Brook v. State
| Decision Date | 01 October 1963 |
| Citation | 21 Wis.2d 32,123 N.W.2d 535 |
| Parties | Wilson Lee BROOK, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. |
| Court | Wisconsin Supreme Court |
Wilson Lee Brook (hereinafter 'defendant') was arrested for first-degree murder on February 5, 1962, the warrant having been issued by a court commissioner of Racine county. The defendant being indigent, defense counsel was appointed to represent him by the county court of Racine county. Pursuant to sec. 955.18, Stats. the cause was then remanded to a magistrate of Racine county for a preliminary examination. Following the preliminary examination and a finding of probable cause defendant was bound over for trial. At arraignment, defendant pleaded not guilty, and not guilty by reason of insanity. He then made application to the county court of Racine county for a change of venue to an adjoining county because of community prejudice. This application was granted by an order changing the venue to Branch II of the county court of Kenosha county, where trial was had to the court and jury. A verdict of guilty of first-degree murder was rendered by the jury on September 22, 1962. Upon this verdict the trial court adjudged defendant guilty, and on September 25, 1962 judgment was entered sentencing defendant to life imprisonment in the state prison. A writ of error was issued upon application of defendant to review this judgment.
The person killed was Anthony Eiler, a sergeant on the police force of the city of Burlington, Racine county, who met his death as a result of gunshot wounds inflicted in the early morning hours of February 5, 1962. The only eye witnesses were defendant and his brother, Max.
For the sake of clarity the following statement of facts is divided into two separate parts. The first, captioned 'Defendant's Version,' sets forth a synopsis of the material testimony offered by defendant. The second, captioned 'Physical Evidence,' by way of comparison, sets forth a brief summary of the pertinent physical evidence, including exhibits, produced and offered by the witnesses for the state.
At the time of the alleged offense, defendant was twenty-one years of age and resided in Racine with his parents. He had a rather checkered career prior to the alleged offense, having spent various periods of confinement at the Waukesha School for Boys and the Green Bay Reformatory. He testified to having committed a number of school burglaries, but that neither he, nor other members of his party, were ever armed.
On February 4, 1962 defendant and his brother decided to burglarize a school in Janesville, Wisconsin, for the purpose of obtaining money for a down payment on a new home which their parents wished to purchase. They first stopped at a friend's home to pick up some tools for the burglary and they then drove to Janesville in a Rambler automobile where they burglarized the school. Neither defendant nor Max was armed.
After completing the burglary the two brothers began their return to Racine. Defendant drove. As they got to the east side of Burlington, on Highway 11, a flashing red light of the squad car driven by Anthony Eiler caused defendant to pull over to the side of the road. Defendant was quite provoked at being stopped. The officer inquired about defendant's dangling license plate and went around to the front of the car to look at it. Defendant stepped out of his car to talk to the officer and to observe the license plate. The officer inspected defendant's driver's license and then opened the front door of defendant's car on the driver's side. The officer began to look into the car. Defendant, admitting that he was afraid the officer might discover some of the visible stolen loot, took hold of the officer's coat sleeve to inform him that he should not enter the car. The officer swung around and hit defendant in the mouth with his left hand. Defendant hit the officer back a glancing blow and got a bear hug on him. As the officer started to reach for his gun, defendant hollered for Max's help. Max got out of the car and came around to the driver's side and hit the officer with his right hand. The officer brought his hands up and defendant grabbed the gun from the officer's holster in order to throw the gun away. Defendant was afraid that the officer was going to shoot him. The officer grabbed defendant's wrist and the two of them somehow struggled around the back of the car and up over a snowbank. The officer fell down into a ditch in a sitting position. Just before the officer fell he had hold of defendant's wrist of the hand which was holding the gun. Just as the officer fell, the first shot was discharged. Defendant does not remember whether the officer had a hold on him at the time the first shot was fired. He believed that the officer had hold of his hand or the gun, but is not certain. Defendant recalls hearing only one shot, although there were five bullet wounds found in the deceased officer's body.
After the shooting defendant noticed that the revolving red signal light on the squad car was still operating. The red light was a portable light affixed to the dash on the inside of the car. Defendant instructed Max to go over and 'put the light out.' Max put the light on the floor board and smashed it with his foot, and in so doing his foot struck the accelerator. Since the engine was still running, the squad car lurched forward striking the rear bumper of the Rambler and the two bumpers became locked together. While the bumpers were still locked, defendant and Max lifted the officer's body out of the ditch and placed it in the squad car. In doing so they first had hold of the officer's coat, causing it to be pulled off before they got the body into the car.
Defendant and Max had some difficulty separating the locked bumpers of the two cars. Defendant finally got in the squad car and by operating its engine jerked the cars apart. The brothers then drove both cars away and attempted to dispose of the body in a quarry in Racine county.
An examination of Eiler's body revealed severe bruises on the right cheek and forehead where presumably he had been struck by one or both Brook brothers. Max had struck Eiler so severely with his fist as to require medical treatment for his hand. The left side of Eiler's face had numerous small scratches and was soiled by dirt and gravel. His uniform was also soiled by blood, dirt and gravel. According to the state these facts clearly indicated that Eiler had been dragged on his left side through dirt and gravel.
There were five bullet wounds in the body. One was located about 2 inches in front of the right ear, two were in the upper neck just behind the right ear lobe, quite close together. Another bullet wound was in the right chest about 3 inches to the right of the nipple. A fifth bullet wound extended from the right armpit to the outside of the right shoulder. The pathologist who examined the body testified that any one of the five bullet wounds, except the one in the right shoulder, could have been fatal. In his opinion the cause of death was multiple gunshot wounds to the head and chest.
On the morning of February 5th Eiler's coat was found in the snow in the ditch alongside of Highway 11, 24 feet south of the south edge of the pavement. It was buttoned, with one button missing, and, having been turned inside out indicated that it had been pulled off over the head of the wearer while still buttoned. There were no bullet holes in the coat, but there were three in Eiler's shirt corresponding to the wounds in the right shoulder and chest. The rear license plate from the Rambler car driven by defendant was found 23 feet northeast of the coat and 9 feet south of the south edge of the pavement.
Two employees of the State Crime Laboratory were sent to the scene of the killing to investigate the crime. They arrived these at about 11:30 a. m. on February 5th. One of them, Donald Wentland, had been engaged in crime detection work for the State Crime Laboratory for many years. The preceding day had been very warm. After the killing, in the early morning hours of February 5th, the weather had turned very cold so that the impressions made in the dirt and gravel surface between the south edge of the pavement of Highway 11 and the snow line to the south bearing on the crime were perfectly preserved. Wentland testified it was probably one of the best-preserved crime scenes he had ever seen.
The distance from the pavement edge to the snowline varied from 15 to 16 feet in width. The frozen impression showed where Eiler's body had been dragged from near the south edge of the pavement across the snowline. A few drops of blood were observed along the path of such dragging. The missing button was found directly in line with this path, 2 feet south of the snow-line. To the south and east a few feet to the point where the coat had been found, there was a much greater accumulation of blood. There was another spot of blood almost directly north but slightly east of the coat, 12 feet 10 inches south of the edge of the pavement and 2 feet north of the snow-line. This blood spot apparently marks the point at which the body was loaded into the squad car.
The photograph of the drag marks in the dirt and gravel, where the body was first dragged from close to the pavement to the ditch, clearly discloses that they were superimposed upon one set of tire marks and that a second set of tire marks had in turn been superimposed upon the drag marks. There was expert testimony identifying the first set of tire marks as having been made by the Rambler and the second set of tire marks as having been made by the squad car.
To the east of the blood spot on the highway shoulder marking the place where the body was apparently loaded into the squad car were two pair of deep depressions caused by the spinning wheels of the squad car and Rambler when the bumpers were locked together. The rear...
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