Allison v. State

• Decision Date: 05 February 1974
• Docket Number: No. S,S
• Citation: 62 Wis.2d 14,214 N.W.2d 437
• Parties: Walter ALLISON, Jr., Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 17.
• Court: Wisconsin Supreme Court

Page 437

214 N.W.2d 437

62 Wis.2d 14

Walter ALLISON, Jr., Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 17.

Supreme Court of Wisconsin.

Feb. 5, 1974.

Anthony K. Karpowitz, Legal Aid Society of Milwaukee, Criminal Appellate Division, Milwaukee, for plaintiff in error.

Robert W. Warren, Atty. Gen., Christine M. Wiseman, Asst. Atty. Gen., Madison, for defendant in error.

WILKIE, Justice.

This case involves a challenge to the Wisconsin 'notice of alibi' statute in effect at the time of this offense, sec. 955.07, Stats. 1967, ¹ under the United States Supreme Court case of Wardius v. Oregon. ² It also involves the constitutionality of sec. 971.23(8), ³ the alibi statute as adopted in 1970 after the incident that is the basis of the conviction here.

Before discussing the 'notice of alibi' subject two other preliminary issues should be considered.

1. Should the complaint have been dismissed for failure to set forth facts from which the magistrate could make an independent determination of the reliability of the informant who provided the affiant with the information leading to the complaint?

2. Did the trial court abuse its discretion in finding that no 'cause' was shown which entitled the defendant to present alibi evidence despite lack of compliance with the notice requirement of sec. 955.07, Stats.1967?

Sufficiency of the Complaint.

The complaint in this case was issued on April 27, 1970. The affiant, Dennis Forjan, is a police officer, although he is not identified as such on the complaint. Officer Forjan swore on information and belief that Walter Allison, Jr., had committed the crimes of rape and sexual perversion as defined by the appropriate statutes. Then the complaint detailed the source of the information as follows:

'Complainant further states that his information is based upon the statement of J_ _ M_ _ K_ _, age 16, who states that on 4/24/70, the defendant while parked in an auto on the north side of Milwaukee, she observed the defendant place a butcher knife to her throat and remove her clothing and placed his penis in her vagina, she then observed defendant place his penis in her mouth. J_ _ M_ _ K_ _ further states that when defendant placed said knife to her throat he told her if she screamed, he would kill her. J_ _ M_ _ K_ _ further states she was not the lawful wife of defendant at the time of said acts above referred to.'

As the trial court observed, this is hardly a model complaint, but it refused to grant a pretrial motion to dismiss the complaint. The defendant contends in his brief that the complaint is deficient because it fails to verify in any way the reliability or credibility of the alleged victim. It is clear from the statement of facts that the complaint could have contained information on the identification of the defendant and the finding of the knife and barrette in his car which fit the description given by both girls. The defendant argues that absent such independent verification of the statement of the informant the complaint is constitutionally insufficient for failing to establish probable cause.

Although a complaint in a criminal case may contain hearsay information and need not reflect the direct personal observation of the affiant (the police officer here), the magistrate must be informed of some of the underlying circumstances relied on by the person providing the information and some of the underlying circumstances from which the affiant concluded that the informant was creditable or her information reliable. ⁴ This is said to be the two-pronged test of Aguilar. In Spinelli ⁵ the United States Supreme Court reaffirmed the two 'tests' of Aguilar but indicated that a 'tip' which does not meet the Aguilar tests can be raised to that level of reliability by other information corroborating the tip.

A different rationale exists for establishing the reliability of named citizen informers as opposed to the traditional idea of unnamed police contacts or informers who are usually criminals themselves. ⁶

'. . . Information supplied to officers by the traditional police informer is not given in the spirit of a concerned citizen, but often is given in exchange for some concession, payment, or simply out of revenge against the subject. The nature of these persons and the information which they supply conveys a certain impression of unreliability, and it is proper to demand that some evidence of their credibility and reliability be shown. One practical way of making such a showing is to point to accurate information which they have supplied in the past.' ⁷

However, this averment of prior reliability is not available with citizen or victim informers who are usually having their first contact with police. 'Rather, the reliability of such a person should be evaluated from the nature of his report, his opportunity to hear and see the matters reported, and the extent to which it can be verified by independent police investigation.' ⁸ This court in the Paszek case, however, indicated that even with a citizen informer there must be some safeguard. The court indicated this can be satisfied by verification of some of the details of the information reported. The defendant in this case relies principally on the Paszek case to argue that there had to be some averment of the verification of some factual details of the rape victim's statement. The Paszek case does not require verification, it merely says that verification will be sufficient safeguard.

In State v. Knudson ⁹ this court recognized that in the case of a citizen informer the search for reliability 'is shifted to the second prong of the Aguilar test, i.e., from personal reliability to 'observational' reliability.' In Knudson the court relied on the statement in the Knudson complaint that the defendant had been apprehended pursuant to the victim's description. The defendant in the present case points out the lack of any such averment in the present complaint. The state here points out, however, that the present complaint was issued before the defendant's arrest and so could not contain such an averment. But it could have contained an averment about the recovery of the personal items from the vehicle of the defendant which fit the description of the car given to police by the victim. However, the last statement in the Knudson case is more general:

'The end result here is to approve a complaint signed by an officer on the basis of information from a victim informer whose reliability is established. The victim informer accuses and the officer swears. Ultimately, the victim informer will have to come forward at the preliminary, then at the trial. This is sufficient safeguard to test the question of personal jurisdiction of the particular accused.' ¹⁰

Thus the Knudson case is not entirely clear whether the fact of the victim coming forward and being willing to testify at trial under oath is sufficient to credit the information supplied by the victim informant or whether some additional support is needed. The additional support in Knudson would be the averment of apprehension of the defendant pursuant to the victim's description.

In several recent cases, however, it becomes clear that if the citizen or victim informant is an eyewitness this will be enough to support probable cause even without specific corroboration of reliability. In State v. Mansfield ¹¹ this court said:

'. . . This court, anticipating the United States Supreme Court's decision in Harris, (United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723) has placed great emphasis on the informant's observation as an element of reliability as well as underlying circumstances. This was made clear in State v. Paszek and State ex rel. Cullen v. Ceci (45 Wis.2d 432, 173 N.W.2d 175) as well as in Knudson. These cases, as well as United States v. Harris, support the proposition that observation of the criminal act plus the reliance on the informant by the police are sufficient to support the issuance of a search warrant.' (Citations omitted.)

The court in Mansfield indicated that the observation was made more reliable by the detailed description given by the informant.

In Leroux v. State ¹² the court again cited Harris and Mansfield for the proposition that observation of the criminal act plus reliance on the informant by the police is sufficient to support a finding of probable cause. The Leroux case involved a murder in which a young girl finally came forward with her knowledge of the crime. She had previously told a story which the complainant sheriff had not believed. Her second statement comported with his own theories and his knowledge of the defendant's reputation for violence.

And in Redepenning v. State ¹³ a rape complaint was challenged as not sufficiently averring the place where the crime occurred. The defendant claimed the allegations concerning where the crime occurred were based on hearsay and did not show circumstances from which the magistrate could find that the hearsay informant was credible and her information reliable. The court rejected this argument pointing out that the complainant received the information from the two victims both named in the complaint and that '(a)s to where the crime occurred as well as to what took place, '. . . what better basis can there be than . . . eyewitness testimony. " ¹⁴ The court also concluded that it could be inferred from the complaint that the complainant sheriff had also visited the alleged site of the crime and verified by his own observation that it was in Monroe county and not Vernon county.

We conclude that the complaint here being based on the police officer's sworn statement of what the alleged victim described as having actually happened meets the test of reliability of the informer and constituted probable cause for the magistrate to proceed with the issuance of a warrant calling for the arrest of the defendant.

Alibi Defense--Abuse of Discretion.

The...