The plaintiff in error, Lawrence Douglas Howland (hereinafter "defendant"), was convicted of the crime of enticing a child into a vehicle with intent to commit a crime against sexual morality, in violation of sec. 944.12, Stats.

After defendant's conviction in a jury trial, but prior to sentencing, the defendant was committed to the department of health social services for presentence examination under sec. 959.15(2), Stats., relating to sex crimes. On December 22, 1969, a Huebner hearing was held and adjourned; and on January 6, 1970, defendant was found to be a sex deviate and in need of specialized treatment. He was committed to the custody of the department of health social services for an indeterminate term under sec. 959.15(6).

Writs of error were issued to review the judgment of September 10, 1969, and the order of January 6, 1970.

On August 20, 1968, the victim, a five-year-old girl, was forced into an automobile in the city of Milwaukee and driven to Kenosha where she was forced to commit an act of sexual perversion on the man who had abducted her.

During the late summer of 1968 there had been a number of child abductions and molestations reported to the Milwaukee police. A composite description of the abductor's vehicle had been pieced together from information given to the police by various victims. The result was that the city of Milwaukee police and the county of Milwaukee sheriff's deputies were on the lookout for a light-colored station wagon with black and white striped upholstery and a license number beginning with the digits "40."

On September 9th, sheriff's deputy James O'Neil and his partner, deputy Andrew Henderson, were cruising on West Bluemound Road when they spotted a car which matched the general description given by several of the abduction victims. These officers noted its license number which was F-40232. The officers ran a check on this license number and obtained the name and address of the owner, who was Lawrence Douglas Howland, the defendant.

After completing their work shift on September 9, 1968, O'Neil and Henderson went to the defendant's home where they observed his car parked outside and found that it contained additional features they had not noted earlier, which matched up with the various descriptions on file. These features included, among others, mud flaps on all four wheels, a chrome luggage rack on top and a floor rug with an unusually long three-quarters-inch nap. The car was a brown over beige 1963 Rambler wagon.

After identifying themselves as police, they were admitted to the house by the defendant's wife. The officers told the defendant, out of the presence of his wife, that they were officers investigating child molestations and would like to ask him some questions. Before anything else was said, O'Neil gave the defendant a Miranda warning. According to O'Neil, the defendant stated that he understood his rights, that he had nothing to hide and would be happy to answer questions.

The defendant then acknowledged that the 1963 Rambler parked outside was his. Asked if he owned any work boots, the defendant went into his bedroom and came back and exhibited a pair of tan work boots with white paint spots on them. The defendant was then asked about his past criminal record, and he admitted to the officers that he had previously done time in Waupun for offenses very similar to those the officers were investigating. The officers then asked the defendant if they could search his car he consented and suggested that they search the garage too. Upon returning to the house, the defendant was asked if he would go downtown and talk with the deputies' commanding officer. The defendant hesitated and asked if he could call his attorney. The defendant then called his attorney; and his attorney, after determining that the officers had no warrant for the defendant's arrest, advised the defendant to remain at home and not to go downtown voluntarily.

Upon learning of this advice, the deputies called their superior who instructed them to remain with the defendant until two city of Milwaukee detectives who were assigned to the case could arrive. About a half hour later, detectives Cole and Cherney arrived. All of the above information was related by deputy O'Neil at a pretrial hearing on a motion to suppress the evidence consisting of defendant's boots and car. O'Neil also stated that neither he nor his partner placed the defendant under arrest.

When detective Cole arrived, he was admitted by the defendant's wife, and he observed the car and the work boots and noted that both matched the descriptions already referred to. Cole also gave the defendant a Miranda warning and then asked him if he knew his whereabouts on various dates. The defendant stated that he worked odd hours and could not be certain. Cole then placed the defendant under arrest and told him he would have to go downtown.

At this point the defendant again asked permission to call his attorney which was allowed. After the call was completed, Cole asked the defendant if he could search the house. The defendant said, "[G]o ahead, I have nothing to hide." Cole then looked in the various rooms and asked to search the car and the garage. Again permission was granted. The defendant then was taken downtown, and his work boots and car were seized and impounded. Also seized was a guitar case with flower decals pasted on it. This case had also been described by victims of molestations as one of the items which they had seen in the car of the man who abducted them.

The defendant and his wife both testified that (1) The sheriff's deputies told him he was under arrest; (2) no warning as to his constitutional rights was ever given at any time by any of the four officers; and (3) no consent to a search of the house was given to any officer. The defendant stated that the guitar case was in a walk-in closet in the dining room and the door to the closet was closed when police walked in and seized it.

The defendant's wife gave the same testimony as the defendant.

Additional facts will be stated in the opinion.

HANLEY, J.

We are presented with the following issues:

(1) Did the trial court err in admitting certain physical evidence;

(2) Did the trial court err in denying defendant a new trial in the face of unexplained exculpatory evidence;

(3) Did the trial court err in restricting cross-examination of a state expert testifying in defendant's sex deviate hearing about his opinions which had a hearsay foundation; and

(4) Does the Wisconsin Sex Crimes Law provide cruel and unusual punishment proscribed by the United States Constitution?

Admissibility of certain evidence.

The defendant contends that his automobile and work boots found at his residence by the investigating officers were erroneously received in evidence and that the error was prejudicial.

After the hearing on the motion to suppress, the trial court declined to make any ruling on the admissibility of the evidence sought to be suppressed. Later, during the course of the trial, the court ruled:

(1) The search by the Milwaukee county sheriff's deputies was valid;

(2) The arrest by the Milwaukee county sheriff's deputies was valid; and

(3) The search and seizure by the Milwaukee city police was valid.

The car can be eliminated from the problem of search and seizure because it was not discovered in the course of a search. It was standing in plain view outside the defendant's house. Since no search was required in order to discover the car, the question of its admissibility under the exclusionary rule of the fourth amendment to the United States Constitution does not even arise.

The boots present a different problem. The testimony of deputy O'Neil was that upon being asked if he owned any boots, the defendant went to his bedroom, returned to the kitchen with his boots and showed them to the officers. This was corroborated by detective Cole who stated that the work boots were already in plain view in the kitchen when he arrived at the apartment.

The defendant and his wife denied this, stating that some police officer walked into the bedroom and got the boots himself.

If the testimony of the officers was believed by the trial court, then no search at all occurred within the meaning of the fourth amendment.

In this case the trial court, after listening to the evidence on the motion to suppress, reserved his ruling on that issue. Later, at trial, when it became apparent that the ruling was necessary, the court stated his ruling in terms of ultimate findings of fact and did not make specific evidentiary findings. He stated that the boots were admissible, but he did not allude to the evidence or testimony from the pretrial hearing which he felt justified his conclusion that the boots were admissible.

As a result of the trial court's inadequate findings, this case comes within the rule set forth in Barnes v. State (1964), 25 Wis.2d 116, 122, 130 N.W.2d 264, where this court said:

"In the instant case we do not have the benefit of any finding of fact by the trial court with respect to whether or not defendant voluntarily consented to the search. We, therefore, must make our own independent determination of this factual issue upon the evidence before us. . . ."

In this case the evidence adduced at the pretrial hearing on the motion to suppress would support only one of two possibilities. Either the defendant voluntarily produced the boots himself or he consented to a search in which the boots were discovered. The defendant, of course, stated that the officers made a search without his permission. However, on cross-examination he was unable to state which officers made the search or even which one picked up the boots. The defendant's wife attempted to corroborate his claim that a nonconsensual search was made, but her credibility was rendered doubtful by numerous gaps and inconsistencies in her version of what occurred while the police officers were present. We, therefore, conclude, after an independent review of the record on this point, that the trial court's ruling on the admissibility of the boots was correct and supported by adequate credible evidence.

Next the defendant contends that the admission of the boots and car in this case violated the most fundamental rule of real evidence in that no adequate foundation was laid to show the relevance of these items.

The defendant here claims the foundation in this case was inadequate. The victim did not testify at the time these items were introduced. The defense and the state entered into a stipulation that when she was shown the boots and car at the police station shortly after the defendant's arrest, she could not identify the boots and car as being those of her abductor. A second stipulation was made which stated that the victim had said, upon seeing the car and boots, "Yes, that could be the car and those could be the boots that I saw on the date that I was given a ride."

The general rule regarding the foundation necessary for the admission of real evidence is that a witness' inability to make a positive identification of the objects proffered does not preclude their admission. It is generally held that the witness' lack of certitude as to whether the objects offered are the ones he saw on prior occasion goes to the weight the jury should give to the evidence, but lack of certitude does not preclude admissibility. 1 Wharton, Criminal Evidence (12th ed.), pp. 359, 361, sec. 181; State v. Olek (1970), 288 Minn. 235, 179 N.W.2d 320.

We think that although the actual admission of the evidence was error because at the time of admission the state admitted that the victim was unable to identify the objects, such error (lack of foundation) was cured by the second stipulation wherein it was agreed that she had said the items "could be" the ones she saw.

Denial of motion for new trial.

At the close of the state's case, the defendant made a Brady motion asking the district attorney's office to turn over to the defense any evidence which it might have which would tend to exculpate the defendant. The state complied with the request by delivering to the defendant's attorney the entire file which the Milwaukee police department compiled in the course of investigating several child molestations which occurred in Milwaukee during the summer of 1968.

The victim's description of her assailant and the interviewing officers' description of the "other suspect" matched very closely. The defense counsel read to the jury the victim's description of her assailant, but for some inexplicable reason he failed to read to them the police description of the "other suspect." Instead he waited until the trial was over and then made a motion for a new trial based on the assertion that:

". . . the state did not produce any explanation for the exculpatory material that was disclosed during the examination of the investigative materials [police file on suspects] in this case . . ."

In short, the defendant's theory was that because the state had uncovered two likely suspects, it not only had to prove one guilty beyond a reasonable doubt but also had to prove the other innocent beyond a reasonable doubt. Defendant cites no authority for this proposition; and we find no authority so holding.

We find no error in the trial court's denial of the defendant's motion for a new trial because the motion was based on an invalid proposition of law.

Adequacy of the Huebner hearing.

Pursuant to the provisions of sec. 959.15(1), Stats., the defendant was committed to the custody of the department of health social services for a presentence examination. Upon the conclusion of that examination, a Huebner hearing was held to determine whether the defendant should be sentenced according to law as provided in sec. 975.05, or whether he should be committed to the department for specialized treatment under the Sex Crimes Law. At that hearing a psychiatrist and a psychologist from the department of health social services testified that they had examined the defendant and it was their opinion that he was a sex deviate and in need of specialized treatment. The defendant's own court-appointed psychiatrist did not testify, but he filed a report with the court stating that it was his conclusion that the defendant was a sex deviate.

On cross-examination by the defendant's attorney, both of the expert witnesses from the department admitted that their examination of the defendant was not satisfactory in that he denied that he was guilty of the charge in this case and refused to talk with them about the case. They both admitted that their conclusion that the defendant was a sex deviate and in need of treatment was based in large part on the fact that the jury in this case had found him guilty.

The defendant now contends that since the two experts did not observe his trial firsthand, their knowledge of his conviction is based on hearsay. He further argues that their opinion that he was in need of specialized treatment was therefore based in part on hearsay, and for that reason the opinion was not competent evidence. Since the opinion was not competent evidence, a sentence imposed on the basis of such evidence is a nullity.

This argument is without merit for two reasons: First, the fact of the defendant's conviction is a matter of public record, and such records are a well-recognized exception to the hearsay rule. McCormick, Evidence (hornbook series), p. 614, sec. 291. Secondly, sec. 959.15 (1) and (2), Stats., now secs. 975.01 and 975.02, clearly envision that the department's experts will be informed of the defendant's conviction and consider the same as one of the many factors on which their opinion will be premised. Sec. 975.01 provides in part as follows:

". . . The court and all public officials shall make available to the department upon its request all data in their possession in respect to the case."

We find no merit to the defense claim that the trial judge erred in restricting defense counsel's cross-examination of the state's expert who testified to an opinion based on the conviction record.

Constitutional question of cruel and unusual punishment.

The defendant attacks his commitment as a sex deviate upon the ground that the statute provides for cruel and unusual punishment proscribed by the United States Constitution.

Defendant charges that in Wisconsin a defendant classified as a sex deviate may be institutionally committed for life when the substantive offense for which he was convicted calls for a limited period of confinement. In this case, the defendant could have been imprisoned for a term of ten years. Now he faces the prospect of a lifetime in a state institution.

The defendant obviously overlooks the provisions of sec. 959.15(12), (13), (14), (15) and (16), Stats. In essence, these subsections provide that the defendant here must be discharged at the expiration of the maximum term for which he could have been sentenced to a penal institution, unless the department has previously made an order that he remain subject to its control for a greater period and has obtained approval of that order from the committing court. Upon such a review, the committing court may direct his continued control by the department or may discharge him. If the court affirms the department order, the defendant may appeal to this court, which may either affirm or reverse the committing court, or direct the taking of additional evidence by the trial court.

The procedure above described is not designed to determine the criminal punishment to be imposed but to determine whether treatment and the protection of the public is necessary.

We conclude that a commitment under the Wisconsin Sex Crimes Law does not constitute cruel and unusual punishment.

We find no error in the trial court's rulings on the admission of evidence. We also conclude that the trial judge did not abuse his discretion in denying defendant's motion for a new trial. We do not believe the Wisconsin Sex Crimes Law provides for cruel and unusual punishment.

By the Court. — Judgment and order affirmed.