Opinion
No. State 171.
Argued June 8, 1972. —
Decided June 30, 1972.
ERROR to review a judgment of the circuit court for La Crosse county: PETER G. PAPPAS, Circuit Judge. Affirmed.
For the plaintiff in error there was a brief and oral argument by Donald J. Harman of La Crosse.
For the defendant in error the cause was argued by Richard J. Boyd, assistant attorney general, with whom on the brief was Robert W. Warren, attorney general.
After a jury trial, the defendant Priddy was found guilty of armed robbery and was sentenced to an indeterminate term of not exceeding ten years in the Wisconsin State Prison. The defendant was found guilty of robbing Avery Reynolds by holding a knife to his throat and taking his personal possessions and his automobile. The description of the stolen automobile was broadcast on the police network, and a few hours after the robbery, the police at Decorah, Iowa, noticed a vehicle which answered the description of the car. The defendant stated that he was not sure of his directions, and he stopped his vehicle to ask the driver of the car behind him how to get to another highway. As he stopped, the police officers arrived on the scene. The chief of police of Decorah, Iowa, using a bullhorn, directed the defendant to get out of his car with his hands up. The defendant was told that the police had been informed that the automobile was stolen and was involved in an incident near La Crosse. Two police officers then testified that defendant said, "Yeah, I put a knife to his throat." At this point the defendant had been asked no questions, and the statement was made immediately after the police informed him why he had been stopped.
The trial judge found in a Goodchild-type hearing that the statement made to the police was admissible because at the time it was given the defendant was not in custody and that it was a "voluntary exclamation."
The writ of error is directed to the single issue of whether the trial court erred in admitting this statement into evidence.
The Miranda warnings had not been given at the time Priddy stated, "Yeah, I put a knife to his throat." Contrary to the findings of the trial judge, the defendant was in custody at the time the statement was made. Findings made in the Goodchild-type hearing will be sustained unless they are contrary to the great weight and clear preponderance of the evidence. McClellan v. State (1972), 53 Wis.2d 724, 728, 193 N.W.2d 711. In the instant case the evidence is undisputed that at the time the defendant made the statement he was in custody. He had been told to come out of his automobile with his hands up, and he had already been frisked. However, the rule of Miranda v. Arizona (1966), 384 U.S. 436, 86 Sup. Ct. 1602, 16 L. Ed. 2d 694, only excludes a statement given while in custody and resulting from interrogation. The testimony is undisputed that the questioning of the defendant by the police officers had not been begun.
The case is ruled by Roney v. State (1969), 44 Wis.2d 522, 171 N.W.2d 400. Therein we said at pages 531, 532:
"As is clearly stated in Miranda, however, custody alone does not invoke the Miranda rule. Miranda holds that a statement that is volunteered and not elicited as a result of prior interrogation is free from the strictures of Miranda even if made while in custody. The statement of the defendant herein was completely spontaneous and was not in response to any interrogation . . . ."
The trial judge's finding that the statement was a voluntary exclamation is supported by the evidence. Under the test of Roney v. State it was a "volunteered" inculpatory statement not subject to the exclusionary rule of Miranda. By the Court. — Judgment affirmed.