State v. Reynolds

• Decision Date: 05 October 1965
• Citation: 28 Wis.2d 350,137 N.W.2d 14
• Parties: STATE of Wisconsin, Respondent, v. Paul Lloyd REYNOLDS, a/k/a Lloyd P. Reynoids, Appellant.
• Court: Wisconsin Supreme Court

Page 14

137 N.W.2d 14

28 Wis.2d 350

STATE of Wisconsin, Respondent, v. Paul Lloyd REYNOLDS, a/k/a Lloyd P. Reynoids, Appellant.

Supreme Court of Wisconsin.

Oct. 5, 1965.

Appellant Lloyd Reynolds was apprehended, along with Leo Kennedy and Allan Strong, near the Waller public school in Burlington on the night of October 29, 1960. Appellant was subsequently charged with burglary in violation of sec. 943.10(1)(a), Stats., and convicted following a jury trial.

The facts will be stated in the opinion.

Adrian P. Schoone, Racine, for appellant.

Bronson C. La Follette, Atty. Gen., Madison, William A. Platz and Betty R. Brown, Asst. Attys. Gen., Gerald Clickner, Dist. Atty., Racine, for respondent.

WILKIE, Justice.

Two issues are presented on this appeal:

First, was appellant denied his right to a speedy trial?

Second, did the trial court err in admitting testimony that materials in possession of a confederate, apprehended with appellant, came from the site of another alleged burglary which had occurred a week earlier?

Speedy Trial.

Sec. 7, art. I, of the Wisconsin Constitution and the Sixth amendment of the United States Constitution, ¹ guarantee an accused the right to a speedy trial. Each case involving an alleged denial of this right turns on its own facts; ² the facts in the instant case are these: Appellant and his co-accuseds were arrested on the evening of October 29, 1960. Two days later a complaint and warrant were issued and he was taken before a magistrate. Reynolds demanded a preliminary hearing which was set for November 7th. He subsequently waived the hearing. The information was filed December 15th and counsel was appointed at appellant's request. On December 28th the case was remanded, upon counsel's motion, to the court commissioner for a preliminary hearing. The preliminary was held March 1, 1961, and appellant was bound over for trial. Appellant pleaded not guilty at his April 19th arraignment and asked for a separate trial. This motion was granted and Kennedy alone was brought to trial April 26th. After the state had presented its case, the trial court directed a verdict of acquittal on two grounds: 1) Sec. 943.10(1)(a), Stats., is not applicable to the entry of public buildings, and 2) the state had not introduced sufficient evidence to show that Kennedy had entered the school with intent to steal. On May 28th, appellant was imprisoned for a parole violation, and three days later the burglary charges against him and Strong were dismissed on the sole ground that the burglary statute did not apply to the entry of public buildings. The state appealed the Kennedy acquittal and the dismissals of the charges against Strong and Reynolds. Another attorney was appointed to represent appellant on the appeal. On February 6, 1962, this court affirmed the acquittal of Kennedy, but reversed the orders dismissing the charges against appellant and Strong. ³ The case was remanded to the Racine county court on April 2d.

Appellant was released from prison May 29th, but the Racine county district attorney was not informed of the release. Efforts to locate appellant were unsuccessful until May 24, 1964, when the district attorney was advised by Michigan authorities that he was being held in that state. Appellant waived extradition and was returned to Wisconsin. After a jury trial, which commenced October 27th, appellant was convicted of burglary. He was represented by counsel.

In contending that his right to a speedy trial was violated, appellant points to the four-year delay between his arrest and his trial. But the '[m]ere lapse of time does not, by itself, constitute denial' of this right when the accused 'is tried as soon as the orderly operation of the court permits.' ⁴ Furthermore, an accused is required to take affirmative action to bring the case on for trial as a condition precedent to demanding the dismissal of the pending charges. ⁵ At no time did appellant request a speedy disposition of his case. The state's initial attempt to bring the case to trial was thwarted when appellant, at his own insistence, was grant a separate trial because his defense was antagonistic to that of Kennedy, his accomplice. Then the state had to appeal the dismissal of the charges against appellant which also came about as a result of his own motione. By the time the appeal had been decided, the case remanded, and the charge reinstated, a year and a half of the four-year period had elapsed. Shortly after the Racine county authorities learned of the results of the appeal, appellant was released from prison and absented himself from the state for nearly two years before being apprehended. Counsel was appointed for appellant after his return to Wisconsin, and after a motion to dismiss for lack of a speedy trial, he was tried and convicted. Thus, although a four-year interval might, at first blush, appear to be inordinate and unreasonable, an examination of the facts discloses that it was caused by appellant's own motions, the orderly conduct of the business of the court, and his own flight from the state.

Appellant contends, however, that his leaving the state cannot be held against him in resolving the speedy trial issue since he gained his release from prison by virtue of the district attorney's failure to file a detainer warrant with the prison authorities. This fact is of no import for two reasons. First, appellant cannot rely on any lapse on the state's part when he fled the state instead of taking 'affirmative action' ⁶ in seeking disposition of his case. Appellant contends that he did not realize he had lost his appeal, but it is undisputed that he received a notice of appeal and although the record does not affirmatively disclose the fact, it is reasonable to assume that his attorney acted conscientiously and apprised him of the outcome. Second, only the time spent in custody, in one form or another, is considered when resolving the speedy trial question. Appellant cannot complain that he was not tried with sufficient haste when his own conduct prevented the judicial wheels from turning. If this were otherwise, a suspect who remained at large for a lengthy period, despite an oustanding warrant for his arrest, could point to the time lapse between the issuance of the warrant and his apprehension.

Evidence of Other Burglary.

Although Kennedy was found to have entered the school, he was acquitted because the proof was held insufficient to prove beyond a reasonable doubt that he entered the building with the intent to steal.

In the trial of appellant of the evidence was the same as in the Kennedy case. Thus it was established that one door of the school had apparently been jimmied; that all of the doors were locked but could be opened from the inside; that appellant, Kennedy and Strong came 'charging out of the front entranceway'; that Strong was carrying a canvas bag containing a 'hammer, maul, two drive pins, and a chisel;' that all three wore gloves even though the weather was mild; and that two crowbars, which did not belong to the school, were found in the school.

At the Reynolds trial additional evidence was introduced to show appellant's intent to steal. The tools in the canvas bag were specifically identified as burglarious tools; there was testimony that one of the crowbars had made the marks on the door; evidence that there was a good deal of money in the superintendent's office on the night of the break-in was was introduced.

For the limited purpose of showing Reynolds' intent to steal, the state offered evidence of a burglary at a Two Rivers school that had occurred just a week before the Burlington break-in. Witnesses testified of the break-in was introduced. and a hole knocked in a wall in order to gain access to a vault. Over $200 had been taken. Bits of tile and plaster found in the canvas bag at Burlington were sent to the FBI laboratory for comparison with samples of tile and plaster taken from the wall of the Two Rivers school. Over appellant's objection, testimony by two FBI agents employed at the laboratory that the fragments in the bag matched the fragments from the Two Rivers school was admitted.

Evidence may be admitted 'of other occurrences in which a defendant has participated, when such others are similar in facts and close to the time of the offenses for which a defendant is on trial.' ⁷ This evidence is admissible not to prove the defendant guilty of the crime charged but rather to show some element of that offense. ⁸ However, it must be shown that the accused had some connection with the other offense. ⁹ Appellant contends that the admission of this testimony was erroneous because Strong, not he, was carrying the bag and also because the state did not specifically link him with the Two Rivers burglary. The state counters that the possession of the bag by appellant and his cohorts at the time of their arrest--regardless of who was physically toting it--constitutes sufficient nexus to the Two Rivers crime to render the evidence admissible.

In State v. Lombardi, ¹⁰ evidence of events in which Lombardi participated at a house of ill-fame was held admissible on a charge against him for knowingly failing to enforce the laws relating to prostitution against the house. In Herde v. State, ¹¹ admission of evidence was allowed that the defendant had recently committed a robbery under circumstances like the one for which he was on trial. In Kluck v. State, ¹² evidence connecting a defendant with the transportation of illicit alcohol a month or so preceding the seizure of a still was held competent as tending to prove that the manufacture and traffic in illicit liquor was a continuing offense and proof of these acts tends to prove a specific element of the crime charged. In State v. Meating, ¹³ involving a prosecution for concealing stolen automobiles, evidence showing concealment of other stolen automobiles was held to be properly received as tending to establish some ingredient...