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COURT OF APPEALS DECISION DATED AND RELEASED November
1, 1995 |
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, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 94-2614-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
DALE
GREEN-WHITAKER,
Defendant-Appellant.
APPEAL
from a judgment and an order of the circuit court for Waukesha County: KATHRYN W. FOSTER, Judge. Affirmed.
Before
Brown, Nettesheim and Snyder, JJ.
PER
CURIAM. Dale Green-Whitaker (the
defendant) appeals from a judgment convicting her of first-degree intentional
homicide in the death of her mother and from an order denying her
postconviction motion for a new trial.
She argues counsel was not timely appointed for her and the evidence was
insufficient to support the guilty verdict.
We disagree and affirm.
An
August 6, 1992, criminal complaint charged the defendant in the January 5, 1984
death of her mother, Helen Acheson. The
complaint was based upon statements the defendant made in February 1992 to
Detective Mark Stigler of the Waukesha police department that she suffocated
her mother with a pillow in 1984. At
the time she confessed to suffocating her mother, the defendant was in the
Waukesha County jail after having been found guilty of sexually assaulting her
son. Other relevant facts will be
stated as we address the issues on appeal.
APPOINTMENT OF
COUNSEL
The
defendant argues that the state public defender failed to timely appoint
counsel for her when she was being investigated by the police about possible
criminal activity. As a consequence,
she argues that she gave inculpatory statements to the police which were used
against her at trial. She contends that
the state public defender's operating procedures and guidelines establish a
right to counsel which is subject to procedural due process protections of the
Fifth Amendment to the United States Constitution.
On
February 2, 1992, while she was in the Waukesha County jail after having been
convicted of sexually assaulting her son, the defendant left a telephone
message at the Waukesha police department saying that she wanted to speak with
Detective Lee Houk.[1] When Houk visited the defendant at the jail
the next day, she told him that she wanted to tell him about other crimes with
which she could possibly be charged.
Houk advised the defendant of her Miranda rights; she
stated that she wanted to speak with him without an attorney. The defendant then told him that she was
going to prison for a long time and was afraid other things she had done would
come back to haunt her. She then
admitted physically abusing her daughter and attempting to smother her daughter
with a pillow several times. Houk
advised the defendant that he would relay this information to the district
attorney and would get back in touch with her.
On
February 5, the defendant contacted the state public defender's local office
requesting counsel "for some possible new charges ... of attempt [sic]
homicide and murder." The next
morning, Assistant Public Defender Yvonne Vegas spoke with the defendant
about appointing counsel. The defendant
told Vegas that she believed she was a suspect in a homicide investigation and
that two officers had questioned her the day before about untrue allegations
being made by her family. The defendant
told Vegas that she had not made any incriminating statements to the
police. Vegas advised the defendant not
to make any further statements to the police and directed her to immediately
notify the public defender if the police returned to speak with her
further. Vegas informed the defendant
that an attorney would be appointed for her if she called.
That
afternoon, the defendant again contacted the Waukesha police department to
speak with an officer. Detective
Mark Stigler went to the jail without any idea of what the defendant
wanted to say. The defendant told him
that she killed her mother in 1984 by smothering her with a pillow. After the defendant made this startling
admission, Stigler advised her of her Miranda rights. The defendant waived her rights, including
her right to an appointed attorney, and made a statement regarding the
specifics of the murder.
On
February 11, Houk, aware that the defendant had made incriminating statements
to Stigler, returned to the jail to speak with the defendant. Houk advised the defendant of her Miranda
rights, and she waived them. The
defendant told the detective that she spoke with her brother on February 5 and
that her brother told her the family was questioning the circumstances of her
mother's death. Based upon his
experience in the criminal justice system, her brother advised her to admit all
of her criminal conduct before going to prison. The defendant told Houk that she was bothered by her conversation
with her brother because she knew she had suffocated her mother. She stated that this is why she wanted
to speak with an officer on February 6.
The defendant then described the circumstances under which she
suffocated her mother and further described how she had attempted to suffocate
her daughter.
Houk
also advised the defendant of her Miranda rights on
February 12 when they met at the Waukesha police department. The defendant told Houk what led her to kill
her mother. Houk also met with the
defendant on April 16 at the Taycheedah Correctional Institution. She waived her right to counsel and stated
that she was aware her mother had been exhumed and wanted to know results of
the autopsy. The defendant then made an
incriminating statement to Houk. The
public defender appointed counsel for the defendant in May 1992.
The
defendant argues that she had a Fifth Amendment due process right under the
United States Constitution to the appointment of counsel as of February 6,
1992, the date she met with counsel from the public defender's office.
Our
analysis of the defendant's argument falls into two parts. First, we examine whether the defendant had
a due process right to counsel. We then
turn to whether the defendant waived her right to counsel.
The
defendant finds her due process right in the state public defender's March 1994
policies and procedures manual. The
manual permits case credit for attorneys who "giv[e] advice to a client
who is being investigated, anticipates being charged in the future, and needs
an attorney but who is never charged ...."
To
be subject to due process protection, an entitlement must be legitimate and
have its roots in "an independent source such as state law—rules or
understandings that secure certain benefits and that support claims of
entitlement to those benefits." Board
of Regents v. Roth, 408 U.S. 564, 577 (1972). Such an independent source can be state law or an administrative
rule or policy. See id.
at 578.
We
do not agree that the state public defender's policies and procedures manual
created an entitlement to counsel subject to due process clause
protection. The manual is not a statute
or administrative rule. The excerpt
relied upon by the defendant is part of a list of case activity which requires
approval for case credit. The defendant
attempts to transform this list into a requirement that the state public
defender represent all financially eligible persons who are being investigated
or anticipate being charged in the future.
The manual does not mandate such representation; rather, it establishes
guidelines by which an attorney can receive case credit for such
representation.[2] The defendant does not refer us to any
portion of ch. 977, Stats., or
rule in Wis. Adm. Code ch. SPD, which requires the appointment of counsel under the
circumstances outlined in the excerpt or under the facts of this case.[3]
Although
the defendant also claims an entitlement to counsel under the Wisconsin Constitution,
we are not persuaded by her argument.
The cases cited by the defendant discuss the appointment of counsel
after criminal proceedings have begun. See
Sparkman v. State, 27 Wis.2d 92, 98, 133 N.W.2d 776, 779‑80
(1965) (appointment of counsel at preliminary examination). Here, the defendant was not subject to
criminal proceedings when she contacted the state public defender.
Even
if we were to conclude that the defendant was entitled to counsel, we would
conclude that she waived that right. See
State v. Beaver, 181 Wis.2d 959, 966, 512 N.W.2d 254, 256 (Ct.
App. 1994). The defendant does not
claim that she did not knowingly and intelligently waive her right to
counsel. See id. She initiated contact with the police on
several occasions to discuss criminal conduct and made incriminating statements
each time. Contacts with the police
after the morning of February 6 contravened Vegas' specific advice not to make
any further statements to the police.
Each time she met with the police, the defendant received Miranda
warnings. The defendant never told
authorities that she had contacted the state public defender, never invoked her
right to counsel, and never advised the state public defender that she was
continuing to have contact with the police.
SUFFICIENCY OF
THE EVIDENCE
The
defendant claims that the evidence was insufficient to convict her. Specifically, she argues that her confession
was not corroborated and, without a confession, the evidence was not sufficient
to demonstrate that she committed the crime.
While
a conviction may not be grounded solely on the defendant's admission or
confession, all of the elements of the crime need not be proved independently
of the confession. State v.
Verhasselt, 83 Wis.2d 647, 661-62, 266 N.W.2d 342, 349 (1978) (quoted
source omitted). There need only be
corroboration of a "significant fact" to sustain the conviction. See id. at 662, 266
N.W.2d at 349 (quoted source omitted).
In
her various statements to police, the defendant stated that in the early
morning hours of January 5, 1984, she suffocated her sleeping mother with a
pillow. She testified that the evening
before the murder, she and her mother had a big argument. Her mother had passed out due to the effects
of alcohol, and the defendant entered her room and smothered her with a
pillow. She stated that her mother
fought little and that she held the pillow over her mother's face until she
stopped moving. The defendant then
placed her mother's arms by her side and left the room.
At
trial, one of the defendant's sisters, Linda Versailles, testified
that her mother telephoned her on the evening of January 4, 1984. Her mother was upset and crying but would
not say why. This testimony
corroborates the defendant's statement that she and her mother had a big
argument on the night of her mother's death.
From this evidence, the jury could infer that the defendant had a motive
to kill her mother. Cf. Schultz
v. State, 82 Wis.2d 737, 754-55, 264 N.W.2d 245, 253-54 (1978)
(evidence of recent marital disturbance corroborated defendant's murder
confession).
The
defendant's description of the manner in which she smothered her mother, who
slept alone, is supported by other evidence in the case. The defendant's stepfather testified that he
and his wife slept separately.
Additionally, officers who responded to the scene confirmed the
defendant's description of the scene as she left it after smothering her
mother. While the defendant might argue
that she obtained her knowledge of the scene because she saw the body in the
morning, the jury was free to infer that she obtained this information because
she set the scene after the murder. The
details of the murder scene were also corroborated by one of the defendant's
brothers.
The
defendant stated that her mother was drunk on the night she died. On autopsy, her mother had alcohol in her
liver and kidneys, and relatives stated that she regularly consumed
alcohol. Additionally, there was
testimony at trial that elderly and frail people, particularly when
incapacitated by alcohol, are classic victims of homicide by smothering. The defendant's mother fit this victim
profile. Cf. Schultz,
82 Wis.2d at 752, 264 N.W.2d at 252 (height and weight of female victim
supported conclusion that victim was strangled as stated in defendant's
confession).
The
defendant's statement that she smothered her mother with a pillow was also
corroborated by other evidence in the case.
Pathologists testified that autopsy results were consistent with a death
by suffocation and revealed no other explanation for the victim's death. We conclude that the defendant's confession
was sufficiently corroborated by other evidence at trial.
The
defendant argues that the pathologists relied heavily upon her confession in
determining the cause of death. We have
already observed that the defendant's confession was not made in violation of
her right to counsel and we have held that it was sufficiently
corroborated. Therefore, the
pathologists' testimony is not undermined by their reliance on the defendant's
confession.
The
defendant also argues that her incriminating statements were not reliable
because she is alcohol dependent and suffers from a borderline personality
disorder and recurrent major depression.
While there was psychiatric testimony to this effect, the jury was free
to weigh it and draw reasonable inferences from it. See State v. Poellinger, 153 Wis.2d 493,
506, 451 N.W.2d 752, 757 (1990); see also Krueger v. Tappan
Co., 104 Wis.2d 199, 203, 311 N.W.2d 219, 222 (Ct. App. 1981) (jury not
bound by expert's opinion, even where opinion is uncontradicted). The jury could accept or reject the
psychiatric testimony and consider it in light of the evidence corroborating
the defendant's confession.
By
the Court.—Judgment and order
affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.
[1] Houk had been
involved in the sexual assault case but was not investigating any matter
involving the defendant at the time she asked to see him.
[2] We acknowledge that Robin Dorman, First
Assistant State Public Defender for the Waukesha region, testified at the
defendant's postconviction motion hearing that the defendant should have
received representation in February 1992.
However, this view does not detract from our holding that the defendant
did not have a due process right to counsel.
Rather, the testimony merely means that in retrospect the state public
defender believes it should have appointed counsel, not that it was obligated
to do so.