Feela v. Israel, s. 83-2050

• Decision Date: 07 February 1984
• Docket Number: 83-1338,Nos. 83-2050,s. 83-2050
• Parties: Douglas J. FEELA, Petitioner-Appellant, v. Thomas ISRAEL and Bronson LaFollette, Respondents-Appellees. Maurice SABIN, Petitioner-Appellant, v. Thomas ISRAEL and Bronson LaFollette, Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 151

727 F.2d 151

Douglas J. FEELA, Petitioner-Appellant, v. Thomas ISRAEL and Bronson LaFollette, Respondents-Appellees.

Maurice SABIN, Petitioner-Appellant, v. Thomas ISRAEL and Bronson LaFollette, Respondents-Appellees.

Nos. 83-2050, 83-1338.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 15, 1983.

Decided Feb. 3, 1984.

As Amended Feb. 7, 1984.

Michael Yovovich, First Asst. State Public Defender, Madison, Wis., for petitioner-appellant.

Kirbie Knutson, Asst. Atty. Gen., Wis. Dept. of Justice, Madison, Wis., for respondents-appellees.

Before PELL and CUDAHY, Circuit Judges and GRANT, Senior District Judge. ^*

GRANT, Senior District Judge.

In these two cases, consolidated on appeal, petitioners-appellants Maurice Sabin and Douglas Feela appeal the denials of their respective writs of habeas corpus. The issues presented for our review are:

I. Whether the district court erred in finding that the introduction of van theft evidence constituted harmless error;

II. Whether the state's allusions to and comments upon Feela's post-arrest silence were harmless error;

III. Whether the evidence presented at trial was insufficient to establish the guilt of Maurice Sabin as a party to the crime of attempted murder?

The facts underlying the present appeal are recounted in detail in the state reporter, See State v. Feela, 101 Wis.2d 249, 304 N.W.2d 152 (Ct.App.1981). They will not be repeated here except in skeletal fashion, as necessary to understand the issues presented for appellate review.

On January 27, 1979, Gene's Bottle House, a liquor store in Wisconsin Rapids, was robbed at gun point by an armed masked man. Maurice Sabin (Sabin) and Douglas Feela (Feela) were arrested and charged with the robbery. The state's case was based upon the immunized testimony of Sabin's son, Jerry.

Jerry testified that he, his father, Douglas Feela and Dale Patchen decided to rob a bank in Bancroft, Wisconsin. Toward that end, they drove to Waupaca to steal a vehicle to use as a getaway car. After checking out several possible vehicles, they ultimately "hot-wired" and stole a van. They returned to Bancroft, drove by the bank but decided it was too crowded to rob. The bank robbery plans were abandoned for the night, and the van was parked on a back road outside of town.

The next day the men returned to the van. Feela and Patchen changed clothes and drove the van to the bank, followed by the Sabins in Sabin's car. Feela and Patchen decided the situation did not look good and, once again, the bank robbery plans were abandoned. The van was ditched outside of town, and the men retired to a nearby tavern for the afternoon, but Jerry was fatigued and laid down in the back of Sabin's car.

Jerry awakened when the others returned to the car and the group drove to Wisconsin Rapids. Jerry heard someone say "this is it" and saw Feela exit from the car with a ski mask over his face and a gun in his hand. Jerry testified that he heard someone say that Feela was out, was being chased and that he then heard a gunshot. Sabin, Patchen and Jerry abandoned Feela and drove out of town.

Numerous witnesses saw a masked, armed man rob Gene's Bottle House and flee. Several witnesses gave chase. At one point, the armed robber turned and shot at his pursuers. Ultimately, the police joined the pursuit and came upon a partially opened basement door in a nearby house. They entered the house and called out that they were police officers. They ordered whoever was in the basement to come out. Feela emerged. A subsequent search of the basement produced a vest, gloves and a handgun which witnesses identified as those used by the robber.

At trial, both Feela and Sabin presented alibi defenses. Sabin testified that he had spent the day at home except for a short period of time at a local tavern. Feela was more creative. He testified that he had been walking into town when an armed assailant stuck a gun into his back and made him take off his coat. The assailant then handed him something and ordered him to run. Feela testified that he heard a gunshot and saw snow fly up near him; that he ran and hid in a nearby basement; and that he subsequently discovered that the articles handed him by his armed assailant were the vest, gun and gloves that had been used in the robbery.

Feela and Sabin were initially tried in Waupaca County on charges of van theft and operating a motor vehicle without the owner's consent (Wis.Stat.Ann. Secs. 943.20 & 943.23 (West 1982)). After a jury trial at which Jerry was the state's main witness, Sabin and Feela were acquitted on both counts.

Feela and Sabin were then tried and convicted in Wood County of masked armed robbery (Wis.Stat.Ann. Secs. 943.32 & 946.62 (West 1982)), attempted first degree murder (Wis.Stat.Ann. Secs. 940.01, 939.32, 946.62 & 939.05 (West 1982)) and conspiracy to commit armed robbery of the Bancroft State Bank (Wis.Stat.Ann. Secs. 939.31 & 943.32 (West 1982)).

I

Whether the district court erred in finding that the introduction of van theft evidence was harmless error?

Prior to trial, defendants Feela and Sabin moved to suppress any evidence of the Waupaca County van theft of which they had been acquitted. The trial court ruled that testimony regarding the theft of the van would be admitted, but excluded from the trial any evidence concerning that trial and resulting acquittal in Waupaca County. The Wisconsin Court of Appeals found that the evidence of the theft of the van was properly admitted at the Wood County robbery trial. 101 Wis.2d at 257-64, 304 N.W.2d 152. However, at the habeas corpus hearings, the district courts concluded that the introduction of the van theft evidence was error, but concluded that it was harmless error.

Since Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), the doctrine of collateral estoppel has been an element of the Constitution's prohibition against double jeopardy. In Ashe, the petitioner was charged in separate counts with the robbery of six poker players. Defendant was tried and acquitted of the robbery of one of the participants in the poker game. Following his acquittal, the petitioner was tried and found guilty of robbery of a second participant in that same poker game. In reversing Ashe's conviction, the Supreme Court stated:

Collateral estoppel is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.

397 U.S. at 443. The Supreme Court concluded that the Fifth Amendment guarantee against double jeopardy incorporates the doctrine of collateral estoppel.

The district courts here properly found that it was error to introduce the van theft evidence as part of the conspiracy charge since Feela and Sabin had been acquitted of the van theft. However, the district courts concluded that "[c]onsidered in light of the entire line of evidence on the conspiracy charge ... the fact that the van was stolen ... although improperly admitted into evidence, was harmless." Sabin v. Israel, 554 F.Supp. 390, 395 (E.D.Wis.1983); Feela v. Israel, No. 82-C-670, slip op. at 3 (E.D.Wis. April 20, 1983). This Court disagrees.

A long line of Supreme Court cases affirm that where a verdict is general, and conviction under one of several alternate theories would be unconstitutional, the conviction must be set aside lest the verdict rest on an unconstitutional basis. In Stromberg v. California, 283 U.S. 359, 367-68, 51 S.Ct. 532, 535, 75 L.Ed. 1117 (1931), the jury returned a general verdict on a count which defined the crime in three clauses. The jury was instructed that proof of any one of the three defined acts would be sufficient to convict. The Supreme Court stated:

The verdict against the appellant was a general one. It did not specify the ground upon which it rested.... [I]t is impossible to say under which clause of the statute the conviction was obtained. If any one of these clauses, which the state court has held to be separable, was invalid, it cannot be determined upon this record that the appellant was not convicted under that clause.... It follows that instead of its being permissible to hold, with the state court, that the verdict could be sustained if any one of the clauses of the statute were found to be valid, the necessary conclusion from the manner in which the case was sent to the jury is that, if any of the clauses in question is invalid under the Federal Constitution, the conviction cannot be upheld.

283 U.S. at 367-68, 51 S.Ct. at 535. See also Yates v. United States, 354 U.S. 298, 312, 77 S.Ct. 1064, 1073, 1 L.Ed.2d 1356 (1957) ("... we think the proper rule to be applied is that which requires a verdict to be set aside in cases where the verdict is supportable on one ground but not another and it is impossible to tell which ground the jury selected."); Street v. New York, 394 U.S. 576, 585-88, 89 S.Ct. 1354, 1362-63, 22 L.Ed.2d 572 (1969); Leary v. United States, 395 U.S. 6, 31-32, 89 S.Ct. 1532, 1545-1546, 23 L.Ed.2d 57 (1969); Bachellar v. Maryland, 397 U.S. 564, 571, 90 S.Ct. 1312, 1316, 25 L.Ed.2d 570 (1970) ("Thus, since petitioners' convictions may have rested on an unconstitutional ground, they must be set aside.") See also United States v. Head, 641 F.2d 174 (4th Cir.1981); United States v. Carman, 577 F.2d 556 (9th Cir.1978); United States v. Natelli, 527 F.2d 311 (2d Cir.1975), cert. denied, 425 U.S. 934, 96 S.Ct. 1663, 48 L.Ed.2d 175 (1976); United States v. Driscoll, 449 F.2d 894, 898 (1st Cir.1971), cert. denied, 405 U.S. 920, 92 S.Ct. 948, 30 L.Ed.2d 790 (1972) ("The jury returned a general verdict and since it might have disbelieved alleged overt acts numbered one and three and rested its verdict on alleged overt act numbered two, which is legally insufficient, the...