Nadolinski v. State

• Decision Date: 03 March 1970
• Docket Number: No. S,S
• Citation: 46 Wis.2d 259,174 N.W.2d 483
• Parties: Norman NADOLINSKI, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 132.
• Court: Wisconsin Supreme Court

Page 483

174 N.W.2d 483

46 Wis.2d 259

Norman NADOLINSKI, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 132.

Supreme Court of Wisconsin.

March 3, 1970.

Plaintiff in error, Norman Nadolinski (hereinafter defendant), was convicted January 24, 1969, upon a jury's verdict of guilty on a charge of taking indecent liberties with a child in violation of sec. 944.11, Stats. The mandatory presentence investigation pursuant to sec. 959.15 indicated he should be treated under the Criminal Code and not as a sex deviate. The defendant was accordingly sentenced to five years' imprisonment, with the Wisconsin State Prison at Waupun designated as the reception center.

On October 14, 1968, the defendant first met the victim, Dale Krogman, a twelve-year-old boy. Krogman and two friends skipped school that afternoon and went to the waterfront area on Lake Michigan. Nadolinski was present with a camera and took pictures of the boys playing in the water at the beach.

The testimony given by the Krogman boy regarding the events following the meeting at the beach was disputed by the defendant. Dale Krogman testified that he was invited to the defendant's home to dry off his pants which were wet because he fell in the water. The boy said that Nadolinski paid the bus fare for both of them and they proceeded to take three buses and walk about six blocks to a basement house apartment on Milwaukee's south side. When the Krogman boy was ready to leave, after a shower and having something to eat, the defendant asked if he would like to listen to some opera. Then the defendant turned off the lights, pulled the shades down and committed two acts of indecent liberties. The complainant then took a bus home, arrived about eleven p.m., and related to his mother everything that had happened. She called the police.

At about one a.m., October 15, 1968, the police entered the defendant's residence, pointed out to them by Dale Krogman, and arrested Nadolinski. The testimony of the police and the defendant is in dispute as to whether permission was granted for them to enter his apartment. The defendant stated the police broke in, awaking him late at night and placed him under arrest. The arresting officer, Thomas McKale, testified that as the police approached the door the defendant peered out between the curtains then the lights went out and the sound of a toilet being flushed could be heard. McKale said they pounded the door for three or four minutes identifying themselves as police officers before Nadolinski opened it and admitted them. After querying him about his identity the defendant was placed under arrest.

After the arrest was effected, Officer McKale walked through a kitchen area and around a corner into the bathroom. There he found a roll of 35 millimeter undeveloped film in the toilet bowl. The film contained 20 exposures of which four were of Dale Krogman. Officer McKale further testified that, although the defendant extended permission for the officers to enter his residence, he did not consent to the removal of anything from the toilet bowl. The trial court refused admission of the developed photos from this film into evidence on the ground they were immaterial to the act itself.

The record in this matter shows that an examination was conducted pursuant to sec. 957.13, Stats., ¹ by Doctors Bernard Schaeffer and Joseph Weber between October 29 and November 1, 1968, upon the order of the circuit court, Judge HUGH R. O'CONNELL presiding, to determine if Nadolinski was mentally competent to stand trial. Consistent with the report of these physicians the court declared the defendant sane and not feebleminded and capacitated to act for himself.

On the day of trial, and immediately prior to trial, defendant's attorney requested another mental and physical examination to determine his physical and mental competency to stand trial. After being informed such an examination had been conducted by Judge O'CONNELL, the defendant's request was denied.

Pursuant to sec. 959.15, Stats., the defendant was committed after conviction to the Department of Health & Social Services for a presentence social, physical and mental examination. The department recommended that defendant be dealt with under the Criminal Code as provided in sec. 959.15(5). The report of the consulting psychiatrist, Doctor Joseph Dzubay, indicated that some discusstion was had among the staff to determine if Nadolinski should be handled under the Mental Health Act but no final conclusion was reached. His confidential report contained the following suggestions:

'In summary, according to our findings this patient does not manifest significant sexual psychopathology. The patient was evaluated as not being dangerous sexually. However, without proper supervision he might become a potential danager in the future because of the hostility coupled with his disorganized and paranoid thought pattern. It was felt that the patient could benefit from treatment, however, the treatment which was felt to be best or most appropriate for this individual would not be treatment for sexual psychopathology. The most appropriate treatment would be for his schizophrenic reaction, paranoid type. It would appear that he is in need of institutional treatment and Phenothiazine medication for this mental disorder.'

At the sentencing proceeding defense counsel recommended sentencing under the Criminal Code and the placing of Nadolinski on a suspended sentence conditioned upon phychiatric care. The assistant district attorney agreed with the probation recommendation if it was conditioned upon the defendant's commitment to a mental institution. Alternatively, the prosecution recommended incarceration at Waupun. The sentence imposed by Judge FLORENZA was a five-year term at Waupun.

The writ of error seeks review of the judgment.

Roland J. Weber, Weber & Raithel, Milwaukee, for plaintiff in error.

Robert W. Warren, Atty. Gen., William A. Platz, Asst. Atty. Gen., Madison, E. Michael McCann, Dist. Atty., Terence T. Evans, Asst. Dist. Atty., Milwaukee County, Milwaukee, for defenant in error.

BEILFUSS, Justice.

Issues raised by the defendant are:

(1) Did the trial court err when it refused to dismiss the action because of an alleged unauthorized entry into defendant's home?

(2) Was illegally obtained evidence used against defendant during the trial?

(3) Did the trial court err in not ordering a mental examination pursuant to sec. 957.13, Stats., on the day of the trial?

(4) Was the sentence improper?

(5) Should this court exercise its discretionary power under sec. 251.09, Stats., and reverse because of a probable miscarriage of justice?

The defendant presented the trial court with a motion to dismiss this case prior to the trial on the ground '(t)hat the Milwaukee Police Department, without reason, cause or warrant, physically broke down the door of the defendant's home and arrested him contrary to the Fourth Amendment to the Constitution of the United States.' Officer McKale specifically denies breaking down the door and testified that he pounded on the door for three or four minutes before the defendant opened it and admitted the police officers. The defendant stated that he was asleep when the police 'jimmied' the door open and told him he was under arrest.

The defendant concedes in his brief that the matter of credibility of his testimony juxtaposed with that of Officer McKale was for the trial court denying the motion for dismissal. He insists, however, that the physical facts of the arrest situation support his testimony and render that of the arresting officer incredible. In support of this proposition he points to this court's opinion in McCarthy v. Thompson (1949), 256 Wis. 113, 40 N.W.2d 560, an automobile accident case, wherein it was said at page 116, 40 N.W.2d at p. 562 that 'physical facts may at times speak so directly of the actual situation that they overcome the testimony of a witness.' The physical fact relied on by Nadolinski was his assertion that the policeman claimed he found the toilet still flushing after the wait at the door and the placing of the defendant under arrest. An examination of the policeman's testimony discredits the claimed physical fact evidence of the defendant:

'Q. Now, in what point of time was it when you made this arrest as when you took the film out of the toilet bowl?

'A. I went right after placing him under arrest, I went to the bathroom right away because the water was still sort of spinning in the bowl.

'Q. Now, was this film just rolling in the bowl?

'A. It was laying there, it wasn't rolling, the water wasn't spinning that hard anymore where it would propel the film contained in the bowl, it--but there was movement yet.'

Even if the policeman's testimony was rendered incredible, the state points out that if the police have probable cause to arrest without a warrant they may break the door to effect the arrest after announcing their purpose in demanding admission. ² The remedy for the use of excessive force in making an arrest may be a civil action for damages, but not dismissal of the criminal charge for which he was arrested. The police in this instance had probable cause to arrest the...