State v. Dombrowski

• Decision Date: 31 October 1969
• Docket Number: No. S,S
• Citation: 44 Wis.2d 486,171 N.W.2d 349
• Parties: STATE of Wisconsin, Respondent, v. Chester J. DOMBROWSKI, Appellant. tate 26.
• Court: Wisconsin Supreme Court

Page 349

171 N.W.2d 349

44 Wis.2d 486

STATE of Wisconsin, Respondent, v. Chester J. DOMBROWSKI, Appellant.

No. State 26.

Supreme Court of Wisconsin.

Oct. 31, 1969.

Rehearing Denied Dec. 19, 1969.

On September 9, 1967, Chester J. Dombrowski, the appellant, a Chicago policeman, arrived at his brother Bernard's farm in Fond du Lac county. Appellant owned a 1960 blue Dodge which he had driven from Chicago to the farm.

Later that evening the Dodge became disabled near Kewaskum and on September 10th appellant had the Dodge towed to his brother's farm where it was left. Appellant's brother owned the farm but rented it out to tenants, keeping only one room for use by himself or members of his family when they were in the area. The appellant returned to Chicago with his brother on the afternoon of September 10th.

At approximately 12:30 a.m. on September 11, 1967, appellant rented a 1967 Ford Thunderbird with Illinois license plates at O'Hare Field for the stated purpose of coming back to Wisconsin to pick up some items he had left in his disabled Dodge. The Thunderbird was maroon with a black top.

At about four a.m. on September 11, 1967, the tenant on the farm saw a 'red car' with Illinois license plates parked next to the disabled Dodge. Both cars were approximately 150 feet from the farm house. The 'red car' was parked next to the Dodge from about four a.m. until after six a.m. It was gone by 7:45 a.m. on September 11, 1967. No one at the farm had seen or heard anything unusual during the time the 'red car' was parked there.

At about 9:40 in the morning of September 11, 1967, appellant purchased two hand towels in a department store in Kewaskum. During the evening of that day, appellant was seen drinking in several taverns in the area.

At about 10:30 p.m. on the night of September 11, 1967, appellant drove the Thunderbird off a highway in Washington county and crashed into a bridge abutment. After the accident, a passerby gave the appellant a ride back to Kewaskum where appellant notified the Washington county sheriff's office of the accident. Two Washington county traffic officers accompanied appellant back out to the accident scene during which time appellant repeatedly told them that he was a Chicago police officer.

The officers investigated at the accident scene and one of them, Officer Boudry, checked through the interior of the car looking for appellant's service revolver, since he assumed Chicago police officers carried their guns with them at all times. No gun belonging to the appellant was ever found. Thereafter the Thunderbird was towed from the accident scene to a garage in Kewaskum by a wrecker.

Then appellant was taken to the sheriff's office in West Bend and placed under arrest for drunken driving at approximately 11:58 p.m. on September 11th. Following this arrest, appellant was taken to a hospital in West Bend where he was treated for minor injuries and placed under observation for the night.

At approximately 2:13 a.m. on September 12, 1967, or about two and one-quarter hours after appellant's arrest for drunken driving, the other investigating officer, Officer Weiss, went to the garage in Kewaskum where the Thunderbird was and checked for the appellant's service revolver. Officer Weiss did not at this time have a search warrant, nor had appellant consented to this activity.

When Officer Weiss checked the Thunderbird he opened the trunk of the automobile and from the trunk he removed several items including a police nightstick stamped with the name 'Dombrowski,' a rain cost, a pair of what appeared to be police uniform trousers, a towel of the same color, design and brand as that purchased by appellant from the department store, and a section of a floor mat which was subsequently found to match the floor mat in appellant's 1960 Dodge. All of these items were splattered with a substantial amount of what was subsequently identified as type O human blood.

Later that day, September 12th, while the appellant was still in the hospital and still under arrest on the drunken driving charge, he informed the Washington county authorities that he wished to see an attorney. Attorney Clyde Schloemer of West Bend was contacted and he went to the hospital to consult with appellant. After this conference Attorney Schloemer informed the Washington county authorities that a body could be found in the dump area on the Dombrowski farm in Fond du Lac county.

Subsequently at about three p.m. on the afternoon of September 12, 1967, a body of a male clad only in a T-shirt was found in the dump area of the Dombrowski farm. The body which was subsequently identified as being Herbert McKinney, was found three blocks from the appellant's disabled Dodge. A white sock was found near the body.

At the time the body was found, Under-sheriff Raymond Howard of the Fond du Lac county sheriff's office looked through the car windows into appellant's 1960 Dodge and saw that the back seat was saturated with what appeared to be blood. He also spotted what looked like a bloodstained briefcase. At 8:02 p.m. on the evening of September 12, 1967, Howard applied for a search warrant in order to search the 1960 Dodge. This warrant was issued at 8:15 p.m. by the Hon. H. W. McEssy, Fond du Lac county judge. The search of the Dodge produced the briefcase, and the bloodstained back seat. During an inspection of the same car on the following day by an officer of the state crime lab, Cleon Mauer, a section of the floor mat, covered with blood, was discovered and a white sock, identical to the one found near the body, was recovered. This white sock, too, was splattered with blood. The blood found on the briefcase, floor mat, sock, and back seat of the Dodge was later identified as being type O human blood.

An autopsy on the body on September 12, 1967, revealed that the victim had been shot at close range in the head at the left temporal area; that the victim had type O blood, but that the body only had about 70 cc's of blood left in it when found (7,000 cc's is the normal amount found in a human body); that death was caused by a bullet wound to the head with secondary brain damage and hemorrhage; that the time of death was approximately seven a.m. on September 11, 1967, plus or minus six hours either way; that the victim probably lived for about an hour after he was shot.

A .38 caliber bullet was recovered from the victim's head and upon subsequent microscopic analysis, it was determined that this bullet had been fired by a gun rifled with six lands and grooves to the left.

A grand jury was subsequently empaneled to hear testimony and on March 25 1968, returned an indictment charging defendant with the first-degree murder of Herbert McKinney.

The trial was held in Fond du Lac county and on July 18, 1968, a jury returned a verdict of guilty. Appellant was sentenced to life imprisonment and after making the appropriate after-verdict motions, which were denied, appellant appeals from the judgment of conviction. Further facts are stated in the opinion.

David E. Leichtfuss, Milwaukee, for appellant.

Robert W. Warren, Atty. Gen., William A. Platz and Betty R. Brown, Asst. Attys. Gen., Madison, Alexander P. Semenas, Dist. Atty., Fond du Lac, for respondent.

WILKIE, Justice.

Appellant's principal attack on his conviction is that the evidence is insufficient to support a finding of guilt. But before we analyze that contention we first must consider appellant's assertion that much of the state's important evidence was produced by searches which were violative of his constitutional rights.

I. SEIZURE OF EVIDENCE.

A. 1967 Thunderbird

At this point, a brief reiteration of the facts surrounding the seizure of state's Exhibits Nos. ,1 through 13 is helpful.

Late in the evening of September 11th, appellant was driving the rented 1967 Thunderbird in Washington county when he ran off the road and hit a bridge abutment. Shortly thereafter a passerby picked up the appellant on the highway and took him back to Kewaskum where appellant then notified the Washington county sheriff's department of the accident. Appellant met Officers Weiss and Boudry at a tavern in Kewaskum and accompanied them back out to the accident scene. During this time he repeatedly informed the officers that he himself was a Chicago police officer. When they reached the accident scene, Officer Boudry made a cursory examination of the inside of the Thunderbird, including the glove compartment and under the seat, looking for appellant's service revolver, which he assumed metropolitan police officers always carried with them. The record does not reveal whether a search of appellant's person was made at this time or, for that matter at any time. This examination revealed nothing. In any event, a wrecker was called to remove the Thunderbird to a garage in Kewaskum.

In the meantime, appellant was taken to the sheriff's office in West Bend where, at 11:58 p.m., he was placed under arrest for drunken driving. The appellant was removed to a hospital for treatment for minor injuries where he remained for the night in a guarded room.

Approximately two and one-quarter hours after appellant was arrested, Officer Weiss went to the garage in Kewaskum to again look for the appellant's service revolver in the car. It is established that Officer Weiss did not have a search warrant, did not have defendant's consent to search the car, and did not know of the murder of McKinney at this time.

During this examination of the car, Officer Weiss again checked through the inside of the Thunderbird for the gun. Finding nothing, he opened the trunk of the vehicle wherein he found and seized the blood soaked items previously described. These items were ultimately admitted into evidence at appellant's trial as state exhibits, Nos. 1 through 13, the most important of which was Exhibit No. 13, part of the floor mat (bloodstained) of the 1960 Dodge.

Whether searches and seizures are valid is a...