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COURT OF APPEALS DECISION DATED AND RELEASED February 18, 1997 |
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. |
Nos. 94-3334-CR
96-0381-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
GERALD A. EDSON,
Defendant-Appellant.
APPEAL from judgments of
the circuit court for Milwaukee County:
JOHN A. FRANKE, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER
CURIAM. Gerald A. Edson appeals from judgments of conviction
in two multiple-count sexual-assault-of-a-child cases. The first case, F‑941926, charged
seven counts of first-degree sexual assault of a child. See § 948.02(1), Stats.
The second case, F‑942539, charged four counts of first-degree
sexual assault of a child and one count of second-degree sexual assault of a
child. See § 948.02(1)
& (2).[1] Edson argues that: (1) the trial court lost jurisdiction to act in both cases when
this court ordered a stay of proceedings in one of the two cases; (2) the trial
court erred in denying his motion to suppress statements made to the Milwaukee
Police Department; (3) his constitutional rights were violated by the police's
failure to electronically record his police interview; (4) the charges were
multiplicitous; (5) his request for substitution of judge was timely; and (6)
his constitutional rights were violated because the case was charged in two
complaints, and because the charges contained in the second case were
considered during sentencing in the first case. We affirm.
Edson was charged in
Milwaukee County Circuit Court case Nos. F‑941926 and F-942539. Edson filed a substitution request pursuant
to § 971.20, Stats., against the
Honorable John A. Franke in one of the two cases, F‑942539. Judge Franke denied the motion, concluding
that it was untimely. See
§ 971.20(4) & (5). The State
then sought consolidation of the two cases, with Judge Franke presiding over
the one trial. Judge Franke joined the
two cases for trial subject to the defendant's right to challenge the joinder.
Subsequently, Edson
petitioned this court for a supervisory writ preventing Judge Franke from
presiding in F-942539. He did not ask
this court for a supervisory writ in the other case. This court stayed the proceedings in F‑942539 pending a
decision on Edson's petition for a supervisory writ. This court did not stay the proceedings in the other case.
Subsequently, the
parties met for a pretrial conference only in F‑941926; the proceedings
in F-942539 were still under the stay.
The State requested that F-941926 proceed to trial. Judge Franke determined that the stay in F‑942539
did not prevent him from acting in the other case. The charges in F-941926 went to trial. During trial, Edson filed a motion to suppress the inculpatory
statements he made to the police, arguing that the police ignored his request
for counsel. The trial court denied his
motion.
Edson was found guilty
on all seven counts in F-941926. After
this court denied Edson's petition for a supervisory writ, Edson pled guilty to
the charges in F‑942539.
Edson first argues that
Judge Franke lost jurisdiction to act in F-941926 when this court ordered the
proceedings stayed in F-942539 because the two cases had been
consolidated. We disagree. After Judge Franke received notice that this
court stayed the proceedings in F-942539 pending a decision on Edson's petition
for a supervisory writ, he decided to proceed with trial in F‑941926:
[T]he stay of the proceedings [F-942539]
by the Court of Appeals apprised me of the ability to act in the other case [F‑941926]. I see no reason to find that that somehow
stays any other case involving this defendant including any case that there
might have been joinder granted.
This date was set for a pretrial in the case ending
926. It was set for further proceedings
on the defendant's motion against prejudicial joinder of the cases and any
other pretrial motions that may have been filed. I'm simply going to find that the issue of joinder is moot. The other case has been stayed and cannot go
to trial. I'm finding that this case
remains set for trial and there's been no reason presented why it should not
proceed to trial.
The
trial court has the discretion to order separate trials of counts previously
joined for trial. See §
971.12(3), Stats. We will not reverse a discretionary
determination by the trial court if the record shows that discretion was
exercised and we can perceive a reasonable basis for the court's decision. Prahl v. Brosamle, 142 Wis.2d
658, 667, 420 N.W.2d 372, 376 (Ct. App. 1987).
We are satisfied that
the trial court arrived at a reasonable result. The State sought consolidation of the two cases. The State's request was granted subject to
Edson's challenge. The trial court had
not made a decision on Edson's request for relief from prejudicial joinder
before we stayed the second action, F‑942539. As noted, Edson only requested that the second action, F‑942539,
be stayed. The trial court, therefore,
was free to proceed to trial on the first action, F‑941926. The decision to proceed in F‑941926
was well within the trial court's discretion.
Edson next contends that
the trial court erred in denying his motion to suppress his confession. He argues that the police refused to honor
his request for counsel during the custodial interrogation and to immediately
terminate the questioning, thereby violating his rights under Miranda v.
Arizona, 384 U.S. 436 (1966), and Edwards v. Arizona, 451
U.S. 477 (1981). The State contends
that Edson's “request” for an attorney was a mere inquiry and was insufficient
to constitute an invocation to his right to counsel. We agree with the State.
On review of an order
denying suppression, “we are bound by the circuit court's findings of
historical fact unless they are contrary to the great weight and clear
preponderance of the evidence.” State
v. Coerper, 199 Wis.2d 216, 221–222, 544 N.W.2d 423, 426 (1996). “Whether [a defendant's] Miranda
rights were violated is a constitutional fact which this court determines without
deference to lower courts.” Id.,
199 Wis.2d at 222, 544 N.W.2d at 426.
If a suspect asserts
clearly his right to counsel during a custodial interrogation, law enforcement
officers are required to immediately cease all questioning. Edwards, 451 U.S. at
484-485. However, if the request for
counsel is ambiguous so that a “reasonable officer in light of the
circumstances would have understood only that the suspect might be invoking the
right to counsel,” the police officer is not required to cease questioning. Davis v. United States, 512
U.S. 452, ___, 114 S. Ct. 2350, 2355, 129 L.Ed.2d 362 (1994); see Coerper,
199 Wis.2d at 223, 544 N.W.2d at 426.
“A request for counsel is a statement in which the person, `express[es]
his desire to deal with the police only through counsel.'” State v. Jones, 192 Wis.2d 78,
94, 532 N.W.2d 79, 85 (1995) (quoting Edwards, 451 U.S. at 484).
The trial court found
that before the police officers advised Edson of his Miranda
rights, Edson asked the officer, “Is this something I'm going to need an
attorney for?”[2] Edson's request is not a clear indication
that he wanted the police contact to terminate for the purpose of obtaining
counsel. His statement was vague,
indecisive, and ambiguous as to whether he wanted an attorney. See Davis, 512 U.S. at
___, 114 S. Ct. at 2357, 129 L.Ed.2d at 373 (accused's remark, “Maybe I should
talk to a lawyer” was not a request for counsel).
Edson argues that even
if his statement was ambiguous, under State v. Walkowiak, 183
Wis.2d 478, 486-487, 515 N.W.2d 863, 867 (1994), the police were required to
resolve the ambiguity before questioning.
Davis declined to adopt a rule requiring officers to ask
clarifying questions when a suspect makes an ambiguous or equivocal statement
regarding counsel. Wisconsin courts
recognize Davis, not Walkowiak, as the law on this
issue. See Jones,
192 Wis.2d at 110–111, 532 N.W.2d at 92 (Abrahamson, J., dissenting).
Edson also asserts that
the statement he gave was involuntary because the police allegedly took
advantage of his old age, deteriorating health, and the fact that he was tired
and on medication. A statement is not
involuntary or in violation of a defendant's Fifth Amendment rights unless the
statement was obtained by coercive police activity. State v. Kunkel, 137 Wis.2d 172, 191, 404 N.W.2d
69, 77 (Ct. App. 1987), cert. denied, 484 U.S. 929 (1987). This inquiry focuses on whether the police
used actual coercive or improper police practices to compel the statement. State v. Clappes, 136 Wis.2d
222, 235-236, 401 N.W.2d 759, 765 (1987).
If the defendant fails to establish that the police used actual coercive
or improper pressures to compel the statement, the inquiry ends. Id., 136 Wis.2d at 236, 401
N.W.2d at 765.
The record indicates no
evidence of actual coercion or improper pressures on the part of the
police. Edson was seated and not
handcuffed. He was given beverages and
allowed to use the bathroom during questioning. His statement was taken over a ninety-minute period. Although Edson contends that the officers
took advantage of his old age and ill-health, he does not contend that he was
in discomfort or medical distress during questioning. Neither does he contend that he was threatened with physical
violence nor that he was questioned for an extensive period of time. See Clappes, 136 Wis.2d
at 236-237, 401 N.W.2d at 766. Edson
failed to establish that the police used actual coercion or improper tactics to
compel his statement.
Edson next claims that
the police officer's failure to record his statement violated his due process
rights, relying on case law from Alaska and Minnesota, which have adopted
recording requirements for all custodial interrogations.[3] Wisconsin law, however, does not require
police to record statements made by suspects subject to a custodial
interrogation. Whether such a policy
should be adopted is more properly left to the supreme court. The police officers established to the trial
court's satisfaction that the Miranda warnings were properly
given, that no impermissible tactics were used, and, that under the totality of
the circumstances, the confession was voluntary. This is all that is required under current Wisconsin law.
Next, Edson argues that
the charges in both cases were multiplicitous.
We review a claim of multiplicity de novo, owing no deference to
the trial court's conclusions. State
v. Bergeron, 162 Wis.2d 521, 534, 470 N.W.2d 322, 327 (Ct. App.
1991). A two-pronged test is used to
analyze questions of multiplicity. State
v. Hirsch, 140 Wis.2d 468, 471, 410 N.W.2d 638, 639 (Ct. App.
1987). The first prong requires an
inquiry into whether the charged offenses are identical in law and in
fact. Id. The second prong requires consideration of
the legislative intent regarding whether the legislature intended the offenses
to be brought as a single count. Id.,
140 Wis.2d at 471, 410 N.W.2d at 639-640.
Offenses are different
in fact if they are significantly different in nature or separated in
time. State v. Eisch, 96
Wis.2d 25, 31, 291 N.W.2d 800, 803 (1980).
Each separate volitional act is a basis for a separate charge, Bergeron,
162 Wis.2d at 535, 470 N.W.2d at 327, and separate punishment for each is
appropriate, id., 162 Wis.2d at 535-536, 470 N.W.2d at 328.
Case No. F-941926
The complaint in this
case charged Edson with seven counts of first-degree sexual assault of a
child. Edson argues that the charges
are identical in law and fact. We agree
that the charges are identical in law, but they are not identical in fact.[4] Counts 1 and 2 are significantly different
in nature and require proof of different evidentiary facts: count 1 involved an act of hand-to-penis
contact (Edson's hand touching the child's penis), and count 2 involved an act
of penis-to-hand contact (Edson's penis being touched by the child's
hand). Count 3 alleged the same type of
act as count 1, and count 4 alleged the same type of act as count 2 but
occurred at a different time than counts 1 and 2. Counts 5 and 6 occurred on different dates than those specified
in counts 1 through 4 and involved a different child. Finally, count 7 involved an act of mouth-to-penis contact
(Edson placing his mouth on the child's penis).
The second prong of the
multiplicity test concerns legislative intent as to the allowable unit of
prosecution under the statute in question.
Bergeron, 162 Wis.2d at 534, 470 N.W.2d at 327. The separate acts of sexual contact are
separately prosecutable and separately punishable. See id., 162 Wis.2d at 521, 470 N.W.2d at
327-328. Edson offers no argument to
the contrary.
Case No. F-942539
Here, Edson was charged
with three counts of first-degree sexual assault of a child. Again, Edson argues that the charges are
identical in law and fact. Although we
agree that the charges are identical in law, they are not identical in fact.[5] Although the three counts involved the same
victim and occurred on or about the same day, the offenses are significantly
different in nature. Count 3
involved an act of hand-to-penis contact (Edson touching the child's penis);
count 4 involved an act of penis-to-hand contact (Edson's penis being
touched by the child's hand); count 5 involved an act of mouth-to-penis
contact (Edson placing his mouth on the child's penis).
Edson does not offer
anything evincing a legislative intent against charging the three separate
sexual assaults in separate counts.
Given the presumption that the legislature intended cumulative
punishments, see State v. Kanarowski, 170 Wis.2d 504, 513,
489 N.W.2d 660, 663 (Ct. App. 1992), the charges were not multiplicitous.
Edson next argues the
substitution-of-judge issue that we resolved in our previous decision denying
his petition for a supervisory writ.
Our decision denying his petition for a supervisory writ on the merits
of his claim cannot be challenged in this proceeding. See Univest Corp. v. General Split Corp.,
148 Wis.2d 29, 38-39, 435 N.W.2d 234, 238 (1989) (law-of-the-case doctrine
provides that legal issues determined in a prior appeal are the law of the case
and are binding precedent to be followed in successive stages of the same
litigation unless there are compelling reasons for reconsidering the prior
decision); see also § 809.10(4) (“An appeal from a final judgment or
final order brings before the court all prior nonfinal judgments, orders and
rulings adverse to the appellant and favorable to the respondent made in the
action or proceeding not previously appealed and ruled upon.”).
Next, Edson argues that
his constitutional rights were violated because the case was charged in two
complaints. Edson, however, does not
cite any authority on point for his position.
“Simply to label a claimed error as constitutional does not make it so,
and we need not decide the validity of constitutional claims broadly stated but
never specifically argued.” State
v. Scherreiks, 153 Wis.2d 510, 520, 451 N.W.2d 759, 763 (Ct. App. 1989)
(citation omitted).
Finally, Edson argues
that the prosecution in F-942539, the second action, was barred by the
protection against double jeopardy because those charges were considered during
sentencing in the first action, F‑941926. We disagree. The
double-jeopardy clause protects against three types of abuses: (1) a second prosecution for the same
offense after acquittal; (2) a second prosecution for the same offense after
conviction; and (3) multiple punishments for the same offense. North Carolina v. Pearce, 395
U.S. 711, 717 (1969). Edson was neither
prosecuted for, nor convicted of, the crimes charged in F‑942539 in the
first case. He argues, however, that
because the conduct giving rise to the charges in F-942539 was taken into
account during the trial court's sentencing in the first case, F‑941926,
he effectively was punished for that conduct during the first trial and that,
as a result, the State's prosecution in the second action is barred.
In Witte v. United
States, 515 U.S. ___, 115 S. Ct. 2199, 132 L.Ed.2d 351 (1995), the
United States Supreme Court considered and rejected substantially the same
argument raised here by Edson. In Witte,
the petitioner pled guilty to a marijuana offense that arose in 1991; in
calculating his sentence under the United States Sentencing Guidelines, the
district court considered petitioner's involvement in a cocaine offense that
occurred in 1989-1990 and sentenced him accordingly. The United States Supreme Court agreed with the Fifth Circuit
Court of Appeals that Witte's subsequent indictment on charges arising out of
the 1989-1990 cocaine offenses was improperly dismissed on double-jeopardy
grounds because a defendant
in
Witte's situation “is punished for double jeopardy purposes only for the
offense of which the defendant is convicted.”
Id., 115 S. Ct. at 2205, 132 L.Ed.2d at 1362. The United States Supreme Court clarified
that:
To
the extent that the Guidelines aggravate punishment for related conduct outside
the elements of the crime on the theory that such conduct bears on the
“character of the offense,” the offender is still punished only for the fact
that the present offense was carried out in a manner that warrants
increased punishment, not for a different offense (which that related conduct
may or may not constitute).
Id., ___
U.S. at ___, 115 S. Ct. at 2207, 132 L.Ed.2d at 366 (emphasis in original); see
State v. Jackson, 110 Wis.2d 548, 552-553, 329 N.W.2d 182, 185
(1983) (consideration of information about the defendant's character and
conduct at sentencing does not result in punishment for any offense other than
the one of which the defendant was convicted).
Our review of the trial
court's sentencing in the first action establishes that the trial court
considered the charges in the second case as a factor in assessing Edson's
character and the dangers that he posed to the community. Double jeopardy did not bar the State's
prosecution of the charge in the second case after that charge was taken into
consideration during sentencing of Edson in the first case.
By the Court.—Judgments
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] One count of first-degree sexual assault of a child and the second-degree sexual-assault-of-a-child count were disposed of prior to trial and are not part of this appeal.
[2] On appeal, Edson claims he said: “I think I need a lawyer, don't I?” Edson, however, does not indicate how the trial court's finding is “clearly erroneous.” See Rule 805.17(2), Stats., made applicable to criminal proceedings by § 972.11(1), Stats.
[3] Edson finds little support for his claim from case law in other jurisdictions. Of the several states that have considered the issue, only one state, Alaska, has concluded that electronic recording of confessions, when feasible, is constitutionally required under due process. See Stephan v. State, 711 P.2d 1156, 1159 (Alaska 1985). The case on which Edson relies on most heavily, State v. Scales, 518 N.W.2d 587 (Minn. 1994), explicitly chose not to base the recording requirement on the due process clause. Id., 518 N.W.2d at 592. Scales imposed the recording requirement in the exercise of the court's “supervisory power to insure the fair administration of justice.” Id.