State v. Clay, No. 94-1193-CR

CourtCourt of Appeals of Wisconsin
Writing for the CourtSCHUDSON
Citation196 Wis.2d 371,539 N.W.2d 134
Decision Date25 July 1995
Docket NumberNo. 94-1193-CR

Page 134

539 N.W.2d 134
196 Wis.2d 371
STATE of Wisconsin, Plaintiff-Respondent,
L.C. CLAY, Defendant-Appellant.
No. 94-1193-CR.
Court of Appeals of Wisconsin.
July 25, 1995.



L.C. Clay appeals from a judgment of conviction after a jury found him guilty of nine counts of armed robbery, contrary to § 943.32(1) and (2), Stats., one count of attempted armed robbery, contrary to §§ 943.32(1)(b), 943.32(2) and 939.32, Stats., and five counts of first-degree sexual assault, contrary to § 940.225(1)(b), Stats.

Clay asserts four instances of trial court error: (1) the admission into evidence of his custodial statements which were the fruit of an illegal arrest; (2) improper joinder of four counts of alleged criminal activity occurring at St. Joseph's Hospital; (3) the erroneous exercise of discretion in not striking a juror for cause; and (4) an erroneous exercise of discretion in failing to compel discovery and in denying a motion for a mistrial.

Because probable cause for arrest existed; because failure to sever the alleged counts of criminal activity occurring at St. Joseph's Hospital was harmless error; and because failure to strike a prospective juror for cause, failure to compel the production of certain photographs in the prosecution's possession, and failure to grant a mistrial was not an erroneous exercise of discretion, we affirm.


This appeal has its genesis in Clay's arrest for disorderly conduct in the late evening hours of August 21, 1991, at 2714 North 44th Street in the City of Milwaukee. When police were in the process of placing Clay in a police vehicle for conveyance to the city jail pursuant to a disorderly conduct arrest, a citizen who observed the process, informed a police officer that he thought Clay might be the person who committed a sexual assault at St. Joseph's Hospital. The basis for the citizen's report was a description appearing on a television program. The next morning a detective interviewed Clay after advising him of his constitutional rights. Clay waived his rights, but refused to sign the waiver form and denied being involved in the St. Joseph's incident. In the meantime, police were informed that Clay might be involved in seventeen or eighteen unsolved robberies. Police compared Clay's fingerprints with a latent print lifted at the scene of one of the unsolved robberies. Clay's print matched a print at the robbery scene which allowed police to arrest him for robbery. A detective then interviewed Clay about the rest of the robberies. The interview lasted four and one-half hours. Clay was advised of his constitutional rights, waived them, and then confessed to seventeen robberies and five sexual assaults.

As pertinent to this appeal, Clay faced eleven counts of armed robbery, one count of attempted armed robbery and five counts of first-degree sexual assault. Three of the sexual assaults occurred at St. Joseph's Hospital and two occurred at Moods for Moderns beauty salon.

Prior to trial, Clay moved to suppress statements given to the police as fruits of an illegal arrest. The trial court denied this motion, ruling that there was probable cause for an arrest for disorderly conduct. Clay next moved to sever the three counts of sexual assault and one count of attempted armed robbery which occurred on August 8, 1991, at St. Joseph's Hospital from the remaining counts. The trial court denied the motion holding that all of the counts were properly joined under § 971.12(1), Stats. Clay additionally moved the trial court to compel the State to produce photographs of a number of people who, prior to Clay's arrest, had been identified as potential suspects in the unsolved incidents of robbery. The trial court denied this motion on the basis that the photographs were not exculpatory.

A jury was impaneled. During the voir dire, Clay's counsel asked the trial court to strike a juror for cause on the grounds that the juror had expressed a bias against Clay. The trial court denied the motion. During trial, it became evident that a certain police offense report had not been turned over to Clay in spite of a discovery demand. Clay moved for a mistrial, but the motion was denied because the contents of the report were not exculpatory and no manifest injustice had occurred.

The jury found Clay guilty of nine counts of armed robbery, one count of attempted armed robbery, and all five counts of first-degree sexual assault. He was absolved of two counts of armed robbery. He now appeals.


A. Probable Cause to Arrest.

Clay first contends that his custodial statements should have been suppressed because they were the fruit of an illegal arrest. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) (a warrantless arrest made without the requisite probable cause). We are not persuaded.

The factual content of Clay's arrest is undisputed. Two City of Milwaukee police officers were dispatched to a duplex located at 2712 North 44th Street at 10:35 p.m. on August 21, 1991, to investigate a reported burglary in progress. The officers discovered a broken basement window at the rear of the residence and saw someone in an upstairs window. One of the building tenants, Dolores Ray, told police that when she heard the sound of breaking glass, she fled the building with her child. She told police she believed that the intruder might be a person who had been arrested earlier that day for battery to another female resident and after his release, had returned to the premises. After examining the circumstances, the officers believed there was a burglar in the building and radioed for assistance. Ten additional officers came to the scene to help secure the building. One of the officers knocked on the door several times, but received no response. Twenty-five minutes after they arrived on the scene, police gained entrance to the building by the use of a key provided by Ray. Police found Clay on an unlighted stairwell leading to the basement. Clay identified himself and correctly informed police that he lived in the residence. The officers learned that Clay had been arrested earlier relating to domestic trouble, but no charges and no restraining order had been issued as a result of the arrest. Clay told police that he had come to remove his belongings. Since he did not have a key, and because of a dispute with his girlfriend, he broke the window to gain entry. The police arrested Clay for disorderly conduct. No complaint, however, was ever issued for such a charge.

Probable cause to arrest requires that at the moment of arrest, the arresting officer knew of facts and circumstances which were sufficient to warrant a prudent person to believe that the person arrested had committed or was committing an offense. This requirement concerns only "probabilities" and is fulfilled if the totality of the circumstances leads a reasonable officer to believe that guilt is more than a possibility. See State v. Paszek, 50 Wis.2d 619, 625, 184 N.W.2d 836, 840 (1971).

Whether historical facts constitute probable cause for arrest is in itself a question of "constitutional fact" involving the application of federal constitutional principles which we review independent of the conclusions of the trial court. State v. Mitchell, 167 Wis.2d 672, 684, 482 N.W.2d 364, 368 (1992). This review process requires objectively analyzing the facts and circumstances of Clay's arrest regardless of the officer's intent, motivation or belief. As long as there are objective facts that would have supported a correct legal theory for the arrest, it is valid regardless of the police officer's personal opinion of the legal basis for the arrest. State v. Baudhuin, 141 Wis.2d 642, 648-51, 416 N.W.2d 60, 62-63 (1987). Upon review, we are concerned with whether a trial court is correct rather than with the process by which it achieved rectitude. Id.

The trial court, in concluding that there was probable cause for the arrest, was somewhat ambivalent in stating its reasons for reaching its conclusion. It alluded to three bases for the arrest: (1) violation of a no contact order; (2) criminal damage to property; and (3) disorderly conduct. Indeed, the factual context of Clay's actions might very well have supported an arrest for any one of the three alternate legal theories. We, however, shall only examine whether Clay's conduct satisfied a probable cause finding for disorderly conduct.

Section 947.01, Stats., defines disorderly conduct. Since the facts leading up to Clay's arrest are not in dispute, we direct our attention to that portion of the statute which reads: "or otherwise disorderly conduct on the circumstances in which the conduct tends to cause or provoke a disturbance." This part of the statute generally denominated as the "catchall clause" proscribes otherwise disorderly conduct which tends to disrupt good order and to provoke a disturbance. City of Oak Creek v. King, 148 Wis.2d 532, 541, 436 N.W.2d 285, 288 (1989). In determining whether conduct is "otherwise disorderly," it is crucial to examine the context in which the conduct occurred.

The police who were involved in Clay's arrest were dispatched to a reported burglary in progress at 2712 North 44th Street in the City of Milwaukee at 10:45 p.m. They discovered a broken basement window at the rear of the two-family duplex. Contemporaneously, one officer observed, through an upstairs window, the movement of an unidentified person. Several attempts were made to get someone to come to the door, but no response occurred. One of the officers heard footsteps on some interior steps. A resident of the duplex informed the officers that she had fled the building with her child and ran across...

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