Peters v. State
| Decision Date | 30 September 1975 |
| Docket Number | No. S,S |
| Citation | 70 Wis.2d 22,233 N.W.2d 420 |
| Parties | Robert Charles PETERS, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error. tate 211. |
| Court | Wisconsin Supreme Court |
Charlene R. Bohl and Raymond H. Thoenig, Wisconsin Indian Legal Services, Madison, for plaintiff-in-error.
Bronson C. LaFollette, Atty. Gen., David J. Becker, Asst. Atty. Gen., for defendant-in-error.
This review involves the 1973 conviction, following a jury trial in Sheboygan county, of the plaintiff in error (hereinafter defendant) on charges of theft, burglary and obstruction of an officer. Defendant seeks review here of the denial of his motion for a new trial and raises issues in connection only with the burglary and obstruction of an officer convictions.
We reverse and order a new trial on these two charges. We do so in the interest of justice, pursuant to sec. 251.09, Stats., and because the entire proceeding was infected by the trial together of these two charges without proper cautionary instructions so that the defendant was unfairly penalized for asserting his alibi defense as to the alleged burglary.
The Burglary.
Many of the facts surrounding the early morning burglary on Sunday, July 29, 1973, of the Zwei Herzen Tavern in Sheboygan are undisputed. At about 3:30 that morning, when a motorist came upon a white station wagon in front of the tavern, two surprised individuals jumped into the station wagon and took off, leaving a heavy black safe on the street. The motorist gave chase, and, after losing sight of the station wagon for a moment, discovered it a few minutes later up on a curb and empty. A resident of the neighborhood where the car had ground to a halt was startled out of her sleep and saw two men jump out of the car and flee. The car was owned by defendant's wife, and defendant and his friend, Robert Gage (alias Robert Adams), were using the car that night to visit various bars, including the Zwei Herzen.
Later on the morning of July 29th, the owner of the tavern determined that bottles of liquor, cigarettes, a small amount of money, a cardboard box, and a garbage pail were missing from the premises. Except for the money, all of these items, as well as a crowbar, were discovered that morning by Mrs. George Goeres in the bushes in her back yard near an alleyway. Close by this alleyway was the yard of the house in which defendant, his wife, and Robert Gage were then residing.
At trial it was established that the defendant was in the Zwei Herzen Tavern earlier that night, that the safe that was eventually hauled into the street was visible to all tavern patrons; two persons used defendant's wife's car in the burglary, and defendant and Robert Gage were seen together, using that car, several times that night; tar marks were found at the point of entry into the tavern, and defendant and Robert Gage were employed as roofers and had tar pails in the car they were using.
At the trial, two of defendant's friends, Conrad and Carol Kline, testified that they were with the defendant at about 12:30 a.m. at a bar, persuaded him because he was so drunk to give his car keys to Robert Gage, and then saw him get into a car as he was walking away from the bar. Defendant, however, had no recollection of ever having seen the Klines that night, but definitely recalled having given his car keys to Robert Gage. Wallace Peters, defendant's brother, testified that he picked up his inebriated brother at about 1:30 a.m. as he was walking down the street. Daniel Mistrioty, a Milwaukee friend of the defendant, stated that defendant was brought to his house in a state of intoxication by Wallace Peters, and was immediately put to bed.
Other testimony contradicted this version of events. Lupe Torres testified that defendant and another man appeared at her door at 4 a.m., and said they needed to borrow a car because of an 'emergency.' Jose Rodriquez and Gilberto Canales testified that between 4 and 5 a.m. defendant and a man fitting Gage's description came to the Rodriquez house and remained there until Gus Torres returned about 8 a.m. When Torres arrived, Peters asked him and Canales to go look for a box with some liquor in it that was in an alleyway behind his house. By this time, however, Mrs. Goeres had dutifully removed the stolen goods and placed them in her garage. But she did testify that she saw two men in a car matching the description of Torres' car drive slowly through the alleyway at about 8:30 or 9 a.m. Torres testified that when he and Canales returned to the Rodriquez house without the box, Peters told them not to worry because it was 'hot anyway.' Later that morning, at about 11 a.m., the police arrived at the Rodriquez house, and, according to the testimony of Rodriquez, Torres, and Canales, Peters and the man he was with crawled under the bed and hid.
Obstruction of an Officer.
On the Monday morning following the burglary, defendant voluntarily went to the police station with his wife and probation officer. There he presented his exculpatory account of his activities on the night of the burglary.
After a John Doe hearing was held about this burglary, the district attorney charged Peters not only with theft and burglary, but also with obstructing an officer in violation of sec. 946.41(2)(b), Stats. This section provides that a person is guilty of obstructing an officer if he 'knowingly (gives) false information to the officer with intent to mislead him in the performance of his
duty.' Joinder of Trial on Burglary and
Obstruction of an Officer Charges.*
The offenses of burglary and obstructing an officer were joined in the same amended information. When these crimes were tried together before the same jury and at the same time, counsel for the defendant at no point made any objection to the joinder of the two charges on the grounds that such joinder would prejudice the jury against the veracity of the defendant's alibi. Nor did the counsel for defendant put forward any cautionary instructions to the effect that the evidence offered on the obstructing charge could not supply a defect of proof on the main burglary charge.
We conclude that even though trying both charges together was not error in this case and the failure to deliver proper cautionary instructions was not error in view of the failure of defendant's counsel to request such instructions, the giving of such an instruction was the only means of adequately protecting the defendant against the double-teaming effect of such joinder. We conclude that the lack of such an instruction caused an apparent miscarriage of justice, and that a new trial free of this defect may very well produce a different result. 1 Accordingly, it is proper for this court to exercise its power of discretionary reversal under sec. 251.09, Stats., and to grant a new trial in the interest of justice.
On the charge of 'obstructing an officer' the defendant contends that his constitutional right to present a defense, including an alibi defense, at trial 2 precludes prosecution for obstructing an officer under these circumstances.
Although previous cases in this state on convictions for obstructing an officer have always involved physical abuse of an officer or officers while making an arrest or performing other official duties, 3 the statute permits conviction for obstruction of an officer under circumstances where efforts to intentionally mislead an officer may be involved as were allegedly present here. However, before such a charge should be made under sec. 946.41(2)(b), Stats., the district attorney should have sound reasons for believing that statements made by a suspected defendant to the police in terms of an alibi were knowingly and intentionally made for the purpose of deceiving and misleading the police, and not simply out of a good-faith desire to defend against an accusation of crime.
Sec. 971.12(1) and (4), Stats., provides that two crimes may be joined in one information and tried together if they are 'of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan.' The two crimes charged here, 'burglary' and 'obstructing an officer,' are 'connected together' since the charge of obstructing an officer is based upon an alibi defense to the charge of burglarizing the tavern.
A more difficult problem presents itself here in regard to whether the joinder of these two crimes, while technically proper, may still have been prejudicial to the defendant. Sec. 971.12(3), Stats., provides that a trial court may order a severance if it appears that an otherwise proper joinder may prejudice the rights of the defendant. In this case, however, it cannot be said that the trial court abused its discretion in not ordering a severance. The general rule is that, if evidence of each crime is admissible in regard to the other crime, then the two crimes may be tried together. 4 The reason for the lack of prejudicial joinder in such cases is that, even if there were separate trials on each crime, the same evidence that would be admissible at the joint trial would also be admissible at the separate trial, and so there is no ground for claiming prejudice.
In this case evidence of the burglary is admissible on the charge of obstructing an officer in order to show the motive for the obstruction. Conversely (and contrary to the defendant's arguments), evidence regarding fabrication of alibi is admissible on the burglary count. The probative value of such evidence on the burglary count is slight, but it does tend to show an awareness by the defendant that his defense to the main charge is so weak that he needs to fabricate evidence. From this awareness of weakness the trier of fact can legitimately infer a consciousness of guilt on the part of the defendant in regard to the main charge. 5 It must be emphasized, however, that fabrication of...
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...evidence submitted to it. We are not permitted to go behind the jury verdict if it is supported by credible evidence. Peters v. State, 70 Wis.2d 22, 233 N.W.2d 420 (1975); State v. Shaw, 58 Wis.2d 25, 205 N.W.2d 132 (1973); State v. Johnson, 11 Wis.2d 130, 104 N.W.2d 379 (1960). Thus, we mu......
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