State v. Spraggin

• Decision Date: 29 March 1977
• Docket Number: No. 75-561-CR,75-561-CR
• Citation: 252 N.W.2d 94,77 Wis.2d 89
• Parties: STATE of Wisconsin, Respondent, v. Martha SPRAGGIN, Appellant.
• Court: Wisconsin Supreme Court

Page 94

252 N.W.2d 94 77 Wis.2d 89 STATE of Wisconsin, Respondent,
v.
Martha SPRAGGIN, Appellant. No. 75-561-CR. Supreme Court of Wisconsin. Argued Jan. 4, 1977.
Decided March 29, 1977.

Page 95

[77 Wis.2d 92] Ronald D. Davis, Milwaukee, for appellant.

Maryann S. Calef, Asst. Atty. Gen. (argued), with whom on the brief was Bronson C. La Follette, Atty. Gen., for respondent.

ABRAHAMSON, Justice.

The defendant was convicted of intentionally aiding and abetting in the delivery of a controlled substance, heroin, contrary to secs. 161.41(1)(a) ¹ and 939.05(2)(b), ² Stats.

[77 Wis.2d 93] In late August and early September of 1974 Agent Keenan Wells and other law enforcement officers were involved in an

Page 96

investigation of drug trafficking in the city of Beloit, Rock County, Wisconsin. The defendant, Martha Spraggin, as well as Eddie Blakely and Johnnie Hayes Anderson were all suspected of involvement in this activity. In the course of the arrangement by Agent Wells to buy heroin he had occasion to speak on the telephone with a woman called Martha. At approximately 4 a. m. on September 5, 1974, Agent Wells made his purchase of a substance in a foil packet later identified as heroin, and arrested the seller. The defendant was not the seller. The purchase was made near the home of the defendant, and following this arrest, the police converged upon the defendant's residence. They found her in the garage along with a loaded .38 caliber pistol which was on the floor. After her arrest the defendant was taken inside the house where the police attempted to find Eddie Blakely, for whom they had an arrest warrant and who was believed to be living at the house. A search of the house for Blakely was unsuccessful, but it did reveal a distinctive television set. The legality of the search and the discovery of the set and other items was upheld in State v. Spraggin, 71 Wis.2d 604, 610, 239 N.W.2d 297 (1976). At the conclusion of this search, the defendant was taken to the police station in Beloit. There she gave consent to have her house searched; she denied involvement in heroin trafficking and denied knowledge of the whereabouts of Eddie Blakely. The search made pursuant to that consent turned up in addition to the aforementioned television set numerous weapons including two illegally sawed-off shotguns, two bags of what was alleged to be marijuana, and a scale. Many of these items were introduced into evidence at [77 Wis.2d 94] trial, and the defendant alleges the introduction of this evidence as error. ³

In Wisconsin the admission of evidence relating to other crimes, wrongs or acts of the accused is now governed by sec. 904.04(2), Wisconsin Rules of Evidence.

"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. This subsection does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

The general rule is therefore to exclude use of other misdeeds to prove character in order to prove guilt. The reason for the exclusion of such evidence was explained by our court in Whitty v. State, 34 Wis.2d 278, 292, 149 N.W.2d 557, 563 (1967):

"The character rule excluding prior-crimes evidence as it relates to the guilt issue rests on four bases: (1) The over-strong tendency to believe the defendant guilty of the charge merely because he is a person likely to do such acts; (2) the tendency to condemn not because he is believed guilty of the present charge but because he has escaped punishment from other offenses; (3) the injustice of attacking one who is not prepared to demonstrate the attacking evidence is fabricated; and (4) the confusion of issues which might result from bringing in evidence of other crimes." ⁴

Page 97

[77 Wis.2d 95] However, the statute provides exceptions to the general rule prohibiting evidence of other conduct, namely, such evidence is allowed to prove motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. Even if the evidence of other conduct is admissible under one of the exceptions, the trial judge must exercise his or her discretion to determine whether any prejudice resulting from such evidence outweighs its probative value. Sec. 904.03, Wis.Rules of Evidence; ⁵ Whitty v. State, 34 Wis.2d 278, 149 N.W.2d 557 (1967), cert. den., 390 U.S. 959, 88 S.Ct. 1056, 19 L.Ed.2d 1155; Kwosek v. State, 60 Wis.2d 276, 208 N.W.2d 308 (1973).

[77 Wis.2d 96] The State introduced Exhibits 2 and 3 which were plastic bags containing a leafy substance. The court, over objection, admitted both exhibits into evidence and allowed them to go into the jury room during deliberations. Two police officers testified that the substances in the two bags were "grassy," "leaf-like substances" which "appeared to be marijuana." The police officers testified on the basis of their experience with marijuana; no analytical tests of the substances were put in evidence. The defendant objected to this non-expert, non-scientific evaluation of the substances. The State argues that the proof submitted was sufficient; the State's position is that in admitting evidence of possession of marijuana under the other-crimes rule, requiring the State to prove beyond a reasonable doubt that the substance was marijuana might have distracted and confused the jury.

The defendant objected to the evidence of this alleged marijuana as merely indicating bad character, having little probative value, causing unfair prejudice and not having anything to do with the merits of the charge. The State made no effort to connect this evidence in any manner to any element of the crime charged at trial. Nor did the State at trial contend that the presence of marijuana in defendant's home was proof in the heroin charge of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. There was no proof or argument that heroin dealers or their associates are known, or even likely, to possess marijuana. The marijuana evidence was merely offered and admitted over defendant's objections. There was no admonition or instruction to the jury as to any limited purpose for which the evidence was admitted or to be considered by the jury.

In its brief the State argues that the evidence of possession of the "alleged marijuana" is "particularly [77 Wis.2d 97] probative on the question of intent, an element of the crime of aiding and abetting in the delivery of a controlled substance," namely, heroin. We are not persuaded that the possession of marijuana is probative of intentionally aiding and abetting the delivery of heroin. ⁶

Page 98

The evidence was not limited by the judge to this question of intent as an element of aiding and abetting, and the judge did not instruct the jury to consider this evidence only for determining whether the aiding and abetting was intentional. The evidence went in; the jury heard the testimony; and the jury could handle the bags in the jury room during deliberations.

At the trial, the State laid the foundation for introducing into evidence weapons and stolen goods found in the defendant's house. The State had Officer Wells, a narcotics officer with the Wisconsin Department of Justice, Division of Criminal Investigation, testify that [77 Wis.2d 98] he had been involved in about 100 transactions involving the sale of heroin and that in almost every deal in which he was involved "there has been a weapon involved" and that "most of the dealers are totally involved with getting payments from heroin addicts via stolen goods." The court asked whether the State was trying to show that it is customary for heroin dealers to be in possession of stolen property. The witness responded: "I have seen it frequently on the street. Whether it could be considered customary more than 50 percent of the time, I don't know." The judge permitted the jury to hear Officer Wells' testimony that on the basis of his experience he believed that heroin dealers usually have weapons and stolen goods on the premises. The guns and allegedly stolen goods were introduced into evidence.

The defendant objected to this testimony and these exhibits. Again the defendant contended that such evidence indicated bad character, had little probative value, caused unfair prejudice, and did not have "anything to do with...