Madison v. State, S

• Decision Date: 28 June 1974
• Docket Number: No. S,S
• Citation: 64 Wis.2d 564,219 N.W.2d 259
• Parties: George MADISON, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 169.
• Court: Wisconsin Supreme Court

Page 259

219 N.W.2d 259

64 Wis.2d 564

George MADISON, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 169.

Supreme Court of Wisconsin.

June 28, 1974.

McMahon & Moroney, Patrick T. McMahon, Milwaukee, for plaintiff in error; Dennis P. Moroney, Milwaukee, of counsel.

Robert W. Warren, Atty. Gen., Christine M. Wiseman, Asst. Atty. Gen., Madison, for defendant in error.

CONNOR T. HANSEN, Justice.

On October 7, 1971, Mrs. Janice Carol Allen and Vicki Hogue were accosted by a man, whom they later identified as the defendant, at 749 North 34th street, Milwaukee, Wisconsin, at approximately 10 p.m. Mrs. Allen struggled with her assailant in an attempt to prevent him from stealing her purse. After the defendant had overcome her physical resistance and fled with her purse, Mrs. Allen immediately notified the police. Patrolmen Roger Keller and Raymond Kleppin of the Milwaukee police department stopped the defendant approximately fifteen minutes later at North 35th and Wells streets. His appearance corresponded with the description of the assailant as related to the police by Mrs. Allen. Defendant was questioned and a search of his coat pocket revealed a cigarette lighter similar to the one which had been in the victim's purse. The officers also discovered $36 on top of a newspaper box which defendant had passed when he turned around in response to their call to him. The defendant had just been placed under arrest at North 35th and Wells when Mrs. Allen and her friend walked up and identified him as her assailant. Additional facts will be set forth in considering the issues raised on this review.

ISSUES.

The following issues are presented:

1. Whether the evidence is sufficient to support the conviction?

2. Whether an individual has the right to raise constitutional errors on appeal where such errors were not raised in the trial court?

3. Whether the police officers unlawfully detained, searched, and arrested the defendant?

4. Whether the identification of the defendant shortly after the crime was unnecessarily suggestive and conducive to an irreparable mistaken identification?

5. Whether this court should grant a new trial in the interest of justice?

SUFFICIENCY OF EVIDENCE

Mrs. Janice Carol Allen testified at the trial that on the evening in question, she and her friend, Vicki Hogue, were walking to her automobile which was parked in the 700 block of North 34th street, when they noticed the defendant following them. The door of her automobile was stuck when she first attempted to unlock it with her key and the defendant walked up and stood between her and her friend 'for quite some time.' When she finally opened the door, she told her friend to get in and, as her friend sat down in the car, the defendant pushed the door closed and reached in front of Mrs. Allen and attempted to pull away her purse. She held tightly and the defendant pulled her around on the street until the link holding the strap broke, and the defendant fled with her purse. The purse contained, among other things, one $20 bill, one $10 bill, one $5 bill, and one $1 bill. This incident occurred at approximately 34th and Wells and the defendant ran north on 34th street and ducked into an alley. Mrs. Allen testified that her assailant was a bearded black man who was wearing a gold turtleneck shirt and a very dark brown leather jacket. However, it was 10 p.m. and dark at the time, and Mrs. Allen testified that his jacket 'could have been a black coat but it looked like a very dark brown coat.' At trial, she made a positive incourt identification of the defendant, and on cross-examination she was further questioned as to whether the defendant was truly her assailant and she testified '. . . I am positive because I saw him before he made his move to take my purse, he stood beside me for several minutes . . . I was looking at his clothes and his face because when a man stands next to me that I don't know, and I don't know what he wants I want to make sure what it (sic) looks like.'

Mrs. Allen immediately phoned the police from a nearby residence and Patrolmen Keller and Kleppin, responding to the call, soon observed the defendant walking south on North 35th street and crossing Wells street, less than two blocks from the scene of the crime. Keller testified at trial that after the defendant had crossed Wells street and proceeded a short distance further, he called to him to stop and come over. Defendant then grabbed ahold of a light pole which had a newspaper box attached to it and swung around the pole and walked back to Wells street where the officers were waiting. He was wearing a gold colored shirt and black leather jacket. However, Keller testified at trial that he could not recall the type of collar on defendant's shirt that evening. A search of the defendant's jacket by Officer Kleppin uncovered the lighter in the left jacket pocket which Mrs. Allen later said had been in her purse. Keller testified that the defendant claimed the lighter was his. Mrs. Allen came upon the scene shortly after defendant had been stopped and identified the defendant as her assailant and the lighter as hers. A more thorough search was then conducted and the $36 in one, five, ten and twenty denominations was discovered on top of the newspaper box where the defendant had earlier swung around the pole. Keller testified that they later found the purse at 34th and Kilbourn streets, one block north of the scene of the crime and in the same direction in which defendant had originally fled from the scene of the crime.

Defendant testified at trial that he had just emerged from a bus at 35th and Kilbourn when he found the lighter on the street. He claimed he was walking south on 35th street looking for a friend's house where he could get pills for venereal disease. He testified that he knew the house but not the address. However, he failed to find the house and was on his way to Wisconsin avenue to catch another bus when he was stopped by the police. Although admitting he had a beard, the defendant claimed he was wearing a gold shirt with a regular collar and a black leather jacket on the night in question. He also testified that when he was searched, the police found on his person $36.92, and the lighter which he claimed he told the officers he had just found. He testified the money was not in his wallet, but in his pocket, and that his mother had given him $20 and a barber had recently repaid a debt of $18. No other witnesses were called for the defense.

In Beavers v. State (1974), Wis.2d, 217 N.W.2d 307, (decided May 7, 1974) this court most recently explained:

'In State v. Chacon (1971), 50 Wis.2d 73, 74, 183 N.W.2d 84, 85, this court stated that it would not '. . . retry the case on the record to see if each member of this court is convinced of the guilt of the defendants beyond a reasonable doubt. . . .'

'In Fox v. State (1973), 60 Wis.2d 462, 466, 210 N.W.2d 722, 724, this court very recently explained:

". . . The test of the sufficiency of the evidence to convict is, on appeal, whether the evidence adduced, believed and rationally considered by the trier of fact was sufficient to prove the defendant's guilt beyond a reasonable doubt. Insufficiency of the evidence to warrant conviction requires holding that the evidence, when considered most favorably to the state and the conviction, be so insufficient in probative value that it can be said as a matter of law that no trier of fact acting reasonably could be convinced to that degree of certitude which the law defines as 'beyond a reasonable doubt."'

See also: Garrella v. State (1973), 61 Wis.2d 351, 212 N.W.2d 101, and most recently Clark v. State (1974), 62 Wis.2d 194, 197, 214 N.W.2d 450; State v. Van Ark (1974), 62 Wis.2d 155, 164, 165, 215 N.W.2d 41.

The corresponding description of defendant's clothing, the victim's positive identification shortly after the crime and in the court room, the discovery of her lighter in his jacket pocket, and the discovery of her money on the newspaper box, make the case against the defendant overwhelming.

Defendant argues that although the cigarette lighter found on him belonged to the victim there was no testimony to challenge or dispute the fact that he had found it when he alighted from the bus. However, the fact is that all of the evidence and testimony was in conflict with this claim by the defendant. The credibility of witnesses is peculiarly within the province of the trier of fact and the judgment of an appellate court is not to be substituted for that of the trier of fact unless the evidence is inherently or patently incredible. Brown v. State (1973), 59 Wis.2d 200, 208, 207 N.W.2d 602. The evidence in this case was not "inherently or patently incredible."

RIGHT TO RAISE ERRORS NOT RAISED BELOW.

Counsel for the defendant was appointed by this court to seek possible postconviction relief. Counsel now attempts to raise several issues regarding the propriety of searching and arresting the defendant and his identification by the victim shortly after the crime occurred. This is the first time any of these issues have been raised. It is understandable that counse...