Kain v. State, S

• Decision Date: 06 October 1970
• Docket Number: No. S,S
• Citation: 179 N.W.2d 777,48 Wis.2d 212
• Parties: Gordon KAIN, Jr., Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 8.
• Court: Wisconsin Supreme Court

Page 777

179 N.W.2d 777

48 Wis.2d 212

Gordon KAIN, Jr., Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 8.

Supreme Court of Wisconsin.

Oct. 6, 1970.

Mr. and Mrs. Osheski operate a combination gas station and tavern on highway 48 in Shawano county. On the morning of March 14, 1969, $600 was stolen from a cigar box on the tavern premises. Mrs. Osheski testified the defendant entered the tavern and, after purchasing a can of oil and several glasses of beer, asked for an eight-pack of Chief Oshkosh beer. Cases and eight-packs of beer were kept in the tavern basement. Mrs. Osheski left the bar area, went through the kitchen and downstairs to get the defendant his eight-pack. Defendant paid Mrs. Osheski with a ten-dollar bill. Mrs. Osheski got the change out of a cigar box kept in a drawer beneath the cash register. In the cigar box was approximately $600 in cash which Mrs. Osheski had counted shortly before defendant entered the tavern. As the defendant sat at the bar, a man delivered gas to the Osheski filling station and was paid in cash from the cigar box. Shortly after the gas man left, the defendant asked to exchange the eight-pack for a case of beer. As Mrs. Osheski was returning up the stairs, she heard a 'thump.' She hurried up the stairs, exited through a side door, and placed the beer in front of the tavern. She observed the defendant leaving the tavern 'in a hurried way.' Defendant stated he had left the money on the bar, picked up the case of beer and drove off. Mrs. Osheski returned to the bar, took the money from the bar, placed it in the cash register and continued cleaning the tavern. Shortly thereafter, when she attempted to pay a bill for towel service, she discovered the money in the cigar box was missing. Mrs. Osheski testified that except for the gas man and towel service man, the defendant was the only person in the bar from the time she opened until she discovered the money missing. Later the same day defendant bought a car from a friend for which he paid cash.

On Saturday, March 15, 1969, defendant was arrested and taken to the Shawano county jail. On Monday, March 17, 1969, a warrant was issued and defendant arraigned. On May 1, 1969, trial was had. The jury found the defendant guilty of theft in violation of sec. 943.20(1)(a), (3)(b), Stats. The defendant was sentenced to an indeterminate sentence not to exceed four years. On March 9, 1970, motions for a new trial were denied. By writ of error, the defendant seeks reversal of verdict and judgment and order denying new trial.

Gordon Myse, Appleton, for plaintiff in error.

Robert W. Warren, Atty. Gen., Jeffrey B. Bartell, Asst. Atty. Gen., Madison, for defendant in error.

ROBERT W. HANSEN, Justice.

Postconviction counsel puts five arrows to the bow. One is aimed at a trial court ruling on admissibility of evidence. One aims at the testimony of the key prosecution witness. Three are directed to the conduct of the defense by trial counsel. Each misses its target.

MARITAL PRIVILEGE.

Defendant, by postconviction counsel, asserts that the trial court admitted certain testimony of the wife of defendant in contravention of the limited marital privilege established by Wisconsin statute. ¹ The wife's testimony was that her husband (1) was working for one Carley Schmidt; (2) was collecting unemployment insurance; and (3) had been laid off his regular employment in the fall of 1968. Objections to testimony as to posting $500 cash bail and how much money the defendant brought home were sustained as falling within the area of marital privilege.

The trial court correctly stated and applied the limited privilege statutorily established. The statute protects communications between spouses that are private. A communication between spouses is not 'private' where a third party has access to the same information. ²

Here the identity of present employment was known at least to such employer; the fact of receiving unemployment compensation was known to the public agency making such payments; the fact of layoff was known to the employer making the layoff. Communications by husband to wife as to these particulars do not originate in confidence nor relate to facts not equally accessible to third persons. In this state they are not privileged because they are not private.

SUFFICIENCY OF EVIDENCE.

Obviously and understandably, the key witness for the prosecution was the lady tavernkeeper from whom the $600 in the cigar box was stolen. Defendant, by postconviction counsel, contends that her testimony was contradictory and, therefore, an insufficient foundation for a verdict of guilt. The asserted inconsistencies are in Mrs. Osheski's testimony concerning the exact amount of money in the cigar box and the time of reporting the theft. Inconsistencies in the testimony of a particular witness go to the credibility of such witness. It is the function of the trier of fact, judge or jury, to decide which witnesses are to be believed. ³ The test, on appeal, is '* * * whether this court can conclude the trier of facts could, acting reasonably, be convinced to the required degree of certitude by the evidence which it had a right to believe and accept as true.' ⁴ 'Here the jury chose to believe the testimony of Mrs. Osheski. It had right and reason to do so. As the defendant did not take the stand and there were not other eyewitnesses, her testimony was the only testimony before the jury as to what took place in the tavern at the time of the theft. Her credibility as a witness was for the jury to determine.

ARREST AND DETENTION.

The defendant was arrested and placed in custody on a Saturday at a time when the courthouse in Shawano county was closed. The warrant was issued and he was brought to court and arraigned on Monday morning when the courthouse opened. To hold that this time sequence, standing alone, constituted an unreasonable detention would require counties like Shawano to staff and maintain both district attorney and magistrate services, presumably on a twenty-four hour basis, for Saturday night or Sunday arrests. We do not so hold. At a time when the securing of adequate prosecutorial and magisterial personnel is a critical problem, particularly in smaller counties, this would contribute not to improvement but to breakdown of the administration of criminal justice.

Here no objection to the arrest or detention was made, and must be deemed waived. ⁵ The fact of waiver is not to be circumvented by the claim here made that failure to object constituted 'incompetence' of trial counsel. It is not this court's function to second-guess the trial attorney on such election not to raise such objection. ⁶ If the objection had been made and sustained, the defendant would have been promptly rearrested and rearraigned, since jeopardy had not attached. The election to waive does not reflect upon the competence of trial counsel and involves no prejudice to the rights of this client.

SINGLE PHOTO IDENTIFICATION.

A polaroid picture of defendant was shown by the police to Mrs. Osheski and she identified it as a picture of the defendant. Postconviction counsel contends any such solo photo identification to be inadmissible, arguing on oral argument that at least five photographs of different persons should be exhibited, the witness to select one, if any, from the five as the crime committer. The one-from-five selection may well have greater impact upon judge or jury, but that goes to weight, not admissibility.

It is argued that Wade-Gilbert should be read to equate showing a photograph to a witness with a police lineup where the accused is present with others, and held under certain circumstances to be entitled to the presence of counsel. ⁷ There is nothing in Wade-Gilbert to suggest that it is stretchable to such new outer limits. Actually, in Wade itself, the nation's high court listed 'the identification by picture of the defendant prior to the lineup,' as one of the factors that might establish that a witness' identification of defendant at trial was not the product of a lineup held without counsel being present. ⁸ Federal courts that have considered the issue are nearly unanimous in holding that Wade-Gilbert do not require presence of counsel at the time of an out-of-court photographic identification. ⁹

Nor do we find merit in postconviction counsel's claim that any single photo identification is by the fact that it was shown alone rendered fatally suggestive and inadmissible. A single photo identification is not to be presumed guilty until proved innocent. The rule is: 'Each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' ¹⁰ Such rule stops far, far short of rendering all signle photo identifications either inadmissible or ipso facto 'impermissibly suggestive.'

Once again, postconviction counsel acknowledges that no objection was raised at the time of trial to the photo identification, and, once again, claims this to establish incompetence of trial counsel. On the record here, we find no...