Stewart v. State
| Decision Date | 02 May 1978 |
| Docket Number | No. 76-031-CR,76-031-CR |
| Citation | 265 N.W.2d 489,83 Wis.2d 185 |
| Parties | William E. STEWART, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error. |
| Court | Wisconsin Supreme Court |
The defendant, William E. Stewart, was found guilty by a jury of burglary and attempted theft contrary to secs. 943.10(1)(a), 943.20(1)(a) and 939.32(1), Stats. Stewart was sentenced to eighteen months on the burglary conviction and one year on the attempted theft conviction, the terms to be served concurrently.
Defendant appeals from the judgment of conviction and the orders denying post-conviction relief.
In the early hours of January 2, 1975, a burglary and attempted theft took place at the Liberty Pharmacy located on Liberty Avenue in Beloit, Wisconsin. Responding to a silent alarm, Police Officer Edward Polglaze drove his patrol car in front of the pharmacy and shined his spotlight into the front windows. He saw nothing unusual in the store. Officer Polglaze then drove further down the street, past an adjacent building, and turned south into an alley which ran parallel to the side of the pharmacy building. Upon arriving at a spot where he could see the back of the pharmacy, the officer saw a person running south from the back of the pharmacy. Pausing only to radio in that a white male suspect with a dark stocking cap and dark clothing was running on foot, the officer left his car and gave chase. Rather than directly following the suspect, Officer Polglaze paralleled his path and proceeded down the alley.
Another officer, Glenn Sieren, overheard the radio dispatch and proceeded to the pharmacy. On his way, he also heard Officer Polglaze's radio call indicating the suspect's direction and in response, proceeded to the intersection of 11th and Merrill Streets. Merrill Street, like Liberty Avenue, runs east and west and is block south of the pharmacy. Officer Sieren stopped at the intersection hoping to catch sight of the running suspect as he crossed either Merrill or 11th Streets. Sieren saw no one on foot, but he did see a dark colored automobile traveling east on Merrill toward him. It was an old model car and had two people in it, and Officer Sieren paid little attention to it as he looked for the pedestrian suspect.
With the help of Officer Sieren, Polglaze searched in and about the various garages and buildings in the vicinity of the pharmacy. Finding no one, they returned to the pharmacy.
Meanwhile, Officer Bryan Kurt Britton had also heard the radio dispatch, and had proceeded to the intersection of 10th and Liberty Streets. There he saw a green, older model Plymouth automobile proceeding east on Liberty Avenue. When the automobile passed him, Officer Britton followed it long enough to request by radio a license plate check. He then turned around and proceeded west on Liberty towards the pharmacy.
A fourth officer, Edward Mealey, was proceeding to the intersection of 10th and Merrill Streets when he heard Officer Britton's request for a license plate check. He observed a vehicle approaching him from the east on Merrill Street. The vehicle was moving very slowly, and stopping and starting at irregular intervals. Mealey noted that the vehicle was an older model green Plymouth with a license number matching that radioed in by Officer Britton. Mealey followed the car as it meandered about the neighborhood of the pharmacy and eventually stopped the automobile. The driver of the vehicle was identified as Dennis Williams and the passenger as William Stewart. When Williams and Stewart stepped out of the car, Officer Mealey noticed that Stewart was wearing a hunting knife in a sheath. Mealey placed Stewart under arrest for carrying a concealed weapon.
Officer Britton arrived on the scene. When the officers asked Stewart and Williams separately to explain their presence in the neighborhood, they claimed that they were looking for a dog. Williams, however, stated they were looking for a Doberman Pinscher while Stewart claimed they were looking for a black Labrador. The officers then returned with both men to the pharmacy.
While these events were taking place, Officers Sieren and Polglaze had been inspecting the inside of the pharmacy and the area immediately to its rear. Inside the pharmacy they found obvious signs of a breakin. Drugs and jewelry were scattered over the floor. A pillow case full of prescription drugs and a paper bag partially filled with jewelry and drugs were found on the floor. The manager inventoried these goods and placed their value in excess of $700. Entry into the pharmacy had apparently been made through a two foot hole in the ceiling, and plaster and lath debris was strewn over the shelves and floor. On the roof above this hole, the officers found that the top of an unused ventilator shaft had been removed and its bottom kicked through. Near this opening, the officers discovered the screws from the top of the ventilator shaft, another pillow case and a roll of string.
Further investigation in the area behind and around the pharmacy, which was covered with one to two inches of snow, yielded two sets of footprints. One set was obviously left by the fleeing subject. These footprints were made by a smooth-soled shoe and led directly away from the back door of the pharmacy, across an open area, into and out of a garage, and then into some bushes. Another set of footprints was made by a hiking boot type of shoe which gave the prints a distinctive "waffle" pattern. These prints were found in a random pattern behind the building immediately west of the pharmacy and in the vicinity of the alley. They also led around one of the garages fronting the alley and then east on a course parallel to Liberty Avenue.
When the men were brought to the pharmacy, Officer Polglaze noticed that Stewart was dressed like the suspect he had seen flee the area. He also noticed that Stewart's shoes made imprints similar to the "hiking boot" footprints. Both Stewart and Williams were then placed under arrest.
Later that day, another police officer attempted to preserve one of the hiking boot footprints with a sulphur cast but was unsuccessful. Instead, photographs were taken.
The actions against Stewart and Williams were consolidated for trial. During trial, the above facts were brought forth through the testimony of the officers. It was also established that the car in which the men were stopped belonged to an acquaintance, Karen Katuin. Ms. Katuin lived one block from the pharmacy at the time of the breakin. She testified that on the night of the breakin, she attended a party during which Williams borrowed her automobile to take a couple and their baby home from the party.
Both Williams and Stewart testified at the trial. They testified that Stewart was living with this couple at the time, and that when they had dropped the woman and baby at home, the three men drove to Rockton, Illinois, to visit a friend of Williams. At about 11:40 p. m. on the night of the breakin, they were stopped by a Rockton police officer for failing to stop at a stop sign. Williams called his father who came down from Beloit with the bond money, and Williams, Stewart and the third man left the Rockton police station at about 12:30 that night. When they arrived in Beloit, Williams and Stewart dropped off the third man. They later attempted to return Ms. Katuin's automobile, but discovered that she was not home. The defendants testified that they then drove down Liberty Avenue past the pharmacy where they observed the police squad cars. After passing Officer Britton's car further down Liberty Avenue, they testified that they became curious and decided to drive back through the area to see what was happening. While they were wandering about the area, Officer Mealey stopped them under the circumstances previously described.
Williams admitted that he made up the dog story when he saw that they were about to be stopped, and both men testified that they told the police the fabricated story because they thought the police would be suspicious of their movements through the neighborhood.
Ruth S. Downs, Deputy State Public Defender, with whom on briefs, were Howard B. Eisenberg, State Public Defender, and Alvin E. Whitaker, Asst. State Public Defender, for plaintiff-in-error.
Marguerite M. Moeller, Asst. Atty. Gen., with whom on brief, was Bronson C. La Follette, Atty. Gen., for defendant-in-error.
The sole issue presented for review is whether there was sufficient evidence to support the jury's verdict of guilty.
There is no serious dispute that the evidence...
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...based on the rule that a negative inference from a fabricated alibi is not proof of the elements of a crime. See Stewart v. State, 83 Wis.2d 185, 193, 265 N.W.2d 489 (1978) (concluding that "a negative inference drawn from the witnesses' testimony is, standing alone, insufficient to support......
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...62 Wis.2d 577, 586, 215 N.W.2d 390, 396 (1974)). This test raises a 'question of probability, not possibility.' Stewart v. State, 83 Wis.2d 185, 192, 265 N.W.2d 489, 492 (1978) (emphasis in original) (quoting State v. Shaw, 58 Wis.2d 25, 29, 205 N.W.2d 132, 134 (1973)). Last, in reviewing t......
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