State v. Hamm
| Decision Date | 28 July 1988 |
| Docket Number | No. 87-1699-CR,87-1699-CR |
| Citation | 146 Wis.2d 130,430 N.W.2d 584 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Richard G. HAMM, Jr., Defendant-Appellant. * |
| Court | Wisconsin Court of Appeals |
Jack E. Schairer, Asst. State Public Defender, for defendant-appellant.
Donald J. Hanaway, Atty. Gen., and David J. Becker, Asst. Atty. Gen., for plaintiff-respondent.
Before GARTZKE, P.J., and DYKMAN and SUNDBY, JJ.
Richard Hamm appeals from a judgment of conviction on eleven felony counts, including sexual assaults, attempted sexual assaults, and burglaries, contrary to secs. 940.225(1)(b) and 943.10(2)(b), Stats., and from an order denying his motion for a new trial. The several issues he raises are whether (1) the counts regarding 1983 incidents should have been separately tried from those arising out of a 1985 incident; (2) the trial court abused its discretion by refusing to admit expert testimony on eyewitness identification; (3) the court should have excluded certain evidence; (4) Hamm's trial counsel was ineffective; and (5) the court abused its discretion by imposing sentences totaling 105 years. Finding no prejudicial error, we affirm.
On September 5, 1983 two girls, 12 and 13 years old, were sexually assaulted in a Madison apartment. Before sunrise, the 12-year-old, C.C. awoke with a man kneeling at her bed. She described him as a white male, about 5' 6"' tall, 150 lbs., short light brown hair with traces of a mustache and whiskers, and wearing a brown plaid long-sleeved shirt and faded blue jeans. At Hamm's trial she said the man wore a blue baseball cap and a "mostly white" towel over part of his face and tennis shoes and carried a knife. C.C. said she saw part of his face "for a couple seconds" when the towel fell down. By this time the sun was up; she could have read a newspaper. She identified Hamm in the courtroom as her attacker. The other girl, J.C., described him as a white male about 5' 5"', medium build and light brown straight hair. He wore a Burke Bar baseball cap and a towel over his face and had a knife. The towel was white with flowers on it. It was from the apartment. He wore a brown long-sleeved shirt. The knife had a serrated blade. He touched the sexual parts of both girls and made them touch his. When there was a noise upstairs, he ran out.
About 2:00 a.m. on December 13, 1983, P.O. awoke in her apartment, located in the same apartment complex (but on a different block) where the assaults just described had occurred. P.O. went to her living room and saw a man crouched near the kitchen. He wore a white long-sleeved shirt and brown pants, had dark curly or wavy hair, bushy eyebrows and high cheek bones, and was between 5' 10"' and 6' tall. He had a towel over his face and a knife in his hand. The towel and knife were from her apartment. He pushed her into the bedroom, they struggled, he pulled away and left, having said nothing. She could tell he was white but never saw his whole face. Entry had been made through a sliding glass window. Hamm's left thumb print was found on the window.
In the early morning hours of March 2, 1985, in an apartment in the same building and next to P.O.'s apartment, B.C. saw a man at the foot of her bed. It was too dark to read. He had a medium build, wore a light-colored towel on his face and was armed with a knife. He tried to have intercourse with her and then ran out of the apartment. The police were called. Within a minute and a half after receiving the dispatch, an officer in the next block on the same road saw a car accelerating out of a parking lot, and immediately checked the registration. The car was registered to Hamm's wife. The police went to Hamm's apartment and arrested him. Hamm's wife testified that about 3:30 A.M. that day she had called the police because her husband was not home.
B.C. testified that during the assault she resisted by reaching up and grabbing the knife the man was holding in his left hand. It was her knife and had been in her kitchen. When Hamm was arrested about an hour after the assault, he had a small cut or wound on his left hand. The police found a yellow "Cannon" towel in a dumpster about 70 feet from where Hamm had parked his wife's car outside their apartment. The towel was the only loose item in the dumpster, everything else having been packaged in garbage bags. The towel matched a "Cannon" towel which was missing from B.C.'s apartment after she was assaulted.
On March 7, 1985, the police conducted a lineup. P.O. identified a person other than Hamm as her assailant. B.C. was unable to identify anyone. C.C. identified Hamm, partly on the basis of his voice.
Hamm denied committing the 1983 assaults. He testified that the night of March 1, 1985 he drank at various bars until he was drunk, then drove his wife's car around and finally stopped to sleep, then awoke, went home, again fell asleep and awoke when the police arrived.
Two or more crimes may be charged in the same complaint ... in a separate count for each crime if the crimes charged ... are of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan.
To be of the "same or similar character" under sec. 971.12(1), Stats., crimes must be the same type of offenses occurring over a relatively short period of time and the evidence as to each must overlap. State v. Hoffman, 106 Wis.2d 185, 208, 316 N.W.2d 143, 156 (Ct.App.1982). It is not sufficient that the offenses involve merely the same type of criminal charge. Id. Whether charges are properly joined in a criminal complaint is a question of law. Id.
The crimes charged relating to the 1985 and 1983 incidents were the same type of offenses, since each incident gave rise to armed burglary and first-degree sexual assault charges.
The evidence overlaps. The similarities between the acts in each incident tended to establish the identity of the criminal. In each incident, the perpetrator entered a home in the small hours of the morning armed with a knife, disguised, and committed a sexual assault. Each occurred in apartments on the same street within a few hundred feet of each other, two of the three assaults occurring in adjoining apartments, and in each case entry and exist were through windows facing the same wooded area. In each case the perpetrator entered unarmed but armed himself with a knife taken from the premises, concealed his face with a towel taken from the premises, and entered to commit a sexual assault.
In Francis v. State, 86 Wis.2d 554, 560-61, 273 N.W.2d 310, 313-14 (1979), our supreme court concluded that where crimes charged involved two or more incidents which exhibited the same modus operandi, were close in time, and occurred within the same geographic area, the acts were connected or constituted parts of a common scheme or plan which tended to establish the identity of the perpetrator. The court held that the evidence of each crime would be admissible in separate trials for each, and joinder was proper under sec. 971.12(1), Stats.
In Francis, however, the two incidents on which charges were based were thirty-five days apart. 86 Wis.2d at 561, 273 N.W.2d at 313. Here fifteen to eighteen months lapsed between the 1983 and 1985 incidents, and the question is whether that is a "relatively short period of time."
When we said in Hoffman, 106 Wis.2d at 208, 316 N.W.2d at 156, that for joinder purposes crimes are of the same or similar character if they are the same type of offenses occurring over a relatively short period of time and the evidence as to each count overlaps, we quoted from United States v. Shearer, 606 F.2d 819 (8th Cir.1979). We relied on Shearer because of the similarities between the federal and Wisconsin rules governing joinder and severance. Federal cases therefore provide some guidance to the resolution of joinder and severance issues. Hoffman at 208 n. 8, 316 N.W.2d at 156. The Shearer court held that a two-week period between joined offenses did not violate the "relatively short period of time" factor. 606 F.2d at 820.
The Eighth Circuit has refined the "relatively short period of time" requirement it applied in Shearer. In United States v. Rodgers, 732 F.2d 625, 629 (8th Cir.1984), the court said that the time-period factor
is to be determined on a case-by-case approach; there is no per se rule on when the time period between similar offenses is so great that they may not be joined. Indeed, that is why we have referred to a 'relatively short period of time' between the two offenses. The time period is relative to the similarity of the offenses, and the possible overlapping of evidence. [Emphasis in original.]
The Rodgers court held that a twenty-month period between offenses did not violate the "relatively short period of time" factor, when the offenses were of the same type, the evidence would overlap somewhat, and "relative to these factors," the time period was sufficiently short. Id. at 629-30.
Here the basic facts in the 1983 and 1985 incidents are greatly similar and the overlap is substantial. We conclude that the "relatively short period of time" requirement has been satisfied.
We reject the contention that joinder was improper because it precluded Hamm's invocation of a fifth amendment privilege as to the 1983 incidents but not as to the 1985 incident. Hamm's sole authority to support his preclusion contention is State v. Hall, 103 Wis.2d 125, 307 N.W.2d 289 (1981), but that decision does not assist him. The Hall court refused to adopt a rule that severance is...
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