State v. Hagen
| Decision Date | 26 January 1994 |
| Docket Number | No. 92-2338-CR,92-2338-CR |
| Citation | 181 Wis.2d 934,512 N.W.2d 180 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Edwin J. HAGEN, Defendant-Appellant. d |
| Court | Wisconsin Court of Appeals |
Before BROWN, NETTESHEIM and SNYDER, JJ.
Edwin J. Hagen appeals from a judgment of conviction for party to the crime of first-degree intentional homicide while using a dangerous weapon pursuant to §§ 940.01 and 939.05(2)(b), STATS. Hagen's life sentence was enhanced by five years pursuant to § 939.63(1)(a)2, STATS., because a dangerous weapon was used in the homicide. Hagen also appeals from an order denying postconviction relief.
On appeal, Hagen raises four issues. First, he argues that his conviction violates his state and federal constitutional protections against double jeopardy because he was previously convicted of federal offenses growing out of the homicide incident and the federal prosecution relied on the same evidence relied upon by the State in this case. Second, Hagen argues that he was prejudiced by the three-and-one-half year delay between his federal conviction and this state prosecution. Third, Hagen contends that the trial court erred by admitting into evidence and publishing to the jury a photograph of the victim. Fourth, Hagen contends that the prosecutor made inflammatory and prejudicial remarks during the closing argument. We reject all of Hagen's arguments. We affirm the judgment and the postconviction order.
Hagen does not challenge the sufficiency of the evidence. Nonetheless, we recite the facts in some detail to provide the backdrop for our discussion of the appellate issues.
On February 1, 1984, Sanford Gross left his Chicago office at the Heritage Brick Company, telling his secretary that he was going to meet someone who had used bricks for sale. In November 1986, two years and nine months later, Gross' body was found buried in muddy ground along the Soo Line Railroad tracks in Racine County.
Gross was Hagen's stepbrother. Hagen had worked at the brickyard sporadically. William Varellas, a friend of Hagen's, had worked at one time for a salvage yard located on the site of Gross' brickyard. Hagen and Varellas had discussed kidnapping Gross in order to steal or extort money from him. During one of these discussions, Varellas had expressed his willingness to kill Gross if enough money were involved.
On January 30, 1984, two days before Gross' disappearance, Hagen, Varellas and a third man, Mark Whiting, left their homes in Michigan. Whiting understood that he was to help Hagen and Varellas earn some money and he believed that the effort involved illegal activity. During their drive to Chicago, the three men discussed plans to kidnap a man and force him to write some checks.
On February 1, Varellas lured Gross to an appointment in downtown Chicago by using a false name and representing that he had some used bricks to sell to Gross. When Gross arrived, Varellas and Whiting forced him into the back of a rented U-Haul van. With Hagen following in a separate truck, Varellas and Whiting drove Gross to a suburban Indiana motel where Hagen had previously rented two rooms. Hagen occupied one room while Varellas, Whiting and Gross occupied the other.
Gross was bound, gagged and held hostage in the motel room while Varellas and Whiting forced him to write a note falsely explaining his disappearance. Leaving Whiting to guard Gross, Hagen and Varellas then returned to Chicago and burglarized Gross' place of business. They stole a number of Gross' business checks and left the note which Gross had been forced to write.
When Hagen and Varellas returned to the Indiana motel, Hagen returned to his motel room. Varellas then forced Gross to make payable certain of the stolen checks to an "Anthony Monterusso" and to sign them. The checks totaled $50,000.
The following day, Hagen and Varellas traveled to the Chicago area, again leaving Whiting to guard Gross. Using fraudulent documents identifying himself as "Anthony Monterusso," Varellas successfully cashed the checks which Gross had been forced to sign. Part of the payment for one of the checks was a cashier's check in the amount of $31,500. Hagen and Varellas then returned to the Indiana motel.
During the evening and morning of February 2 and 3, Varellas and Whiting transported Gross, still bound and gagged and now wrapped in a tarpaulin, in the U-Haul to a site in rural Racine County. Hagen followed in his truck. When they arrived at this site, Hagen and Varellas took Gross and two shovels out of the U-Haul. Hagen and Varellas told Whiting to return to the site in about forty-five minutes. Whiting last saw Gross walking between Hagen and Varellas down an abandoned Soo Line Railroad track. When Whiting returned, he picked up Hagen and Varellas and noticed that their shovels were muddy. Gross was not present.
While driving south toward O'Hare Airport, Varellas paid Whiting $5000 and told him to leave the rented van in a parking lot at the airport. Whiting then flew back to Michigan. Hagen and Varellas returned to the Indiana motel and later during the day of February 3, they flew to Las Vegas, Nevada. There, they attempted unsuccessfully to cash the $31,500 cashier's check at the Stardust Hotel.
On February 2, the police were notified of Gross' disappearance and that some of his business checks were missing. On February 4, Varellas was arrested while again attempting to cash the cashier's check at a suburban Chicago bank. Hagen, who had remained outside the bank, was not apprehended. Instead, he returned to Michigan where he assisted Varellas' girlfriend, Janet Tibbitts, in securing Varellas' release on bail.
Varellas was subsequently prosecuted and convicted in Illinois state court proceedings for various offenses related to the stolen checks. These included forgery, perjury and theft by deceptive practice. During this time, 1984-85, the Chicago and federal authorities continued to suspect Hagen and Varellas in Gross' disappearance and a federal grand jury investigated the matter. Tibbitts, Varellas' girlfriend, testified before the grand jury, denying any knowledge of the events surrounding Gross' disappearance and denying that Hagen was involved. However, in later grand jury testimony, Tibbitts recanted her testimony. Tibbitts now implicated Hagen and Varellas, testifying that Hagen had admitted his involvement in Gross' abduction and death to her. Tibbitts also implicated Whiting who had not been previously suspected by the authorities.
As a result of Tibbitts' testimony, the authorities located Whiting in Florida in late January 1986. Whiting agreed to cooperate with the authorities. He accompanied investigators on trips to the various Illinois, Indiana and Wisconsin sites involved. Whiting pointed out the general area in Racine County where he had last seen Gross with Hagen and Varellas. The authorities made a large number of digs in the area but they did not locate Gross' body.
Nonetheless, based on Tibbitts' testimony and the ensuing investigation, Hagen and Varellas were indicted and convicted in the Western District of Michigan on federal charges of conspiracy to kidnap Gross pursuant to 18 U.S.C. § 1201(a) and related offenses. Both were sentenced in December 1986 to 150 years in prison on the conspiracy to kidnap charge, with lesser sentences on other related matters.
In November 1986, following up on a tip from one of Varellas' cellmates, investigators found Gross' body buried along the Soo Line Railroad tracks in Racine County. The authorities also found a crowbar buried under Gross' body. The site of the discovery was near the area Whiting had last seen Gross. Following this development, Racine County authorities conducted forensic examinations and testing that eventually led to a positive identification of Gross' body and the determination that Gross had died from one or more blows to the back of his skull. The crowbar was the likely lethal weapon.
In March 1987, state authorities from Michigan, Illinois and Wisconsin and federal authorities met to discuss the matter. The authorities agreed that Wisconsin should have the first opportunity to prosecute any state murder charges. The matter was assigned to Racine County Assistant District Attorney Eric Guttenberg who reviewed a large volume of police reports and other materials related to the case. Guttenberg eventually drafted a criminal complaint, but he did not file it. Guttenberg testified at the postconviction proceedings that while he did not delay the filing, he also had no sense of urgency regarding the matter because of the substantial sentences imposed against Hagen in the federal case. Guttenberg left the district attorney's office in September 1987.
The record is silent concerning any further police or prosecutorial action in this case until August 1, 1989, when the matter was assigned to Assistant District Attorney Michael Nieskes who had joined the district attorney's office some two months earlier. Over the next four months, Nieskes reviewed the substantial materials pertaining to this case, worked on locating witnesses, and sought to obtain the release of federal court materials which had been frozen in light of pending federal appeals. Nieskes filed the criminal complaint in this matter on December 28, 1989.
Hagen and Varellas were tried separately and both were convicted of first-degree intentional homicide. Both separately appeal. We now move to Hagen's appellate issues.
Hagen argues that the federal prosecutions against him for conspiracy to kidnap Gross and related offenses bar this state homicide prosecution on double jeopardy grounds. Hagen's argument is premised upon the United States Supreme Court's decision in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), overruled by United States v....
To continue reading
Request your trial
-
State v. Finch
...the dogs had lost their owners and were victims too. Only one jurisdiction has dealt squarely with this issue. In State v. Hagen, 181 Wis.2d 934, 512 N.W.2d 180 (1994), the Wisconsin Court of Appeals found no abuse of discretion where a picture of the victim with his dog was admitted, despi......
-
Toliver v. McCaughtry
...of the murder victim. Whether photographs are displayed to the jury is discretionary with the trial judge. State v. Hagen, 181 Wis.2d 934, 946, 512 N.W.2d 180, 184 (Ct.App.1994); see also Sage v. State, 87 Wis.2d 783, 788, 275 N.W.2d 705, 708 (1979). The trial court's discretion will be uph......
-
State v. Basten
...trial court's discretion, and we will not reverse the decision unless there has been a misuse of discretion. State v. Hagen, 181 Wis.2d 934, 946, 512 N.W.2d 180, 184 (Ct.App.1994). We do not review the matter de novo and substitute our judgment for the trial court's. See id. In order to det......
-
State v. Collier
...statement that if defendant's testimony were true, conduct of deputy was unlawful was absolutely correct); State v. Hagen, 181 Wis.2d 934, 947-49, 512 N.W.2d 180, 185 (Ct.App.1994) (trial court's instruction to jury to disregard prosecutor's reference to defense counsel's "sleazy bag" of tr......