State v. Marshall, 77-066-CR

• Decision Date: 06 November 1979
• Docket Number: No. 77-066-CR,77-066-CR
• Citation: 92 Wis.2d 101,284 N.W.2d 592
• Parties: STATE of Wisconsin, Respondent, v. Myles Walter MARSHALL, Appellant.
• Court: Wisconsin Supreme Court

Page 592

284 N.W.2d 592

92 Wis.2d 101

STATE of Wisconsin, Respondent, v. Myles Walter MARSHALL, Appellant.

No. 77-066-CR.

Supreme Court of Wisconsin.

Argued Oct. 9, 1979.

Decided Nov. 6, 1979.

Robert Silverstein, argued, for appellant; Luck & Rosenthal, S. C., Milwaukee, of counsel.

David J. Becker, Asst. Atty. Gen. (argued), and Bronson C. La Follette, Atty. Gen., on brief, for respondent.

BEILFUSS, Chief Justice.

The body of Thomas West was discovered at about 12:30 p. m., on February 20, 1975, on the floor of his apartment at 1921-B North 24th Place in the City of Milwaukee by an off-duty police officer who owned the building and had stopped to collect his rent. West had been shot three times with a shotgun at close range.

The defendant, Myles Walter Marshall, was originally charged with West's murder as a result of statements made to the police by one Jerry Lee Robinson who lived directly above West's apartment. Sometime after the date of the offense Robinson told police that on the night of the murder he was looking out the window of his apartment when he saw four men get out of a car and walk up to the porch of the building. One of the men returned to the car and removed a rifle or shotgun. Robinson stated that this man then went back to the porch and handed the gun to the defendant. The four men then entered the door of the building and disappeared from Robinson's view. A short time later, Robinson stated, he heard three shots coming from the downstairs apartment followed by a rumbling noise. He then watched as all four men exited the building, got back into the car and drove away.

On the basis of Robinson's statements to the police, a criminal complaint was issued charging defendant with first-degree murder, party to a crime. Following his testimony at a preliminary examination, defendant was ordered bound over for trial. The State subsequently submitted Robinson to several polygraph examinations at the State Crime Lab, however, and as a result of these tests, a state polygraph examiner concluded that, at least with respect to some of his statements, Robinson was not being truthful. The defendant then moved the trial court to dismiss the preliminary hearing held in the matter and to find the complaint insufficient for the court to exercise personal jurisdiction over him.

A hearing was held on this motion and Robinson was again called to testify. At that hearing, however, Robinson refused to answer any questions. The trial court found Robinson in contempt for his refusal to cooperate, but nevertheless denied defendant's motion to dismiss and the matter proceeded to trial.

The date of the hearing on defendant's motion to dismiss had originally been set as the date on which defendant's trial was to commence. For that reason, another witness, Roosevelt Cummings, was also subpoenaed to appear in court on that day. Cummings occupied the cottage directly to the rear of the building in which West's and Robinson's apartments were located. On the night of the murder he had been watching television when he was interrupted by a knock at his front door. He answered the door and was asked by a person whom he had not seen before if a Tom Slick lived there. Realizing that this person was looking for Thomas West, Cummings directed him to the forward building and told him he would find the man he was looking for there.

As the person was leaving, Cummings observed a car, which had been parked on the street during the conversation, turn into the alleyway adjacent to the two buildings. The car stopped next to West's apartment. Cummings, who had remained at the door, watched as the person he had spoken with walked towards the car where he was asked by an occupant on the passenger side what he had learned. He responded that West lived in the rear apartment of the front building and continued walking until he reached the rear door to that building. Cummings then observed two men get out of the car and join the other person on the porch outside of the apartment building. He watched until he saw these men knock on the door of the building and, at that point, he closed his own door and resumed watching television.

Shortly thereafter, Cummings heard loud voices and arguing coming from West's apartment. After about five to six minutes he heard a car start and back out of the alley. He then heard more loud noises and, suddenly, three quick noises that sounded like muzzled gunshots. He immediately jumped up from his couch and turned off his light, but did not call the police because, as he later testified, he feared for his own safety.

Although Cummings was later shown a picture of the defendant by the police, along with a number of other pictures, he failed to identify him as the man who had come to his door looking for West on the night of the murder. In fact, on the same day as the murder, Cummings had picked out a photograph of one David Darnell Hardy as resembling the man who had asked him the whereabouts of Tom Slick. On August 18, 1975, however, as Cummings was sitting in the rear of the courtroom, he saw the defendant sitting a few rows in front of him and immediately recognized him as the man he had seen that night. He reported this to a police officer, and several days later a line-up was held at which Cummings again identified the defendant as the man who had come to his door the night of the murder.

As a result of his identification of the defendant and Robinson's refusal to testify, Cummings became the State's key witness at defendant's trial. On the basis of his testimony the jury found the defendant guilty as charged. A judgment of conviction was entered on April 21, 1976, and defendant was sentenced to life imprisonment in the State Reformatory at Green Bay, Wisconsin.

Four principal issues are presented on appeal:

(1) Did the trial court have jurisdiction over the person of the defendant?

(2) Was the courtroom identification of defendant by Roosevelt Cummings impermissibly suggestive such that its use at trial deprived defendant of due process?

(3) Was the evidence sufficient to support the jury's verdict?

(4) Did the trial court err in its evidentiary rulings regarding the testimony about the condition of the victim's body, the photograph of the victim and the jury view of the scene?

Defendant first contends that the trial court lacked jurisdiction over his person because both the complaint and the preliminary examination were based primarily upon statements of Jerry Robinson who was later shown to be unreliable as a result of polygraph examinations performed by the State. Because Robinson was shown to be untruthful in his statements about the murder, defendant argues, those statements should have been excised in determining the sufficiency of the complaint and the preliminary examination. And because, without those statements, both the complaint and the preliminary examination fail to establish probable cause, the trial court did not have personal jurisdiction over the defendant.

We find this argument defective in three respects. First, the trial court was under no obligation to take notice of the results of the polygraph examinations performed on Robinson. These tests were administered to Robinson solely on the initiative of the State, and no stipulation was entered into between the parties that the results of the tests would be used in evidence.

This court has held that such a stipulation is a primary prerequisite to the admissibility of the results of such tests into evidence. State v. Stanislawski, 62 Wis.2d 730, 741, 216 N.W.2d 8 (1974). ¹ Moreover, the requirement of a written stipulation applies whether the admission of such evidence is sought by the defense or by the state, and whether the proceeding at which its admission is sought is a full trial or merely a hearing.

Because no stipulation was entered into here, the trial court did not err nor abuse its discretion in its refusal to admit the test results into evidence at the hearing on the motion to dismiss. Because the polygraph results were the sole grounds for defendant's motion to dismiss, it also follows that the trial court did not err in denying the motion.

Secondly, defendant's argument fails because, even if a stipulation had been entered into, the results of the polygraph examinations administered to the State's witness were not relevant to the issues presented by defendant's motion to dismiss. The only issues presented by that motion were whether the complaint and preliminary examination were sufficient to demonstrate probable cause to believe that the defendant committed the crime for which he was charged.

Traditionally, this inquiry, with respect to the sufficiency of the complaint, has been limited to the factual allegations contained within the four corners of that document. Facts outside of the complaint were generally not to be considered in assessing its sufficiency, unless specifically incorporated by reference. State v. Williams, 47 Wis.2d 242, 252, 177 N.W.2d 611 (1970). This same rule was also followed in determining the sufficiency of a supporting affidavit for a search warrant. State v. Mier, 254 Wis. 180, 185, 35 N.W.2d 196 (1948).

Within the last decade, however, a number of courts began to move away from a strict application of the "four-corners" test when the truthfulness of an affiant's statements supporting an application for a search warrant was called into question. See United States v. Lee, (4th Cir. 1976), 540 F.2d 1205, certiorari denied, 429 U.S. 894, 97 S.Ct. 255, 50 L.Ed.2d 177, and cases cited therein. This court also held at least implicitly on several occasions that it would not confine its review to the face of the affidavit where there were alleged material or intentional misstatements of fact by the affiant. ²

And in the recent case of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the United States Supreme Court held that a state court's refusal...