Appeal from the Circuit Court of Winnebago County; the Hon.
ALBERT S. O'SULLIVAN, Judge, presiding. Affirmed.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT.
The defendant, Robert E. Long, was found guilty of murder after a bench trial, and sentenced to a term of 30 to 40 years. His appeal is based solely on the claim that his extra-judicial statements were admitted in violation of his constitutional rights.
Joyce Armstrong testified that she had been a co-worker with the defendant in a restaurant in Beloit, Wisconsin. On November 4th, 1968, at the end of their shift at the restaurant, she asked the defendant for a ride home; he went into the bathroom and after an interval he called out to her and she ran into the room. Defendant was sitting on a trash can, crying. There was blood on his face and hands and on the wash bowl. When the witness asked what was wrong, defendant replied, "I am killing myself." When she asked "Why?", he said, "I strangled my girl friend in Chicago." He mentioned the name, "Betty," whom the witness had met previously.
The Beloit police were called to the restaurant and defendant was taken, unwillingly and under restraint, to the hospital in an ambulance.
At the hospital emergency room it was determined that both the defendant's wrists were slashed, superficially, and he had two minor stab wounds in the chest and a serious wound in the abdominal region. The latter caused profuse bleeding and necessitated a transfusion and later surgery.
James Mattison, Jr., Captain of the Beloit police, testified that he identified himself to defendant in the emergency room immediately after the defendant's arrival there, and while defendant was being restrained on the table and with the nurses treating him for the wounds. He told defendant that he had a right to remain silent, that what he said could be used against him in court, that he had a right to have an attorney present at the questioning or consult with one before being questioned, and that if he couldn't afford one the State would provide one. He further testified,
"I asked him if he understood these rights and he said he did. And I asked him if he still wanted to talk to me about this incident, and he said yes. . . . I asked him if it was true that he had killed someone, and he said yes, he had. I asked him, and he said his girl friend, Betty Vollenweider. . . . I then asked him for details as to what he did with the body, and he stated that at that time he didn't wish to discuss it any further, he just wanted to die with her. I didn't question him any further after that."
Daniel Hartnett, a Chicago policeman, testified that he found Betty Vollenweider's body in Chicago on the morning of November 4th, and that there were visible marks, indicating strangulation, on her neck. After identification, he went to Beloit on November 5th and identified the victim's car in the police garage (where it had been removed from the restaurant parking lot). In the trunk of the car he found approximately 15 feet of plastic clothesline, among other items. He then went to the Beloit Hospital, and after speaking to the head nurse and securing the permission of defendant's attending physician, Dr. Carter, he spoke to defendant in the intensive care section. He testified to giving defendant warnings, substantially in the same terms as officer Mattison had testified, and to defendant's reply that he understood and was willing to give a statement. This was at about 4:10 or 4:15 in the afternoon and in the presence of the witness, detective Miller of his department, and a patrolman from the Beloit police department, defendant then gave a complete confession. *fn1
The autopsy confirmed that asphyxia due to strangulation, due to ligature caused the death.
Detective Miller testified to substantially the same facts. Each officer said that he did not know that defendant had refused to talk further with officer Mattison. Each officer testified that defendant first said he would give a written statement and when it was typed and shown to him defendant refused to sign. *fn2
Millard Wertman, Jr., a Winnebago County Deputy Sheriff, testified that he, with Detective Wright of his department, went to the intensive care section of the Beloit Hospital on November 7th, after contacting Dr. Carter, and advised defendant of his rights, reading them from a printed card. *fn3 The witness said that defendant answered that he understood and he then proceeded to give the same detailed confession he had previously related to the Chicago officers. Defendant refused to sign a mimeograph form offered to him after the statement which was an acknowledgment that his remarks were voluntary and which waived his constitutional objections. He had previously indicated that he would give an oral statement and not a written or a signed one. Wright's testimony was fully corroborative of Wertman.
Defendant Long took the stand to testify merely with reference to his alleged statements. He denied he had ever seen any of the officers claimed to have questioned him and could not recollect ever talking to any of them. He stated that his first recollection in the hospital was after six or seven days of his nine-day stay.
It is clear from the record that the State, while it could show by the testimony of Joyce Armstrong that the defendant volunteered that he had strangled Betty Vollenweider, and could prove the corresponding cause of death, offered no proof of the essential element of venue outside of the defendant's own statement. (This is true whether you consider defendant's voluntary statement to mean that he strangled the victim in Chicago or that he strangled his Chicago girl.)
Defendant argues that "the crux of the case revolves around the fact that there were three separate law enforcement agencies questioning the defendant." He contends that when defendant refused to answer further questions put to him by Captain Mattison, a "heavy burden" was placed upon later interrogators to show an intelligent and knowing waiver in subsequent statements, and that this burden was not sustained within the purview particularly of the case of Miranda v. Arizona, 384 U.S. 436, 16 L Ed2d 694, 733 (1966), and the companion case of Westover v. United States, 384 U.S. 436, 16 L Ed 2d 694, 735 (1966). The subordinate point is made that the influence of defendant's physical condition and the drugs administered at the hospital prevented his intelligent understanding and knowing ...