Kelly v. State
| Decision Date | 18 January 1977 |
| Docket Number | No. 75--260--CR,75--260--CR |
| Citation | 249 N.W.2d 800,75 Wis.2d 303 |
| Parties | Noreen KELLY, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. |
| Court | Wisconsin Supreme Court |
James R. Long, Appleton, for plaintiff in error.
Marguerite M. Moeller, Asst. Atty. Gen. (argued), with whom on the brief was Bronson C. La Follette, Atty. Gen., for defendant in error.
The judgment from which a writ of error is taken convicts the defendant, Noreen Kelly, of first-degree murder, sec. 940.01, Stats. The order complained of arises from the decision of the trial court on a number of pretrial motions to suppress evidence (a gun and related items) allegedly seized in violation of Ms. Kelly's fourth amendment right against unreasonable search and seizure. The principal issue is whether the challenged evidence should have been suppressed.
About 6:40 p.m. on August 22, 1973, Alvin Manteufel, age 68, was shot in the back and killed while in his farm home at 1129 E. Fairview Road, Town of Clayton, Winnebago County.
The trial testimony was principally directed to events occurring prior to the murder intended to show a motive on the part of the defendant, Ms. Kelly, for murdering Alvin Manteufel and events on the day of the murder. There was considerable testimony at the preliminary hearing concerning the activities of the police in locating various items of evidence on August 22nd and August 23rd. This testimony was incorporated into the record on a motion to suppress that evidence along with additional testimony taken at that hearing. At the trial, Robert Manteufel, son of the deceased, testified that Ms. Kelly, a divorcee, had met Alvin Manteufel who had also been divorced early in 1971 and that she moved into the upstairs apartment of his house to become 'his private duty nurse.' Shortly after this, the deceased purchased an automobile which Ms. Kelly later told Robert was her business automobile to be used in the establishment of a commercial convalescent home in the decedent's house and on his farm property. The deceased, a carpenter by occupation, had begun remodeling his home for this purpose. In October 1971, a power of attorney was executed giving Ms Kelly control over the decedent's affairs and a joint checking account was established between the two of them. A life insurance policy was taken out on the deceased, the amount of which is not specified in the record but in which Ms. Kelly was named his beneficiary. In November 1971, certain farm machinery belonging to the deceased was auctioned off to raise funds.
Attorney Sidney Mertz testified that the deceased had executed a will in his office on October 27, 1971 in the presence of Ms. Kelly and on the same day executed the power of attorney. The will left his entire estate to Ms. Kelly and the power of attorney gave her control over the decedent's property.
In February 1972, Robert Manteufel returned to Wisconsin from his home in Maryland at the request of his brothers and sisters to investigate the relationship between the decedent and Ms. Kelly. Another son, Raymond, had commenced action with the acquiescence of the deceased to recover his property and control of his affairs. The action was dismissed later. There was a revocation of the power of attorney which was filed on March 7, 1972, signed by the decedent. On February 11, 1972, the decedent commenced action by the service of a summons and complaint on Ms. Kelly for the return of his automobile, a snowmobile, a social security check and a check from an individual and two policies of hospitalization insurance. Over objection, the county sheriff's department officer who had served the requisition order for return of the property on Ms. Kelly, Leroy Luft, was allowed to testify that Ms. Kelly held him at bay with a rifle for five or ten minutes in an attempt to prevent him from taking the car. She finally surrendered the rifle with turned out to be unloaded.
An assistant cashier at the bank where the deceased did business introduced, over objection, bank records concerning the decedent's checking account including the power of attorney to Ms. Kelly.
An employee of the Division of Motor Vehicles testified, over objection, that on February 14th his office had received a document that purported to transfer ownership of the deceased's automobile to Ms. Kelly but because of discrepancies in the application, the title was not transferred.
The sporting goods manager at the Oshkosh K-Mart store testified from store records that a Marlin 30-30 calibre rifle had been sold to Noreen Kelly on November 20, 1971. The son of the deceased, Raymond Manteufel testified that in February, 1972, he had seen this rifle in Ms. Kelly's quarters.
In April of 1972, the decedent went to visit his son, Robert, in Maryland for about a month, came back to Wisconsin and then went to Mexico until April of 1973 and then returned to Wisconsin. Ms. Kelly moved into the downstairs area of the house in August 1973, according to an upstairs tenant.
On August 22nd, the decedent and Ms. Kelly were at Wolff's Inn tavern between 5:30 and 6:00 p.m., according to the proprietress, Virginia Wolff. Ms. Wolff testified that Ms. Kelly's 'appearance really struck me . . . her face was kind of puffy and her eyes were so glossy or glary.' She testified she had overheard 'conversation about she (Ms. Kelly) wanted the title to the car so she could get insurance . . . the (decedent) said he didn't have it, it had been lost.'
The upstairs tenant testified that she saw the decedent and Ms. Kelly arrive home at about 6:15 p.m. on August 22nd. She testified she saw and heard nothing else until the gunshot 20 or 30 minutes later, after which she heard the decedent 'yelling and moaning,' and heard the dog whine. She testified that the Manteufel door was always unlocked, and that she had not overheard any arguments between Manteufel and Ms. Kelly. A neighbor, Josephine Sauer, testified she had seen the decedent come out to get the evening paper at 6:40 p.m. Her husband, Adolph Sauer, had been working in his garden and testified that he had seen no one on or near the Manteufel premises until Noreen Kelly left after the shooting.
Ms. Kelly walked down the road to where a neighbor, Lu Ann McGee, was working on a culvert. Ms. Kelly told her that 'a man had been shot' while she was in the bedroom. They went together to the residence of Eugene Biettler who called the Winnebago County Sheriff's Department. Mrs. Biettler testified that Ms. Kelly told her she was in the bathroom when the shotting occurred. At one point Ms. Kelly said the deceased was shot in the back but later she said she saw 'how the back of his head was blown off.'
Eugene Biettler testified that Ms. Kelly walked along the road 'like any other woman would walk on the road' and told him that 'her boyfriend had been shot and was running around outside of the house.' Ms. McGee testified that Ms. Kelly 'made a big issue about Eugene Biettler not going down there by himself.'
Deputy Sheriff, Richard Dehn, arrived at the Manteufel residence at about 6:55 p.m. in response to a radio message. After a survey of the premises and outbuildings, he discovered the deceased's body on the kitchen floor two or three steps away from the kitchen table. A newspaper was spread on the table which also showed a bullet hole. While he was there, the body was removed. Officer James Vanderlois of the Menasha Police Department arrived shortly after Mr. Dehn, and was told by Mr. Dehn that he thought a murder had occurred and that Ms. Kelly had committed it based on 'past calls that we had had out there, and knowing there was differences between them.' Mr. Dehn instructed Mr. Vanderlois to make sure no unauthorized persons entered the house. Ms. Kelly did not return to the Manteufel house but was taken into custody at the Biettler's shortly after the police arrived. The deceased was taken to the hospital by ambulance and he was pronounced dead at 7:25 p.m. It took about 15 minutes to go from his home to the hospital. Mr. Vanderlois testified that Mr. Dehn had instructed him to search the surrounding premises for a gun but he did not find a gun. Detective Meyer told him to make a complete search inside the house, which he did without results. Mr. Vanderlois then went back outside to check the surrounding fields with about four private citizens and found a rifle under the Manteufel porch. He stated he crawled under the front porch and found it lying against the wall on a piece of lumber. He testified he first saw it about 8:25 p.m. while he was lying down on his stomach under the porch with a flashlight and stated that even if it had been light outdoors, the gun would not have been visible 'unless you are right on top of it.' Measurements taken showed that the gun was 20 inches in from the front of the porch and 36 inches from the corner of the house. Officer Roger Koepp of the sheriff's department arrived to assist Mr. Dehn and along with Mr. Vanderlois searched the downstairs apartment about 25 minutes after his arrival and after the body had been removed. They found nothing unusual. Officer Koepp stated he was looking for a weapon, and there is 'always a fear' that someone might be hiding in the house. About 45 minutes after his arrival, Detective Meyer found a spent rifle slug on the kitchen floor. He removed the rifle found by Mr. Vanderlois, identified it as a Marlin 30-30 bearing the same serial number as the one Ms. Kelly had purchased in 1971 at the K-Mart. Mr. Meyer gave as his opinion that from the position of the rifle, it had been placed there rather than thrown.
On the following afternoon Lieutenant Wilbur Fuller of the Winnebago County Sheriff's Department visited the Manteufel residence in the company of Sgt. Neil Cowling and a member of the district attorney's staff. The house had been guarded all night. At the hearing on suppression of evidence, Mr. Fuller...
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