State v. DiMaggio

• Decision Date: 05 January 1971
• Docket Number: No. S,S
• Citation: 182 N.W.2d 466,49 Wis.2d 565
• Parties: STATE of Wisconsin, Respondent, v. Samuel Salvatore DiMAGGIO and Anthony Francis Pipito, Appellants. tate 82.
• Court: Wisconsin Supreme Court

Page 466

182 N.W.2d 466

49 Wis.2d 565

STATE of Wisconsin, Respondent, v. Samuel Salvatore DiMAGGIO and Anthony Francis Pipito, Appellants.

No. State 82.

Supreme Court of Wisconsin.

Jan. 5, 1971.

Rehearing Denied March 2, 1971.

The defendants herein, Anthony Pipito and Samuel DiMaggio, were found guilty by a jury of:

(1) Attempted (sec. 939.32, Stats.) robbery (sec. 943.32(1)(a) and (b)) while armed (sec. 943.32(2)) and masked (sec. 946.62);

(2) Being parties to a crime (sec. 939.05); and

(3) Burglary (sec. 943.10(1)(a)), armed (sec. 943.10(2)(a)).

Defendant Pipito was sentenced to the state prison at Waupun for concurrent, indeterminate terms not exceeding twelve years on the attempted robbery charge and five years on the concealing identity charge. Pipito was also sentenced to an indeterminate term not exceeding fifteen years upon the charge of armed burglary, said term to run consecutively with the sentence for attempted robbery.

Defendant DiMaggio was sentenced to the state prison at Waupun for concurrent, indeterminate terms not exceeding fifteen years upon the attempted robbery charge and five years on the concealing identity charge. He was also sentenced to twenty years on the burglary charge, to run consecutively with the sentence imposed on the attempted robbery charge.

Each appeals from the judgments on the verdicts respectively and from orders denying motions to set aside the verdicts or for a new trial respectively.

On the morning of October 24, 1968, at about 8 a.m., Julius Theilacker and his wife Martha were in the kitchen of their home having breakfast. William Swan, the Theilacker's next door neighbor, was standing in the sunroom of his home making a telephone call and staring out of the window, facing south to the Theilacker's residence.

Mrs. Bernice Chopp was standing in front of the Theilacker residence on the corner of North 60th and Washington boulevard, waiting for a bus. Milwaukee Policemen James Hutchinson and Richard Retzer had just finished working the night shift and were heading home in Retzer's private car when it ran out of gas at 60th street and Washington boulevard. Retzer had gone on foot for gas and when he returned, he and Hutchinson raised the hood of his car to put some gas in the carburetor. William Swan noted these uniformed policemen as he looked out the window of his home.

Sam DiMaggio and Tony Pipito were somewhere on the Theilacker premises. With their faces masked, they were equipped with a suitcase full of burglarious tools and armed with a blackjack, rope and nickel-plated revolver.

Upon finishing his breakfast Julius Theilacker walked out to his garage and started to raise the overhead door. He never finished that task for in the next instant he was struck from behind. He was hauled into his garage as two or three masked men forced a sack over his head and tied it tightly about his neck. He was then shoved to the floor of the garage and, as his hands were tied behind him, he was told, 'All we want is your money.'

William Swan saw Mr. Theilacker being dragged into the garage by masked men and saw the overhead door come slamming down. He ran to the front door of his house and shouted for the police officers who had a moment earlier happened upon the scene. The policemen were gone. He ran back inside and called the police on the phone. Meanwhile, Officers Hutchinson and Retzer, who had just gone up the street to turn around, came back past the corner of 60th street and Washington boulevard. Mrs. Chopp, still waiting for her bus, flagged them down and told them that someone (pointing to the Swan house) needed help.

Swan had just completed his second phone call to the police when Retzer and Hutchinson rang his doorbell. He and Mrs. Swan informed these officers of what they had seen, and the officers raced toward the Theilacker residence. They split up and, as Hutchinson approached one corner of the garage, Retzer moved around toward the front of the Theilacker house. As Hutchinson stood near the garage he could hear a radio listing police calls. He then saw a masked man open a door in the short encased porch which connects the Theilacker garage and house. This man saw Hutchinson and Retzer and quickly stepped back in and closed the door.

Hutchinson then began to move around toward the back of the garage. At this time Julius Theilacker could hear his abductors moving off and he removed the hood from his head.

The first thing he saw was a man crawling out the back window of his garage. As Hutchinson rounded the corner behind the garage, he saw a man a few feet from the window starting to run. He chased him for three or four minutes on a circuitous route down the street and through several yards. He lost sight of this man for a short time; and then suddenly the defendant (DiMaggio) who had doubled back, emerged from a private yard not far from where Hutchinson was standing. Upon seeing Hutchinson, DiMaggio, gasping for breath and unable to run any farther, decided to try a bluff. He casually ambled up the street toward Hutchinson; and when they met, Hutchinson said, 'Where do you live?' The defendant replied, 'Over on the East side.' Asked what he was doing in the area, the defendant said, 'Working for someone.' Hutchinson placed the defendant under arrest.

At the same time that DiMaggio was making his departure through the garage window, Pipito had entered the house and encountered Mrs. Theilacker heading toward the garage. He stepped back out of sight; and as she passed him, he slipped a rope around her neck, struck a gun in her back, forced her to kneel and then lay face down on the kitchen floor while he warned her not to make an outcry.

A few moments later Pipito jerked Mrs. Theilacker to her feet and led her by the rope into the front hall. He opened a front hall closet, pulled out a sewing cabinet from the closet, shoved Mrs. Theilacker into the corner on the floor of the closet and closed the door.

Meanwhile, back in the garage, Julius had just finished untying his hands. Having seen only one man leave the garage, and fearing for his wife's safety, he picked up a claw hammer and proceeded into the house. He shouted for his wife. She replied from the closet, 'Julius, are they gone?' As Julius rounded the corner leading to the front hall, he saw Pipito 10 to 15 feet away with the nickel-plated revolver leveled at him. Pipito said, 'You take another step and I'll shoot you.' Julius Theilacker, in a wildly imprudent but highly admirable display of courage, replied, 'Shoot, you s.o.b.,' and he rushed the defendant with hammer raised. The defendant, no doubt nonplussed and dumbfounded by this seventy-nine-year-old man, stuck his gun in his pocket and fell all over himself trying to get out the front door. He ran north across the Theilacker lawn toward the Swan house. Mr. Swan saw this, and he also saw the defendant tear off his mask. As he ran past, he got a good view of the defendant's face.

Officer Retzer in the meantime had moved to a position where he could not see Pipito leaving the house. But a bystander on the corner of 59th and Washington shouted to Retzer that Pipito was escaping, and Retzer ran to the corner, but Pipito was then out of sight.

At this moment another officer appeared on a three-wheel cycle and Retzer got on the cycle with him. They began cruising and checking the yards for the suspect. At 58th and Vine streets Retzer saw Pipito and recognized him as a resident of Milwaukee's east side, an area to which Retzer had previously been assigned. They approached Pipito, and Retzer got off the cycle with gun drawn and told Pipito to turn around. He did and Retzer observed a blackjack protruding from his back pocket. Pipito was then patted down, and a revolver was found in his front pocket. He was placed in a patrol wagon and returned to the scene of the crime, where Mr. Swan identified him as the man whom he had seen tear off his red ski mask as he passed the Swan house while trying to make his escape.

Additional facts will be stated in the opinion.

Joseph P. Balistrieri, Milwaukee, for DiMaggio.

William J. Mantyh, Milwaukee, for Pipito.

Robert W. Warren, Atty. Gen., Madison, E. Michael McCann, Dist. Atty., Lee Edward Wells, Asst. Dist. Atty., for Milwaukee County, Milwaukee, for respondent.

HANLEY, Justice.

Numerous issues are presented on this appeal. We will first consider the issues that are common to both cases and then consider the issues personal to each defendant.

1. Were the defendants' apprehension, detention and arrests made upon the basis of probable cause or common law standards?

Pipito contends that Officer Retzer was not possessed of sufficient information to justify an arrest without warrant in these circumstances. He contends that at the moment Retzer put the handcuffs on him (just after discovering the blackjack), he (Retzer) had only hearsay information (from the Swans) that a crime had been committed and no information that Pipito was connected with the crime, if one had occurred.

Probable cause for an arrest without a warrant requires that an officer have more than a mere 'suspicion' (State v. Camara (1965), 28 Wis.2d 365, 137 N.W.2d 1; Beck v. Ohio (1964), 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142; Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889), but obviously he does not need the same quantum of evidence necessary for a conviction. The standard is objective, and more than a good faith belief on the part of the officer is necessary. Browne v. State (1964), 24 Wis.2d 491, 129 N.W.2d 175, 24 Wis.2d 511b, 131 N.W.2d 169, certiorari denied (1965), 379 U.S. 1004, 85 S.Ct. 730, 13 L.Ed.2d 706.

But it is only necessary that the information leads a reasonable officer to believe that guilt is more than a possibility. Browne, supra. The probability is one which would cause a reasonably prudent man--'not a legal technician'--to act. Brinegar v. United States (1949), 33, U.S. 160, 175...