Bullock v. State

• Decision Date: 03 February 1972
• Docket Number: No. S,S
• Citation: 193 N.W.2d 889,53 Wis.2d 809
• Parties: Carol BULLOCK, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 21.
• Court: Wisconsin Supreme Court

Page 889

193 N.W.2d 889

53 Wis.2d 809

Carol BULLOCK, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 21.

Supreme Court of Wisconsin.

Feb. 3, 1972.

Plaintiff in error (hereafter defendant) was tried before a jury and found guilty of armed robbery, in violation of sec. 943.32(1)(b) and (2), Stats. Defendant was adjudged guilty by the trial court and sentenced to the Wisconsin home for women for an indeterminate term of not to exceed six years. A writ of error was issued to review the judgment of conviction.

Donald E. Mayew, Phillips, Richards & Mayew, Kenosha, for plaintiff in error.

Robert W. Warren, Atty. Gen., Thomas J. Balistreri, Asst. Atty. Gen., Madison, for defendant in error.

CONNOR T. HANSEN, Justice.

It appears the alleged offense arises out of a dispute over the amount of money one Edward Laufenberg was to pay the defendant to 'turn a trick.' ¹

Initially, we would emphasize that, absent compelling circumstances in criminal cases tried before a jury, alleged errors not presented to the trial court on motions after verdict are not entitled to review by this court as a matter of right. Finger v. State (1968), 40 Wis.2d 103, 161 N.W.2d 272; Schwamb v. State (1970), 46 Wis.2d 1, 173 N.W.2d 666; State v. Charette (1971), 51 Wis.2d 531, 187 N.W.2d 203. In the instant case, the record discloses that defense counsel moved the trial court to set aside the verdict on the grounds that it was contrary to the evidence and in the interest of justice, or alternatively, to grant a new trial on these grounds. Such a motion has been held to raise the issue of sufficiency of the evidence. Sartin v. State (1969), 44 Wis.2d 138, 170 N.W.2d 727. But cf. State v. Escobedo (1969), 44 Wis.2d 85, 93, 170 N.W.2d 709. However, there is no challenge on this appeal to the sufficiency of the evidence. Therefore, the issues raised by the defendant on this appeal are reviewable only in the discretion of this court. Williams v. State (1971), 50 Wis.2d 709, 184 N.W.2d 844. In this case, we find no compelling circumstances requiring review. Nevertheless, in this particular case, and not by way of precedent, we exercise our discretion to review the issues raised.

Complainant Laufenberg testified that on June 20, 1970, at approximately 1:10 a.m he was drinking beer at a tavern in the city of Kenosha when the defendant entered the tavern, approached him, and asked him to buy her a beer, which he did. Defendant then introduced him to a man she said was her brother-in-law (later identified as John Lambert), and after some conversation defendant asked the complainant to a party at her apartment. Complainant testified that he accepted the invitation at first and at the defendant's request purchased two six-packs of beer for the occasion. However, complainant then left the tavern alone, intending to go home. Defendant caught up with him outside and again asked him to go to the party. At this point another man was behind the defendant, to whom she turned and said, "Better look out or you'll get the 38, too." At defendant's insistence, complainant again agreed to go, and they got into her car and drove away. After they had proceeded two or three blocks, complainant asked to be let out, but the defendant replied, "You got in here, now you're going to stay in here." They proceeded to the rear of an apartment building where defendant got out of the car and handed the beer to her 'brother-in-law' who had followed them to the apartment. At the same time, the complainant started to get out of the car, intending to take off, but before he could do so the defendant got back into the car, took a gun from the glove compartment, pointed it at the complainant and said, "You don't need to think that this gun ain't loaded or I wouldn't shoot.' . . . 'Give me your wallet." He handed it to her and after removing three dollars the defendant exclaimed, "Is this all the money you got?" She then ordered him, at gunpoint, to get out of the car and proceed upstairs to an apartment. Inside the apartment she again went through the wallet and found an additional sum of $37. Thereafter, she told the complainant to jump out the window, but then ordered him to leave through the door. Complainant left and immediately summoned the police.

Defendant testified that she entered the tavern at approximately 12:30 a.m. in the company of two friends; that she met the complainant when he offered to buy her a drink; and that he bought her a half pint of gin. After some conversation, complainant stated to the defendant that he wanted to go to bed with her. Defendant agreed to do this for the sum of $25. (Defendant testified she was unemployed at the time and had lived in this apartment about two weeks.) Complainant then left the tavern alone because defendant did not want to be seen walking out with him. She obtained the keys to a friend's car, met the complainant outside, and they got into her car and drove away. Defendant denied making any statement to any other man outside the tavern. Upon arriving at the apartment, defendant got out and handed the beer to John Lambert who took it upstairs. Defendant then got back into the car and she and the complainant started drinking gin. Complainant then started making advances toward her; whereupon, defendant demanded her $25. Complainant stated he did not have that much and took $3 from his pocket and handed it to her. The defendant then demanded to see his wallet which he handed to her voluntarily, stating that there was no money in it. Defendant examined the wallet and removed $65 which she put in her brassiere. She then handed the wallet back to the complainant and told him to follow her upstairs, which he did voluntarily. Inside the apartment they again started drinking gin. Complainant stated he did not want to go through with it, but wanted his money back. Defendant told him he wasn't going to get his money back and that he was going to leave, one way or another. She also advised him there was a gun in the house and that she would get it if he didn't leave. They began wrestling on the couch; defendant broke away and went to get the gun from the closet; and complainant headed for the door. Defendant then pushed him out the door. She testified that at no time did she point the gun at him or threaten him with it. Thereafter an argument ensued between the defendant and Linda Hall, who owned the apartment and had been in the bedroom at the time of the incident. On cross-examination, defendant denied removing a gun from the glove compartment of the car or holding the complainant at gunpoint. She also denied introducing John Lambert to the complainant as her brother-in-law.

John Lambert and Linda Hall were called as witnesses for the state. Lambert testified he entered the tavern at approximately 1 a.m. and observed the defendant and the complainant at the bar. He could not, however, positively identify the man as Laufenberg, although the defendant had introduced them. Defendant then asked if she could go over to Linda Hall's apartment and Lambert consented. Lambert himself proceeded to the apartment by a different route but arrived there approximately at the same time. He took the beer from the defendant and carried it upstairs where he proceeded to the bedroom and began talking with Linda Hall. Defendant and the complainant then came into the apartment, passing the entrance to the bedroom on their way to the living room. It was dark in the apartment and Lambert testified he did not observe whether defendant or complainant were carrying anything. Approximately five minutes later an argument arose between Linda and the defendant over a gun. Thereafter the defendant left.

Albert Lambert, a witness called by the defense, testified that he had been with the defendant and another woman at the tavern. Complainant asked the defendant over to have a drink and purchased a half pint of gin for her. Thereafter, defendant asked Lambert if she could use his car, stating that she was going over to Linda Hall's and would be right back. Albert Lambert further testified that he carried no gun in his car and that his glove compartment was locked at all times.

Additional facts will be set forth in considering the issues raised on review.

Appellant alleges that three errors occurred during the course of the trial:

(1) The trial court erred in receiving into evidence a prior inconsistent statement of a state's witness.

(2) Certain comments made by the trial court to defense counsel resulted in prejudice to the defendant.

(3) The trial court erred in examining the defendant about irrelevant matters.

STATEMENT OF WITNESS HALL.

Linda Hall testified that John Lambert came to her apartment at approximately 1:30 a.m. and that they were sitting in the bedroom, talking. Thereafter two other persons entered the apartment, who she was able to recognize as the defendant and the complainant. She then overheard an argument in which defendant told the complainant that if he didn't leave she was going to push him out the window. Complainant then left and she and the defendant began arguing over the noise. After Hall identified a statement she had made to the police on the afternoon of June 21, 1970, the state advised the court that this statement was inconsistent with her testimony at trial and moved the court to have her declared a hostile witness pursuant to sec. 885.35, Stats. 1967. Without divulging the contents of the statement, the state requested that the court allow the examination of Hall as a hostile witness. Defense counsel objected, but after a discussion in the presence of the jury on the legal points involved, defense counsel withdrew his objection and the state was allowed to proceed. The court was of the opinion that until the state proceeded to make use of the statement he could make no ruling. Hall acknowledged her prior statement that she overheard defendant and the complainant arguing over some...