State v. Stevens

• Decision Date: 01 February 1965
• Citation: 132 N.W.2d 502,26 Wis.2d 451
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Mary Perez STEVENS, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 502

132 N.W.2d 502

26 Wis.2d 451

STATE of Wisconsin, Plaintiff-Respondent, v. Mary Perez STEVENS, Defendant-Appellant.

Supreme Court of Wisconsin.

Feb. 1, 1965.

Concurring and Dissenting Opinions Feb. 2, 1965.

Maurice Schmerling, Kenosha, Myer H. Gladstone, Chicago, Ill., for appellant.

Bronson C. La Follette, Atty. Gen., William A. Platz and Betty R. Brown, Asst. Attys. Gen., Madison, Joseph Molinaro, Dist. Atty., Kenosha, for respondent.

HALLOWS, Justice.

On the appeal four questions are raised, did the trial court err: (1) In instructing the jury in referring to certain evidence that evidence of other crimes was received to identify the defendant; (2) in admitting state's Exhibit 1 in evidence; (3) in its examination of the jury on whether it heard an allegedly prejudicial radio broadcast concerning the defendant; and (4) did the evidence support the verdict?

During the course of the trial both Mr. and Mrs. Ventura identified that defendant as the person who had tricked them out of $3,000. For the purpose of identification of the defendant who had pleaded an alibi, the testimony of several other witnesses was offered and admitted. These witnesses testified the defendant attempted to perpetrate a similar fraud on them to obtain money by substantially the same procedure: coming to their home, asking for an unknown person, telling them comeone was ill in their home and she could cure the ill person, asking for a glass of water in which she put some material, asking for money so she could bless it, wrapping the money in a cloth, getting control of the money while supposedly leaving it in the house, sending the husband on an errand and getting the wife to leave the home and then disappearing from the wife. In one instance the scheme was completed, in other instances the intended victim did not co-operate.

The defendant does not contend this evidence was not admissible for the limited purpose of identification although on oral argument some doubt was expressed of its admissibility. It is settled that evidence of other crimes or of the similarity of schemes of one charged with theft by fraudulent means may be admitted for the limited purpose of identifying the defendant by means of the method of operation as the person who committed the particular crime charged. Such evidence is not admissible for the purpose of proving the guilt of the defendant of the crime charged. However, the tendency to prove such guilt does not preclude the admissibility of the evidence for the purpose of identification if it has such probative value. State v. Jackson (1935), 219 Wis. 13, 161 N.W. 732; 63 A.L.R. 602, Anno., Evidence-Other Crimes-Identity, supplementing 3 A.L.R. 1540; 22 A.L.R. 1016; and 27 A.L.R. 357.

The complaint of the defendant is that the court in instructing the jury on the limited purpose of the admission of the evidence committed error in referring to the evidence as other 'crimes' when only one completed transaction or crime had been testified to. We consider there is no merit to this argument. The use of the word 'crimes' instead of 'crime and other evidence' in the instruction was not prejudicial. The other evidence was of such a nature that no added weight was imparted to it by including it within the word crime. We believe in view of the whole evidence there is no probability that a different result would have occurred if the trial court had not used the word 'crimes.' The possibility of a different result is not the equivalent of 'has effected the substantial rights' required by sec. 274.37, Stats., for reversal. At the most, this was a bare technical error. State v. Kuick (1948), 252 Wis. 595, 32 N.W.2d 344; Walsh v. State (1928), 195 Wis. 540, 218 N.W. 714; Pulaski v. State (1964), 24 Wis.2d 450, 129 N.W.2d 204.

The defendant contends the state's Exhibit No. 1 consisting of substance found in her purse should not have been admitted in evidence on the ground it was obtained by an illegal search. The evidence was admitted by the trial court upon the basis it was obtained upon a search incidental to a valid arrest for disorderly conduct. After the defendant was arrested on November 9th she was booked and her property removed from her possession prior to being placed in a cell. A police officer made an inventory of her purse which had been taken from her. Shortly thereafter another police officer examined the purse and saw the material in the bottom of the purse which was later designated as state's Exhibit No. 1. This police officer knew the defendant and shortly before he had been called to a home in Kenosha and had been given some material which the defendant had discarded in the bathroom when a police officer had called at the house apparently looking for her. Mr. and Mrs. Ventura and other witnesses testified the material taken from the defendant's purse was similar to the material the defendant had placed in the glass of water while perpetrating a fraud upon them.

The defendant contends the search of the purse was not in incident of the arrest and the arrest was not legal. The defendant did not move to suppress this evidence prior to trial as required by sec. 955.09(3), Stats. However, the court in its discretion considered the issue at the time of trial which it had a right to do. State v. Luczaj (1960), 9 Wis.2d 199, 100 N.W.2d 368; Potman v. State (1951), i59 Wis. 234, 47 N.W.2d 884. The question of illegality of the arrest was not properly raised in the trial court and we must assume on this record the arrest for disorderly conduct was valid. We agree with the defendant this search was not incidental to the arrest but it does not follow the seizure of the contents of the purse was illegal.

A search incidental to an arrest whether of the person or place must bear a reasonable relationship in time and place to the arrest. Browne v. State (1964), 24 Wis.2d 491, 129 N.W.2d 275; Preston v. United States (1964), 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777. Such a search being without a warrant is limited under the rules of reasonableness and fair play by the purpose or purposes for which the defendant was arrested. Harris v. United States (1947), 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399; United States v. Rabinowitz (1950), 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653. Within such scope of the search, instruments, evidence, and fruits of the crime for which the defendant was arrested may be searched for and seized. Likewise, weapons and instruments of escape may be searched for and taken to insure the safety of the arresting officers and the custody of the person arrested. Agnello v. United States (1925), 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145, 51 A.L.R. 409; Browne v. State, supra; Stoner v. California (1964), 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856. If in the process of such reasonable search contraband or other material is found which may constitute evidence of other crimes, such contraband and material may be seized. Abel v. United States (1960), 362 U.S. 217, 218, 80 S.Ct. 683, 4 L.Ed.2d 668. In Barnes v. State (1964), 25 Wis.2d 116, 130 N.W.2d 264, we pointed out that a search without a warrant but incidental to the arrest could not be used or enlarged for the purpose of seeking incriminating evidence of other crimes and held that it was unnecessary and unreasonable in the search of Barnes following his arrest for a traffic violation to search his pockets with a flash light for remnants of marijuana. In State v. Brown (1964), 25 Wis.2d 413, 130 N.W.2d 760, we pointed out that in an arrest for a traffic violation the part of the body of a person arrested which was uncovered and open to inspection could be inspected and testified to, but the police without a warrant could not search those parts of the body which were covered and not open to general view. See also Thornton v. State (1903), 117 Wis. 338, 93 N.W. 1107; Green Lake County v. Domes (1945), 247 Wis. 90, 18 N.W.2d 348, 159 A.L.R. 204. One test of reasonableness seems to be whether the police are looking for incriminating evidence under an exploratory or rummaging search under the guise of a proper purpose incident to a lawful arrest. Go-Bart Importing Co. v. United States (1931), 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374; United States v. Lefkowitz (1932), 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877.

The examination of the defendant's purse at the police station was apparently made in accordance with a custom to inventory the personal effects kept for safekeeping by the police for one lawfully held in jail. Such an examination and inventorying of personal effects of a prisoner at the police station and not at the scene of arrest, and at some time remote from the arrest can hardly be justified under the traditional concept of being incidental to the arrest. In this case the legality of the seizure of the contents of the purse rests upon a custody search required for the safety of the prisoner and of law enforcement officers and by the efficient operation and administration of a jail. For the extent to which prison-administrative rule may interfere with one's right of privacy, see Lanza v. State of New York (1962), 370 U.S. 139, 82 S.Ct. 1218, 8 L.Ed.2d 384.

The applicable principal is analogous to what might be called the fringe benefits of a valid search incidental to an arrest. It has been held '[w]hen an article subject to lawful seizure properly comes into an officer's possession in the course of a lawful search it would be entirely without reason to say that he must return it because it was not one of the things it was his business to look for.' Abel v. United States, supra, 262 U.S. at 238, 80 S.Ct. at 697. In Gray v. State (1943), 243 Wis. 57, 9 N.W.2d 68, stolen articles of clothing found during a search incidental to the arrest for vagrancy were admissible in a burglary prosecution. On almost identical facts, it was held seizure some days after the arrest of property of an accused kept by the police for one in jail...