Lambert v. State

• Decision Date: 12 July 1976
• Docket Number: No. 75--210--CR,75--210--CR
• Citation: 243 N.W.2d 524,73 Wis.2d 590
• Parties: James Charles LAMBERT, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.
• Court: Wisconsin Supreme Court

Page 524

243 N.W.2d 524

73 Wis.2d 590

James Charles LAMBERT, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.

No. 75--210--CR.

Supreme Court of Wisconsin.

Argued June 1, 1976.

Decided July 12, 1976.

Howard B. Eisenberg, State Public Defender, for plaintiff-in-error.

Thomas J. Balistreri, Asst. Atty. Gen., argued, for defendant-in-error; Bronson C. La Follette, Atty. Gen., on brief.

DAY, Justice.

On December 21, 1974, three judgments of conviction were entered against defendant James Charles Lambert arising from three criminal actions charging a total of six counts of theft by fraud contrary to sec. 943.20(1)(d), (3)(b), and (3)(c), Stats. ¹ These actions had been consolidated for trial. Mr. Lambert was sentenced to one indeterminate term of not more than four years consecutive to a two-year sentence he was then serving for a similar offense, four terms of not more than five years each, consecutive to the first and to each other, and one consecutive five-year term to be stayed during a ten-year period of probation consecutive to his release from prison. The issues raised on this appeal are as follows: (1) whether this action was barred by ch. 248, Stats. (abolishing actions for breach of promise to marry); (2) whether one of the informations was insufficient to confer subject matter jurisdiction on the trial court; (3) whether these offenses were properly joined for trial; (4) whether the trial court abused its discretion in restricting cross-examination of complaining witnesses; (5) whether the trial court erred in instructing the jury concerning the elements of fraud; (6) whether the evidence was sufficient to support the verdict of guilty; and (7) whether the trial court abused its discretion in imposing consecutive sentences totaling 24 years, followed by ten years of probation.

Each of the six counts of theft by fraud arises from a relationship between Lambert and a different woman, during which he obtained varying amounts of money from each on the basis of promises to marry her. The first three women were courted serially between August, 1971, and December, 1973; the other three were courted during the first half of 1974. The state's case consisted of the testimony of the six complaining women, and one additional woman who claimed to have been similarly defrauded by the defendant in Illinois during April and May of 1974. The defendant was his own sole witness.

Ms. R., a single, 20-year old hair stylist, met Lambert (then using the alias 'Danny Paladino') in a Milwaukee restaurant on an evening in August, 1971, and invited him to her apartment. He talked of his life; and Ms. R. testified that she forthwith fell in love with him. Lambert expressed a reciprocal sentiment and later that very evening in his car he proposed marriage, stating that he owned a nightclub in Denver and would show her 'a better life.' Ms. R. accepted, but moved to defer the wedding until April, 1972. Lambert did not tell her he was already married. In September, 1971, Ms. R. gave him $475 because, she testified, 'I loved him and wanted to marry him,' and he needed the money for a gambling debt. That same month, however, Ms. R. found out through investigation of his license plate number where Lambert lived and, upon going there, discovered him with a woman who explained that she was not married or romantically involved with Lambert. In fact, this woman was Jill Lambert, who had been married to the defendant since 1969 and remained married to him at least until this trial, a fact stipulated by the defense. Lambert gave Ms. R. a promissory note on September 27, 1971, for $475. She requested return of her money, and ultimately got about $80 back, she said. Lambert testified that Ms. R. had lent him $475, but that he had paid back 'close to $300' by August, 1972. He characterized his relationship with her as 'truly physical,' and stated that he had never offered to marry her.

Ms. M. S., a keypunch operator separated from her husband, met Lambert in October, 1972, when he came to her home under the alias 'Michael Pauldino,' posing as a private investigator from Denver inquiring about her estranged husband. Their relationship progressed to the point where he proposed marriage in November, 1972. Ms. M. S. accepted, she said, unaware of Lambert's true identity and the fact that he was already married, although on cross-examination she admitted that she hadn't been sure what his real name was. Nevertheless, on two or three occasions Ms. M. S. gave Lambert a total of about $400 'because he said we needed as much as we could get to get married.' In January and February, 1973, she borrowed $800 from two finance companies and turned the money over to Lambert. In February, 1973, she moved out of her parents' home and into an apartment with Lambert; they used the names 'Mr. and Mrs. Michael Pauldino.' Ms. M. S. sold furniture she owned for $475, and gave it to Lambert for gambling purposes. By March, 1973, she had become suspicious. Lambert admitted his true identity, and that he was married and had two children, but told her that she 'shouldn't worry about it,' since 'his uncle's lawyers' could annul her own marriage in San Francisco. She believed him, she testified, because 'He made it sound so easy.' She subsequently turned over to him a $390 income tax refund and her wedding rings because 'he said we needed the money to get to California on so we could be married.' On cross-examination, the defense attempted to question Ms. M. S. concerning the fact that in a bankruptcy petition filed on April 9, 1973, Ms. M. S. had not listed as assets any monies owed to her by Lambert. The trial court excluded such evidence as irrelevant. Lambert testified that he had never lived with Ms. M. S. and denied promising to marry her or to take her to California, and having received any money or jewelry from her.

Ms. D. S., a 27-year-old single clerical worker, met Lambert in late April, 1973, through a co-worker. After one evening date and telephone contacts, Lambert took her to a motel three days later, presented her with an engagement ring, and proposed marriage. Ms. D. S. said she would think it over. That very evening, Lambert discussed a used car venture which required an investment of $2800; the next day Ms. D. S. gave him that amount in exchange for equivalent promissory notes due in May and June of that year, relying in large part, she testified, on his marriage proposal. In October, 1973, while Ms. D. S. was still considering the marriage proposal, Lambert asked for and was given another $1000 loan on the representation, never fulfilled, that they would go to Denver together to straighten out certain assets of his located there. On December 27, 1973, after continual urgings by Lambert, Ms. D. S. consented to marry him and shortly gave Lambert an additional $2600 to 'buy furniture and for marriage plans.' Lambert thereafter disappeared from Ms. D. S.'s life except for several phone contacts (including a successful request for another $125). On cross-examination, Ms. D. S. was asked if she had ever told her parents with whom she lived, of her marriage plans or of the money loaned to Lambert; the trial court excluded such evidence as irrelevant. Lambert testified that he had never asked Ms. D. S. to marry him. He admitted accepting the loans referred to by Ms. D. S., but testified that they were intended for business-related purposes, and not for marriage expenses. He also said that he always intended to pay Ms. D. S. back.

Ms. V., a 20-year-old single legal secretary, met Lambert (then operating as 'James LaPorte') through a friend on December 19, 1973. He took her out the following evening, and again the next day, and then again on New Year's Eve, when he proposed marriage. Ms. V. testified that she was in love with him, but felt she should consult her family. On January 19, 1974, Lambert reiterated his proposal, and offered a ring in support of it; Ms. V. accepted. The subject of money came up shortly, and Ms. V. gave Lambert $450 'because he was my fiancee.' On April 16, Lambert requested and received $2000 for the expressed purpose of satisfying tax obligations. The marriage was set for June 7, 1974, and all preparations were made; a newspaper announcement and wedding invitation were introduced into evidence. On June 2 or 3, Ms. V. testified, Lambert called and said that he 'just could't do it at this time,' and the wedding was cancelled. On cross-examination, the defense attempted to introduce testimony on the value of diamond rings and earrings that Lambert had given Ms. V. for Christmas, which the trial court excluded. Lambert admitted having courted Ms. V. under the name of LaPorte, and having proposed marriage, a promise which, he testified, he intended to follow through on until Ms. V.'s parents, not he, cancelled the wedding.

Ms. J. R., a 27-year-old woman then in the process of being divorced, met Lambert at the dealership where he was selling used cars in January, 1974. He proposed marriage on January 14, during their first meeting after being introduced. Since she was not yet divorced, Ms. J. R. could not actually accept, but they discussed moving to Denver with her children. On January 16, Ms. J. R. gave Lambert $500 to 'straighten out some things' because, she testified, 'we had planned on getting married.' On January 23, February 14, and May 8, she gave him additional amounts totaling $886 for similar reasons. She testified that she 'loved him and planned on being married to him,' although her divorce did not become final until May, 1974. Lambert denied having offered to marry Ms. J. R., or having taken any money from her.

Ms. E., a 29-year-old woman also in the process of being divorced, ² met Lambert (again under the name LaPorte) in a Milwaukee bar on March 22, 1974. They spent the evening together and, after one intervening visit to her home, the question of marriage came up about April 3, when...