Laster v. State
| Decision Date | 15 October 1973 |
| Docket Number | No. S,S |
| Citation | 211 N.W.2d 13,60 Wis.2d 525 |
| Parties | Johnnie LASTER, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 80. |
| Court | Wisconsin Supreme Court |
Howard G. Brown, Shellow & Shellow, Milwaukee, for plaintiff in error; Raymond H. Thoenig, Milwaukee, of counsel.
Robert W. Warren, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., Madison, for defendant in error.
The following issues are raised on this appeal:
1. Was the search incident to arrest of the defendant's residence and seizure of items therefrom illegal in that the police had not procured an arrest warrant and did not have probable cause to arrest the defendant?
2. Did the trial court err in admitting testimony of a pretrial lineup because of a denial of counsel to defendant at that lineup and because said lineup was the fruit of an illegal arrest?
3. Did the trial court's refusal to grant requested instructions as to third-degree murder and endangering safety by conduct regardless of life constitute prejudicial error?
4. Did the trial court commit prejudicial error in failing to instruct the jury as to the evidentiary weight to be given a stipulation?
5. Was the defendant unconstitutionally denied his right to proceed pro se?
The general rule as to this court's review of factual disputes heard and determined by the trial judge is that the findings of the trial court will not be upset unless they are against the clear weight and preponderance of the evidence. We hold that the trial court's finding that the police officer had a warrant at the time of the arrest was against the clear weight and preponderance of the evidence.
A warrant for arrest must be issued on a complaint found by a magistrate to state probable cause that a crime has been committed and that the accused committed the crime. Sec. 954.02, Stats., 1967. Thus, it is doubtful that the warrants for the arrest of defendant could have been in existence on October 12, 1969 at 12:15 P.M. when the complaints upon which the warrants were issued were drafted on October 13, 1969. While it could be argued that the dating of the complaint was due either to a typographical mistake or clerical error, several facts militate against this result. First, Detective Beasley testified that since it was Sunday, there were no secretaries present and all typing had to be done by him. Under such circumstances it is hard to presume clerical error. Secondly, since all four complaints are dated October 13, 1969, it is extremely doubtful that there existed four typographical errors undetected by the numerous individuals who handled said complaints. Thus, this court is obliged to hold, based on the dating of the four complaints and the additional evidence as to the inability of either the police or the clerk of court's office to produce said warrants, that the arrest warrants did not exist.
The trial court found that the officer '. . . did have probable cause to arrest the defendant . . .' We agree.
In order to determine whether Detective Bayer had probable cause to arrest defendant, this court must consider the information which he possessed at the moment of arrest. Only if it can be concluded that the information possessed by Officer Bayer at the time of arrest was sufficient to permit him to reasonably conclude that the offense had been committed and that the defendant committed it can the arrest of the defendant be upheld.
Hearsay evidence may provide the basis upon which a determination of probable cause is made. Draper v. United States (1959), 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327. However, if such hearsay evidence provides said basis, such evidence must be shown to be reliable and emanating from a credible source. Spinelli v. United States (1969), 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637; State v. Paszek (1971), 50 Wis.2d 619, 184 N.W.2d 836. Since the basis upon which the presence of probable cause in this case hinges is the hearsay testimony of Lois Hale as relayed to Detective Bayer by Officer Beasley these questions of reliability and credibility are of great importance.
It was testified to by Officer Beasley that he relayed the following information to Detective Bayer:
'Q. What did you state to Detective Bayer at that time?
'A. That Miss Hale did meet the complainant in this particular offense Mr. Schultz, in a tavern on the east side; that they had made an arrangement for an illegal sexual act; they proceeded to an address in the 2400 block of North 10th Street;
'Q. What date did she say this all occurred, or did she?
'A. I cannot recall. This was immediately prior to the offense--whatever the date of the offense was--and would be the same date. Upon arriving in the 2400 block of North 10th Street, they walked down the west side of the alley.
'Q. And who was walking down the west side of the alley?
'A. The individual named by her as the defendant, we are talking about--Johnnie Laster--another individual by the name of Triplett and another individual by the name of Trent.
'. . .
'Q. (MR. TESCH) Who was with her at the time?
'A. Mr. Schultz.
'Q. All right; and what further information did you give to Detective Bayer?
'A. That they approached him. All three subjects drew handguns.
'Q. Approached who?
'A. Approached Mr. Schultz, the complainant.
'Q. Donald Schultz?
'A. Yes, sir. They approached Mr. Schultz. They all drew handguns. They demanded money from Mr. Schultz, made him kneel to the ground and while he was kneeling on the ground they beat and kicked him, took his wallet, his personal identification and money, and all three subjects fired shots at him while he was kneeling on the ground. Everyone then turned and ran.
'. . .
'Q. What did you tell him concerning the source of your information?
From the above testimony, it is obvious that Lois Hale was an eyewitness to the crime and the Detective Bayer was so informed. Thus, it is doubtless that proof of the reliability of the manner in which the informant obtained her information has been sufficiently established. State v. Knudson (1971), 51 Wis.2d 270, 187 N.W.2d 321; United States v. Harris (1971), 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723.
Proof of the reliability and credibility of the informant is a more difficult task. Such is especially true in situations like this where the police have had no previous opportunity to judge the reliability of the witness. Since this was the initial contact the police had with the witness in her role as an 'informer,' testimony as to past 'tips' and the resulting convictions is not possible. Likewise, it is not possible to cloak the witness with appearance of reliability under the 'citizen informer' 1 doctrine. It cannot be argued that Lois Hale who is herself directly involved in the criminal activity is acting 'with an intent to aid police in law enforcement because of (her) concern for society or for (her) own safety. 2 Yet, it is this aforementioned involvement of Lois Hale in the criminal activity in question which lends credibility to her statement.
Lois Hale admitted that she was involved in the crime in her initial statement to the police. She stated that she had agreed to an illicit sexual act for value and implicated herself in the attempted murder and armed robbery of Donald Schultz. These declarations were against her own penal interests and as such have a greater probability of reliability. 'Admissions of crime, like admissions against proprietary interests, carry their own indicia of credibility--sufficient at least to support a finding of probable cause to search.' United States v. Harris, supra, at p. 583, 91 S.Ct. at p. 2082.
It is our opinion that the admission of criminal activity on the part of the declarant, Lois Hale, is imbued with sufficient credibility to support a finding of probable cause to arrest simply because such a statement is contrary to her own penal interest.
The defendant claims that the admission of testimony as to the pre-trial lineup identification was error because he was denied counsel at the lineup and because the information which resulted from the lineup constituted the fruit of an illegal arrest. We do not agree.
The right to the presence of an attorney during a lineup identification has been held to attach only after the institution of adversary judicial criminal proceedings--the filing of a complaint or information. 3 Since the complaint was not issued till October 13, 1969 and since the lineup was held previous thereto--during the evening of October 12, 1969--it is clear that the right to an attorney had not yet attached.
It is likewise patent that had the right to the presence of an attorney attached in the case at bar, that the defendant knowingly and intelligently waived his right to the presence of an attorney. The trial court found that the defendant was sufficiently advised of his right to counsel at the lineup identification and understandingly and intelligently rejected that offer. Such a finding was based on the testimony of Detectives Thelen and Puhlmann who stated that they advised the defendant of his 'show-up' rights and that the defendant rejected this offer stating Based on the aforementioned testimony, we conclude that the trial court's finding that the defendant knowingly and intelligently waived his rights to the assistance of counsel at the identification lineup is not contrary to the great weight and clear preponderance of the evidence 4 and must be affirmed.
The defendant contends that the trial court committed prejudicial error in refusing to grant the requested instruction of third-degree murder, a lesser included charge of first-degree...
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