Fells v. State

• Decision Date: 26 November 1974
• Docket Number: No. S,S
• Parties: Ralph T. FELLS, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 82.
• Court: Wisconsin Supreme Court

Page 507

223 N.W.2d 507

65 Wis.2d 525

Ralph T. FELLS, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 82.

Supreme Court of Wisconsin.

Nov. 26, 1974.

Milton S. Padway, Milwaukee, for plaintiff in error.

Robert W. Warren, Atty. Gen., Christine M. Wiseman, Asst. Atty. Gen., Madison, for defendant in error.

WILKIE, Chief Justice.

The court is asked to review the August, 1972, judgment of conviction following a jury trial of Ralph T. Fells, the defendant-plaintiff in error here, for attempted first-degree murder in violation of secs. 940.01 and 939.32, Stats., and for attempted armed robbery in violation of secs. 943.32(1) (a) and (2) and 939.32. He was sentenced to a prison term of not more than twenty years for the attempted murder and to a concurrent term of not more than ten years for the attempted robbery. The trial court denied motions after verdict and also the post-conviction motion filed under sec. 947.06 on the basis of alleged newly discovered evidence. Our review is directed not only to the judgment of conviction but to the trial court's denial of the post trial motions.

Several issues are presented:

Did the State prove that Fells was the assailant?

Did the State prove that the assailant had an intent to kill?

Did the trial court properly admit evidence of the lineup identification of Fells?

Our answer to all three questions is 'Yes.'

A further issue is presented as to whether Fells demonstrated, pursuant to his sec. 974.06 motion, that Officer Puhlmann committed perjury that prejudiced Fells' right to a fair trial. We think he did not.

The incident underlying these convictions occurred in the city of Milwaukee on December 20, 1971, at approximately 6:45 p.m. The victim, Marilyn Knowlton, testified that she departed from a city bus on her way home from work. After walking about a block down Hampton avenue toward her residence she was accosted by a man behind her and to her right who demanded, 'Hand over your money.' She replied 'No.' When the man stepped in front of her she noticed he was carrying a small handgun in his right hand pointed 'Towards the middle part of my body.' As the man stood within a foot of her, he continued asking for her money or her purse, and Mrs. Knowlton continued to refuse. He then reached for the purse with his left hand. She pulled back and yelled as loudly as she could 'Where are the police when you need them?' He then struck her on the back of her head with the butt of the gun. She hit him once on the right arm. Following this blow he struck Mrs. Knowlton's forehead with the gun, knocking her glasses to the ground. Still standing within a foot of her, the assailant then fired the pistol directly into her abdomen and ran away. He did not succeed in taking her money or her purse. Holding her side, Mrs. Knowlton walked down Hampton avenue toward her home when she was stopped by a passing motorist, James Spanos, who took her to the hospital. She remained in the hospital for nine days, where a bullet was removed from her liver.

The entire incident lasted about two minutes, and Mrs. Knowlton was able to observe the man at close range for about one minute, forty seconds, before her glasses were knocked off. She identified Fells as her assailant on several different occasions and his identification is a major source of Fells attack here on his conviction.

1. Did the State prove that Fells was the assailant?

We conclude that the evidence was sufficient here to identify Fells as Mrs. Knowlton's assailant.

We test the sufficiency of the evidence leading to the conviction by the oftstated rules as follows: This court must affirm if it finds that the jury, acting reasonably, could have found guilty beyond a reasonable doubt. ¹ The function of weighing the credibility of witnesses is exclusively in the jury's province, ² and the jury verdict will be overturned only if, viewing the evidence most favorably to the State and the conviction, it is inherently or patently incredible, or so lacking in probative value that no jury could have found guilt beyond a reasonable doubt. ³

Mrs. Knowlton actually identified Fells as her assailant on several different occasions:

(1) On December 25, 1971, five days after the attack, while in the hospital she picked Fells' pictures out of seven photographs shown to her by Detective Toepfer of the Milwaukee police department. Two of these pictures were of Fells--one a side view and one a front view. Both showed his head and collar only. Height bars on the wall behind showed Fells to be 5 11 1/2 in one picture, and 6 1 in the other. Mrs. Knowlton recognized Fells in both pictures.

(2) More than three weeks later, during a lineup on January 18, 1972, where Fells was represented by an attorney, Mrs. Knowlton again identified Fells as her assailant. Immediately prior to the trial, following a Wade hearing, the trial court ruled that neither the photographic nor the lineup identifications were in any manner constitutionally improper.

(3) Finally, during both the preliminary hearing and the trial, Mrs. Knowlton personally identified Fells as her attacker.

At the preliminary hearing, Mrs. Knowlton testified that shortly after the attack she told police that the assailant was in his late twenties, was about 6 tall, weighed about 160, and did not have a mustache and had somewhat wavy, a little curly hair. She further stated that he had dark trousers and a knee-length leather overcoat, dark tan with black 'kind of intermingled.' At trial, however, she testified that her attacker had a mustache, although she said it was 'a very thin mustache, not very noticeable.' A close-up picture of Fells taken on December 24, 1971, four days after the incident, shows he had a very thin mustache on his upper lip. Fells admitted that he wore that kind of mustache from the time he was discharged from the army in April of 1970 until about December 29, 1971, when he shaved it off. Mrs. Knowlton also testified her assailant's hair was 'somewhat kinky, and short.' Finally, at trial she described her assailant's overcoat as dark brown with 'very noticeable' black 'panther stripes.'

Fells now contends that Mrs. Knowlton gave incompetent testimony at the preliminary hearing where she said her attacker had no mustache and had somewhat wavy or curly hair, while at the trial she testified that her assailant had a very thin mustache and that her assailant's hair was somewhat kinky and short.

These inconsistencies are not so serious that they render Mrs. Knowlton's testimony patently incredible. Any discrepancies are only slight. The pictures of Fells, taken four days after the incident, reveal a very thin, not very noticeable mustache. Fells testified he had worn that kind of mustache for many months, so presumably he had such a mustache on the day of the attack. Concerning Mrs. Knowlton's description of defendant's hair, the difference between somewhat kinky and somewhat wavy, a little curly, hardly seems significant, particularly in light of the testimony of defendant's mother that his hair had been straightened and was in the process of returning to its natural condition.

Mrs. Knowlton also testified that her attacker was about 6 tall. Fells later claimed that he was 5 9 tall barefoot. However, he also admitted owning a pair of elevator shoes. He could have been wearing them at the time of the attack. There was no independent examination of Fells at trial to verify his height. The photographs in the record of Fells standing in front of height bars show him variously 5 10 to 6 1 . The difference of height can be explained by the fact that Fells may have been wearing elevator shoes at the time the pictures were taken. Moreover, the difference of only a couple of inches between Fells' true height and that estimated by Mrs. Knowlton does not seem significant.

Mrs. Knowlton testified that her attacker had on a brown leather coat with black stripes. Several other witnesses testified that Fells did not have a brown leather coat with black stripes, but Fells did testify that he had a brown knee-length leather coat that he actually wore on the day of the incident. In summary, the accuracy of Mrs. Knowlton's description was a matter of credibility for the jury. Since the incident occurred after dark, the jury could well have believed that what Mrs. Knowlton described were actually shadows resulting from folds in the leather, rather than specific black stripes.

Fells argues that Mrs. Knowlton did not have enough time to observe her attacker because of the brevity of the incident and darkness. However, Mrs. Knowlton testified that she and her assailant stood face to face less than a foot apart, for about one minute, forty-five seconds, before her glasses were knocked off. This was more than sufficient time for an image of defendant's face to have been burned into her memory. In Zdiarstek v. State ⁴ this court found a much shorter fifteen-to-twenty-three-second period of observation sufficient. The court's language is equally applicable here:

'. . . While such a period of time may seem short in some instances, to an individual faced with armed robbers, that same period might well seem to be an eternity.' ⁵

Concerning the darkness, the incident did occur at 6:45 p.m. on December 20th. Mrs. Knowlton testified it was dark and that street lights were on. She admitted there were no street lights 'real near' where the attack took place, and that location was 'not very well lit.' Such conditions do not, however, compel a conclusion as a matter of law that Mrs. Knowlton had an insufficient opportunity to observe her assailant. She stood less than a foot away from him. She never stated that the lighting was so poor she could not see. Indeed, her testimony describing her attacker indicates she could see him.

A passing motorist, James Spanos, who drove Mrs. Knowlton to the hospital, testified that while he was driving down Hampton avenue he observed a...