State ex rel. Kanieski v. Gagnon

• Decision Date: 02 March 1972
• Docket Number: No. S,S
• Citation: 54 Wis.2d 108,194 N.W.2d 808
• Parties: STATE ex rel. Edward Frank KANIESKI, Petitioner, v. John R. GAGNON, Warden, Wisconsin Correctional Institution, Respondent. tate 122.
• Court: Wisconsin Supreme Court

Page 808

194 N.W.2d 808

54 Wis.2d 108

STATE ex rel. Edward Frank KANIESKI, Petitioner, v. John R. GAGNON, Warden, Wisconsin Correctional Institution,

Respondent.

No. State 122.

Supreme Court of Wisconsin.

March 2, 1972.

This is an action for a writ of habeas corpus to review a first-degree murder conviction obtained in the circuit court for Wood county on December 10, 1952. The petitioner, Edward Frank Kanieski, hereinafter defendant, discovered the body of Clara Bates, the elderly unmarried properietor of a tavern located in the town of Grand Rapids, Wood county, at 6 p.m. on June 30, 1952. The doctor performing the autopsy testified that Miss Bates had been strangled and battered about the head and face and died about 3:15 a.m. on June 29, 1952, with a leeway of twelve hours either way. She had had intercourse prior to her death, but the doctor was unable to say how long before. The murder was extremely bloody with blood stains being found on both the walls and the ceiling of the room in which the body was found

On September 2, 1952, following a John Doe investigation as authorized by sec. 354.025, Stats.1951, defendant was charged with the premeditated murder of Miss Bates contrary to sec. 340.02, Stats.1951. Following a preliminary hearing, defendant was bound over for trial to a jury in the circuit court for Wood county, Hon. Herbert A. Bunde presiding. Defendant was Although no appeal was taken from the judgment, defendant has, for the past twenty years, asserted his innocence. A petition for habeas corpus raising issues differing from those raised here was denied by this court on June 22, 1964. In 1966 this court affirmed an order of the Wood county circuit court denying defendant's petition for a writ of error coram nobis on procedural grounds. ¹ A petition for a writ of habeas corpus was considered by this court in 1968. An evidentiary hearing was held following which this court denied the petition. ² In the opinion denying that petition this court stated:

at all times at the preliminary and during the trial represented by court-appointed counsel. The jury returned a verdict of guilty, and following the denial of motions after verdict, defendant was sentenced to the Wisconsin state prisons for the rest of his natural life.

'We, therefore, conclude that although the petitioner did, through his trial counsel, approach the trial judge concerning an appeal, he was not told that he could not appeal for lack of funds; that the trial judge did tell defendant's attorney that appointment of an attorney for appeal would have to be made by the Supreme Court and that no appeal or notice of appeal was filed within one year after the date of the judgment.'

The opinion concluded by saying:

'However, since the time for appeal has long since expired, we would observe that although only jurisdictional errors have been traditionally reviewable by habeas corpus, this court has enlarged the scope and purpose of the writ to review alleged violations of substantial constitutional rights, both as to post-conviction and pre-conviction remedies. Therefore, on habeas corpus, this court might consider the merits which could have been raised on appeal.'

Federal habeas corpus had been denied by Judge John W. Reynolds of the Eastern Federal District of Wisconsin on November 22, 1966. After the denial of habeas corpus in 1968, Kanieski petitioned for habeas corpus in the Western Federal District. This petition was denied on June 20, 1969, ³ and that denial was affirmed by the Court of Appeals for the Seventh Circuit on June 9, 1970. ⁴

The present petition raises questions not decided in the previous petitions and actions before this court.

Charles D. Hoornstra, Madison, for petitioner.

Robert W. Warren, Atty. Gen., Sverre O. Tinglum and Mary V. Bowman, Asst. Attys. Gen., Madison, for respondent.

WILKIE, Justice.

Two issues are presented by this petition:

1. What is the scope of this court's review in this habeas corpus proceeding?

2. Was the evidence sufficient to sustain the conviction?

SCOPE OF REVIEW

An action for habeas corpus is a collateral proceeding which normally can be used to raise questions concerning the jurisdiction of the convicting court, the validity of the conviction as against a charge that the law under which the defendant was convicted is void, and constitutional defects in the conviction process; it is normally not used to raise such questions as the sufficiency of the evidence. ⁵ In the present case, however, defendant was convicted long before the United States Supreme Court ruled that an indigent criminal defendant has the right to appeal from his conviction with court-appointed counsel. ⁶ In 1952 any appeal of his conviction as an indigent criminal defendant was governed by the provisions of sec. 357.26, Stats.1951, ⁷ whereunder an appeal was not a matter of right but a matter for the discretion of this court. Defendant did not appeal his conviction and was not afforded an appellate review. Under these special circumstances and in accordance with this court's 1968 opinion, this court invited the present habeas corpus in order to afford the defendant an opportunity to raise questions he could have raised on an appeal.

SUFFICIENCY OF THE EVIDENCE

While the state must prove defendant's guilt beyond a reasonable doubt, ⁸ on appeal this court's review is limited to determining whether the evidence adduced, believed and rationally considered by a jury was sufficient to prove defendant's guilt beyond a reasonable doubt. ⁹ Reversal is required only when the evidence considered most favorably to the state and the conviction is so insufficient in probative value and force that it can be said as a matter of law that no trier of facts acting reasonably could be convinced to that degree of certitude which the law defines as beyond a reasonable doubt. ¹⁰

A review of the evidence presented in this case demonstrates that as a matter of law no trier of fact could be convinced that defendant was guilty beyond reasonable doubt.

1. Direct or Scientific Evidence.

The direct or scientific evidence found at the scene of the crime lacks sufficient probative value to convict the defendant. This conclusion follows from a consideration of the particular items of direct evidence presented on the trial: pubic hair, rope surrounding deceased's neck, insulation material, rug strands, and dog hairs.

(a) Pubic Hair. Human public hair was found at the scene of the crime. The technician from the state crime laboratory compared this pubic hair with a sample of hair taken from the defendant. His testimony was that the hair found at the scene 'could have had a common source' with that taken from the defendant, although it could not be identified as defendant's hair. The analyst further testified that the 'common source' could be any human being. Considering that the tavern was a known place of prostitution, the discovery of pubic hair near the body has even less relevance.

(b) Rope. A rope found around deceased's neck contained material which was said 'could have had a common source' with defendant's trousers. There is no testimony as to how common this material was. The state laboratory employee said that he could not say that the material did come from defendant's trousers. This is not enough to support the conviction. The expert witness could not testify that the fiber came from defendant's clothing and the jury, therefore, could not be more certain than the expert witness in passing upon such evidence. ¹¹

(c) Insulation Material. Certain insulation material was found on the bedspread and also on the defendant's trousers. But again, the expert stated only that the material 'could have had a common source.' He also could not say how long the material was on either the bedspread or the trousers.

(d) Rug. Fibers from a rug in the victim's room 'could have had a common source' with fibers removed from defendant's trousers.

(e) Dog Hairs. Certain dog hairs were found on the defendant's person which 'could have come from a common source' as that of Miss Bates' dogs. The record shows that the defendant frequently played with the dead woman's dogs.

The state concedes that under the 1954 decision of State v. Bradley ¹² evidence which 'could have come from a common source' is not sufficiently probative to prove defendant's guilt beyond a reasonable doubt. That decision, in the absence of any statement that the ruling would be prospective only, was retrospective in operation and hence was applicable to the trial in this case. ¹³

The attorney general argues that all of these bits of 'common source' evidence, coupled with the failure of defendant to advance any reasonable theory of innocence regarding this evidence, presents a situation in which a jury could find defendant guilty beyond a reasonable doubt. The direct evidence simply did not have enough probative value to convict this defendant. The testimony of the state crime laboratory's technician saying that the items 'could have had a common source' with the the defendant or his clothing did not sufficiently establish a tie-in so that the jury could have concluded therefrom that the defendant committed the alleged crime.

2. Circumstantial Evidence.

The state theorized that between 1 a.m. and 2 a.m. on Sunday morning, June 29th, defendant returned to the Bates' tavern where he had been about 12:20 a.m. The state further theorized that when he returned to the tavern he raped and killed Miss Bates. There is no evidence to place the defendant in the proximity of the tavern after 12:20 a.m. Further, the state concedes that there was no evidence of motive on the part of defendant. Defendant did testify that from the Bates' tavern he went to the Worzella tavern where he stayed until approximately 1 a.m. He had had several drinks and was having trouble with his car. The ride from the second tavern to his home normally took twenty minutes but on this occasion he...