Thus, the same act may constitute homicide by negligent use of a vehicle, sec. 940.08, Stats., reckless homicide, sec. 940.06, or second-degree murder, sec. 940.02. In deciding the offense-slot into which Spears's conduct fits it may be helpful to ask, as the court did in State v. Hoyt, 21 Wis.2d 310, 317n, 124 N.W.2d 47, 60 (1963) (opinion withdrawn for other reasons): "Why does the legislature make a grading between homicides? Why not simply hold that one who kills another should be subject to an invariant punishment?
The suppression court found that "[t]he Officer asked Mr. Prober for the keys to his, to the trunk, telling him that since he was going to be taken in the ambulance that the car was going to be towed." Whether or not the defendant's surrender of the keys constitutes a "clear and unequivocal" expression of consent to a search of the car, State v. Hoyt, 21 Wis.2d 310, 317v, 124 N.W.2d 47 (1963), it is unclear whether the consent can be construed as extending to the purse found within the trunk. Compare: State v. Drake, 343 So.2d 1336 (Fla.App. 1977), with People v. Sanders, 44 Ill. App.3d 510, 358 N.E.2d 375 (1976).
State v. Parker, supra. Any conflicts in the testimony regarding the circumstances surrounding the confession must be resolved in favor of the trial court's finding. State v. Schneidewind (1970), 47 Wis.2d 110, 116, 176 N.W.2d 303; State v. Hoyt (1963), 21 Wis.2d 310, 317a, 124 N.W.2d 47. The determination as to whether a confession is voluntary, rather than the result of coercion, must be made in light of the "totality of the circumstances.
Although denied by defendant, the record amply supports the finding of the trial judge that the defendant requested to be taken to his motel room, and three detectives so testified. Defendant, on appeal, argues that certain inconsistencies in the testimony of witnesses is such that their credibility must be seriously questioned with respect to the defendant giving consent for a search and cites State v. Hoyt (1963), 21 Wis.2d 310, 317v, 124 N.W.2d 47, wherein this court stated: "Under federal standards which now control the reasonableness of a search and seizure, consent to a search must be expressed in clear and unequivocal terms." However, the credibility of witnesses is a proper function for the trier of fact.
The supreme court has held that the "essential difference" between these two crimes lies "'in the state of mind with which the conduct is carried out.'" Citing State v. Hoyt, reh. 21 Wis.2d 284, 128 N.W.2d 645 (1964), 21 Wis.2d 310, 124 N.W.2d 47 (1963). Kasieta v. State, 62 Wis.2d 564, 572, 215 N.W.2d 412, 416 (1974).
Prober was overruled on other grounds in State v Weide, 155 Wis.2d 537; 455 N.W.2d 899 (1990). See State v Pires, 55 Wis.2d 597; 201 N.W.2d 153 (1972); State v Hoyt, 21 Wis.2d 284; 124 N.W.2d 47 (1964); State v Davidson, 44 Wis.2d 177; 170 N.W.2d 755 (1969); La Fournier v State, 91 Wis.2d 61; 280 N.W.2d 746 (1979). The court needed to determine whether a belief that the defendant was overdosing on some drug justified a police search of the defendant's handbag that may have contained such a drug.
On review, the standard is whether the findings of the trial court are contrary to the greater weight and clear preponderance of the evidence. Any conflicts in the testimony regarding the circumstances surrounding the statements must be resolved in favor of the trial court's findings. McAdoo, supra; Schneidewind, supra; State v. Hoyt (1964), 21 Wis.2d 310, 124 N.W.2d 47, rehearing (1964), 21 Wis.2d 284, 128 N.W.2d 645. The defendant here contends that the statements could not have been voluntary because, in the totality of circumstances, his mental condition precluded a knowing, understanding and intelligent waiver of his Miranda rights.
More recently, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), carried forward the Bram definition of compulsion in the course of holding applicable to the States the Fifth Amendment privilege against compelled self-incrimination.' "See State v. Mullin, 249 Iowa 10, 85 N.W.2d 598 (1957); People v. Brommel, 56 Cal.2d 629, 15 Cal.Rptr. 909, 364 P.2d 845 (1961); Kier v. State, 213 Md. 556, 132 A.2d 494 (1957); State v. Biron, 266 Minn. 272, 123 N.W.2d 392 (1963); State v. Watson, 82 N.M. 769, 487 P.2d 197 (1971); State v. Hoyt, 21 Wis.2d 284, 124 N.W.2d 47 (1963)." (emphasis supplied).
The defendant argues that, at most, such conduct should be considered manslaughter. He further argues that such conduct did not evince a depraved mind but rather a crime committed in the heat of passion. In State v. Hoyt (1963), 21 Wis.2d 310, 124 N.W.2d 47, rehearing (1964), 21 Wis.2d 284, 128 N.W.2d 645, this court drew the distinction between second-degree murder and manslaughter at pages 317m, 317n: "By definition, second-degree murder is an unintentional killing.
The totality of those factors was found to have produced a coercive atmosphere. See, State v. Hoyt (1963), 21 Wis.2d 310, 124 N.W.2d 47, rehearing (1964), 21 Wis.2d 284, 128 N.W.2d 645; Haynes v. Washington (1963), 373 U.S. 503, 83 Sup. Ct. 1336, 10 L.Ed.2d 513; Lynumn v. Illinois (1963), 372 U.S. 528, 83 Sup. Ct. 917, 9 L.Ed.2d 922. In the instant case, there is no evidence to show any coercive police practices, nor was the defendant interrogated for any considerable length of time.