State v. Doyle

• Decision Date: 29 October 1968
• Citation: 162 N.W.2d 60,40 Wis.2d 461
• Parties: STATE of Wisconsin, Respondent, v. William DOYLE, Appellant. STATE of Wisconsin, Respondent, v. Richard Collins GREENLEE, Appellant.
• Court: Wisconsin Supreme Court

Page 60

162 N.W.2d 60

40 Wis.2d 461

STATE of Wisconsin, Respondent, v. William DOYLE, Appellant.

STATE of Wisconsin, Respondent, v. Richard Collins GREENLEE, Appellant.

Supreme Court of Wisconsin.

Oct. 29, 1968.

Powell, Gee & Powell, Superior, for Greenlee.

Bronson C. La Follette, Atty. Gen., William A. Platz and Betty R. Brown, Asst. Attys. Gen., Madison, Joseph A. McDonald, Douglas Co. Dist. Atty., Superior, for respondent.

HANLEY, Justice.

The following issues are presented on appeal:

1. Was there probable cause for the arrest;

2. Was there a violation of due process by trying the defendants together;

3. Was defendants' right to effective counsel violated by appointing the same counsel to co-defendants;

4. Was there sufficient evidence to support a verdict of guilty; and

5. Should a new trial be awarded in the interest of justice?

The first three issues involve constitutional claims which were not raised at the trial level. ¹ The general rule regarding this court's initial review of alleged constitutional errors was set forth in Bradley v. State (1967), 36 Wis.2d 345, 359, 153 N.W.2d 38, 155 N.W.2d 564:

'This question was raised for the first time in the briefs that are before us on this appeal. We have frequently said that even the claim of a constitutional right will be deemed waived unless timely raised in the trial court. * * * We have, however, concluded that this court may nevertheless decide a constitutional question not raised below if it appears in the interests of justice to do so and where there are no factual issues that need resolution. * * *'

There are no factual issues which need resolution in this case. On the other hand it does not appear that the interests of justice will be served by reviewing the alleged errors either. However, since we believe that trial counsel has been unnecessarily criticized by the defendants' briefs, we will discuss the alleged errors.

Probable Cause.

The defendants contend that evidence which was admitted at the trial was obtained pursuant to an illegal search and seizure. It is conceded that a reasonable search and seizure pursuant to a lawful arrest is valid without a search warrant. State v. Phillips (1952), 262 Wis. 303, 55 N.W.2d 384; State v. Kroening (1956), 274 Wis. 266, 79 N.W.2d 810, 80 N.W.2d 816. However, we stated in State v. Camara (1965), 28 Wis.2d 365, 373, 137 N.W.2d 1, 5:

'* * * For a search incidental to an arrest to be legal the arrest itself must be legal, and for the arrest to be legal probable cause for the arrest must exist. * * *'

This court recently discussed the issue of 'probable cause' in Kluck v. State (1967), 37 Wis.2d 378, 389, 155 N.W.2d 26, 31:

'Probable cause exists if the facts and circumstances known to the police officer warrant a prudent man in believing an offense has been committed * * * (citing Henry v. United States (1959), 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134) Probable cause to arrest refers to that quantum of evidence which would lead a reasonable police officer to believe that the defendant probably committed a crime. * * *'

Support for the above conclusion is found in State v. Camara, supra, and Browne v. State (1964), 24 Wis.2d 491, 129 N.W.2d 175, 131 N.W.2d 169, cert. denied, 379 U.S. 1004, 85 S.Ct. 730, 13 L.Ed.2d 706.

'In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. * * *' Brinegar v. United States (1949), 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879.

The facts and circumstances constituting probable cause may be summarized as follows: A burglary of the Nummi Jewelry Store was reported to the police department. Minutes later police officers who were assigned to investigate the alleged burglary and who were within a few blocks of the jewelry store came upon an automobile accident. In accordance with police department policy the officers stopped at the scene of the accident to determine whether anyone had been injured. Officer Gotelaere got out of the squad car and approached a 1958 Plymouth which was stopped in the middle of the intersection. The two young defendants were standing next to the Plymouth car. Officer Gotelaere observed that neither of these men was injured and then checked the other car involved. None of its occupants was injured either. In returning to his squad car Officer Gotelaere noticed a watch box on the pavement immediately below the right front door of the Plymouth. The officer picked up the box and found that it contained a new Bulova watch. The price tag of $69.95 was still on it. The officer then glanced into the car and saw a relatively large, partially covered box on the rear floor of the automobile which contained a large amount of new jewelry.

Officer Gotelaere immediately drew his revolver and ordered the two defendants to his squad car. With the assistance of Officer Moe, the defendants were frisked. Could anyone seriously contend that a reasonable and prudent policeman should not have immediately acted as Officer Gotelaere did in this instance?

Defendants do object, however, on the grounds that there was no way to connect them with the automobile and that they were never told that they were under arrest. It does not appear in the record that the officer ever asked the defendants if they had been in the automobile nor was that issue of fact ever raised. However, it was established that the officer stopped specifically to determine whether anyone was injured. It was also established that the defendants were standing next to the damaged car. The officer was on his way back to his squad car when he noticed the jewelry. He had already determined that nobody involved in the accident was injured. Obviously, the officer had previously ascertained that the defendants were the ones who were in the damaged Plymouth.

The defendants also contend that the manner of arrest was illegal. More particularly, they contend that they were not told of being placed under arrest.

This court discussed arrest in Huebner v. State (1967), 33 Wis.2d 505, 516, 147 N.W.2d 646, 651:

'* * * The central idea of an arrest is the taking or detaining of a person by word or action in custody so as to subject his liberty to the actual control and will of the person making the arrest * * * But there must exist the intent to take into custody and a corresponding understanding by the person arrested that he is in 'custody,' although no formal declaration of arrest is required. * * *'

The defendants obviously knew that their liberty was restrained after the officer drew his gun and told them to place their hands against the squad car.

We find no merit to the defendants' contention that the arrest was invalid.

Both defendants' counsel on appeal have contended that trial counsel was incompetent for failing to move the trial court for a suppression of the evidence on the illegal arrest. A review of the facts leads us to believe, and we assume it led trial counsel to believe, that such an argument was completely without merit.

Trial counsel should not be subjected to criticism by appeal counsel for failing to make a meritless motion. Failure to comment on the propriety of such attacks would compel trial counsel to make a record of all the constitutional objections regardless of merit just to preserve his reputation. The record clearly indicates that trial counsel was more than competent in his objections to the admission of testimony into evidence.

Separate Trials.

The issue of separate trials is raised only by the defendant Greenlee. He contends that his defense was prejudiced because the only stolen property admitted into evidence was found on the person of Mr. Doyle. Mr. Greenlee contends that the state never established a connection between himself and Mr. Doyle and the admission of the stolen property into evidence amounted to an entire line of evidence which was not applicable to his trial.

The general rule on consolidation in Wisconsin is found in Jung v. State (1966), 32 Wis.2d 541, 545, 145 N.W.2d 684, 686:

'* * * A trial court has power to try cases together when the defendants are charged with the same offenses arising out of the same transaction and provable by the same evidence. State ex rel. Nickl v. Beilfuss (1962), 15 Wis.2d 428, 113 N.W.2d 103.'

Ordinarily consolidation is a matter entirely within the discretion of the trial judge. Cullen v. State (1965), 26 Wis.2d 652, 133 N.W.2d 284.

Even when the offenses arise out of the same transaction, however:

'* * * Individual defendants may still obtain a severance if a joint trial would be prejudicial to their individual interests. 'Prejudice' in this sense, means that an entire line of evidence relevant to the liability of only one defendant may be treated as evidence against all defendants by the trier-of-fact simply because they are tried jointly.' State v. Nutley (1964), 24 Wis.2d 527, 543, 129 N.W.2d 155, 161.

Nevertheless, Mr. Greenlee's argument must fail because the state did prove a connection between the defendants. There was testimony that the defendants were standing together next to the wrecked Plymouth. The defendants were both young. Each of them carried a loaded and concealed weapon. Since the connection between the defendants was sufficiently established, the stolen property found on Mr. Doyle was relevant admissible evidence against Mr. Greenlee.

'The state may show possession of the stolen property by * * * another than defendant * * * if a conspiracy between them is proved, or if there is...