Errors to review a judgment and orders of the Circuit Court for Fond du Lac County: Milton L. Meister, Circuit Judge of the Twenty-Fourth Circuit, Presiding.
Motion for Rehearing Denied, without Costs, on March 29, 1977.
The opinion of the court was delivered by: Hanley
The plaintiff in error, Gerald M. Turner, Jr. (defendant) was convicted after a trial by jury of second-degree murder, contrary to sec. 940.02, Stats., indecent behavior with a child, contrary to sec. 944.11, Stats., enticing a child for immoral purposes, contrary to sec. 944.12, Stats., and sexual perversion, contrary to sec. 944.17, Stats. These convictions arose out of the defendant's alleged involvement in the disappearance and death of Lisa Ann French, a nine year old girl, on Halloween night, October 31, 1973, in the city of Fond du Lac.
On the evening of her disappearance, at about 6:00 p.m., Lisa left home alone to meet a friend with whom she was to go trick-or-treating. Later that evening, Lisa's parents notified the police that she had not returned. After a four-day county-wide search, which at times involved up to 1500 volunteers, her body was found inside two plastic garbage bags in a wooded area along the side of a country road outside Fond du Lac. Another bag, containing the victim's clothes, was also found nearby. An autopsy revealed that the girl had been sexually molested and had died of asphyxiation following a heart attack.
Defendant's first contact with the police regarding this crime was during a routine check of all the homes in the neighborhood of the victim's home a few days after the offense. Evidently, this check did not uncover any information. On March 27, 1974, Captain Melvin Heller of the Fond du Lac Police Department and Special Agent Carl Paetzke of the State Justice Department contacted the defendant at his home and inquired as to his whereabouts and activities on the day of the girl's disappearance. The defendant gave the officers an account of his activities on that day and stated he knew Lisa French and her family personally, having been their neighbor in a duplex home earlier in the year. The defendant told the officers that many children had visited his home trick-or-treating that night, but stated he could not remember whether he had seen Lisa French.
On April 7, 1974, Captain Heller and Deputy Thomas Snyder of the Fond du Lac County Sheriff's Department returned to the defendant's home and asked him to come to the Fond du Lac Safety Building for an interview regarding the case. The officers stated they had discovered a discrepancy in the information the defendant had given them on March 27th. The defendant met the officers that afternoon. At that time he met Louis Tomaselli, a Special Agent of the State Justice Department. The defendant was informed of his constitutional rights and signed a form stating he understood and waived them. The defendant further agreed to give samples of body hair and also fibers from his bedspread at home. He signed consent forms for these samples.
The defendant's next two contacts with police, on August 2 and 8, 1974, prior to his arrest, are the subject of controversy in this case. On August 2nd the defendant was requested to come to the safety building to talk to Agent Tomaselli and he co-operated fully. The defendant was advised of his constitutional rights and signed a waiver of those rights, witnessed by Tomaselli, Heller and Snyder. At this time, Agent Tomaselli asked the defendant if he would go to Madison that day for the purpose of taking a polygraph examination. While this point is disputed, the defendant claims that he then attempted to terminate the interview, expressing his reluctance to submit to a polygraph examination. He was advised by Tomaselli that if he would attempt to leave the conference room, he would be charged for involvement in the death of Lisa French.
The defendant's reluctance to submit to a polygraph examination apparently stemmed from a prior experience when he had been charged with statutory rape of a baby-sitter in December of 1972. The defendant stated that on three occasions he had consented to take a polygraph examination to clear himself of that charge, but each time the examiner failed to show up. The defendant had posted a $250 bail bond in this matter, but no Disposition was made.
The defendant then agreed to accompany the officers to Madison to take the test. Upon arrival at the State Crime Laboratory in Madison, the defendant was introduced to Robert L. Anderson, Chief Polygraph Examiner, and the defendant was informed of his constitutional rights. Thereupon, he read and signed a polygraph examination statement of consent which reiterates the constitutional rights of an accused and states that the signer understands and waives those rights.
The polygraph examination was not completed to the satisfaction of Mr. Anderson on August 2nd, and arrangements, to which the defendant agreed, were made for completion of the test in Fond du Lac on August 8, 1974.
On August 7, 1974, Captain Heller received a telephone call from Miss Loreen Forsyth who was at that time living with the defendant. She advised Heller that the defendant would not keep his appointment for the second polygraph examination scheduled for the next day. Therefore, on the morning of August 8th, Captain Heller went to the defendant's home to inquire as to his reason for deciding to not keep the appointment. The defendant told Heller that he was still upset over the Disposition of the earlier charge and did not believe he had been treated fairly after co-operating fully in that matter. The defendant stated he did not want to take the second polygraph examination. Heller expressed that he was interested in getting to the bottom of the prior charge, and asked the defendant to change his mind and come to the safety building later that day. The defendant agreed and arrived voluntarily that afternoon.
Upon arrival at the safety building the defendant met Heller and Snyder and went to a conference room where they joined Agent Tomaselli. The defendant informed Tomaselli that he did not want to take the polygraph examination, because he was still disgruntled about the earlier charge. The evidence also shows that the defendant stated he would discuss the Lisa French matter. While waiting for the arrival of Mr. Anderson, the defendant gave Tomaselli a receipt for the $250 bond he had posted in the previous charge, and Tomaselli went to see if he could obtain some information regarding its Disposition. When he returned, Tomaselli and the defendant went to another room where Mr. Anderson was assembling the polygraph equipment. The defendant was then advised of his constitutional rights but again stated he would not take the examination. Anderson then allowed the defendant to examine the tracings of the first polygraph examination and identify the questions which resulted in the greatest indications of stress.
Agent Tomaselli testified that the defendant refused to take the polygraph and stated he did not want an attorney, but would discuss the matter with him and Anderson. Tomaselli again advised the defendant of his rights, and, the record shows, the defendant waived them. A Discussion then commenced, and both Tomaselli and Anderson testified that the defendant first presented a hypothetical question as to whether they had considered Lisa French might have died accidentally. The Discussion proceeded for about two hours and resulted in a 5-page statement, typed by Mr. Anderson, in which the defendant made a complete confession of his involvement with the victim on October 31, 1973.
Briefly stated, the defendant, in his statement, confessed that the victim had apparently entered the open door to his home that evening, and he discovered her standing in the doorway. The confession states he took her into the bedroom, disrobed her, and committed an act of anal intercourse, whereupon she died, he suspected, of shock. The statement then relates that he disposed of the body and clothing in the garbage bags, and the final page contains a diagram of the location where the body and clothing were dropped.
Subsequently the defendant was charged with first-degree murder and sexual perversion. On August 21, 1974, defendant's appointed counsel moved to suppress the confession. After a preliminary hearing defendant was bound over for trial upon charges of first-degree murder, sexual perversion, enticing a child for immoral purposes, and indecent behavior with a child.
Following a second motion to suppress the confession, a Goodchild hearing was held to determine the admissibility of the statement based upon voluntariness and compliance with constitutional safeguards. The trial Judge concluded, in a written decision, the confession was voluntarily and intelligently entered, and was constitutionally antiseptic.
The defense also moved for a change of venue, arguing that a fair trial could not be had in Fond du Lac County. The trial Judge denied this motion following voir dire of the jury.
The trial court granted a motion made by the state to exclude from the trial all reference to the facts and circumstances surrounding the polygraph examination conducted on August 2, 1974, and any reference to the polygraph examination that was to be taken on August 8, 1974. The parties are somewhat in disagreement as to exactly what the trial court excluded in granting this motion.
On January 27, 1975, the trial commenced. The state's case included the confession and some circumstantial evidence, particularly hairs, found on the clothes and body of the victim. The defense was composed of the defendant's denial of any involvement and the assertion that he was coerced into the confession.
At the close of the evidence the trial court submitted to the jury verdicts for the four crimes charged and also second-degree murder. Twice during deliberation the jury requested repetition of the instructions of first and second-degree murder. After almost eight hours of deliberation the jury rendered verdicts of guilty of second-degree murder, sexual perversion, enticing a child for immoral purposes, and indecent behavior with a child. The defendant was sentenced to serve an indeterminate term not to exceed nine years and six months for the crime of enticing a child, to run concurrently with a term not to exceed nine years and six months for the crime of indecent behavior. The defendant was further sentenced to serve not more than four years and six months for the crime of sexual perversion, and an indeterminate term not to exceed twenty-four years and six months for second-degree murder, both sentences to be served consecutively to all other sentences.
Additional facts will be stated in the opinion.
Seven issues are presented for review:
1. Was the evidence sufficient to establish the defendant's conduct was imminently dangerous and thus to sustain a conviction of second-degree murder?
2. Was the evidence sufficient to sustain a conviction of enticing a child for immoral purposes?
3. Should a new trial have been granted because a statement that the defendant had been involved in a prior sex crime was uttered before the jury?
4. Should the defendant's confession have been suppressed because it was involuntary?
5. Was it reversible error for the trial court to exclude all reference to the August 2, 1974, polygraph examination and to the polygraph examination that was to be taken on August 8, 1974?
6. Did the trial court abuse its discretion in denying defendant's motion for a change of venue?
7. Should a new trial be granted in the interest of Justice?
Imminently Dangerous Conduct
The defendant contends the evidence adduced at trial is not sufficient to support the conviction upon the charge of second-degree murder. The crime of second-degree murder under sec. 904.02, Stats., contains three elements: (1) the accused's conduct was imminently dangerous to another, (2) the accused's conduct was of such a character that it evinced a depraved mind, regardless of life, and (3) the accused's conduct, imminently dangerous to another and evincing a depraved mind, regardless of life, caused the death of the victim. Wis. J.I. -- Criminal, Part II, sec. 1110; Wangerin v. State, 73 Wis. 2d 427, 243 N.W.2d 448 (1976); Seidler v. State, 64 Wis. 2d 456, 219 N.W.2d 320 (1974). The defendant only challenges the sufficiency of the proof as to the first element, that the conduct was imminently dangerous.
The state in a criminal case is obligated to prove every essential fact of the crime charged beyond a reasonable doubt. The test which this court applies to determine whether the state has met this burden was explicitly stated in Bautista v. State, 53 Wis. 2d 218, 223, 191 N.W.2d 725, 727-28 (1971):
"The test is not whether this court or any of the members thereof are convinced beyond reasonable doubt, but whether this court can conclude the trier of facts could, acting reasonably, be so convinced by evidence it had a right to believe and accept as true. . . . The credibility of the witnesses and the weight of the evidence is for the trier of fact. In reviewing the evidence to challenge a finding of fact, we view the evidence in the light most favorable to the finding. Reasonable inferences drawn from the evidence can support a finding of fact and, if more than one reasonable inference can be drawn from the evidence, the inference which supports the finding is the one that must be adopted."
It is the defendant's contention that the state failed to show a sufficient probability or likelihood that death would result from the conduct of the defendant, and thus, that conduct could not be found to be imminently dangerous beyond a reasonable doubt.
In Seidler v. State, supra at 462, 219 N.W.2d at 324, this court recognized the statements of Mr. Chief Justice RYAN in Hogan v. State, 36 Wis. 226 (1874), as setting forth the ...