York v. State

• Decision Date: 03 February 1970
• Docket Number: Nos. S,s. S
• Citation: 45 Wis.2d 550,173 N.W.2d 693
• Parties: James C. YORK, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. Earl David BOWIE, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 9, 10 and 65.
• Court: Wisconsin Supreme Court

Page 693

173 N.W.2d 693

45 Wis.2d 550

James C. YORK, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

Earl David BOWIE, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

Nos. State 9, 10 and 65.

Supreme Court of Wisconsin.

Feb. 3, 1970.

On March 22, 1968, Patrolman Gary Byers and James O'Brien of the Milwaukee police department were sent to the Serb Tavern at 1300 West State street in Milwaukee, to investigate an alleged burglary there. The officers arrived at the scene at approximately five a.m., observed that a plywood panel, used in place of a rear window, had been pushed in to gain entry into the tavern, conferred with other officers at the scene, and then began searching for suspects.

On the basis of some descriptive information supplied to the officers, they stopped and arrested the defendants, York and Bowie, for the burglary. The defendants were at the time of their arrest walking east on West Juneau avenue, approximately three and one-half blocks from the scene of the burglary.

On May 20, 1968, after both defendants had been arraigned, pleaded not guilty, and waived a jury trial, their joint trial before the Hon. Clarence G. Traeger was commenced. Both defendants were represented at all material times by their court-appointed attorneys.

During the trial, the following testimony and evidence were adduced: Officer Byers testified that after he had advised defendant York of his constitutional rights, York admitted to him that he had participated in the burglary of the Serb Tavern by acting as a lookout while defendant Bowie actually entered the tavern via the pushedin plywood panel to take the money. All parties stipulated that Officer Byers' testimony about York's implication of Bowie was not admissible evidence against Bowie.

At the time of their arrests, York had $28.40 on his person and Bowie had $33.05. The owner of the tavern testified that $75 was missing from the cash register.

Detective Edwin Cornell, of the Milwaukee police department, also testified. He said that he also arrived at the Serb Tavern at approximately five a.m., conducted an investigation, and found a piece of material of 'a brownish color, very wide weave type of material from some type of garment,' on a nail just inside the rear window from which the plywood had been forced off. When arrested, defendant Bowie was wearing a three-quarter brown coat with a tear on the left side near the pocket.

According to Detective Cornell, the piece of material taken from the nail was 'approximately the same size as the tear in Mr. Bowie's coat' and was also similar to the coat in color and weave.

Neither the coat nor the piece of material were produced at the trial since they had been sent to the FBI lab in Washington for testing about a week before the trial. At the time of the trial neither the coat piece of material, nor lab report had been received back from the FBI.

Defendant Bowie, by his counsel, made timely objection to Detective Cornell's testimony that the coat and piece of material were similar; however, defendant York did not object.

Another Milwaukee police detective, James Behrendt, testified that he questioned one Earl David Bowie in the interrogation room of the police station at about 10 a.m. on March 22, 1968. However, in response to direct questioning by the prosecuting attorney, Detective Behrendt testified as follows:

'Q. Do you see a person in this room whom you know to be Earl David Bowie? A. There are two Negro gentlemen in court. I don't know which is Earl Bowie at this time to be honest with you.

'Q. Do you recognize either of the two gentlemen in court today? A. No, I can't say as I do.'

Thereafter, the prosecuting attorney asked leave of the court to 'remove this officer from the stand and present another officer in hopes of checking up the identity of this particular person.' The trial court permitted this and Detective Cornell was recalled to the stand.

Detective Cornell testified that both he and Detective Behrendt had interrogated the defendant Bowie on the morning of March 22, 1968. Cornell did not testify that he heard all of Behrendt's interrogation of Bowie but he did state that he was in the interrogation room during at least a portion of it. In addition, Cornell testified that the Earl David Bowie that Detective Behrendt was interrogating, and the Earl David Bowie that was on trial in the court room were the same person.

Detective Behrendt then resumed the stand and over defendant Bowie's objection, was permitted to testify to admissions made to him by Bowie. According to Behrendt, Bowie told him that he and York burglarized the Serb Tavern. Bowie also told Behrendt that he had punched in the plywood panel over the window, had entered the tavern and taken $75 in currency which he then split with York and another individual.

After Behrendt's testimony, the state rested and both defendants rested without calling witnesses and without testifying themselves. The court found both defendants guilty of burglary in violation of sec. 943.10(1)(a), Stats.

After the finding of guilt, defendant York's counsel requested a presentence investigation. The court did not order such an investigation; instead it used the criminal records of the defendants for the purpose of sentencing. At one point in perusing defendant York's record, the court asked about a federal-fugitive-from-justice warrant that appeared on York's record:

'The Court: (Did it) entail burglary in some other state.

'Mr. Spindler: Probably yes, on a federal-fugitive-from-justice warrant.

'The Court: Do you have any comment with reference to that record, Mr. Clark?

'* * *

'Mr. Clark: * * * I think there is a typographical error on this record. * * *

'* * *

'The Court: It is your allegation it should be forgery instead of burglary?

'Mr. Clark: I believe the record shows this.'

In addition, the record of York did reveal that he had been convicted of aggravated battery, and that he was on probation or parole for aggravated battery at this time.

In sentencing York, the trial court said:

'* * * I would like to be considerate to any person that can come up with any kind of a record that isn't bad, but (when) a person has been given an opportunity for probation and he violates that probation or commits a similar offense after being released therefrom, this court cannot look upon it in the same light that you might look upon it where such a record did not exist.'

Both defendants were then sentenced to indeterminate terms of three years in the Wisconsin state prisons, the terms to run consecutively to any sentence or sentences previously imposed.

On May 23, 1968, defendant Bowie filed a written motion for a new trial which was heard, argued and denied. At that time, defendant York also appeared by counsel to present an oral motion for a new trial, which was argued and denied. The record does not reveal what issues were raised by this motion. Thereafter, York filed a written motion for a new trial but this motion did not challenge the accuracy of the record of York's past offenses which the trial judge considered at sentencing. This motion also was denied.

These actions are before us on writs of error issued to York and bowie.

Alvin R. Ugent, Milwaukee, for James C. York.

Gregory Gramling, Jr., Milwaukee, for Earl David Bowie.

Robert W. Warren, Atty. Gen., Madison, E. Michael McCann, Dist. Atty., Michael Ash, Asst. Dist. Atty., of Milwaukee County, Milwaukee, for defendant in error.

WILKIE, Justice.

As to the conviction of both defendants, one issue appears in common to both cases: Should the trial court have excluded the testimony of Detective Cornell that the piece of cloth found at the burglary scene and Bowie's coat were similar?

We assume that both defendants sufficiently objected to the introduction of this testimony. ¹

Objection is made to the testimony of Detective Cornell regarding the piece of cloth and the tear in Bowie's coat contending it should have been excluded for two reasons: (1) It violates the best evidence rule, and (2) it is merely opinion evidence.

Best Evidence Rule.

When proving a proposition of fact a litigant will undoubtedly try to do so by the most reliable and enlightening evidence available. There is also pressure on the litigant to prove up his case by strong and clear evidence for not to do so runs the risk that natural suspicion, sharpened by adverse comment of opposing counsel, may arise from failure to adduce cogent proof which the trier of fact believes should be available if the proponent's contention as to the facts is sound.

When what is being proved is the content of a writing, this pressure is elevated to the full force of a rule of law which requires that the original writing must be produced, unless it is shown to be unavailable for some reason. This is known as the Best Evidence Rule. It has come to be recognized that the Best Evidence Rule is applicable only when attempting to prove the contents of a writing, ² and that it has no application to a case where a litigant seeks to prove a fact which has an existence independent of any writing. ³

Counsel for both defendants concede this much but argue that the Best Evidence Rule should be extended to the instant situation. The state characterizes this argument as calling for the creation of the 'Better Evidence Rule.' According to the state, the defendants are asking for a rule which would admit only the better evidence, in this case the piece of material and coat itself, and exclude any lesser evidence such as testimony concerning the coat and piece of material. The state argues this court should reject this rule. We agree.

This lesser evidence presented here does not raise a question of admissibility, but rather goes to the weight the evidence will be given. ⁴ It is undoubtedly true that the actual piece of material and the coat, or the FBI report, would be entitled to greater weight than the testimony...