Sanders v. State
| Citation | 230 N.W.2d 845,69 Wis.2d 242 |
| Decision Date | 30 June 1975 |
| Docket Number | No. S,S |
| Parties | Ben SANDERS, Jr., Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error. tate 56. |
| Court | United States State Supreme Court of Wisconsin |
Howard B. Eisenberg, State Public Defender, and Alvin E. Whitaker, Asst. State Public Defender, Madison, for plaintiff-in-error.
Victor A. Miller, Atty. Gen., and Michael R. Klos, Asst. Atty. Gen., Madison, for defendant-in-error.
Plaintiff in error, through his counsel, by writs of error raises several issues as grounds for reversal; these will be discussed in the opinion.
Ben Sanders, Jr., plaintiff in error (hereinafter 'defendant'), was convicted on two counts of first degree murder, having been found guilty of the murder of two police officers, Gerald Hempe and Charles Smith, of the Milwaukee city police department. The defendant brings three writs of error to review the judgment of conviction and the orders denying the postconviction motions argued by the state public defender and also those submitted by the defendant pro se.
At about 3:20 a.m. on February 1, 1973, the defendant was arrested and charged with two first-degree murders for the deaths of the two officers at approximately 10:00 p.m. on January 31, 1973. On June 12, 1973, a jury returned a verdict finding the defendant guilty of both charges.
Testimony at the trial revealed that on the evening of January 31, 1973, defendant was with several other people at a neighborhood organization headquarters. One of the persons there, Tyrone Daniels, became ill and the decision was made to take him home. The defendant took his car and drove Tyrone Daniels, Mozel Parrott and Walter Lemon to the Daniels residence at 2323 North Palmer street in the city of Milwaukee, arriving and entering the house at about 9:45 p.m. Soon thereafter some other people from the same headquarters decided to go to the Daniels housel. Loretta James, Larry Howard, Gregory 'Rickey' Daniels (Tyrone Daniels' brother) and Tujuana McKee (a half-sister of the Daniels brothers, who also resided at 2323 North Palmer street) left in Tyrone Daniels' car. As these people neared the Daniels home Officers Hempe and Smith, who were on patrol in the area, made a 'U' turn and followed them. The officers turned on their flashing red light as the Daniels car stopped at about 2310 North Palmer street, across the street and just a few houses down from the Daniels home. The officers said they believed the vehicle was stolen and ordered the occupants to get out of the car. Rickey Daniels then began to argue with the officers and told the girls, Loretta James and Tujuana McKee, to go into the Daniels house. Miss James testified that as she was walking in the door the defendant came out of the house. Miss James went into the house, into a rear bedroom, and was coming back toward the front door when she heard some shots. She ran to the door, looked out through the window in the door, and saw a person whom she believed to be the defendant shooting down the two officers as they were scuffling with Rickey Daniels. This account of the incident was corroborated by a 14-year-old girl, Debra Bridges, who was in her bedroom in a house next to the Daniels residence and observed that much from her window facing Palmer street. She testified she saw the officers fall, saw some sparks from the gun and heard six rapid shots, but she was unable, from her vantage point, to see who was firing the shots. After the officers fell to the ground, she saw Rickey Daniels get up and run away and say to two or three other persons who had observed the scene, presumably including the one who fired the shots, that he would see them later.
A passing motorist also observed the shootings and testified at trial; he was Mr. Bobby Smith, who was driving down Palmer street and noticed a struggle between two police officers and another man as he passed adjacent to the police vehicle. He stopped his car nearby and looked back to see a small black man (Rickey Daniels was black, 5 feet 4 inches tall) struggling with two police officers. Three to five other people came from across the street and were watching as the officers were bending over Daniels at about 90 degree angles, trying to subdue him,; they were struggling about three to five feet to the rear of the police vehicle, the rear door of which was ajar. Someone in the group of people then said, 'He has a gun'. One officer reached for his gun, lifted it slightly but not entirely out of the holster, and then dropped it back into the holster and continued to struggle with the man on the ground. Then Mr. Smith heard some shooting--six to eight shots fired rapidly; he ducked down in his car seat and when he looked up he saw the officers lying on the ground and a black man walking away who was of the same stature and build as the defendant. He could not identify that person's face. He also said that after the officers were shot, it seemed like he heard someone say words to the effect that they had been warned about bothering him.
One of the occupants of defendant's automobile, which brought Tyrone Daniels home, also observed the shooting. Mr. Walter Lemon said he was in the Daniels house when another Daniels brother came running in, saying the police were beating up Rickey. Mr. Lemon then went out onto the Daniels porch, saw the officers wrestling with Rickey, went back into the house very briefly and returned to the porch to see a man walk from midway in the street to where the officers were wrestling with Rickey and then shoot the police down. He identified the person firing those shots as the defendant. He said that after the shooting, the defendant ran down the street, but within about 12 minutes he saw the defendant in the Daniels house.
Loretta James testified that after she saw the shootings, she ran back into a bedroom in the Daniels house and when she came out she saw the defendant and Rickey and Tyrone Daniels in the house. The defendant was removing his brown leather coat and putting it on a pile of clothes in the Daniels dining room. She testified that when she saw Rickey Daniels in the house he had one handcuff on; he then ran out the back door of the house. She also said that she was talking with the defendant in the Daniels house at about 11:00 to 11:30 o'clock that night while police were there and he told her that the gun was in the rear hallway. At about 1:00 a.m. he told her one of the officers was shot in the head.
Detective Vogl and his partner Officer Haase of the Milwaukee police department were the first officers to arrive at the scene soon after 10:00 p.m. on January 31, 1973. They found the two officers' bodies lying near the rear doors of the police vehicle, one of which was ajar. Detective Vogl ordered the area cordoned off and checked the two officers' service revolvers and found both of them fully loaded. Officer Hempe also carried a .25 caliber pistol which was also fully loaded. When the bodies were at the hospital, a check was made and it was found that both officers' bullet pouches contained their full ration of bullets; they had not fired their guns that evening. After the ambulances had left with the officers' bodies, another officer brought Rickey Daniels to the scene and he was still wearing Officer Hempe's handcuffs attached to one wrist. Rickey Daniels was ordered taken to the station for questioning. Detective Vogl examined the scene and found six spentshell casings very near the officers' bodies.
At about 3:15 a.m., February 1, 1973, when several officers went to the defendant's residence at 1926--A North Buffum street, Milwaukee, to arrest him, they observed and seized a partially-used box of .32 caliber bullets labeled W-W (Winchester Western) .32 auto. Later in the morning at about 7:00 o'clock, several officers armed with a warrant searched the Daniels home and seized a .32 caliber semi-automatic pistol, which was found between some clothes in the rear hallway; the gun had no finger prints on it and was unloaded. They also seized a brown leather coat on which some blood stains were noted; it was found on a pile of clothes in the dining room. At the trial Loretta James testified that a photograph taken by the police of where they found the coat was an accurate depiction of where she saw the defendant put it.
A firearms expert testified that the six spent casings found at the scene could have been fired from no other weapon than the .32 semi-automatic pistol found in the Daniels rear hallway; he also testified that the slugs found in Officer Smith's clothing and body and those found in Officer Hempe's body could have been fired from no other weapon. He also testified that the slugs and the casings were in all physical characteristics identical to the cartridges found in the box of cartridges seized at the defendant's residence from under the couch he slept on.
Another expert in examination of blood and other bodily fluids testified that the brown leather coat seized at the Daniels house did have human blood stains on it, but too little to type. A shirt taken from the defendant at the time of his arrest was found by the expert to have human blood on it of type A; Officer Smith had type A blood, Officer Hempe type O blood, and the defendant had type O blood.
The officers were declared dead moments after arrival at the hospital and the acting medical examiner of Milwaukee county testified he examined the bodies and found that both officers died from gunshot wounds to the head; the wounds followed a downward course, indicating the shots were fired from above. He said the type of wounds which Officer Smith suffered might spurt blood but he could not say how far.
On February 2, 1973, the defendant appeared before the Hon. Christ T. Seraphim, Circuit Judge of Milwaukee county, and probable cause was found on the face of the complaint to hold him for further proceedings. On February 14th defendant appeared in the county court of Milwaukee...
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