Jones v. State
| Decision Date | 28 November 1967 |
| Citation | 37 Wis.2d 56,154 N.W.2d 278 |
| Parties | Bolivar JONES, Jr., Plaintiff in Error. v. STATE of Wisconsin, Defendant in Error. |
| Court | Wisconsin Supreme Court |
Patrick T. McMahon, Milwaukee, for plaintiff in error.
Bronson C. La Follette, Atty. Gen., Madison, Hugh R. O'Connell, Dist. Atty. Milwaukee Co., E. Michael McCann, Asst. Dist. Atty., Milwaukee, for defendant in error.
Four issues are raised by the writ of error:
1. Was certain testimony by police officers concerning the description given to them by an eyewitness improperly admitted into evidence?
2. Is the evidence sufficient to support the verdict?
3. Should the Supreme Court grant a new trial in the interest of justice, pursuant to sec. 251.09, Stats.?
4. Does a twenty-eight-day interval between arrest and advising a defendant of his right to counsel, and an additional four-day delay in appointing counsel, offend the due process clause of the fourteenth amendment?
Improper Admission of Evidence.
The state's first witness, Alice Allender, described the man she observed burglarizing the station. She testified that when the police arrived (within a minute or so) she told them what she had seen.
The state's second witness, Police Officer Robert McCould, testified that he was dispatched to the burglary scene. Upon arrival, he observed a man entering Pat's Clubhouse. Officer McCould then described the man by giving a description which was substantially the same as that given by the preceding witness. Officer McCloud was asked if he spoke to Miss Allender at the scene, and at this point defense counsel objected to the substance of any conversation between them. The objection was sustained. Subsequently the officer was asked 'What did you do after you got to the tavern?' Officer McCloud answered:
This question was not objectionable as it merely asked the officer to relate physical actions when he got to the tavern. If defense counsel did not like the officer's response to the question, he should have objected and moved that it be stricken. Later, on re-direct, Officer McCloud was asked:
'Q. Now when you went into the tavern, who did you walk up to as soon as you walked in? A. Walked up to Mr. Jones, the defendant, right away.
Again, no objection was made to either question or answer.
Defendant now argues that the officer's testimony was mere repetition and hearsay and should have been inadmissible. It is well established that the question of admissibility of testimony, unless specifically objected to, may not be raised on appeal. 1
A close review of the record shows that one of the major points of the defendant's defense was an exploitation of the officer's reliance on Alice Allender's description which did not include the fact that the defendant had a beard. The following excerpt from the transcript illustrates this point:
'Q. Officer McCloud you just testified you walked right up to the defendant at Pat's Clubhouse for the reason that he had been the man described to you, is that correct? A. That is right.
'Q. Did the discription given you include a beard? A. No, I don't believe so.
'Q. In other words, the man who had been described to you and for whom you were looking, was not described to you as having a beard, is that a fair statement? A. I don't remember having him being described as having a beard.
Thus, even if error was committed in allowing the policeman's testimony, it could not have prejudiced the defendant.
Sufficiency of the Evidence.
Defendant argues that the state did not prove its case beyond a reasonable doubt. The often repeated test of the sufficiency of the evidence on appeal in a criminal case was stated in Lock v. State 2:
The pivotal question during the trial was whether the defendant was the individual who burglarized the Clark station.
The 'eyewitness' testimony of Alice Allender, standing alone, was of limited value. She testified that she watched a man burglarizing the lighted Clark station. Although she could not describe his features, she observed that he was a heavyset Negro, about five feet, eight inches tall, wearing a dark suit, white shirt and no tie.
Her description of the burglar was related to the investigating police officers when they arrived on the scene. This description matched that of a man the officers had observed entering Pat's Clubhouse when they arrived. The officers entered the tavern and approached the defendant because he matched the description given by Alice and he looked like the man they had seen entering the tavern. The defendant had a beard and Alice had not noticed one on the man she observed around the service station.
The remaining identification evidence in the case is circumstantial. Entry to the service station was accomplished by breaking the plate glass front door. Officer McCloud testified that while talking to the defendant at the tavern he observed numerous shards of glass in the defendant's hair. The state infers that the glass in the defendant's hair came from the broken glass at the station.
When the defendant was arrested, the arresting officer found him carrying some cigarettes, three packages of kingsized Chesterfields and one open pack of Salems. Mr. Schroeder testified that his inventory disclosed that, among other things, two or three packages of Chesterfield Kings were missing. Detective Suvaka testified that the 'tax number' on the bottom of the cigarette packages found on the defendant was 858. This number matched the 'tax number' on the bottom of the cigarette packs that remained in the rack at the station. The state's logical inference, of course, is that defendant's cigarettes came from the station.
A fingerprint was found on a package of cigarettes discovered lying on the floor of the service station after the burglary. The fingerprint matched that of the defendant.
In this web of credible evidence there is support for the jury finding of guilt. We think there is sufficient evidence so that the jury could, acting reasonably, be convinced of the defendant's guilt beyond a reasonable doubt.
New Trial in the Interest of Justice.
Discretionary reversal of a conviction by this court under sec. 251.09, Stats., is a power that is exercised with reluctance and great caution. 3 The power is only exercised in the event of a probable miscarriage of justice. 4 We have no 'grave doubt' 5 regarding the defendant's guilt and are convinced that there has been no miscarriage of justice.
Delay in Advising Defendant of his Right to Counsel.
Nothing in the record indicates that the defendant was advised of his right to counsel until twenty-eight days following his arrest, even though he appeared before a magistrate on three different occasions during the period. At his fourth appearance, although the record still does not show the giving of such advice, the defendant concedes that such advice was then given.
Specifically, the record shows that on April 25, 1966, the day after defendant's arrest, he was brought before Magistrate Herbert Schultz. A warrant was issued and defendant was taken to the county courtroom of Judge F. Ryan Duffy, Jr. Judge Duffy, sitting as a magistrate, adjourned the case until May 18, 1966, and set bail at $1,000. The defendant was unable to post a bond and was taken to jail.
On May 18, 1966, defendant appeared before Judge Duffy and the case was again continued to May 23, 1966. Bail was reduced to $500 at this appearance.
At the May 23, 1966, appearance, the defendant claimed to be indigent. Thereupon, Judge Duffy transferred the case to circuit court for a determination of the indigency claim. He raised the bail to $1,000.
On May 27, 1966, the circuit court, Judge Coffey presiding, found the defendant indigent and appointed Attorney Dennis Sullivan to represent Jones.
On June 6, 1966, defendant appeared in Judge Duffy's court without counsel and a preliminary hearing was scheduled for June 24, 1966.
On June 8, 1966, in circuit court, Judge Coffey, upon request of the defendant, removed Attorney Sullivan and appointed Attorney Gregory Gramling in his stead. Sullivan had never contacted the defendant. (The record is silent as to why no contact was made.)
The defendant finally posted bail on June 17, 1966. On June 24, 1966, the preliminary hearing was postponed until July 20, 1966, due to the absence of a state's witness. The preliminary was held before Judge Duffy (sitting...
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