Harris v. State
| Decision Date | 01 June 1977 |
| Docket Number | No. 75-893-CR,75-893-CR |
| Citation | 78 Wis.2d 357,254 N.W.2d 291 |
| Parties | Governor HARRIS, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error. |
| Court | Wisconsin Supreme Court |
Jack E. Schairer, Asst. State Public Defender, argued; Howard B. Eisenberg, State Public Defender, on brief, for plaintiff-in-error.
Maryann S. Calef, Asst. Atty. Gen., argued; Bronson C. La Follette, Atty. Gen., on brief, for defendant-in-error.
The plaintiff in error, Governor Harris (defendant) was convicted after a jury trial on one count of abduction contrary to sec. 940.32(3) Stats. (1973) as a party to a crime, sec. 939.05; Stats. 1 a second count of sexual perversion contrary to sec. 944.17(1), as a party to a crime; a third count of sexual perversion; and a fourth count of obstructing an officer contrary to sec. 946.41(1). 2 The action was commenced by the filing of a criminal complaint on May 1, 1975 and trial took place August 18, 19 and 20, 1975. Defendant was sentenced to indeterminate maximum terms on each count, up to fifteen years on abduction, five years on each sexual perversion count, and one year for obstructing an officer. Count two was made consecutive to count one; counts three and four were made concurrent to count one, for a total incarceration of not more than twenty years.
Writs of error are directed to the judgment of conviction and the order denying plaintiff in error's motion for a new trial and for reduction of sentence.
The questions raised are:
1. Whether the defendant could be separately charged and convicted of both sexual perversion and abduction.
2. Whether the prosecution's calling to the witness stand of counsel for co-defendant to impeach a defense witness was prejudicial error?
3. Was the sentence an abuse of discretion?
4. Did the lower court err in failing to credit preconviction jail time against all counts?
On the evening of April 30, 1975, according to the evidence of the state, a seventeen year old girl left her home in the city of Milwaukee at approximately 8:00 p. m. to visit a friend. Near her home, two men jumped out of an automobile and forced her into the car. The two men were Governor Harris, and co-defendant-below James Gardner, who is not before the court on this review. The three rode around for approximately one hour, the men forcibly detaining the girl and beating her about the body. When they stopped, the girl was forced to commit acts of oral sodomy on each man. The police arrived moments later and the two men were arrested.
Harris (and co-defendant Gardner) denied this version of events in every relevant detail. They testified the girl was a willing occupant in the car, seeking a good time like they were, and that no sexual activity took place. The jury did not believe this version, and convicted the two men on each count.
Testimony at the three day trial is as follows.
The girl testified that as she crossed the street near her home a car turned into the street and an occupant asked her if she wanted a ride. She said she did not. The occupant kept insisting whereupon the two men got out of the car "real fast." They "rushed and they grabbed me and hit me, then I started screaming, trying to break loose." She was forced into the car.
The girl was put between the two men in the front seat and as they drove they hit her and looked through her purse, from which they took two packages of cigarettes. She asked to be let out. They refused. They drove around downtown Milwaukee between forty-five and ninety minutes.
The men talked about "getting high" and having some fun. They put their hands on the girl's breasts, down her blouse and pants, and they pinched her. They drove into an alley where one of the defendants said a friend lived who would have "some dope, some high." But he discovered his friend wasn't there and they started to hit her again.
The girl faked an asthma attack. One man rolled down a window. The girl started blowing the horn, screaming and fighting, but finally she gave up and did what they asked. One man wanted to have intercourse with her but the other said that would "leave evidence." The two men then forced the girl to commit fellatio on both of them. One of the men saw someone approach and said, "Hey man, it's the dope man, he's here." However, it was the police.
At some time after 10:00 p. m. acting detective Morris Merriweather heard a radio dispatch to check for two men attempting to drag a woman into an automobile. A description of the car and its license was put out on the radio. The detective was southbound on 19th Lane when he observed the car matching the description given on the radio. The car was parked in a vacant lot with its lights out. He then saw Harris exit the passenger side of the automobile and walk hurriedly onto the porch of a nearby house and knock on the door. The detective approached, stated he was a police officer and asked Harris to identify himself. Harris said his name was Calvin Brazil and he was there to visit a girl friend in the house. Acting detective Merriweather noticed Harris' trousers were unbuttoned on top and his zipper was unzipped. While they talked the girl exited the automobile crying and screaming and said they had forced her to commit oral sodomy on them. The detective said the girl was bruised, with scratches on the upper part of her body. He and his partner then arrested Harris and Gardner.
Other officers arrived at the scene. Vice squad officer Richard Tarczynski found liquid splattered on the floor mat. At the police garage he had the mat removed and took a swatch of the flooring (also described as carpet) to a police chemist who examined the liquid and testified at trial that he had observed under the microscope the presence of spermatozoa. He said he had no way of knowing how long the substance had been on the swatch.
Vice squad officer Donald Pedersen testified Harris did not give the police his real name until about three hours after he had been taken to the police station. This was the source of the obstructing an officer charge.
The girl's mother testified she had custody of the girl, and she did not give the two men permission to take her daughter anywhere.
Both Governor Harris and James Gardner testified in their own defense. Their testimony was substantially similar. He testified he was en route with Gardner to visit a friend named Becky to deliver a message when the girl ran across the street waving her hands for the car to stop. Her eyes were blackened and her blouse was torn. She asked Gardner to take her to her girl friend's house. When the three arrived, the girl left the car and went to the door of the house, but then returned to the car after learning her friend's husband was home. The three then went to various addresses in search of friends and marijuana. Both Harris and Gardner denied engaging in any kind of sex acts with the girl. They encountered Clarence "Buck" Gilbert who they hoped had marijuana.
Clarence Gilbert testified for the defense. He stated the three stopped by his house. The girl was sitting in the back seat. She did not try to get out of the car. The girl told him she had been beaten up by her boyfriend.
Sandra Laster, age fourteen, testified that at about 8:00 p. m. on April 30, a lady matching the description of the alleged victim rang the doorbell of her home and asked if a Brenda lived there. Alfreda Simmons, age seventeen, lived in the lower portion of the duplex where Sandra Laster lived. She also testified she remembered a girl searching for someone named Brenda.
The testimony of these two persons, Sandra Laster and Alfreda Simmons, supported the defendants' story that their female passenger was unrestrained.
One source of alleged error concerned the witness stand testimony of James Gardner's defense counsel. In chambers, defense attorney Ronald Davis, representing James Gardner, sought permission of the court to have Ms. Simmons attempt an in-court identification of the girl (the victim) who allegedly came to Ms. Simmons' door looking for Brenda. Attorney Davis revealed that in the hallway outside of the court room he had asked Miss Simmons if the alleged victim also in the hall, was the girl who had called at her door. Ms. Simmons said yes.
Later on the witness stand, Miss Simmons was asked if attorney Davis had pointed out the victim in the hallway. She answered, Still later, the prosecution sought to impeach Ms. Simmons with the transcribed in-chambers statement of Attorney Davis.
The defendant argues the automobile in which the beating and the forced sexual acts took place was "merely the situs" of the criminal conduct for which he was charged. The primary force, he alleges occurred "just prior" to the act of fellatio "and clearly appears incident thereto." For these reasons, abduction was "merely incidental" to the acts of perversion and should not have been separately charged. This argument is not convincing. It is premised on allegations of fact obviously disbelieved by the jury. It ignores settled case law. It was not raised below or in the motion for a new trial.
The premise that the force employed by Harris and his male companion was only incidental to the sex acts is simply unsupported in the record construed favorably to the verdict. According to the victim's testimony she was beaten continuously from the moment she was grabbed until moments before she was freed when the police arrived. Her mother and several police officers testified she was bruised about the face, her blouse was torn and the upper portion of her body scratched.
It is the law of this state the same criminal act may constitute different crimes with similar but not identical elements. "In other words, if any of the elements of proof required are different in the crimes charged, then they may be considered separate crimes." Melby v....
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