Nelson v. State

• Citation: 35 Wis.2d 797,151 N.W.2d 694
• Parties: Daniel A. NELSON, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Decision Date: 30 June 1967
• Court: United States State Supreme Court of Wisconsin

Page 694

151 N.W.2d 694

35 Wis.2d 797

Daniel A. NELSON, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

Supreme Court of Wisconsin.

June 30, 1967.

Robert H. Friebert, State Public Defender, Madison, for plaintiff in error.

Bronson C. La Follette, Atty. Gen., William A. Platz and Betty R. Brown, Asst. Attys. Gen., Madison, for defendant in error.

CURRIE, Chief Justice.

We are here confronted with the following issues:

(1) Was defendant denied the effective assistance of counsel?

(2) Did a conflict of interest exist because defendant's counsel was a candidate for the office of district attorney?

(3) Should defendant's sentence be adjusted because his accomplice received a lesser sentence?

Alleged Denial of Effective Assistance of Counsel.

In order to consider in proper perspective defendant's claim of ineffective assistance of counsel, we deem it advisable to set forth the following facts.

There is no question but that defendant and John Soulier robbed Martin Morrison, the operator of Marty's Tavern, December 10, 1963. Defendant, after being apprehended with Soulier in a stolen car which contained bottles of liquor taken during the robbery, confessed his guilt to the police. At trial, he and Soulier were identified as the men who entered Marty's Tavern shortly after midnight December 10, 1963. Soulier himself testified that he and defendant robbed Morrison. Defendant testified that he remembered being in the tavern, but claimed he 'blacked-out' after entering the tavern and did not 'come to' until he awoke in the Oneida county jail. The state's evidence clearly established defendant had not 'blacked out.' This was established not only by the testimony of Soulier as to defendant's statements and actions immediately prior to, during, and after the robbery, but was clearly demonstrated by defendant's oral statements to Officer Paris of the Rhinelander police force and by his written confession in which he, in detail, described the robbery and his subsequent activities.

The defense of insanity was not only disproved by the foregoing evidence, but, in addition, two disinterested medical experts appointed by the court testified that in their opinion defendant was legally sane.

In an attempt to meet the burden of proving ineffective assistance of counsel defendant has specified several claimed 'major areas of faulty representation' which are hereinafter discussed seriatim.

a. Failure to object to hearsay and option evidence.

William Schilling was called as a witness for the state. He testified that Messrs. Cobourn, Pecore, and himself were in the Morrison tavern the night of December 9, 1963, when defendant and Soulier entered the establishment. The following question was asked Schilling by the district attorney and this answer given:

'Q. Could you describe generally the other man that was with Mr. nelson?

'A. Well, as I said, they were dressed in heavy clothing, they were both big men, and I can recall a big shock of blond hair and to be truthful with you we talked about it, Mr. Pecore, Mr. Cobourn and I, we discussed it at the bar that they were rather tough looking characters, that is my description of them. In fact, we were all three a little apprehensive. We had discussed it among ourselves at the time they walked in.'

Mr. Dennin, defendant's counsel, neither objected to nor interposed a motion to strike the above quoted answer. Defendant contends the answer constituted prejudicial hearsay and opinion evidence. We fail to see how the answer was prejudicial inasmuch as both defendant and Soulier were present in court where the jury could determine for themselves whether they were 'tough looking.' In fact, if they were not 'tough looking,' such characterization by Schilling could have reflected unfavorably against him as a witness.

Dennin, in cross-examinating Schilling asked why he described defendant and Soulier as 'tough looking.' Schilling replied that he and Pecore discussed the appearance of defendant and Nelson on the way home, and that he had a feeling of 'intuition' or 'apprehension' as he and Pecore left Marty's Tavern. At most this was a harmless error of judgment on Dennin's part in conducting his cross-examination of Schilling.

Soulier upon direct examination as a witness for the state testified:

'* * * All I could hear was the bartender pleading, telling him that was enough, to stop. I don't know--as I learned later I can only tell you that, he was kicked, and I couldn't tell you how many times but that is what went on. I believe he said he hit the man in the ribs, the rib cage above the kidneys, near the kidneys, and then proceeded to stomp him, and that is when we both packed up the bags and went out the door.'

Defendant contends Dennin should have objected to, and secured the exclusion of, Soulier's testimony with respect to defendant's kicking, hitting, and stomping on Morrison, because the occurrence was without Soulier's personal knowledge. However, the above quoted testimony with respect to the mistreatment of Morrison makes it clear Soulier was only relating what defendant told him. While Soulier's testimony was in part hearsay it was not subject to legitimate objection because it constituted an admission against interest on the part of defendant.

b. Evidence of other crimes.

Soulier also testified that he and defendant, who had been fellow-prisoners at the state prison at Waupun, on the afternoon of December 9, 1963, at Green Bay, drank beer and played cribbage. Around 4 p.m. they began talking about 'illegal matters,' like 'where money could be obtained and how and where.' After dark they stole an automobile in Green Bay and traveled north. They made stops for lunch and beer and checked a map for the nearest large town which proved to be Rhinelander. Defendant (in referring to Rhinelander) said, 'This is the place we are going to hit.' They chose Marty's Tavern at random and there robbed and beat Morrison. Thereafter they drove to Wabeno where they burglarized an electrical store. After leaving Wabeno, which was then December 10th, they were chased by police several times and were finally apprehended the same day in Shawano county.

Defendant claims Mr. Ennin was remiss in not objecting to evidence of other crimes, i.e., the stealing of the car and the burglarizing of the electricla store in Wabeno. In Herde v. State ¹ this court held evidence of acts committed within a few hours of a crime which were similar in nature and closely connected admissible to show the defendant's 'attitude of mind.' It also said:

'While as a general rule a person charged with a particular offense has a right which should not be trespassed upon to have the evidence in support of such charge confined to that particular offense, there is an exception which permits the state to offer proof of other offenses so intimately connected with the one for which the defendant is on trial as to be evidentiary of intent, design, or motive. 1 Wharton, Criminal Evidence, 11th Ed., p. 516, sec. 350, et seq. * * * The criminality of conduct is no reason for excluding evidence of that conduct when it is relevant and admissible.' ²

(Emphasis supplied.)

Here defendant not only sought to escape responsibility for the robbery at Marty's Tavern on the ground the he had blacked out, but also claimed that, if he did commit the robbery, he was insane at the time. Thus his 'attitude of mind,' or mental condition was a critical factor in his defense.

Not only was the evidence of other crimes admissible and therefore not subject to legitimate objection, but the defense strategy of supporting a plea of not guilty by reason of insanity with proof of other crimes has been recognized as a meritorious tactic. In Le Barron v. State ³ wherein this court considered a claim of ineffective assistance of counsel, defendant claimed his trial counsel committed a 'serious blunder' by introducing into evidence testimony of defendant's misdeeds as a child, his prior criminla record, and testimony of his long career in state hospitals and prisons. It was held that such strategy did not evince inadequacy of counsel and that counsel could have been legitimately criticized by appellant counsel if he had not pursued the tactic in question in an attempt to 'get an insanity acquittal.'$

c. No objection to receipt in evidence of defendant's oral and written statements.

On December 12, 1963, two days after his arrest, defendant orally admitted his guilt to the police and shortly thereafter reduced his confession to writing. On that same day he was brought before Judge RICHARDS.

It is now claimed inter alia that the statements were taken during a period of unreasonable delay between the arrest and defendant's appearance before the magistrate and that defense counsel should have challenged the admissibility of defendant's oral admission of guilt and his written confession on that basis. In Phillips v. State ⁴ this court said that detention for a period longer than is reasonably necessary for the purpose of limited interrogation violates due process and renders inadmissible any confession obtained during such unreasonable period of detention. In State v. Carter ⁵ it was held that Phillips was to be accorded prospective effect only. Since defendant's trial antedated Phillips by approximately 16 months it would indeed be unreasonable to hold the failure to raise the point of unreasonable delay as bearing on the admissibility of defendant's oral statement and written confession demonstrated in any respect ineffectiveness of counsel. To so hold would be to charge defense counsel with a lack of clairvoyance.

Defendant himself testified he had talked to Officer Paris, and signed the confession which consisted of information defendant had previously supplied to Paris. Defendant made no claim that his oral statements or written confession was the result of any force, threats or promises. Thus, eliminating the point of being held...