State v. Spraggin
Decision Date | 02 March 1976 |
Docket Number | No. S,S |
Citation | 71 Wis.2d 604,239 N.W.2d 297 |
Parties | STATE of Wisconsin, Respondent, v. Martha Lee SPRAGGIN, Appellant. tate 207 (1974). |
Court | Wisconsin Supreme Court |
Robert J. Ruth and Noll, Donovan, Bolgrien & Ruth, Beloit, on brief, and oral argument by Robert J. Ruth, Beloit, for appellant.
Michael R. Klos, Asst. Atty. Gen., with whom on the brief were Bronson C. La Follette, Atty. Gen., and James H. McDermott, Asst. Atty., Gen., for respondent.
The following issues are presented on appeal:
1. Was it error to admit the Zenith television and .38 caliber revolver into evidence because they were the fruits of illegal search and seizure activity?
2. Were the two items properly consolidated into one count of receiving stolen property?
3. Was it error for the trial court to admit evidence of certain other items of property found in the defendant's residence?
4. Did the trial court err in admitting evidence of the retail price of allegedly stolen goods?
5. Was the intended impeachment of the defendant through evidence of other criminal activity with which she had been charged properly allowed?
6. Was the defendant's due process right to a fair trial compromised by certain newspaper articles?
7. Were the deliberations of the jury made under circumstances that violated the defendant's due process right to a fair trial?
On the first day of trial, counsel for defendant moved to suppress the Zenith television and .38 caliber revolver from admission into evidence. The trial court ruled that these items were not the product of a search, were in 'plain view' of the officers, and were reasonably seized and held by the police.
Evidence derived from constitutionally improper acts is not to be introduced against a defendant. Michigan v. Tucker (1974), 417 U.S. 433, 445, 94 S.Ct. 2357, 41 L.Ed.2d 182. The initial question here does not involve a search as such. The Zenith television sought to be suppressed was undisputedly in plain view. Additionally, the use of a flashlight to illuminate the garage did not render the finding of the revolver as other than a plain view discovery. Warrix v. State (1971), 50 Wis.2d 368, 374, 184 N.W.2d 189. There is no search involved in a plain view and the question of the validity of the discovery is based on the right of the officer to be in place where the inadvertent view occurs. State v. Gums (1975), 69 Wis.2d 513, 517--18, 230 N.W.2d 813.
The officers were present to execute the arrest warrant of Eddie Blakely. Testimony from one officer included a statement that he was told that Blakely was to be arrested for possession of heroin, which had been purchased from him by a state agent at the Spraggin residence. The officers had been warned that Blakely had been armed.
The existence of an arrest warrant here is not disputed. Defendant has not sought to attack its validity. No specific allegation challenging it was even made, and counsel for the defendant even objected to the materiality of testimony concerning the basis for the warrant and instructions given the officers regarding its subject. The validity of the warrant thus remains unchallenged.
The state assumed the initial burden here and the court ruled against suppression. Defendant complains that she neither gave her consent to a search of the premises nor was served with a search warrant, apparently referring to the room and closet survey of the house specifically made only to find Blakely. She signed a consent form prior to the thorough, itemized search conducted later. Thus, in challenging the officers' right to be in a position where the items were viewed, the defendant refers to the manner of execution of the arrest warrant.
The law enforcement agents here possessed an arrest warrant. In State v. Gums, supra, the defendant challenged the unconsented entry of a police officer through the unlocked dwelling entrance. The officer was attempting to execute a probation violation warrant, an empowering document not distinguishable from an arrest warrant. Id. at 519, 230 N.W.2d 813. He approached the dwelling of the probation absconder, identified himself and inquired if the violator was present. The door was closed, a voice called out ". . . yes, he's upstairs," and the sounds of rapid movement were heard. When the officer ordered the door to be opened, one occupant informed him that it was unlocked and that they were 'waiting for him to come down' from upstairs. This court stated that the officer had the right to thereupon enter the house because he possessed a warrant and there existed circumstances yielding probable cause to believe that the suspect was within and yielding a reason to believe in the existence of an exigent situation, i.e., an attempted escape. Fisher v. Volz (3rd Cir. 1974), 496 F.2d 333, 341--42, was approvingly quoted for the rule:
"We therefore hold that police officers may not constitutionally enter the home of an innocent citizen in search of a suspected offender for whom they have a valid arrest warrant, even under exigent circumstances, unless they also have probable cause to believe that the suspect will be found on the premises."
It is undisputed that Blakely resided at the residence and this fact was known by the officers.
In executing the arrest warrant, the officers may investigate an entire dwelling in order to make sure that the wanted person is in fact present or absent, or that no other parties could present a danger to them. State v. O'Brien (1975), 70 Wis.2d 414, 422--23 234 N.W.2d 362. The incidental investigation of the garage and its occupant and the seizure of the loaded weapon were reasonable acts undertaken pursuant to such authority.
The police officer who found the .38 caliber revolver testified that he had been warned that Blakely may be armed. State agents had informed the police of a purchase of heroin from him, apparently at this dwelling where he was known to reside. The view of the television, undisputedly in open view, was likewise obtained in the survey of the house undertaken to find Blakely.
We think the trial court's finding that the 25 Zenith television set and the .38 caliber revolver were not the product of a search and were discovered in 'plain view' by the police is fully justified by the evidence adduced at the suppression hearing.
Mrs. Spraggin had originally been charged with two separate felony counts of receiving stolen property. On the day of trial, the state moved to consolidate the charges into one felony count. The trial court concurred, over defense objections, based on the state's promise that testimony would be adduced '. . . that the items in question were both received by the defendant at the same time.'
At the trial Officer Farmer testified that the defendant told him at the time of her arrest that she purchased the revolver, television set and other items from Morris Percy for the price of $225. Mrs. Spraggin testified that she had a series of transactions with Percy. Although the exact time and sequence of the reception of the revolver in relation to two rifles (.22 caliber and .30-06) also received from Percy were muddled by cross-examination, it was clear that the television set was received separately and after the guns and that she had separately bargained with Percy for a price of $100 on it. When the set was delibered, Mrs. Spraggin testified that she gave him $225 in cash. She explained that this was in settlement for the television and the amount owed on the guns.
A leading case on the receipt of multiple stolen articles, Hamilton v. State (1937), 129 Fla. 219, 176 So. 89, 92, 112 A.L.R. 1013, 1017, held:
Authorities in the field of criminal law accept this proposition. 2 Wharton, Criminal Law and Procedure sec. 569, p. 288 (1957).
An exception, noted in some older cases, is that receptions of numerous articles in separate and distinct transactions but in pursuance of a conspiracy between the thief and the receiver can be called one offense and the property value aggregated to reach relony levels. Peters v. State (1921), 191 Ind. 130, 132 N.E. 256.
Section 943.34, Stats., enables the prosecution of those who receive or conceal stolen property. 'Conceal' undoubtedly is not limited to a literal meaning and embraces those who render the discovery of the stolen items more difficult without their having been the thief or recipient of the property. The disjunctive 'or' in the statute would indicate as much.
The other criminal act defined in the statute is the reception of stolen property. It is implicit that the act of receiving stolen property, irrespective of the number of items so received, defines a completed crime. Separate receptions are separate crimes. The value of goods received in one reception are thereafter accumulated to determine the grade of the offense.
A rule that would allow the value of items received as separate offenses to be aggregated for one offense, on the basis of conspiracy, is anomalous. Our modern 'party to a crime' statute, sec. 939.05(2)(c), Stats., more justly makes the conspirator 'fence' a punishable party to the theft. A conspiracy of successful nickel-and-dime shoplifters still are criminally responsible for only multiple misdemeanors, not felony theft. Thus, when the reception of stolen items occurs on separate occasions, the ends of justice and the form of the defined crime are met by multiple misdemeanor counts, not by the forbidden joinder of separate crimes in one count for an aggregate felony value. Sec. 971.12(1), Stats.
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