Cheney v. State
| Decision Date | 28 October 1969 |
| Docket Number | No. S,S |
| Citation | 171 N.W.2d 339,44 Wis.2d 454 |
| Parties | Turner H. CHENEY, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 59. |
| Court | Wisconsin Supreme Court |
On September 30, 1966, plaintiff in error, Turner H. Cheney (hereinafter referred to as defendant), an Illinois resident, was arrested and charged with the fire bombing of the Allied Linoleum Stores in Milwaukee, Wisconsin, on July 1, 1966, contrary to sec. 943.02(1)(c), Stats. 1
A preliminary hearing was held on October 18, 1966, during which one Robert C. Schmidt was granted immunity for his testimony concerning the crime. The defendant was subsequently bound over for trial and after the information was filed, entered a plea of not guilty. Thereafter, defendant filed a notice of alibi.
On August 14, 1967 trial to a jury was commenced. The first witness for the state was Robert C. Schmidt, who testified that he and the defendant went to the premises of Allied at about 12:30 a.m. on July 1, 1966, for the purpose of blowing it up because they believed it to be the Communist headquarters in Milwaukee. Both Schmidt and the defendant were members of the Ku Klux Klan.
Schmidt testified that earlier in the evening, at the defendant's request, he had met Cheney at the intersection of Highways 100 and 59. There defendant told Schmidt that 'he had the stuff in the trunk of his car.' Defendant opened the trunk of his car, and together the two men transferred two beer cases to the trunk of Schmidt's car. In one of those cases Schmidt saw two bottles of gasoline and a capped piece of pipe, with fuses attached. Defendant told Schmidt that the pipe was a bomb.
Schmidt also testified that the two men then proceeded to the Allied store where the defendant, after gaining entry through a rear door, placed the two cases inside the premises and lit the fuses. Thereafter, the two men drove back to Highways 59 and 100, climbed into the defendant's car and then returned to the Allied area to make sure that the bomb had gone off. When they returned they saw fire equipment and 'a lot of firemen and smoke and water.'
Subsequently, during the course of the trial, the state called an investigator with the Milwaukee fire department's arson squad. This investigator testified that after the fire he had collected several pieces of pipe fragments and fuse from the Allied premises and that in his opinion, the damage to the Allied store was caused by an explosion of a capped, galvanized pipe with some type of explosive inside of it and the resulting fire.
Thereafter, the state called one Phil Kasik, a resident of Riverside, Illinois, as a witness. Kasik testified that he first met the defendant some time during the spring of 1966. Kasik also testified that early in September of 1966 (after the Allied bombing but prior to defendant's arrest), he met with defendant in Riverside, Illinois. At this meeting, defendant gave Kasik a pipe bomb which he had carried in a beer case in the trunk of his car. They discussed the possibility of Kasik throwing the bomb into a group of open-housing marchers in Cicero, Illinois, and defendant told Kasik that if he did not use the bomb for that purpose, he should wait for defendant's telephone call and the two of them 'would proceed with the bombing of a Communist headquarters somewhere in Chicago.'
Kasik also testified that when the subject of the Allied bombing in Milwaukee was brought up he asked the defendant, 'Who did that?' and defendant replied, 'Well, who do you think?' and in Kasik's words, 'just kind of laughed and snickered.'
Kasik also stated that he then took the bomb home and stored it in a seed bin in his garage until he turned it over to the FBI.
The state then called an FBI explosives expert who testified that he had examined parts of the bomb defendant had allegedly given Kasik in September of 1966, and fragments of the bomb which had exploded at the Allied Linoleum store in Milwaukee on July 1, 1966. The expert testified that the bombs were constructed of identical materials. He also testified that this material was commercially available throughout the United States but that he had never seen two bombs constructed like those.
The defendant did not testify in his own behalf, nor were there any alibi witnesses produced. The jury returned a verdict of guilty and the trial judge sentenced the defendant to the maximum term of fifteen years. After denial of the usual post-conviction motions, defendant brought this writ of error.
Francis R. Croak, Milwaukee, for plaintiff in error; Grootemaat, Cook & Franke, Milwaukee, of counsel.
Robert W. Warren, Atty. Gen., Madison, E. Michael McCann, Milwaukee County Dist. Atty., Michael Ash, Asst. Dist. Atty., Milwaukee, for defendant in error.
On this writ of error, the defendant raises four issues:
1. Was it an abuse of discretion to admit evidence of alleged acts of subsequent misconduct by the defendant without affording the defendant notice prior to trial?
2. Were the instructions of the trial court with reference to the testimony of an accomplice erroneous?
3. Was it an abuse of discretion to impose the maximum sentence (fifteen years) on the defendant who was a first offender?
4. Was the imposition of the maximum sentence with no credit for time served prior to the imposition of the sentence (forty-nine days) a denial of equal protection?
The central dispute on this review is the admissibility of the Kasik testimony.
It is established that testimony regarding other bad conduct on the part of a defendant is not inadmissible merely because this other conduct does not amount to a crime in and of itself. 2 It is not necessary that this conduct result in a conviction. Similarly, it is established that evidence of this other conduct does not have to be limited to prior to the crime charged but can be, and often is, related to conduct occurring after the crime charged but prior to the trial. 3
Nevertheless, no part of the law of evidence in criminal proceedings is more consistently and strenuously litigated than that having to do with the admissibility of evidence of prior crimes, incidents, or occurrences. In Whitty v. State, 4 this court thoroughly re-examined the admissibility of this evidence and made it clear that such evidence is not admissible for purposes of proving general character, criminal propensity, or general disposition on the issue of guilt or innocence because such evidence, while having probative value, is not legally or logically relevant to the crime charged. The evidence is admissible, however, when it is
'* * * particularly probative in showing elements of the specific crime charged, intent, identity, system of criminal activity, to impeach credibility, and to show character in cases where character is put in issue by the defendant.' 5
It has been argued that the rule is properly phrased as admitting evidence of other crimes where relevant unless the evidence can only be used to establish the defendant's disposition to commit the crime as a basis for an inference that he did commit the crime. 6
In Whitty this court adopted Rule 303 of the American Law Institute Model Code of Evidence 7 under which 'the trial court balances relevancy against prejudice.' 8 The record reveals that in the instant case the trial judge extensively went through the critical balancing process called for in Whitty.
In the instant case the question of prior crime evidence arises at a procedurally different point in the trial than it did in Whitty. Here, the state introduced the evidence of the defendant's dealings with Kasik in its case in chief, whereas in Whitty, the other crime evidence was admitted during rebuttal by the state. Even though there was notice of alibi filed in the instant case, there was nothing at this point of the trial to indicate what the defense might be. An Illinois case touches briefly on this issue. In People v. Cole, 9 defendant was prosecuted for selling narcotics to an agent on one date. Evidence of earlier sales to the same agent on two prior dates was held to have been properly admitted. The court there said:
10
We conclude that such evidence as was embodied in the Kasik testimony here can be offered by the state during its case in chief as well as in rebuttal.
This brings us to defendant's main contention on this review, that it was an abuse of discretion for the trial court to admit the testimony of Kasik without prior notice to the defense that Kasik and FBI Agent Smith were going to testify. The defendant asks this court to modify its decision in Whitty and adopt the rule of the Minnesota court as announced by that court in State v. Spreigl. 11 That case requires that notice be given to the defendant a reasonable time before the trial if the state plans to offer evidence of other misconduct. Such evidence is inadmissible if the state does not furnish the defendant a written statement of the prior offense, describing that offense with the same particularity that would be required in an indictment or an information.
This court in Whitty rejected Spreigl, stating:
'* * * While this rule may eliminate the surprise on the part of an accused, it does little to eliminate any confusion of issues, misleading of the jury, or undue prejudice.' 12
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