State v. Rice

• Decision Date: 26 December 1967
• Citation: 155 N.W.2d 116,37 Wis.2d 392
• Parties: STATE of Wisconsin, Respondent, v. Raymond Gilbert RICE, Appellant.
• Court: Wisconsin Supreme Court

Page 116

155 N.W.2d 116

37 Wis.2d 392

STATE of Wisconsin, Respondent, v. Raymond Gilbert RICE, Appellant.

Supreme Court of Wisconsin.

Dec. 26, 1967.

Rehearing Denied Feb. 27, 1968.

I. B. Shapiro, Murphy, Shapiro & Gorsky, Michael W. Hogan, Milwaukee, for appellant.

Bronson C. La Follette, Atty. Gen., Madison, Hugh R. O'Connell, Dist. Atty., E. Michael McCann, Asst. Dist. Atty., Milwaukee Co., Milwaukee, for respondent.

HANSEN, Justice.

The defendant, in his brief, raises ten issues, several of them interrelated. Consideration has been given each of the arguments presented, however our attention will be directed to those which we consider to be determinative of the case.

1. Venue as to first count.

Proof of venue on the charge relating to the 'use' of a narcotic depends largely upon the admissibility of a statement by a state's witness, Oliver Leon Davis. The interrogation of Davis, as to this specific situation, took place in the office of the district attorney in the presence of the defendant, Assistant District Attorney Francis Croak and Officer Shackett.

Officer Shackett testified that:

'He (Davis) was asked if he had used any heroin in Milwaukee. He stated, yes, before they had left they had used it, both of them, Raymond (defendant) and Mr. Davis had used heroin at Raymond's house.'

The officer was then asked:

'Q. After these statements were made in response to these questions to Oliver Leon Davis, what reaction was there on the part of the defendant in this case? What did he say?

'A. He didn't say anything; he just snickered.'

Miranda v. State of Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, closes the door to the admissibility of such testimony relating to the demeanor of the defendant. In Miranda, supra, at footnote 37, 86 S.Ct. at 1625, the United States Supreme Court stated:

'The prosecution may not * * * use at trial the fact that he stood mute or claimed his privilege (of self-incrimination) in the face of accusation.'

In Johnson v. State of New Jersey (1966), 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, Miranda was held to be prospective only, the effective date being June 13, 1966. The defendant was tried before that date, therefore prior Wisconsin law controls.

Oliver Leon Davis, in the office of the district attorney and in the presence of the defendant, Officer Shackett and the Assistant District Attorney Croak, stated that he went to Chicago with defendant and Sykes for the purpose of purchasing heroin, which they did. Returning from Chicago, they were stopped in Milwaukee, at which time Davis had a quarter ounce of heroin on his person and defendant had a 'fix,' which consisted of a hypodermic needle and a glass eyedropper syringe, on his person. He also stated that he and defendant had used heroin in Milwaukee at the house of defendant before they traveled to Chicago.

We are of the opinion that the statements of Oliver Leon Davis which were testified to by Shackett were sufficiently accusatory in nature so as to bring defendant's silence and snicker within the scope of admissible evidence under the Wisconsin rule as it existed prior to Miranda. The circumstances were such as would naturally call for some action or reply on the question of guilt. McCormick v. State (1923), 181 Wis. 261, 271, 194 N.W. 347.

In Gullickson v. State (1950), 256 Wis. 407, 411, 41 N.W.2d 291, 293, this court stated:

'Evidence of admissions by silence is to be received with caution and the question of whether under all the conditions and surrounding circumstances a normal person would make denial so that silence can be interpreted as an admission at all, is for the jury.'

In Gullickson, the trial court was reversed on the ground that it instructed the jury that defendant's silence was an admission. In the case now under consideration, the jury instruction was in accord with the Gullickson mandate.

We, therefore, hold that the above-quoted testimony of Officer Shackett was properly admitted. This testimony, supported by that of the defendant concerning his residence in Milwaukee, and that of Sykes concerning his meeting defendant and Davis at defendant's house before proceeding to Chicago, is sufficient proof to establish venue. Piper v. State (1930), 202 Wis. 58, 61, 231 N.W. 162; Farino v. State (1931), 203 Wis. 374, 378, 234 N.W. 366.

2. Apprehension of defendant.

The defendant urges that his arrest was illegal because the officers did not have sufficient facts to establish probable cause. This argument ignores the fact that the defendant was on parole at the time he crossed the state line and proceeded into Illinois. This constituted a violation of his parole and was witnessed by Officer Shackett. Mr. Richards, defendant's parole agent, was notified and directed that Rice be apprehended when he returned to the state.

At the time of the apprehension, sec. 57.06 Stats., Paroles from state prison and house of correction, provided:

'(3) Every paroled prisoner remains in the legal custody of the department unless otherwise provided by the department; and all prisoners under its custody may be returned to prison at any time, on the order of the department, and shall be returned whenever found exhibited in any show. A certified copy of the order shall be sufficient authority for any officer to take the prisoner to the institution from which he was paroled; and the officer shall execute such order as a warrant for arrest but any officer may, without order or warrant, take the prisoner into custody whenever it appears necessary in order to prevent escape or enforce discipline or for violation of parole.' (Emphasis added.)

The defendant apparently concedes that the police had authority to apprehend him under the provisions of the above cited statute, but urges that the standard of 'reasonable grounds' set forth in sec. 954.03(1) Stats. relating to arrest without a warrant and as enunciated in Stelloh v. Liban (1963), 21 Wis.2d 119, 125, 124 N.W.2d 101, should be applied as a constitutional safeguard.

Sec. 57.06 Stats., however, is specific and is predicated upon the ground that parole grants only limited freedom. Tyler v. State Department of Public Welfare (1963), 19 Wis.2d 166, 172, 119 N.W.2d 460.

The federal cases cited by defendant relate to arrests based on probable cause which is not the standard established under sec. 57.06 Stats.

3. Entrapment.

The issue of entrapment was raised in the trial court. The trial court correctly analyzed the situation when, in his instructions to the jury he stated 'On the law and the undisputed facts of this case, I instruct you that the defense of entrapment is not available to the defendant.'

There is no question but that Sykes was a police informer. Officer Shackett testified that he had known the defendant for approximately two and one-half years through his investigation of the narcotics situation in Milwaukee and Chicago.

There is absolutely no testimony to in any way indicate that Shackett prompted or arranged the trip, or that he asked Sykes to take defendant to Chicago, or that he wanted defendant to violate his parole, or that he gave money to Sykes so that he would take defendant to Chicago. In fact, Officer Shackett denied engaging in any such activities. Sykes...