State v. Bembenek

• Decision Date: 14 February 1983
• Docket Number: No. 82-522-CR,82-522-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Lawrencia BEMBENEK, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 616

331 N.W.2d 616

111 Wis.2d 617

STATE of Wisconsin, Plaintiff-Respondent, v. Lawrencia BEMBENEK, Defendant-Appellant.

No. 82-522-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Jan. 12, 1983.

Opinion Released Feb. 14, 1983.

Opinion Filed Feb. 14, 1983.

Review Denied.

Eisenberg, Giesen, Ewers & Hayes, S.C. by Donald S. Eisenberg and Morris D. Berman, Madison, for defendant-appellant.

Bronson C. La Follette, Atty. Gen., and Pamela Magee-Heilprin, Asst. Atty. Gen., for plaintiff-respondent.

Before DECKER, C.J., MOSER, P.J., and WEDEMEYER, J.

MOSER, Presiding Judge.

Lawrencia Bembenek (Bembenek) appeals from a judgment of conviction entered March 9, 1982, following a jury trial in which she was found guilty of first-degree murder, contrary to sec. 940.01, Stats. We affirm.

Bembenek was convicted for the first-degree murder of Christine Schultz (Christine). Christine was the former wife of Milwaukee Police Detective Elfred Schultz (Schultz). Following his divorce from Christine, Schultz married Bembenek. At the time of her murder, Christine resided at 1701 West Ramsey Street in the city of Milwaukee with her two children, Sean and Shannon.

In the early morning hours of May 28, 1981, an intruder entered Christine's home. The intruder went into the boys' bedroom and placed a gloved hand around the face of Sean and attempted to tie something around his neck. Sean screamed and the intruder left and went into Christine's bedroom. Sean testified that he then heard a loud bang which sounded like a firecracker. He then saw the intruder flee down the stairs.

Sean went to his mother's bedroom and telephoned Stuart Honeck (Honeck), Christine's boyfriend. Honeck telephoned the police and told them to send a squad car and the paramedics to Christine's home.

Upon arriving at the scene, the police discovered Christine's body on the bed in her bedroom. Her left wrist was bound with clothesline and there was a bandanna-type handkerchief tied about her face in a gag fashion. After examining the body, the police discovered a single strand of reddish-brown hair-like material on her right calf. The police also recovered other hairs from the bandanna gag.

The medical examiner testified that Christine died from a single gunshot wound which passed through her heart. The medical examiner concluded that the weapon which fired the fatal shot was either touching or extremely close to Christine's body when it was fired.

At the time of the murder, Schultz was on duty. When he was informed of his former wife's murder, he proceeded to the scene with his partner. Following this, he went to his residence with Detective Michael Durfee (Durfee). Detective Lieutenant Richard Abrams told Durfee to take Schultz home and check his offduty revolver. Durfee examined the revolver and concluded that it had not been recently fired. Durfee returned the revolver to Schultz. On June 18, 1981, Schultz's offduty revolver was examined by ballistics experts at the state crime laboratory, who determined that the bullet which killed Christine was fired by this revolver.

On June 10, 1981, a plumber was sent to the apartment of the former neighbors of Schultz and Bembenek to alleviate overflow problems with their toilet. The plumber discovered that a wig was caught in a drainage pipe into which the plumbing from both Schultz's and Bembenek's former apartment and their neighbors' apartment flowed. The fibers from this wig were analyzed by experts at the state crime laboratory, who found that these fibers were consistent with fibers found on Christine's right calf.

Bembenek was arrested on June 24, 1981, at Marquette University, where she was employed by the Public Safety Department. Following her arrest, her locker at the Public Safety Department was inventoried by her supervisor, Thomas Conway (Conway).

Milwaukee Police Department Detectives Thomas Repischak and Michael Jankowski were present during the inventorying of the locker. A hairbrush belonging to Bembenek, found during the inventory, was turned over to these detectives. The hair found in the brush was tested by experts at the state crime laboratory, who found that these hairs were consistent with the hairs found in the bandanna used to gag Christine.

A jury found Bembenek guilty of first-degree murder on March 9, 1982. Judgment of conviction was entered the same day and Bembenek was sentenced to life imprisonment. Bembenek appeals from this judgment.

Further facts will be delineated as are necessary during the discussion of the issues.

Bembenek raises the following issues on appeal:

(1) whether the criminal complaint was sufficient to support the trial court's finding of probable cause;

(2) whether the evidence adduced at the preliminary hearing was sufficient to support a bindover;

(3) whether the trial court erred by denying her motion to suppress the evidence found during the inventory of her locker at Marquette University;

(4) whether she was prejudiced by the prosecutor's conduct during the trial;

(5) whether she was prejudiced by the partiality of the trial court;

(6) whether the trial court abused its discretion by refusing to strike the testimony of an expert witness for the State because of the expert's violation of the trial court's sequestration order;

(7) whether her conviction should be reversed in the interests of justice;

(8) whether her conviction should be reversed because the verdict was contrary to the weight of the evidence; and,

(9) whether the trial court erred by giving the standard Wisconsin criminal jury instruction regarding burden of proof and reasonable doubt.

SUFFICIENCY OF THE COMPLAINT

Bembenek argues that the instant criminal complaint is insufficient because it fails to establish probable cause that she murdered Christine. We disagree.

A criminal complaint is a self-contained charge which must set forth facts that are sufficient, in themselves or together with reasonable inferences to which they give rise, to allow a reasonable person to conclude that a crime was probably committed and that the defendant is probably culpable. ¹ When the sufficiency of a criminal complaint is challenged, the alleged facts in the complaint must be sufficient to establish probable cause, not in a hypertechnical sense, but in a minimally adequate way through a commonsense evaluation by a neutral magistrate making a judgment that a crime has been committed. ² The magistrate need only be able to answer the hypothetical question: "What makes you think the defendant committed the offense charged?" ³ It is sufficient if the complaint answers the following questions: What is the charge? Who is charged? When and where is the offense alleged to have taken place? Why is this particular person being charged? and, Who says so? ⁴

After reviewing the instant criminal complaint we are satisfied that it answers all of the required questions. As to the first question, "What is the charge?," the complaint states that the charge is first-degree murder, contrary to sec. 940.01, Stats. As to the second question, "Who is charged?," the complaint states that Lawrencia As to the fourth question, "Why is this particular person being charged?," the complaint contains numerous exhibits which establish that Bembenek probably committed the crime charged. Exhibit D establishes that there was no evidence of forced entry found. Exhibit S establishes that Bembenek had access to a key to Christine's residence. Exhibit M establishes that it was Schultz's offduty revolver which was the murder weapon. Exhibit F establishes that Bembenek was the only person who had access to this revolver during the period of time in question.

Bembenek is charged with the crime listed. As to the third question, "When and where is the offense alleged to have taken place?," the complaint states that the offense occurred May 28, 1981, at 1701 West Ramsey Street, Milwaukee, Wisconsin.

Exhibit N establishes that a wig was found in a drainage pipe into which the plumbing from both Schultz's and Bembenek's former apartment and their neighbors' flowed. This exhibit also establishes that the wig could only have been flushed down the toilet of the Schultz/ Bembenek apartment or their neighbors' apartment. Exhibit R establishes that the fibers from the wig were consistent with the hair-like fiber found on Christine's right calf.

Exhibits G and H establish that Bembenek had told her former roommate's mother that, because of the high alimony payments that her husband had to make to Christine, she (Bembenek) should have Christine "blown away." There can be no question that the instant criminal complaint satisfactorily answers the fourth question.

As to the fifth question, "Who says so?," the complaint contains an affidavit of the complainant, Milwaukee Police Detective Frank Cole, who identified himself as an officer assigned to investigate the Christine Schultz murder. The affidavit goes on to list all the exhibits attached to the complaint, who made them and the reliability of the maker. Thus, the instant criminal complaint clearly answers the fifth question.

Bembenek contends that, because this case involves circumstantial evidence, the standard required to establish probable cause is the same as that which would justify a conviction. We disagree.

It is well-settled that the complaint need not establish a defendant's guilt beyond a reasonable doubt. ⁵ The complaint is the first of many steps in a criminal prosecution. Its essential function is informative, not adjudicative. ⁶ Therefore, we hold that, even though a case rests partially or entirely on circumstantial evidence, the standard for determining probable cause in the criminal complaint is the same as the standard required to find probable cause in a case based on direct evidence.

Bembenek also contends that probable cause must be found to believe that the assailant involved was a female. We disagree.

There is no requirement that the sex of...