State v. Williamson

• Decision Date: 30 June 1978
• Docket Number: No. 76-160-CR,76-160-CR
• Citation: 267 N.W.2d 337,84 Wis.2d 370
• Parties: STATE of Wisconsin, Respondent, v. Stance WILLIAMSON, Appellant.
• Court: Wisconsin Supreme Court

Page 337

267 N.W.2d 337

84 Wis.2d 370

STATE of Wisconsin, Respondent, v. Stance WILLIAMSON, Appellant.

No. 76-160-CR.

Supreme Court of Wisconsin.

Submitted on Briefs April 6, 1978.

Decided June 30, 1978.

Thomas J. Balistreri and Shellow & Shellow, Milwaukee, on brief for appellant.

Bronson C. La Follette, Atty. Gen., and Marquerite M. Moeller, Asst. Atty. Gen., on brief for respondent.

CALLOW, Justice.

The defendant, Stance Williamson, was tried and convicted of armed robbery as a party to the crime, contrary to sec. 943.32(1)(b) and (2) and 939.05, Stats. He was sentenced to not more than sixteen years, ten months' imprisonment.

The prosecution arose out of the robbery of Read's Lounge on 1306 West Atkinson Avenue, Milwaukee, at approximately 2:40 p. m. on January 22, 1975. There were three eyewitnesses to the events: the tavern owner, Betty Read; a patron, Artie Terrell; and a clerk in the neighborhood grocery store across the street, Donald Smith. Two black men, one shorter than the other, entered the tavern. The shorter of the two went directly to the men's room and returned carrying a sawed-off shotgun. He announced, "This is a hold up, get your hands up," began to pat down the patron Artie Terrell, but stopped when Mr. Terrell told him not to expect to find anything valuable. The shorter robber told Mrs. Read to get the money out of the cash register but then changed his mind and sent both Mr. Terrell and Mrs. Read into the men's room. From the men's room Mrs. Read heard one robber say, "Get the purse," and "Come on, let's go." When she heard her outside door close, she left the men's room and found her purse missing. The purse contained, among other items, a gun, some credit cards, a watch, and a pouch holding approximately six hundred dollars in cash. She ran to the door and saw two figures fleeing down 13th Street. Donald Smith, who happened to be watching the tavern from the grocery store across the street, also saw two figures, one shorter than the other, fleeing the tavern.

The central issue at trial was the identification of the defendant as the shorter robber who held the shotgun. The testimony of the three eyewitnesses was contradictory, and the credibility of each witness was impeached to some degree. The State's chief witness was the tavern owner, Mrs. Read, who identified the defendant in court as the shorter of the two men who robbed her tavern. She also testified that on two prior occasions she identified the defendant as the man who robbed her tavern. She recalled that the shorter robber was wearing a nylon, navy blue parka with fur-lined hood up over his head, blue jeans, and black desert boots. She described him as 5'9"' tall, weighing 145 to 150 pounds, dark skinned, with a round face, mustache, and goatee. At the request of the defense, the trial court admitted into evidence a police report of an on-the-scene interview with Mrs. Read which contained her statement that the shorter robber was 5'10"' to 5'11"' and weighed 176 to 180 pounds. Both of these descriptions of the robber, are inconsistent with defense testimony that the defendant is 5'2 1/2"' in his stocking feet.

Mrs. Read's identification testimony was contradicted by both the patron Artie Terrell and the grocery store clerk Donald Smith. Artie Terrell testified that the short robber was 5'8"' or 5"'9"' and that the defendant was not either of the two robbers because the defendant's face was too full and he was too short. He testified that he attended a lineup the day before trial, which included the defendant, but that none of the men in the lineup looked like the man who robbed Mrs. Read's tavern. Donald Smith also testified on behalf of the defense that the defendant could not be one of the men who robbed Read's Lounge because he was too short.

The defendant's brother testified as an alibi witness for the defendant. He stated that he was with the defendant and recalled seeing him at 2:40 p. m. on the day of the crime. His recollection was refreshed by reference to his diary which assisted him in reconstructing the events. However, a police officer testified that prior to trial the defendant's brother examined the diary in the officer's presence and told him there was nothing in his diary regarding his brother. The defendant did not take the stand in his own behalf.

On appeal the defendant does not challenge the sufficiency of the evidence to convict. Instead, he complains of the following errors in the conduct of the trial.

The State's Tactics in Cross-examining Artie Terrell

On the day of trial, just prior to the commencement of the State's opening statement, the State informed the court that for the first time since the day of the robbery of Read's Lounge the Milwaukee police had succeeded in locating and subpoenaing the patron Artie Terrell. Defense counsel had also been unable to talk with Artie Terrell prior to trial. The court postponed the commencement of trial for a day to allow both sides to talk with Mr. Terrell and to allow him to try to identify the defendant at an out-of-court lineup. At this lineup Mr. Terrell could not identify any of the participants as the robbers.

Although Mr. Terrell's identification testimony was thus essentially adverse to the State, the State did call him as its first witness to corroborate Mrs. Read's version of the events which occurred and the clothing worn by the robbers. In anticipation of the unfavorable identification testimony that would be elicited from Terrell by the defense, the prosecutor sought to impeach Mr. Terrell's credibility by reference to some prior inconsistent statements he made to the police at the scene of the crime. She examined him adversely by asking leading questions concerning these prior statements. The defense first objected to these questions as irrelevant but then objected to them as leading. However, the court permitted the prosecutor to ask leading questions, even though Terrell was a State's witness, because her questions were adverse. The prosecutor asked Mr. Terrell whether at the scene of the crime a police officer asked him if he would be able to identify the robber. Mr. Terrell denied that such a conversation took place. The prosecutor then asked Mr. Terrell, "Isn't it a fact . . . that you stated to (the police) at that time that you would not be able to identify the suspects?" Mr. Terrell testified, "No, I didn't." The State never offered evidence which contradicted Mr. Terrell's denials. The defendant, therefore, argues that to ask leading questions without producing the factual predicate for them is improper impeachment of the witness.

The factual predicate for the State's questions is contained in a police report of interviews with Mrs. Read and Mr. Terrell made by one of the investigative officers on the day of the crime. This report showed that "Mr. Terrell stated that he would not be able to identify the suspects, but, if we did hold a line-up, he would be willing to come down and see if possibly he could make an identification." However, because this report also contained a statement of Mrs. Read's that the shorter man was 5'10"' to 5'11"', heavy, 176-180 lbs., physical features that do not fit the defendant, the State did not offer the report into evidence as proof that Mr. Terrell had in fact made some statements to the police contradicting his testimony in court. Nor did the State call the detective who made this report and who was on vacation at the time. However, the factual predicate for these questions was eventually admitted into evidence nonetheless. The defense moved for and obtained admission of this police report later in the course of the trial in order to impeach the testimony of Mrs. Read. The full report, including the prior inconsistent statements of both Mr. Terrell and Mrs. Read, was one of the exhibits that went with the jury into the jury room during deliberations.

Though the defense counsel eventually objected to the prosecutor's questions to Mr. Terrell as leading, he never moved to have the questions and the answers stricken at the completion of the testimony on the grounds that the State failed to follow them up with any evidence that prior inconsistent statements were actually made. The defendant concedes that the first time he claimed error on the ground that the State failed to produce a factual predicate to its questions was in a motion for a new trial.

The defendant contends that, despite his failure to object during the course of the trial, he is entitled to raise this claim of error on appeal because the error is of constitutional dimension in that it denied him a fair trial. As the defendant points out, this court will decide a constitutional question improperly preserved below if it is in the interest of justice and where there are no factual issues in need of resolution. Bradley v. State,36 Wis.2d 345, 359-59a, 153 N.W.2d 38, reh. den. 36 Wis.2d 359a,155 N.W.2d 564 (1967); Ramaker v. State, 73 Wis.2d 563, 570, 243 N.W.2d 534 (1976). However, this court has applied this rule only to evidentiary errors which have a direct constitutional basis, such as the admission of evidence derived from an illegal search and seizure, State v. Morales, 51 Wis.2d 650, 187 N.W.2d 841 (1971); illegal identification testimony, Madison v. State, 64 Wis.2d 564, 573, 219 N.W.2d 259 (1974); involuntary self-incriminating statements, State v. Johnson, 60 Wis.2d 334, 343, 210 N.W.2d 735 (1973); use of ex parte evidence, Ramaker v. State, supra. The failure to supply a factual predicate to a leading question is of constitutional dimension only in the sense that, if prejudicial, it denied the defendant a fair trial.

In prior cases in which we have dealt with a failure to supply a factual predicate for questions asked adversely, we have not considered this error to be plain error of constitutional magnitude; rather we have required the error to be preserved by a timely motion to strike, and we have...