State v. Clarke

Decision Date03 October 1967
Citation153 N.W.2d 61,36 Wis.2d 263
PartiesSTATE of Wisconsin, Respondent, v. Charles Robert CLARKE, Appellant.
CourtWisconsin Supreme Court

Teper & Weiss, Milwaukee, for appellant.

Bronson C. La Follette, Atty Gen., Madison, Hugh R. O'Connell, Dist. Atty., E. Michael McCann, Asst. Dist. Atty., Milwaukee, for respondent.

HANLEY, Justice.

This appeal presents four questions:

(1) When a defendant has been found guilty of committing both rape and armed robbery, may he be committed to the department of public welfare as a sex deviate for specialized treatment under sec. 959.15, Stats., and at the same time be sentenced to an indeterminate term of not more than twenty years on the armed robbery charge, said sentence to be served concurrently with the sex deviate commitment;

(2) Was the evidence believed and rationally considered by the jury sufficient to prove the defendant's guilt beyond a reasonable doubt;

(3) Did grounds exist for granting a new trial either on the basis of alleged newly-discovered evidence or on the basis of possible alleged failure of prosecutor to notify defense of exculpatory material or in the interest of justice; and

(4) Was the defendant adequately represented by counsel during the trial?

The Sentence for Armed Robbery.

The defendant contends that once the public welfare department recommended specialized treatment for the defendant the court was powerless to sentence him to the state prison on another charge. The defendant then cites several cases which hold that once the report recommending specialized treatment is before the court, the court has no alternative but to place the defendant on probation with the condition that he receive treatment or to commit him to the department of public welfare. State v. Sorenson (1966), 31 Wis.2d 368, 142 N.W.2d 785; State ex rel. Copas v. Burke (1965), 28 Wis.2d 188, 136 N.W.2d 778. However, none of the cases involved a trial on two separate charges. And it is doubtful if the legislature intended that a sexually deviate individual could commit nonsexually motivated crimes and escape criminal punishment for them merely because he also committed a sexually deviate criminal act at the same time. The determination must rest with the trial court whether each separate crime in an indictment is a sex crime under sec. 959.15(2), Stats., for that section states that the trial court may commit a person to the department for a presentence investigation if he is convicted of any sex crime other than those specified in sub. (1) of that statute, namely, rape and sexual intercourse without consent. The determination of what is a 'sex crime' under 959.15(2), Stats., is made by the trial court if it is able to find that the defendant was probably directly motivated by a desire for sexual excitement in the commission of the crime; and it is within the discretionary power of the court to take testimony after conviction if necessary to determine that issue. Thus the court can come to a determination that one of two crimes in an indictment may not be a sex crime and impose penal sentence as punishment for that crime.

The defendant also complains that he should have been granted a hearing on the question of whether the robbery was sexually motivated or alternatively that the letter of the department expressing the opinion that the robbery was sexually motivated required commitment under sec. 959.15(2) and (6), Stats. The hearing on whether a crime is sexually motivated is clearly within the discretion of the trial court. Sec. 959.15(2), Stats. It cannot be said that the court abused its discretion under the facts here. Defendant was in the process of having intercourse with the prosecutrix when the breadman, Mr. Traas, began to pound on the door to the grill in an attempt to gain entry to deliver his bread. Defendant then stopped the act of intercourse and took money from the cash register and from prosecutrix's wallet. The letter from the department has no force because the trial court never recommended commitment to the department for a presentence examination on the robbery charge; and it is doubtful whether the letter is the kind of recommendation by the department which the statute contemplates.

Sufficiency of the Evidence.

Defendant claims the evidence was insufficient to identify him as the person who committed the offenses and also that it was insufficient to prove one of the elements of rape, namely, utmost resistance on the part of the woman.

When the question of the sufficiency of the evidence is presented on appeal in a criminal case, the only question for this court is whether the evidence adduced, believed, and rationally considered by the jury, was sufficient to prove the defendant's guilt beyond a reasonable doubt. Lock v. State (1966), 31 Wis.2d 110, 142 N.W.2d 183; State v. Stevens (1965), 26 Wis.2d 451, 132 N.W.2d 502; State v. Johnson (1960), 11 Wis.2d 130, 104 N.W.2d 379; Parke v. State (1931), 204 Wis. 443, 235 N.W. 775. In Lock v. State, supra, 31 Wis.2d at page 114, 142 N.W.2d at page 185, this court stated:

'* * * The test is not whether this court is convinced of the guilt of the defendant beyond a reasonable doubt but whether this court can conclude the trier of the facts could, acting reasonably, be convinced to the required degree of certitude by the evidence which it had a right to believe and accept as true.

'The sufficiency test is often stated in terms of burden of proof, but it is not unusual to state the test in terms of quantity of the evidence. See State ex rel. Isham v. Mullally (1961), 15 Wis.2d 249, 112 N.W.2d 701. Stating the rule conversely for the sake of clarity, the evidence when considered most favorably to the state and the conviction must be so insufficient in probative value and force that it can be said as a matter of law that no trier of the facts acting reasonably could be convinced to that degree of certitude which the law defines as 'beyond a reasonable doubt."

The defendant complains that the identification of him by the prosecutrix, Jeanette Loretta Anderson, and that of the bread deliveryman, Harold C. Traas, are 'marred by defects as would cause them to be insufficient to convict this defendant.'

The first 'defect' defendant complains of is prosecutrix's denial that the coat worn by her assailant was made of a leather-type material, when the composite police description apparently based on information given to the police by prosecutrix and other witnesses on the day on which the attack occurred indicates the assailant was wearing a three-quarter length leather-type coat. The composite police description was never offered into evidence, however. Its only appearance in the case was during the absence of the jury when defense counsel was attempting to determine whether he had grounds for impeachment of the prosecutrix. Thus the alleged inconsistency does not exist. Defendant makes no reference in his brief as to where the composite police description was mentioned, and the only reference to it is on pages 133 and 134 of the record where Mr. De Brozzo refers to a 'document' which is 'a composite description given by other witnesses.' These remarks were not made in the presence of the jury.

The next 'defect' defendant complains of is Mrs. Anderson's testimony that she noticed no outstanding features or scars about her assailant's face when at the trial she testified she was able to see several scars on defendant's face. This is a matter of credibility, and the jury may have considered the scars as not prominent or may have considered her testimony together with that of Mr. Traas as overwhelming evidence that defendant was the assailant or may simply have noted the inconsistency without considering it substantial enough to raise a reasonable doubt of defendant's guilt, perhaps because of prosecutrix's state of mind during the attack. The credibility of witnesses is peculiarly for the trier of fact to determine. State v. Cohen (1966), 31 Wis.2d 97, 142 N.W.2d 161; Drane v. State (1965), 29 Wis.2d 208, 138 N.W.2d 273; Gauthier v. State (1965), 28 Wis.2d 412, 137 N.W.2d 101. It cannot be said here that prosecutrix's failure to notice defendant's scars must necessarily raise a reasonable doubt in the mind of the jury.

Defendant next complains that the identification of him in a police lineup by prosecutrix and Mr. Traas, the bread deliveryman, was mistaken and that the wide diversity of appearance of the men in the lineup, defendant being the only person in the lineup generally resembling the assailant, caused the mistake. This contention is not the same one passed upon by the United States Supreme Court in United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, where that court held that the post-indictment lineup is a critical prosecutive stage at which an accused is entitled to the aid of counsel. At any rate, according to Stovall v. Denno (1967), 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, the rule of Wade and its companion case, Gillbert v. State of California (1967), 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, has application only to cases where confrontation of an accused by witnesses in a police lineup occurs after the date of Wade and Gilbert, June 12, 1967. The question raised here is an evidentiary one. There is the in-court identification of the defendant as Mrs. Anderson's assailant by the prosecutrix, Mrs. Anderson, and by Mr. Traas, testimony by Mrs. Anderson and Mr. Traas as to lineups they had viewed and photographs they had looked through. Mrs. Anderson testified that on the day of the alleged incident, November 8, 1965, she viewed approximately 200 photographs, out of which she selected four or five that looked like her assailant but did not identify any one as her assailant. She further testified that the defendant was not one of the four or five she picked out that day, and that she was at no time able to dentify...

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