State v. Shears
| Citation | 68 Wis.2d 217,229 N.W.2d 103 |
| Decision Date | 06 May 1975 |
| Docket Number | Nos. S,s. S |
| Parties | STATE of Wisconsin, Respondent, v. Danny SHEARS, Appellant. STATE of Wisconsin, Respondent, v. Marvin Louis MADDEN, Appellant. STATE of Wisconsin, Respondent, v. Jesse James FORD, III, Appellant. tate 109, 110 and 112. |
| Court | United States State Supreme Court of Wisconsin |
These three criminal actions arise from the same incidents, were tried together, present numerous identical issues on appeal and were, therefore, consolidated for appeal purposes.
The three defendants herein, Danny Shears, Marvin Louis Madden, and Jesse James Ford III, were found guilty by a jury of: (1) two counts of first-degree murder, contrary to Secs. 940.01 and 939.05(2), Stats., and (2) one count of armed robbery, contrary to Secs. 943.32(1)(a) and (2) and 939.05(2), (c), Stats. In addition, defendant Ford was convicted of one count of concealing identity, contrary to Sec. 946.62, Stats. The defendants were sentenced to life imprisonment on each count of first-degree murder, the terms to run concurrently; and an indeterminate term of not more than 30 years on the armed robbery charge to run consecutive to the life terms. Defendant Ford was given an indeterminate term of five years on the concealing identity charge which is to run concurrently with the term imposed on the armed robbery charge.
The appeals from the judgments of conviction were dismissed by this court. State v. Shears (1974), 64 Wis.2d 639, 219 N.W.2d 241. The appeals from the orders denying post-conviction motions are involved here.
These appeals arise from an armed robbery at Harold's Club, a restaurant and bar located on Commercial Avenue in the town of Burke, Dane County, on January 13, 1972. During that robbery, a bartender, James Rehbein, was shot and killed. A patron, Lester Hanson, was shot and died on March 25, 1972, of complications from a bullet wound. The testimony revealed that a number of black males entered the club armed with pistols and a sawed-off shotgun. After entry into the club, several shots were fired, hitting Rehbein. Rehbein died of gunshot wounds to the chest. Hanson was shot after this, as he was attempting to get to a phone in the kitchen. Another patron, E. Robert Currie, was ordered to hand over his money, close to $500, to one of the men who was holding a pistol.
While the robbery was in progress, a call was placed to the Madison Police Department from an apartment over Harold's Club. Sergeant Frank Oswald of the Madison Police Department was one of many officers dispatched to the scene. When he arrived at Harold's Club, Oswald turned into its parking lot and saw two black males standing facing his car. One of the two had a gun in his hand. Both of these men ran and Oswald pursued them until they disappeared over some railroad tracks. Another officer saw two silhouettes moving from the vicinity in a field north of Harold's Club. Two black males were apprehended near a baseball diamond north of Harold's Club in the area of where the two men ran to from the parking lot. Oswald identified Ford as one of the two apprehended there.
The police radio calls were being monitored by a citizen who lived near the scene of the crime, Frederick Buhr. Buhr heard a description of the men involved as being black and wearing leather jackets and shiny shoes. After a period of time, Buhr saw a black man wearing a leather jacket talking to someone in the parking lot of Buhr's apartment and saw who he thought was the same man walking around near the apartment a few minutes later. Buhr telephoned the police.
Two town of Madison police officers responded and found the person Buhr believed to be involved in the robbery standing in a liquor store's parking lot. The man was asked for his identification and said he didn't have any. The man stated he lived on West Thirteenth Street, Madison. The officer, believing there was no such street, frisked the man and found an empty holster on the right hand side of his belt. The man, whom the officer identified as the defendant Madden, was arrested for the armed robbery and murder at Harold's Club. Another officer searched Madden and found 'two large wads of money' which included 'I.O.U.'s and checks belonging to Harold's Club.' Shears was subsequently arrested in Chicago and extradited to Wisconsin on August 1, 1972.
The case was tried beginning on January 22, 1973. The defendants were tried jointly. The pertinent testimony, for the purposes of this appeal, began with Randall R. Stapelman. He was at Harold's Club on January 13, 1972 when he saw a man enter and shoot the bartender, James Rehbein. He then went to an apartment upstairs and had someone call the police. He then went back downstairs and was locked in the basement with other patrons. E. Robert Currie testified that he saw Rehbein being shot. Currie fell to the floor and was ordered to his feet and robbed by a man carrying a gun.
Vera Hanson, Lester Hanson's wife, testified that she saw five black men with masks. One man had a large barrelled gun and at least one had a hand gun. She heard shots on at least two occasions and while being taken to the basement, she saw her husband lying on the floor and heard someone telling him to get up.
Dr. Billy J. Bauman testified that he performed the autopsy on both victims. Rehbein's death was due to a gunshot wound in the chest, although he did receive other bullet wounds. Hanson died of a bullet wound through the abdomen. The terminal event was septicemia, commonly referred to as blood poisoning.
Lumumba Kenyatta testified on behalf of the state. He testified that he was present, in the company of Madden, Shears and Ford, at the apartment of Alexis Tolson in Madison on January 12, 1972. He had picked up Madden at the bus depot at the request of Ford. Madden brought with him a black and red checked suitcase which Kenyatta later observed as containing a sawed-off shotgun and four handguns. These people all spent the night at this apartment. He had heard discussions concerning the robbery of a Madison tavern that night. At about 8:30 P.M. on January 13, 1972, Kenyatta left the Tolson apartment with Madden and Elgie Johnson, who had arrived sometime during the night with Eugene Sills. Ford and Shears had left with Joan Zilanis, the girl friend of one of the men. He drove to Harold's Club. Upon arriving there, Kenyatta went inside the tavern and returned to the group reporting that business was light. Joan Zilanis, Ford and someone else had arrived and all three defendants were present outside of Harold's Club. Kenyatta observed Joan Zilanis park her car on Superior Street, just off Commercial Avenue. He then returned to Alexis Tolson's apartment. He was supposed to have driven Madden and Johnson back to the apartment.
Alexis Tolson also testified for the state. She also testified as to the meeting at her apartment. She further testified that she stole some nylons from a grocery store at the request of one of the men.
George Bryant testified that he was present at a meeting with the defendants in Chicago where they discussed a robbery in Madison. He said he backed out after learning how they planned to get out of Madison. He admitted that he was in Madison the night of the robbery and had been arrested by the police.
Eugene Sills then testified for the state. On January 11, 1972 he went to a tavern in Madison and met Ford and Shears, after which they went to Tolson's apartment. At the apartment, he met Johnson and Kenyatta. Johnson and Sills went to Harold's Club and when they returned, Johnson sketched the layout for those present. Madden arrived the next day. Sills said he was asked to participate in the robbery and, when he declined, he was told at gunpoint that he was to go.
Sills went from the apartment to Harold's Club in Zilanis' car with Zilanis, Ford and Shears. He saw Ford, Shears and Johnson go to the front of the building while he and Madden went to the side door. Madden went inside, carrying a shotgun, and he waited outside. Sills heard four or five shots and Madden came to the door and told him to come inside. He went inside and heard more shots. He saw a man fall and Ford standing over him. He then saw Shears holding a gun on two people in the corner. He saw Madden jump over the bar.
When Sills left the tavern, he went out into the parking lot to find the cars, but they were both gone. He saw Madden leaving with two bags in his hands. He then noticed Ford in the parking lot. He and Ford ran from the parking lot when a squad car arrived. They ran alongside the railroad tracks through a little ditch where he was arrested. Sills said that inside Harold's Club, he, Ford, Madden and Shears all had masks on their heads, but Shears did not have his pulled down.
Sills had pled guilty to one count of armed robbery in connection with this incident. Two counts of murder were dismissed, pursuant to a plea bargain. Under the plea bargain, Sills was to plead guilty to the armed robbery charge and co-operate in giving testimony at this trial and the district attorney was to recommend a sentence of 15 years in prison and dismiss the other charges against him.
The state rested. All defendants moved for a directed verdict and Shears moved to dismiss the concealing identity charge. The court denied these motions. Ford was the only defendant to call witnesses for his defense. He testified and his defense was that he withdrew from participation in the robbery when the group arrived at Harold's Club and was in the parking lot when the police arrived because he was unable to get transportation away from the scene.
The trial court denied all post-conviction motions.
Additional facts will be stated in the opinion.
Howard B. Eisenberg, State Public Defender & Ronald L. Brandt, Asst. State Public Defender, Madison, for Shears.
Howard B. Eisenberg, State Public Defender, Madison, for Madden.
Beverly A. Temple, Milwaukee, for Ford.
Robert W. Warren and Victor A. Miller,...
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