Blackwell v. State
| Decision Date | 09 May 1969 |
| Citation | 42 Wis.2d 615,167 N.W.2d 587 |
| Parties | Loren BLACKWELL, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error (two cases). St. 126, 127. |
| Court | Wisconsin Supreme Court |
James H. McDermott, State Public Defender, Madison, for plaintiff in error.
Robert W. Warren, Atty. Gen., William A. Platz, Asst. Atty. Gen., Madison, E. Michael McCann, Milwaukee County Dist. Atty., William D. Gardner, Deputy Dist. Atty., and Harold B. Jackson, Jr., Asst. Dist. Atty., Milwaukee, for defendant in error.
The evidence against the defendant is substantial and there is ample credible evidence to prove the defendant's guilt beyond a reasonable doubt. This appeal is based primarily on alleged errors during the course of the trial which the defendant asserts are of such a prejudicial nature as to require reversal. We do not agree.
The series of incidents that led to the defendant's ultimate conviction occurred during a period of approximately five and one-half hours, commencing at 8:50 or 8:55 p.m. on June 5, 1964, and culminating with his arrest at 2:30 a.m. on June 6, 1964.
Procopio Sandoval, an acting detective in the vice squad of the Milwaukee Police Department, and the principal witness, drove his own car into the area of West Winnebago street on a narcotics investigation on the evening of June 5, 1964. At approximately 8:45 p.m. he parked in front of 840 West Winnebago and honked his horn several times, whereupon a woman appeared at an upstairs window at that address. He told her he was looking for one 'Wolf'; she answered, and as a result of her answer Detective Sandoval drove to Eighth and West McKinley streets.
He went there looking for Wolf to purchase some narcotics from him. On arriving there Detective Sandoval blew his horn several times, and then, at approximately 8:50 or 8:55 p.m., he observed the defendant walking toward his car through an alley coming out on Eighth street. There followed, according to Detective Sandoval's testimony, a transaction between him and defendant wherein he bought from defendant, for $20, two small tin foil packets, referred to by defendant as 'A couple of dime bags' of 'stuff.' It was stipulated between the prosecutor and defense counsel that the contents of the packets was heroin. During all this time Detective Sandoval was alone in his car.
The State also called Detective Thomas Thelen, Milwaukee Police Department, who testified that he, seated with Officer Paul Hibbard in an unmarked police car, kept Detective Sandoval under surveilance during his stop at 840 West Winnebago and during the incident occurring at Eighth and McKinley. His testimony was that, using ' a binocular,' he saw the defendant approach Detective Sandoval's car and stand along side of it, and was able to observe the defendant's face. Thelen testified that he observed a conversation between Detective Sandoval and the defendant, saw the defendant leave for two or three minutes, return, bend over at the driver's window of Detective Sandoval's car, and then leave for good.
Detective Sandoval then drove to the Safety Building parking lot where he was met by Detective Thelen and Officer Hibbard. At 9:15 p.m. the two aluminum packets were taken to the vice squad room, placed in an envelope, and marked for identification.
Detective Thelen made a courtroom identification of defendant as the man who approached Detective Sandoval's car during the above-mentioned incident.
Detective Sandoval saw the defendant again on June 6, 1964, in front of 840 West Winnebago street at approximately 2:10 a.m. Detective Sandoval testified that the defendant was with another man; that the defendant was dressed in the same manner he had been when Detective Sandoval first saw him, and that he looked the same. The defendant was arrested about 2:30 a.m. on Sixth and McKinley.
The defendant, on appeal, raises ten issues, several of them interrelated, and each of them has been given consideration.
Testimony of alleged subsequent offense.
The principal trust of the defendant's defense was that he was not involved in the transaction with Detective Sandoval on the evening of June 5, 1964, and that he was the victim of mistaken identity. Thus the defendant made identification the central issue in the case.
Several of the alleged errors relate to incidents that occurred during the trial.
On re-cross examination the defense counsel inquired of Detective Thelen as to who was in the vice squad room when the package was brought there by Detective Sandoval (meaning 9:15 a.m., June 5, 1964). Detective Thelen responded, 'Officer Sandoval, the defendant, Paul Hibbard, and myself.' The answer to Detective Thelen was patently incorrect. As a result of this situation on re-direct examination the prosecutor asked Detective Thelen several questions, one of which was, 'The defendant was not there at that time?' The detective answered, 'I was thinking of the second packet on a later date.' Objection to the unresponsive answer was made and sustained, and the jury was instructed to disregard the answer. The defense counsel then moved for a mistrial, which motion was denied and the trial court again instructed the jury to disregard this testimony.
Later in the trial, on cross-examination of the defendant, the prosecutor asked, 'Isn't it a fact that you gave him (Detective Sandoval) two small tin foil packets when you were in front of 840 West Winnebago Avenue on the early morning hours of June 6, 1964?' The defendant never answered the question and the defense objected to it as being immaterial and improper. The objection was sustained and the defense counsel again moved for a mistrial. The trial court denied the motion, restated its determination that the question was immaterial, and ordered the jury to disregard the interrogation.
The question before this court then becomes whether these alleged errors were harmless or made harmless by the trial judge when he sustained the objections and instructed the jury to disregard the testimony.
A recent statement by this court on the effect of errors is found in Dascenzo v. State (1965), 26 Wis.2d 225, 236, 132 N.W.2d 231, 237:
'Errors, if any, committed during the course of the trial should not serve to overturn a judgment "unless it appears pretty clearly that had they not occurred, the result might probably have been more favorable to the party complaining."'
Considering the evidence as a whole, we are satisfied beyond a reasonable doubt that the errors complained of are not of constitutional proportions and did not contribute to the defendant's conviction.
On re-direct examination of Detective Sandoval, the prosecutor asked him what conversation he had with the defendant at 2:10 a.m. on June 6, 1964, in front of 840 Winnebago avenue.
The defense objected, claiming such conversation to be incompetent and immaterial, and too remote and subsequent to the purchase which produced the defendant's arrest. The court permitted Detective Sandoval to answer.
Detective Sandoval testified, 'He walked up the the car and he looked in the window of the passenger side, and he asked me if I wanted to do it again--if I wanted some more.'
The defendant had maintained the position throughout the trial that his arrest for this offense was the result of mistaken identity.
We, therefore, conclude that the testimony of Detective Sandoval was properly admitted because it was highly probative and relevant in establishing the identity of the defendant as the person who sold the heroin to him a few hours before.
We see nothing improper in the conduct of the prosecutor in asking Detective Sandoval questions about conversation with the defendant on Winnebago avenue at 2:10 a.m., June 6, 1964. Such testimony supported Detective Sandoval's identification of the defendant as the person from when he previously purchased heroin.
Ledger entries.
Testimony was admitted into evidence from some ledger entries maintained in the records of the vice squad of the Milwaukee Police Department.
Immediately preceding the introduction of the ledger entries, the trial court asked the witness, Detective Thelen, 'to read only that part of those entries which pertain to (the defendant's) facial appearances, as there is conflicting testimony in the record at this time regarding that.' Detective Thelen read entries which also pertained to other aspects of the defendant's physical appearance.
At the trial no objection was made to the introduction of this testimony. On appeal it is contended the trial court erred in permitting Detective Thelen to read entries that pertained to other aspects of the defendant's physical appearance when the trial court's direction was to read entries that pertatined to 'facial appearances.' We see no prejudicial error in the admission of this testimony, particularly since earlier in the trial the physical appearance of the defendant was brought into dispute.
The defendant also contends that the ledger entries were inadmissible because a proper foundation had not been laid.
Sec. 889.25, Stats., 1 relates to the admission of business records as evidence in civil proceedings and is made applicable to criminal proceedings by sec. 957.14.
The trial court overruled the defendant's objection to the admission of the ledger entries. Our examination of...
To continue reading
Request your trial
-
State v. Waites
...on reasonable The circuit court gave an instruction on reasonable doubt. 4 In a case similar to this one, Blackwell v. State, 42 Wis.2d 615, 624-25, 167 N.W.2d 587 (1969), Blackwell appealed his conviction of selling heroin on the ground (among other things) that no identification instructi......
- State ex rel. Gall v. Wittig
-
Edwards v. State
...has appeared in appeal cases in this court, see Jackson v. State (1965), 29 Wis.2d 225, 227, 138 N.W.2d 260; Blackwell v. State (1969), 42 Wis.2d 615, 619, 167 N.W.2d 587, the evidence falls short of proving Thelen is qualified to judge with accuracy from observance of needle marks on a per......
-
Zebrowski v. State
...would probably have been more favorable to the defendant. Woodhull v. State (1969), 43 Wis.2d 202, 168 N.W.2d 281; Blackwell v. State (1969), 42 Wis.2d 615, 167 N.W.2d 587. Not only was the offered testimony vague and speculative as to whether the claimed amnesia was real, but in addition a......