State v. Wolverton

• Decision Date: 07 June 1995
• Docket Number: No. 93-3268-CR,93-3268-CR
• Citation: 533 N.W.2d 167,193 Wis. 2d 234
• Court: Wisconsin Supreme Court
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Randall E. WOLVERTON, Defendant-Appellant. d

Page 167

533 N.W.2d 167

193 Wis.2d 234

STATE of Wisconsin, Plaintiff-Respondent, v.Randall E. WOLVERTON, Defendant-Appellant. ^d

No. 93-3268-CR.

Supreme Court of Wisconsin.

Argued March 9, 1995.

Decided June 7, 1995.

For the defendant-appellant there were briefs by T. Christopher Kelly and Reynolds, Thomas & Kelly, S.C., Madison and oral argument by T. Christopher Kelly.

For the plaintiff-respondent the cause was argued by James M. Freimuth, Asst. Atty. Gen., with whom on the brief was James E. Doyle.

STEINMETZ, Justice.

This case presents five issues for review.The first issue is whether the defendant-appellant, Randall E. Wolverton, waived his right to postconviction appellate review of the denial of counsel at his preliminary hearing.Because Wolverton failed to file an appeal from the nonfinal order denying his motion to appoint counsel, as required by our decision in State v. Webb, 160 Wis.2d 622, 631, 636, 467 N.W.2d 108, reconsideration denied161 Wis.2d 600, 468 N.W.2d 694(per curiam ), cert. denied, Webb v. Wisconsin, 502 U.S. 889, 112 S.Ct. 249, 116 L.Ed.2d 204(1991), we hold that Wolverton waived his right to postconviction appellate review of the issue.

The second issue is whether Wolverton waived his right to postconviction appellate review of the trial court's exercise of discretion in terminating Wolverton's cross-examination of the sole witness at his preliminary hearing.Because Wolverton again failed to comply with Webb, we hold that he waived his right to postconviction appellate review of the issue.

The third issue is whether the trial court committed reversible error when it denied Wolverton's motion to suppress identifications resulting from two pretrial showups, or when it refused to grant a continuance to enable his trial attorney to better prepare for the suppression motion.We hold that the showup identifications were admissible, and, therefore, the trial court did not commit reversible error.

The fourth issue is whether the trial court erred in allowing testimony by a police officer that a piece of metal found in Wolverton's wallet months after he was charged with burglary could have been used as a burglary tool.We hold that even if the testimony should have been excluded, its admission was harmless because no reasonable possibility exists that it could have affected the jury's verdict.

The fifth and final issue is whether sufficient evidence was presented at trial to sustain the verdict.We hold that sufficient evidence was presented to sustain the verdict.

A relatively detailed statement of the facts is necessary due to the variety of Wolverton's arguments on appeal.At approximately 8:00 p.m. on June 13, 1992, ten-year-old C.S. returned home from the playground across the street from her house.C.S. told her mother that a "strange man" at the playground scared her because he kept "staring" at her while talking to himself and walking back and forth approximately ten feet away from her.C.S. described the man as wearing a green shirt and jeans.

C.S. and her mother, Mrs. S., then looked out the window and saw the man walk up the neighbor's driveway and "jump into the air to look into a window" of the neighbor's house.The man then proceeded up and down two other driveways, following the same routine.The man eventually walked back to the playground.Mrs. S. called the police and reported the suspicious activity.

Shortly thereafter, Mr. S. returned home from work and commented to his wife about a suspicious man wandering around the neighborhood.Mrs. S. told her husband about C.S.'s encounter with the man and that she had called the police.

At 8:30 p.m., Officer James Papenfuss responded to the call made by Mrs. S.As the squad car approached, Mr. and Mrs. S. walked across the street and pointed out the man, who was standing approximately 75 yards away.Officer Papenfuss pursued and stopped the man, who identified himself as Randall Wolverton.Wolverton told Officer Papenfuss that he was visiting a friend in the area, had gone for a walk, and had become lost while looking for his car.Officer Papenfuss asked Wolverton the name of his friend and suggested that a telephone book might help locate the address.Wolverton replied that his friend's mother had remarried and that he did not know her name.Officer Papenfuss then drove Wolverton around the area in an effort to locate the car, but it was never located.

With Wolverton in the rear seat of the squad car, Officer Papenfuss returned to the home of Mr. and Mrs. S.From approximately ten feet away, Mr. S. positively identified Wolverton, who was still sitting in the squad car, as the man who was acting suspiciously.From inside the house, Mrs. S. could see that the man in the squad car was the same man she had seen walking up and down her neighbors' driveways and looking into their houses.Officer Papenfuss warned Wolverton not to trespass on private property and then dropped him off near a public telephone.

That same day, Mr. and Mrs. R. had a picnic at their home, which is located approximately one block away from the home of Mr. and Mrs. S.At approximately 10:00 p.m., Mr. and Mrs. R. were standing in their front driveway and talking to some of their guests.Their nine-year-old daughter, M.R., went to the backyard to retrieve her shoes.There, she saw a man standing behind the chainlink fence that encompasses the backyard.According to M.R., the man, who "was zipping up his pants or something," asked M.R. if she"wanted some money or [to] make some money."M.R. became scared and ran across the yard to her ten-year-old friend.The man told M.R. to "come back."M.R. and her friend ran to the front driveway and told their parents about the stranger, prompting them to call the police.

Mr. R. and one of his guests, Mr. W., split up and immediately began to search for the stranger.Mr. W. saw a man, wearing jeans and no shirt, running across a nearby schoolyard.Mr. W. gave chase.The man stopped and pretended to be urinating in some bushes near a residence.When Mr. W. confronted the man, the man swore at him, falsely claimed to live at the residence, and then left through a backyard.

Moments later, Mr. R. saw a man emerge from between two houses.Mr. R. noted that the man was not wearing a shirt, but had a shirt tucked into his jeans.Mr. R. approached the man and asked him what he was doing.The man did not respond.Instead, he walked rapidly to a small red colored car, got in, and drove away with the lights off.Mr. R. obtained the license plate number.

Responding to a report that a man had accosted a child, Officer Papenfuss proceeded to the home of Mr. and Mrs. R., where he talked with M.R. and her father.M.R. described the incident and told Officer Papenfuss that the man at the fence had black hair and was wearing jeans and a green shirt.Mr. R. explained that he had chased the man and obtained his license plate number.Officer Papenfuss performed a license check, which revealed that the vehicle belonged to Randall Wolverton.

A short time later, Officer John Graham spotted Wolverton approximately six blocks away from the home of Mr. and Mrs. R.Upon seeing Officer Graham's squad car, Wolverton made a motion as if pulling up the zipper on his pants.He then turned and started to walk away from the squad car.Officer Graham pursued Wolverton and stopped him.Officer Papenfuss joined them and arrested Wolverton for disorderly conduct.According to Officer Papenfuss, Wolverton was wearing the same clothes that he was wearing during their earlier encounter.Officer Papenfuss placed Wolverton in the rear seat of his squad car and drove him to the residence of Mr. and Mrs. R., where M.R., Mr. R., and Mr. W. each identified Wolverton, who was still sitting in the squad car, as the man they had encountered earlier in the evening.

Wolverton was subsequently booked into jail, approximately one-half mile away from the neighborhood in which he was arrested.At approximately 12:30 a.m. on June 14, 1992, Wolverton posted bond and was released on his own recognizance.

On the night of June 13, 1992, a sign in front of Mr. and Mrs. S.'s home stated that C.S. had just turned ten years old.However, that night C.S. did not sleep in her own room, which is the only upstairs bedroom in the home.Frightened from her earlier encounter with the man at the playground, C.S. elected to sleep downstairs on the living room couch.Her older sister slept in the upstairs bedroom.

At approximately 2:00 a.m. on June 14, 1992, Mrs. S. was awakened by what she thought were footsteps coming down the stairs, causing her to believe that her older daughter came down to use the bathroom.However, when she checked the bathroom, she found no one there.Mrs. S. then went to the living room to check on C.S.She turned on a light and saw a man crouching down on his hands and knees a few feet away from where C.S. was sleeping.She hit the man on the back and asked him what he was doing in the house.She then yelled to her husband, "That guy is in our house!"C.S. awoke and saw the man run out the front door.C.S recognized the man by his attire as the same man who had scared her on the playground earlier that day.Mrs. S. called 911 to report the intruder.

When the police arrived, Mrs. S. described the intruder to the police.She told the police that she recognized the intruder by his green T-shirt, jeans, hair style, and build as being the same man who had scared C.S. earlier that night on the playground.The police examined the home but found no evidence of a forced entry.Both Mr. and Mrs. S. stated that although the wooden front door had been left open, the exterior screen door had been locked with a hook and eye latch.Mr. S. noted that the latch was loose.All other doors to the house were locked.The house was not ransacked, and nothing was missing.

The police subsequently arrested Wolverton and charged him with disorderly conduct...