State v. Torpy
| Decision Date | 25 June 1971 |
| Docket Number | No. S,S |
| Citation | 52 Wis.2d 101,187 N.W.2d 858 |
| Parties | STATE of Wisconsin, Respondent, v. Howard Leo TORPY, Appellant. tate 172. |
| Court | Wisconsin Supreme Court |
This case deals primarily with the commitment and continued control of the defendant under the Wisconsin Sex Crimes Act. 1
A criminal complaint, dated November 8, 1968, charged the defendant, Howard Leo Torpy, with a violation of sec. 944.11(2), Stats., 'Indecent behavior with a child.'
The complaint was based upon information reported to the police by the sixteen-year-old boy involved. He told the police that he and the defendant were employed as kitchen help in the same restaurant in West Milwaukee and that the defendant had invited him to the defendant's room in the Central YMCA on Wisconsin avenue in Milwaukee for 'a view of the city.' Shortly after the boy and the defendant arrived at the room the defendant offered and the boy drank several glasses of brandy. The boy became ill and laid down on the bed to rest. The defendant, Torpy, then approached the bed and made indecent advances toward the boy. Torpy caressed and fondled the boy, including his 'private parts,' kissed him and told him he loved him. The boy became sick to his stomach and the defendant went to get him some sandwiches and coffee. The boy left and returned to the place of his employment, where he told his employer what had transpired. The employer advised him to notify the police.
Counsel was appointed for the defendant and preliminary examination was heard. The victim, the sixteen-year-old boy, testified and was cross-examined by defendant's trial counsel. The magistrate found probable cause and defendant was bound over to the circuit court for trial.
At the trial the information was amended and the charge reduced from indecent behavior with a child to contributing to the delinquency of a minor.
Indecent behavior with a child (sec. 944.11, Stats.) is a felony and carries a maximum imprisonment penalty of 10 years. It is also one of the crimes which requires a mandatory sex deviate examination under sec. 959.15(1).
Contributing to the delinquency of a minor (sec. 947.15(1)(a), Stats.) is a misdemeanor with a penalty of a fine of not more than $500 or imprisonment in the county jail for not more than one year, or both. It does not require a mandatory sex deviate examination but such an examination can be ordered under sec. 959.15(2) if the court finds 'the defendant was probably directly motivated by a desire for sexual excitement in the commission of the crime.'
In addition to all of the usual information given to a defendant before a plea of guilty, the defendant was advised by the court that if a plea was entered and defendant found guilty the court would inquire as to whether the defendant was sexually motivated to commit the crime, and if the court found that he probably was it would order a sex deviate examination that could result in imprisonment for the rest of his life. The defendant told the court he understood and that knowing this he wanted to plead guilty to the amended charge. 2
The plea was accepted and testimony taken whereupon the court found the defendant guilty and that he was probably motivated by a desire for sexual excitement. The court then ordered that defendant be committed to Central State Hospital at Waupun for a presentence social, physical and mental examination under sec. 959.15, Stats., to determine whether the defendant was a sex deviate and in need of specialized treatment.
The records clerk at Waupun refused to accept the defendant for the reason that the Department of Health & Social Services had not certified it had adequate facilities for making such examination as provided in sec. 959.15(2), Stats. 3
The defendant was returned to Milwaukee county. The court then ordered the Milwaukee County Adult Probation Department to conduct the presentence examination provided for in sec. 959.15(1), Stats., on an outpatient basis and further appointed a clinical psychologist, Dr. John V. Liccione, and a psychiatrist, Dr. Gary C. Hauser, to assist in this examination.
The probation department prepared a social history report of the defendant. This report and the reports of the two doctors were to be sent to the H & SS Department in Madison. The department acknowledged that the defendant was examined on an outpatient basis through its direction, and from the reports of these examinations and the department's findings it recommended specialized treatment for the defendant under sec. 959.15(6), Stats.
Upon the defendant's request, a psychiatrist of his own choice, Dr. Schmidt, was appointed to examine him and testify in his behalf. A Huebner 4 hearing was held with a conflict of opinion testimony between the state's experts and Dr. Schmidt. The court found the defendant was in need of specialized treatment and he was committed to the custody of the H & SS Department at its designated sex deviate facility, Central State Hospital at Waupun. This commitment was on October 1, 1969. The defendant appealed from the judgment of conviction and the order of commitment.
Subsequent to this appeal, the H & SS Department applied to the trial court for a confirmation of an order authorizing it to continue its custody over the defendant upon the ground that his discharge would be dangerous to the public (sec. 959.15(13), Stats.).
The court held a hearing pursuant to sec. 959.15(14), Stats., and on September 29, 1970, confirmed the order for continued control.
The defendant filed a second notice of appeal from the order of September 29, 1970. Both appeals will be considered together.
Additional facts will be set forth in the opinion.
Shimek & Lenchek, Milwaukee, for appellant.
Robert W. Warren, Atty. Gen., William A. Platz and Robert D. Martinson, Asst. Attys. Gen., Madison, E. Michael McCann, Dist. Atty., Milwaukee County, Milwaukee, for respondent.
The issues as we see them are:
1. Did the trial court err in finding the defendant had committed a sex crime upon hearsay testimony?
2. Was the recommendation of the H & SS Department for specialized treatment void because:
(a) The H & SS Department did not certify it had adequate facilities for examining the defendant?
(b) The examination given to the defendant did not include a physical examination.
3. Are the criteria upon which the H & SS Department bases its recommendations invalid and is the statute constitutionally void for vagueness?
4. Is the phrase 'dangerous to the public' a sufficient standard for determining whether a commitment should be continued?
The only testimony, after the entry of the plea of guilty, upon which the court found the defendant was probably motivated by a desire for sexual excitement was given by a police officer of the West Milwaukee Police Department. He stated that he had talked personally with the boy and that the boy told him the defendant had kissed him on the lips and had opened his trousers and foundled his private parts. This testimony was hearsay and subject to objection. However, it was relevant and probative and sufficient to sustain the finding. Hearsay evidence is admissible and may be considered by the trier of the fact unless timely objection is made and failure to make the objection constitutes a waiver. 5
The same attorney who represented the defendant at the plea of guilty represented him at the preliminary examination and cross-examined the boy at that time. It there was any question as to the accuracy of the officer's testimony an objection should have been made and the boy could have been called. After all of these proceedings and at this late date, it is much too late to voice an objection. It has been waived. The testimony was relevant, probative, crucial and convicing and clearly supports the finding.
The defendant contends when the records clerk refused to accept the defendant at the sex deviate facility (Central State Hospital at Waupun) because the H & SS Department had not certified it had 'adequate facilities for making such examination and that it was (is) willing to accept such commitment' that there was no authority to examine him elsewhere and that ended the matter.
The underlying purpose of the Sex Deviate Act is to protect the public from the dangerous criminal and sexually deviated acts of afflicted persons. A secondary purpose is to treat the person so afflicted. We take notice that temporarily, at least, the state does not have sufficient facilities, both physical and personnel wise, to examine all persons convicted of a crime which was probably sexually motivated to determine whether such person is sexually deviated.
The legislature has (in sec. 959.15(1), Stats.) provided that if a person is convicted of certain 'crime(s) against sexual morality' 6 such forcible rape, sexual intercourse without consent, and indecent behavior with a child, the court 'shall' commit the defendant to the H & SS Department for a presentence social, physical and mental examination.
The legislature, further, in recognition of the limited facilities has directed that the court 'may' commit an individual convicted of a crime that is probably motivated by sexual desire if the department certifies it has adequate facilities for making such examination and is willing to accept such commitment.
We do not believe that the objectives of the Sex Deviate Act should be thwarted by the unfortunate event of a temporary shortage of examination facilities. Accordingly, we recognize the right and approve the practice presently used by the department in some instances, namely delegating to a recognized public probation department as its agent the right to conduct the examination subject to department review and final determination. That is the procedure that was followed here. The Milwaukee County Adult Probation Department made the social history examination and the clinical psychologist and the psychiatrist appointed by the court...
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