State v. Davis, S

• Decision Date: 05 February 1975
• Docket Number: No. S,S
• Parties: STATE of Wisconsin, Respondent, v. Wilbur Eugent DAVIS, Appellant. tate 147.
• Court: Wisconsin Supreme Court

Page 505

225 N.W.2d 505

66 Wis.2d 636

STATE of Wisconsin, Respondent, v. Wilbur Eugent DAVIS, Appellant.

No. State 147.

Supreme Court of Wisconsin.

Feb. 5, 1975.

The defendant-appellant, Wilbur Eugene Davis (hereinafter defendant), was charged with the first-degree murder of Allean Mosley, contrary to sec. 940.01, Stats. Following a jury trial and a verdict of guilty as charged, he was sentenced to a term of life imprisonment. Postconviction motions requesting that the judgment be set aside or a new trial granted were denied. Defendant appeals from the judgment and the order denying postconviction motions.

James M. Shellow, Stephen M. Glynn, Milwaukee, for appellant; James A. Walrath, Milwaukee, of counsel.

Victor A. Miller, Atty. Gen., Nazianz, and Wm. L. Gansner, Asst. Atty. Gen., Madison, for respondent.

CONNOR T. HANSEN, Justice.

Allean Mosley was killed during the night of April 5--6, 1972. At the time, she was living in a single-family residence in Milwaukee, with her daughter, Robin. She had been associating with the defendant for about four years after her divorce from Richard Mosley in 1967. The defendant had been to the Mosley house on numerous occasions and was well known to the victim's daughter, Robin.

The victim's mother, Mrs. Alberta Ford, who lived in the house directly behind that of the victim, testified that on March 27, 1972, the victim had attempted to break up with the defendant and begged him to leave her alone. She further testified that the defendant had a gun and that he had made several threatening comments to the victim.

Marvin Hugh Nunn, a school teacher and part-time bartender at the Town House cocktail lounge at which the victim also worked part time, testified as to an incident in March, 1972, between the defendant and the victim wherein the defendant allegedly knocked the victim off a bar stool, grabbed her around the throat and slapped her.

Detective Roosevelt Harrell testified for the state that in a post-arrest statement given by the defendant, he admitted that about a week prior to the alleged murder he had caused a disturbance at the victim's home and that the victim had called the police. The defendant's statement also noted that Allean had been associating with another man from out of town and that the defendant did not approve. The disturbance between defendant and the victim related to her seeing this other man. Defendant also told Detective Harrell that he, the defendant, owned four guns. James Perlewitz, a Milwaukee police detective, testified that the victim had been dating a man named Brown from Racine and had been using Brown's Cadillac while her car was being fixed.

Eddie Donaldson, Jr., an insurance salesman who worked with the victim, testified that he observed a fight between the victim and the defendant at the victim's birthday party in May, 1971, wherein the defendant pushed the victim down and struck her numerous times.

The principal witness for the state was the victim's daughter, Robin, who was six years old at the time of the alleged murder, and eight years old at the time of the trial. Robin testified that she and her mother were home watching television in the bedroom on the night of April 5, 1972. She stated that her father, Richard Mosley, called the home while they were watching television and that they talked for a short while. Shortly after her father called, and while the same television program was on--although she could not remember the name of the program--the doorbell rang. She stated that her mother told her to stay in the bedroom as her mother answered the door.

At this point there was a divergence in Robin's testimony. Her first testimony was that she remained in the bedroom, did not see the defendant, but heard and recognized his voice. She later was recalled to the stand, by order of the trial court, when it was determined that she wished to change her story. She then testified that she peeked into the living room and saw the defendant. At one point after she was recalled, she also testified that she did not see the defendant. However, her final testimony to the jury was that she had seen the defendant.

Robin testified that after the defendant arrived, he and her mother got into a loud argument about a Cadillac that was parked in the driveway next to the victim's residence. She testified that the Cadillac was owned by David Brown. She stated that after the argument she heard a shot. When it was quiet she fell asleep. She later woke up, found the television still on, but no program on it, and went into the living room. There she discovered her mother lying on the floor. She began to cry and then called the police. She also called her father, but did not remember what she had said to him.

Richard Mosley, the victim's former husband, testified for the state that he had phoned the victim at approximately 9:20 p.m. on April 5, 1972. He also testified, over objection, that Robin called him shortly after 5 a.m., April 6, 1972, and stated, "daddy, daddy, Wilbur killed mommy."

Annie B. Winters, the victim's nextdoor neighbor at the time of the incident, and Mrs. Ford, the victim's mother, both testified they heard a loud noise between 10:40 and 10:50 p.m. on April 5, 1972. Mrs. Ford characterized it as a shot. The pathologist who performed the autopsy on Allean Mosley, Dr. Helen Young, testified that the victim's death was caused by a single gunshot wound in the head, the gun having been in contact with the head at the time it was fired.

At the time of the defendant's arrest on the morning of April 6, 1972, he put on a pair of trousers which were subsequently found to contain a bloodstain of type A neg. blood. This was the same blood type as the victim but was not the same blood type as the defendant. There was a dispute in the evidence as to whether the arresting officers, at the time of the arrest, told the defendant to put on the same clothes he was wearing the night in question, or whether he was just handed clothes to wear without comment. The trousers were the subject of a pretrial motion to suppress, which was denied by the trial court on July 2, 1973. The defendant presented testimony by other people who had seen him the night in question, to the effect that he was wearing a blue suit and not the trousers which contained the bloodstain.

The defendants' alibi witnesses testified that he was in the Main Event bar from 8 p.m. until 10 p.m., April 5th; that he then went to the Town House lounge and remained until approximately 10:20 p.m.; that he returned to the Main Event bar arriving about 10:45; that he left the Main Event bar at 11:45; and, that he then went to the Omega Club, arriving about 12:00 and remaining continuously in someone's presence until 3:30 a.m. on April 6th. The defendant admitted that the route he took between the Town House and the Main Event would have brought him within a block-and-one-half of the victim's home.

The defendant also called several character witnesses who established that the defendant had been the director of the LaVarnway Boys' Club and had worked for the Joseph Schlitz Brewing Company in the industrial relations department as Director of the Department of Urban Affairs, and that he had an impeccable reputation in the community for truth and veracity. It was also established that the defendant was a college graduate; had been very active in community affairs, serving on several boards and committees; and, that he had received awards for his community involvement.

Appellate counsel, after his apparent meticulous search of the trial record, raises numerous issues. We perceive them to be as follows:

1. Did the trial court err in determining that the child witness was competent to testify?

2. Did the trial court err in permitting the child's testimony without requiring an oath or solemn promise to tell the truth?

3. Did the trial court err in admitting two out-of-court statements of the child witness?

4. Did the trial court err in denying the motion for mistrial and in requiring the State to recall the child witness to disclose that she had lied in her previous testimony?

5. Did the trial court abuse its discretion in failing to grant a continuance after it was disclosed that the child witness had lied in her former testimony?

6. Did the trial court err in suppressing the subpoena served on the prosecuting attorney?

7. Did the trial court err in not granting a mistrial upon the insertion of unsworn testimony by the prosecuting attorney?

8. Did the trial court err in refusing to suppress the physical evidence of the defendant's trousers allegedly worn on the night of the murder?

9. Did the trial court err in not giving a reputation instruction?

10. Did the trial court err in excluding testimony tending to establish a possible motive on the part of the victim's ex-husband?

11. Should a new trial be granted in the interest of justice?

It is readily observed that many of the issues raised relate to the testimony and statements of Robin Mosley. Appellate review requires review of the record in light of the totality of the circumstances and the broad discretion of a trial court as to the admission of testimonial evidence of a child six years of age at the time of the alleged murder of her mother, and eight years of age at the time of the trial, some eighteen months later.

COMPETENCY OF CHILD.

The defendant contends that the trial court erred in failing to strike the testimony of Robin or declare a mistrial at such point as he claims it became apparent that she was an incompetent witness. The defendant claims that the competency of Robin was never properly determined by the trial court and that, in addition, the lack of competency became more apparent as she testified due to the inconsistencies in her story, the questions she was unable to answer, and the changing of her testimony with regard to seeing the defendant on the night in question which necessitated her...