
Bennington's investigation. The
credibility of witnesses is a matter submitted to the unique determination of
the trial court. Estate of Wolff
v. Town Bd. of Weston, 156 Wis.2d 588, 597-98, 457 N.W.2d 510, 513-14
(Ct. App. 1990). We will not disturb
the trial court's determinations of credibility unless the court's findings of
fact are clearly erroneous. Employers
Ins. v. Jackson, 190 Wis.2d 597, 613, 527 N.W.2d 681, 687 (1995); §
805.17(2), Stats.
Also supporting the
trial court's determination is the fact that Bennington in his initial contact
with Wichman had insufficient information upon which to base an arrest. The initial inquiry was part of Bennington's
preliminary investigation into the incident.
From this investigation, Bennington ultimately decided to arrest
Wichman. Wichman's contention that he
was placed under arrest first is not only inconsistent with Bennington's
testimony but defies logic.
Wichman also contends
that he is entitled to a new trial based on newly discovered evidence. The problem with this contention is that the
possession of keys is not an essential element to support the defense of
self-defense. If Schafer was about to
strike Wichman and Wichman struck only to prevent injury to himself, whether
Schafer was holding keys is irrelevant to Wichman's ability to assert the
affirmative defense of self-defense.
The existence of keys in Schafer's hand is not a material fact.
Perhaps the most
troubling part of this case is the County's failure to file a response
brief. The appellate court must resolve
allegations of error independently and in a manner consistent with the
requirements of law. The appellate
court has the power to reverse a conviction based upon the State's failure to
file a brief. State ex rel.
Blackdeer v. Levis, 176 Wis.2d 252, 261, 500 N.W.2d 339, 342 (Ct. App.
1993). Only because the issues were so
easily resolved in this case and were so patently without merit did this court
determine to address the merits of the appeal.
The Brown County district attorney's office should be advised that this court
will not hesitate to reverse based on the State's failure to file a brief in
the future when the appellant's contentions present even a prima facie claim
for relief.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. Rule 809.23(1)(b)4, Stats.