Edwards v. State

• Decision Date: 01 December 1970
• Docket Number: Nos. S,s. S
• Citation: 181 N.W.2d 383,49 Wis.2d 105
• Parties: William EDWARDS, Jr., Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. Robert Louis HILL, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error (two cases). tate 59--61.
• Court: Wisconsin Supreme Court

Page 383

181 N.W.2d 383

49 Wis.2d 105

William EDWARDS, Jr., Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

Robert Louis HILL, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error (two cases).

Nos. State 59--61.

Supreme Court of Wisconsin.

Dec. 1, 1970.

A jury found both William Edwards, Jr., and Robert Louis Hill, codefendants, guilty of attempted armed robbery (secs. 943.32(2) and 939.32, Stats.) and of endangering safety of another by conduct regardless of life (sec. 941.30, Stats.). Both were sentenced to an indeterminate term of not more than 10 years for attempted armed robbery and Edwards was sentenced for not more than two years and Hill for not more than three years on the endangering safety conviction. Hill seeks a review of both convictions and the order denying him a new trial; Edwards seeks a review only of the armed robbery conviction.

David J. Hase, Grootemaat, Cook & Franke, Milwaukee, for William Edwards, Jr.; Eugene W. Murphy, Jr., Milwaukee, of counsel.

James H. McDermott, State Public Defender, Madison, for Robert Louis Hill.

Robert W. Warren, Atty. Gen., Madison, E. Michael McCann, Dist. Atty., Joseph M. Wilson, Asst. Dist. Atty., of Milwaukee Co., Milwaukee, for defendant in error.

HALLOWS, Chief Justice.

Both Edwards and Hill raise the issue of whether the trial court erred in refusing to require Higgins, a narcotic user and a witness for the prosecution, to display his arm to the jury or to Detective Thelen, a witness, after Higgins had admitted the use of heroin by injection into his arm about 72 hours before the time he testified. Edwards raises two additional questions: (1) Whether the court erred in limiting the questioning of Detective Thelen concerning Higgins' reputation for truth and veracity and (2) whether it was error for the trial court to instruct the jury that an indebtedness is not a defense to attempted armed robbery.

Only so much of the facts are given as is necessary to understand the issues raised. According to Higgins, Edwards and Hill came to the front door of an apartment building in which he lived and when he opened the door they forced their way in, pointed a gun at him and demanded his money. He claims Edwards and Hill forced him up the stairway to his secondfloor apartment. About this time, one Ronald Bufford entered the first-floor stairway of the apartment building to visit his sister. He testified he heard Higgins say something about a stickup, but he continued to ascend the stairway. When he reached the top of the stairs, Bufford saw a gun in Hill's hand. A few seconds later, Hill fired the gun, hitting Bufford and immediately thereafter both Edwards and Hill left without taking any money from Higgins.

Edwards testified that prior to coming to the apartment with Hill he had telephoned Higgins, an old acquaintance, and asked him to pay the $150 Higgins in September, 1965, had agreed to pay Edwards for clothes. Edwards claimed Higgins voluntarily opened the door and invited him and Hill upstairs. When Edwards asked Higgins for the $150, Higgins claimed he could not get into his apartment because he had locked himself out.

At the trial the defense tried to impeach Higgins' testimony by showing him to be a narcotic addict and therefore prone to lying and when on the stand he had lied, particularly in respect to the last time he had taken heroin. Higgins admitted he had taken heroin by an injection in his arm about 72 hours prior to taking the stand. When asked the exact number of hours prior to his testimony he had injected heroin in his arm, he answered it was not between 24 or 48 hours but closer to 72 hours. The defense then requested the court to order Higgins to display his arm to the jury. The trial court denied the request and ruled the jury was not competent to ascertain from the existence of a needle mark the recentness thereof and the displaying of the arm would be prejudicial. The defense later requested that Higgins be required to display his arm to Detective Thelen whom it claimed was an expert and could determine the recentness of needle marks left by the injection of heroin; this request was also denied.

It is generally recognized heroin addicts are often liars and perhaps notoriously so while under the influence of the narcotic; therefore, evidence of the use of heroin by a witness recent enough to affect the witness is within the scope of cross-examination for impeachment purposes. See People v. Boyd (1959), 17 Ill.2d 321, 326, 161 N.E.2d 311. In People v. Lewis (1962), 25 Ill.2d 396, 185 N.E.2d 168, the court held it was error on the part of the trial court not to compel the witness to exhibit his arm to a jury in an attack upon his credibility on the ground he was currently a narcotic addict. See also People v. Perez (1968), 92 Ill.App.2d 366, 235 N.E.2d 335.

Here, Higgins admitted the use of heroin and that fact could be taken into consideration by the jury in determining his credibility in general. The specific point in issue is the credibility of Higgins in stating he injected heroin in his arm about 72 hours before he testified and whether the statement can be impeached by requiring him to display his arm.

The degree and manner of cross-examination in criminal cases are matters within the discretion of the trial court. Hedger v. State (1911), 144 Wis. 279, 296, 128 N.W. 80; O'Connor v. State (1966), 31 Wis.2d 684, 689, 14o N.W.2d 489. Here, the evidence of recent use of heroin was sought to impeach Higgins. This request for a display of the arm was in the nature of a discovery of evidence in the presence of the jury. The trial court stated such a discovery might be required before an expert who could judge the recentness of needle marks from the use of narcotics. But such a discovery, when permitted, should be outside the presence of the jury in the first instance. The probative value of the display of Higgins' arm depended primarily on the ability of the jury be common knowledge to judge the recentness of needle marks. The case of People v Lewis, supra, is not controlling or persuasive on these facts. There, the jury had only to determine whether there was a needle mark on the witness' arm, not whether it was inflicted within 24 or 48 hours.

In Whitty v. State (1967), 34 Wis.2d 278, 294, 149 N.W.2d 557, 564, this court adopted Rule 303 of the Model Code of Evidence, which provides, in part, 'The judge may in his discretion exclude evidence if he finds that its probative value is outweighed by the risk that its admission will * * * create substantial danger of undue prejudice or of confusing the issues or of misleading the jury. * * *' This rule is not restricted to evidence relating to the issue of guilt or against the accused but the rule had been applied to all witnesses. See Lisowski v. Chenenoff (1968), 37 Wis.2d 610, 626, 155 N.W.2d 619; Olson v. Hardware Dealers Mut. Fire Ins. Co. (1970), 45 Wis.2d 569, 173 N.W.2d 599. We think the trial court was correct in its ruling that exhibiting the arm of Higgins to desplay a needle mark which he admitted was about 72-hours old would be unduly prejudicial when weighed against the probative value of what the evidence might show.

Edwards and Hill attempted to qualify Detective Thelen as an expert competent to pass judgment upon the freshness of needle marks made by the injection of heroin. The trial court refused to require Higgins to expose his arm for inspection by Detective Thelen. While Detective Thelen has considerable experience on the vice squad in Milwaukee and his testimony 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 person's arm whether the person was under the influence of a narcotic. If a needle mark left a blood mark, it would be of some indication. Other discoloration or a scab might also be telltable but to translate such indications in terms of precise time requires expert judgment. We agree Detective Thelen was not so qualified in the record.

Edwards, on his appeal, argues that it was error for the court to limit Detective Thelen's testimony regarding Higgins' reputation for truth and veracity. A witness' testimony may be impeached by evidence of his reputation for veracity and truthfulness in his community. State v. Baker (1962), 16 Wis.2d 364, 114 N.W.2d 426; 58 Am.Jur., Witnesses, p. 391, sec. 725. This type of impeachment is generally accomplished by the testimony of another witness who knows the reputation the witness has in the community, but impeachment may not be the private opinion of the testifying witness. State v. Sabala (1966), 32 Wis.2d 95, 145 N.W.2d 95. In the one case the witness is testifying from knowledge to an objective fact, in the other he is giving his own opinion of a witness' veracity. A reputation consists of much more than one person's opinion.

The record discloses that Thelen could not testify as to Higgins' reputation for truth and veracity in the community. The most he could testify to was that he knew 12 people who knew Higgins, but each had a varying opinion of Higgins. Thelen's knowledge of Higgins' reputation for truthfulness in the...