Taylor v. State, S

• Decision Date: 06 June 1972
• Docket Number: No. S,S
• Citation: 55 Wis.2d 168,197 N.W.2d 805
• Parties: Fred TAYLOR, Jr., Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 184.
• Court: Wisconsin Supreme Court

Page 805

197 N.W.2d 805

55 Wis.2d 168

Fred TAYLOR, Jr., Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 184.

Supreme Court of Wisconsin.

June 6, 1972.

April 8, 1971, following a trial by jury, plaintiff in error (hereinafter defendant) was convicted of armed robbery (party to a crime), in violation of secs. 943.32(1)(b), (2) and 939.05, Stats. He was sentenced to the Wisconsin state reformatory at Green Bay for an indeterminate term of not more than four years. A writ of error was issued by this court to review the judgment of conviction.

Stanley F. Hack, Milwaukee, for plaintiff in error.

Robert W. Warren, Atty. Gen., Michael R. Klos, Asst. Atty. Gen., Madison, for defendant in error.

CONNOR T. HANSEN, Justice.

The following issues are presented on appeal:

(1) Was the evidence presented at preliminary hearing sufficient to support at finding of probable cause and bindover for trial?

(2) Was the defendant denied his right to a speedy trial?

(3) Was the evidence presented at trial sufficient to support a judgment of conviction?

SUFFICIENCY OF EVIDENCE AT PRELIMINARY HEARING.

Defendant was arrested with three other men, Willie Tyrone Williams, Donald Wayne Johnson and Eddie Deon Williams, on September 17, 1970, for the armed robbery of a tavern located at 3201 West Center street in the city of Milwaukee. Preliminary hearing was held September 28, 1970, in the county court of Milwaukee county.

Henry Kuszewski, the owner and operator of the tavern, identified Willie Williams and Johnson as the same two men who entered his tavern on September 17, 1970, at approximately 8 p.m. The men ordered two bottles of beer and as the witness placed the bottles on the bar, Williams took a luger-type revolver from a brown paper bag and started motioning toward the cash register. Johnson then came behind the bar and took money out of the cash register as well as some other drawers. Williams then demanded the witness' wallet. Kuszewski testified he never saw the defendant or Eddie Williams.

Milwaukee policeman Leslie Pedersen identified all four men as passengers in a brown 1964 Mustang which he, along with two other officers, observed a short distance from the tavern at approximately 8:05 p.m. An attempt was made to apprehend the vehicle after the officers received a radio dispatch that a brown Mustang was wanted in connection with a holdup at 32nd and Center. The officers began pursuit, engaging the red light and siren on the police vehicle. The Mustang was traveling at a high rate of speed, went through a stop sign, and finally came to a stop in an alley. The occupants then attempted to flee; however, the officers stopped them at gunpoint. Officer Pedersen observed Johnson getting out of the passenger door with a small automatic pistol in his hand which he dropped in the alley. Williams dropped a luger-type revolver on the rear seat floor of the vehicle. The officer also observed a brown paper bag that contained money. Eddie Deon Williams was the driver of the vehicle, and the defendant was seated in the right front passenger seat. Johnson and Willie Williams were in the rear seat. When apprehended, defendant had no weapon or money in his possession although Officer Pedersen testified he did try to escape.

Upon the foregoing testimony, the court found probable cause and all four persons were bound over for trial.

Defendant argues that there was no competent evidence to show a reasonable probability that he committed the crime.

A preliminary hearing is a determination by a magistrate that further criminal proceedings are justified; it is not an evidentiary trial. Before a defendant may be bound over for trial, it must appear, to a reasonable probability, that a crime has been committed and that the defendant has probably committed it. Court v. State (1971), 51 Wis.2d 683, 188 N.W.2d 475; sec. 970.03, Stats. It is not necessary to establish guilt beyond a reasonable doubt. State ex rel. Wojtycski v. Hanley (1945), 248 Wis. 108, 20 N.W.2d 719. The purpose of the preliminary hearing is to:

'. . . protect the accused from hasty, improvident, or malicious prosecution and to discover whether there is a substantial basis for bringing the prosecution and further denying the accused his right to liberty.'

Johns v. State (1961), 14 Wis.2d 119, 122, 109 N.W.2d 490; Whitty v. State (1967), 34 Wis.2d 278, 149 N.W.2d 557. While a preliminary hearing may require more by the way of evidence than other preliminary determinations of probable cause, see State v. Beal (1968), 40 Wis.2d 607, 613, 162 N.W.2d 640; Hancock v. Hallmann (1938). 229 Wis. 127, 281 N.W. 703, these pretrial proceedings are similar in that they are all concerned with the practical and nontechnical probabilities of everyday life in determining the existence of probable cause. See Molina v. State (1972), 53 Wis.2d 662, 684, fn. 36, 193 N.W.2d 874.

In the instant case, competent eyewitness' testimony established that the defendant was in an automobile fleeing from the scene of a crime in the company of two persons identified as the holdup men. When apprehended, he attempted to flee. He was charged with being a party to the crime. Under such circumstances the evidence was sufficient to establish a reasonable probability that defendant was involved in the crime.

SPEEDY TRIAL.

The record reveals that an information was filed October 5, 1970, charging all four individuals with armed robbery, parties to a crime. The judgment roll reflects that October 8, 1970, Willie Tyrone Williams and Donald Wayne Johnson were convicted on their pleas of guilty. October 15, 1970, the trial court denied defendant's motion to dismiss. Defendant then waived the reading of the information, entered a plea of not guilty and demanded a trial by jury. The charges against Eddie Deon Williams and the defendant were consolidated for trial and the case was continued to February 1, 1971, and apparently transferred to another branch of court. February 1, 1971, the case was adjourned to April 5, 1971, on motion by the state because two of its witnesses were involved in an automobile accident on January 10, 1971. It was alleged that the witnesses had been seriously injured and were unavailable for trial. A telephone call was made to the hospital to verify this fact. Defendant opposed the motion to adjourn, asserted his right to a speedy trial, and moved to dismiss. This motion was denied. Defendant was then released on his own recognizance.

The constitutional right to a speedy trial requires than an accused be tried as soon as the orderly operation of the court permits. Mere lapse of time does not establish a denial of the right. Commodore v. State (1967), 33 Wis.2d 373, 377, 147 N.W.2d 283, and cases cited therein. In State v. Kwitek (1972), 53 Wis.2d 563, 572, 193 N.W.2d 682, this court quoted with approval from United States v. Ewell (1966), 383 U.S. 116, 120, 86 S.Ct. 773, 15 L.Ed.2d 627, in rejecting a proposed numerical standard to be applied in determining whether the right to a speedy trial has been denied:

". . . 'The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice.' Beavers v. Haubert, 198 U.S. 77, 87, 25 S.Ct. 573, 49 L.Ed. 950. 'Whether delay in completing a prosecution . . . amounts to an unconstitutional deprivation of rights depends upon the circumstances. . . . The delay must not be purposeful or oppressive.' Pollard v. United States, 352 U.S. 354, 361, 77 S.Ct. 481, 1 L.Ed.2d 393. '(T)he essential ingredient is orderly expedition and not mere speed.' Smith v. United States, 360 U.S. 1, 10, 79 S.Ct. 991, 3 L.Ed.2d 1041."

In Kopacka v. State (1964), 22 Wis.2d 457, 126 N.W.2d 78, defendant was arrested on September 13, 1961. Trial was originally scheduled for the November, 1961 term, but due to the illness of the judge did not proceed until April 17, 1962. In rejecting the defendant's contention that he had been denied the right to a speedy trial, this court stated at page 460, 126 N.W.2d at page 80:

'. . . Each case involving the issue of denial of a speedy trial turns on its own facts, although the general rule is stated to be that the right to a speedy trial is a right to be tried as soon as is reasonably possible. A motion to dismiss for lack of speedy trial will be denied where the accused is tried as soon as the orderly conduct of the business of the court permits. . . .'

In the instant case, the defendant made a demand for a speedy trial on October 15, 1970. No objection was made to the February 1st trial date. The case was adjourned to April 5, 1971, because one of the state's principal witnesses was hospitalized and unavailable for trial. This fact was verified and was not contested by the defendant. Because the adjournment was for more than sixty days, the court released the defendant on his own recognizance pursuant to sec. 971.10(4), Stats. Some delays in the criminal process are inevitable and where, as here, a valid reason exists for the delay, it cannot be said the defendant has been denied the right to a speedy trial. See Dickey v. Florida (1970), 398 U.S. 30, 37, 38, 90 S.Ct. 1564, 26 L.Ed.2d 26.

SUFFICIENCY OF EVIDENCE AT TRIAL.

On appeal, when the issue of sufficiency of evidence at the trial is raised, we deem it unnecessary to set forth the facts in detail when our independent examination of the record leads us to conclude that the judgment of the trial court should be affirmed. Suffice it to say that in the instant case, there was a conflict in the testimony of the witnesses called by the state and those of the defendant. Also, there were inconsistencies in the testimony presented by various witnesses called in behalf of the defendant.

The test for determining the sufficiency of evidence on appeal has recently been restated by this court in Bautista v. State (1971), 53...