Thompson v. State

• Decision Date: 02 May 1978
• Docket Number: No. 76-059-CR,76-059-CR
• Citation: 83 Wis.2d 134,265 N.W.2d 467
• Parties: Robert Lee THOMPSON, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.
• Court: Wisconsin Supreme Court

Page 467

265 N.W.2d 467

83 Wis.2d 134

Robert Lee THOMPSON, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.

No. 76-059-CR.

Supreme Court of Wisconsin.

Argued Feb. 8, 1978.

Decided May 2, 1978.

The plaintiff in error, Robert Lee Thompson (defendant), after a jury trial, was convicted of armed robbery contrary to sec. 943.32(1)(b) and (2), Stats., on May 22, 1975. A motion for postconviction relief was deemed denied because not acted upon within the statutory time limit. The defendant seeks review of both the judgment and the order denying the motion for postconviction relief.

Glenn Cushing, clinical intern, for plaintiff in error; Howard B. Eisenberg, State Public Defender, and Richard M. Sals, Asst. State Public Defender, on brief.

Marguerite M. Moeller, Asst. Atty. Gen., for defendant in error; Bronson C. La Follette, Atty. Gen., on brief.

BEILFUSS, Chief Justice.

The defendant contends (1) that the search of his automobile and seizure of a .38 caliber revolver between the seats, and money in the glove compartment and trunk was unreasonable under the Fourth and Fourteenth Amendments to the United States Constitution; (2) that admission of the .38 caliber revolver in evidence was erroneous and prejudicial; and (3) that giving of an instruction allowing the jury to consider the defendant's interest in the outcome of the trial denied him a fair trial under the Fourteenth Amendment.

At approximately 6:25 p. m., on June 25, 1974, a Clark gasoline station was robbed in the city of Milwaukee. Police Sergeant Kenneth Bushek received a radio dispatch announcing the armed robbery and describing the robber as a young black male, six feet one, 170 pounds, with bushy hair, bib overalls, tennis shoes, and a multicolored shirt. At 8:22 p. m., that night, in the 1600 block of North 3rd Street, Sergeant Bushek stopped a car driven by a person matching the description. The driver was Robert Lee Thompson, the defendant in this case. Although Thompson's chest was bare, Sergeant Bushek noted the hair style, size, and bib overalls of the defendant. Sergeant Bushek ordered the defendant out of the car and observed a multicolored shirt on the seat.

Shortly after removing Thompson from the car, Sergeant Bushek placed him under arrest for the Clark robbery, but Bushek could not remember if he had placed him under arrest before or after finding a revolver in the car. In any event, Thompson was in custody. Bushek immediately told him that he was a suspect in the robbery.

At about the same time that the weapon was discovered, other police officers began arriving on the scene. At a minimum, two other officers were present from that time on. Bushek then searched the car. He found $82 in currency and $10 in coins in the glove compartment, and $710 wrapped in brown paper folded inside a jacket in the trunk. He unlocked the trunk with defendant's keys. There was no consent to the search. The contents of the vehicle were inventoried and it was towed away in police custody.

Three days before, on June 22, 1974, at approximately 4 p. m., a tavern in Milwaukee, owned by James Hering, was robbed. On June 26, 1974, Detective James Mamayek asked Hering to examine six photographs. After examining the pictures for about five minutes, Hering picked defendant Robert Lee Thompson as the robber. Later that day Hering attended a lineup and again picked out Thompson. Thompson's attorney was present at all times during the lineup.

A criminal complaint was filed on June 27, 1974, charging Robert Lee Thompson with the June 22nd armed robbery of Hering's tavern contrary to sec. 943.32(1) (b) and (2), Stats.

On May 2, 1975, a Wade-Gilbert type hearing was conducted to test the validity of the identification procedure. Detective Mamayek testified as to the procedure involved. Then James Hering testified that he had picked out defendant Thompson from both the photographs and the lineup. During the hearing Hering was shown photographs of the lineup in which Robert Lee Thompson was Number 4, and after informing the court that he had chosen Number 4 at the original identification, Hering pointed out Number 3 instead. However, the photographs shown to him at that time were side views and when shown the front view he again picked Number 4, the defendant Thompson. The court held that the lineup procedure was constitutionally antiseptic.

Trial by jury was commenced on May 19, 1975. James Hering identified defendant Thompson in court as the robber of his tavern. He then testified he was alone when Thompson entered and asked him for change for a five dollar bill. Hering took the bill and went to the cash register. Thompson said, "This is it," and Hering saw that he was holding a gun. Hering described it as an automatic pistol and he noted that Thompson cocked it by sliding the chamber back. He stated that he was familiar with handguns to the point of being able to distinguish revolvers from automatics. Thompson ordered Hering to lie down. Hering did so. Then Thompson took $190 cash and fled.

The state then called Sergeant Bushek as a witness. The defense demanded a suppression hearing because it had not been informed that the state intended to call Bushek. The defense noted that the revolver found in Thompson's car was irrelevant because it was clear that an automatic was involved in the Hering robbery. The prosecution replied that it was relevant: ". . . the fact that he carries a gun again shows a predisposition toward violence." The defense moved for mistrial. The motion was denied.

The defense then made an oral motion to suppress any evidence relating to the weapon found in Thompson's car on the grounds that the gun was immaterial to the charge of armed robbery on June 22, 1974, because the gun involved there was an automatic and that the search of Thompson's car was contrary to defendant's Fourteenth Amendment rights. Defense counsel contended that any probative value which this evidence might possess was outweighed by the prejudicial effect of allowing the jury to hear it.

A hearing was held outside the presence of the jury and Bushek recounted the facts and circumstances of the June 25, 1974 arrest. The motion to suppress was denied. The defense again moved for mistrial; again the motion was denied.

Sergeant Bushek then testified before the jury to the effect that he had arrested the defendant and found the revolver and money in his car. He was questioned extensively on the difference between automatics and revolvers. He stated that the pistol found in the car was a revolver. He noted that automatics are cocked by pulling back a rectangular slide, while there is no such slide on a revolver. He demonstrated that a revolver has a cylinder and is cocked by pulling back a hammer.

The state's case concluded with the testimony of Detective Mamayek on the identification procedures.

The defense was primarily based on an alibi. Thompson's girlfriend, Karen Louise Abts, testified that she and the defendant had spent the entire day together from nine in the morning until midnight. The defendant gave the same account as to his whereabouts. He further stated that he had earned the money as a barber in Indiana and had brought it to Milwaukee because he was planning to buy some clothes. He testified that he had owned the revolver for six years.

The defense objected to the giving of Wisconsin Jury Instruction Criminal 310 on self-interest of a defendant testifying on his own behalf. The court overruled the objection and the instruction was given.

On May 22, 1975, the jury returned a verdict finding Robert Lee Thompson guilty of the armed robbery of Hering's Tavern. The court sentenced Thompson to a term of eleven years and one month to run concurrently with a sentence imposed in another case.

The search of the automobile was without a warrant. The defendant contends the search was unreasonable and does not fall within any of the recognized exceptions to the constitutional warrant requirement. Some of the exceptions are consent to search, search incident to arrest, a probable cause search, an exigent circumstance search, a police inventory search, and an automobile exception to warrantless search.

Clearly there was no consent to the search nor does the state rely upon it being a search incident to lawful arrest or an exigent circumstance search. The state defends the warrantless search contending it was justified either as an automobile search based upon probable cause or a police inventory search.

The state seeks to justify the search upon the ground that it was permissible under the inventory exception. The United States Supreme Court has held that inventory searches pursuant to "Standard police procedures" are reasonable and permissible. However, the purpose of the search is not to discover evidence but to secure or protect the car and its contents. ¹ In Warrix v. State, 50 Wis.2d 368, 376, 184 N.W.2d 189 (1971), this court expressed the reasons underlying inventory searches:

"Many times claims against the police have been made by the accused that personal property has disappeared from his car while he and the car were in police custody. To protect the police from such claims, a custodial search and inventory may be made of the personal property in a car which can be easily removed." See also State v. McDougal, 68 Wis.2d 399, 406, 228 N.W.2d 671, 674 (1975).

Although Sergeant Bushek testified that it was standard police operating procedures to inventory an automobile whose driver has been arrested, before towing it, it is apparent that this was not an inventory search. When asked why an inventory is conducted prior to towing, Bushek replied:

"For protection and safeguarding of evidence."

And in describing the operating procedure, Bushek said,

"Any time a crime is committed and a vehicle is used and it's going to be used as evidence, the vehicle is towed and kept under proper guidelines."

The purpose of a custodial or inventory...