Opinion
No. State 155.
Argued June 4, 1969. —
Decided June 27, 1969.
ERROR to review a judgment of the circuit court for Milwaukee county: JOHN L. COFFEY, Circuit Judge. Affirmed.
For the plaintiff in error there was a brief by Franklyn M. Gimbel and Gimbel Gimbel, all of Milwaukee, and oral argument by Franklyn M. Gimbel.
For the defendant in error there was a brief by Robert W. Warren, attorney general, E. Michael McCann, district attorney of Milwaukee county, and Terence T. Evans, assistant district attorney, and oral argument by G. George Lawrence, assistant district attorney.
Plaintiff in error, James Lee Liphford (hereinafter the "defendant"), was tried and convicted of robbery in violation of sec. 943.32 (1), Stats. After a plea of not guilty a trial was had to the jury, and judgment was entered on the verdict on May 21, 1968. Defendant was sentenced to an indeterminate term of not more than fifteen years in the state prison.
A writ of error was issued to review the judgment of conviction.
In the early morning hours of December 20, 1967, the defendant was arrested on a charge of armed robbery. The defendant had been identified from a picture on file at the Milwaukee police bureau of identification as one of two persons who robbed DeWayne's Tavern in Milwaukee, Wisconsin, on December 18, 1967. The identification was made by the bartender who was on duty the night of the incident.
The bartender, Charles Thompson, testified at the subsequent trial that he was alone in the tavern about 8:30 p.m., when the defendant and another man entered the premises to play pool. After a few minutes the defendant appeared at the bar with a gun in his hand and announced that a holdup was in process. The bartender was ordered to turn over his wristwatch and to retire to the washroom. After a few minutes the bartender came out of the washroom; the tavern was empty; and $104 had disappeared from the cash register.
The bartender further testified that he picked the defendant's picture out of the police file and that he had not known the defendant previously. During the trial the bartender made an eyewitness identification of the defendant as the person who came into the tavern on the night of the robbery.
The defendant called two witnesses and gave testimony on his own behalf in support of the alibi which he had filed prior to the commencement of the trial.
The gist of the alibi was that from about 6 p.m. until about 9 p.m., on December 18, 1967, the defendant was at Pearl Tatum's house at 2641 North 22nd street in Milwaukee. Pearl Tatum is the defendant's first cousin. Just before 9 p.m. the defendant took a cab to Lennie's Tavern at 12th street and North avenue where he met his sister, Rosie Horton. The defendant arrived at Lennie's shortly after 9 p.m. and stayed until about 10:30 p.m. After that he returned with his sister to Pearl Tatum's house.
Pearl Tatum testified that the defendant came to her house at about 6:30 p.m., on December 18, 1967, and that he stayed until 8:45 p.m. Just before 9 p.m. the defendant took a cab to meet his sister.
Rosie Horton, the defendant's sister, testified that the defendant met her at Lennie's Tavern about 9:30 p.m., that they stayed at Lennie's until about 10:30 p.m., and that they then went back to Pearl Tatum's house.
The defense and the prosecution stipulated that if a representative of the Checker Cab Company was called, he would testify that the company received a call at 9:20 p.m., on December 18, 1967, to report to 2641 North 22nd street (Pearl Tatum's house). After the presentation of the alibi, the defense rested.
In rebuttal the state called Detective Michael Almendi who testified that he questioned the defendant at 9:40 a.m., on December 20, 1967. At that time the defendant stated that he was at a girlfriend's house at 18th and Galena streets from 6 p.m. to 8 p.m. on the night in question. He did not know what he had done after that. Detective Almendi stated that the defendant never mentioned Pearl Tatum's house or Lennie's Tavern as places he had been to on December 18th.
Two issues are presented by this appeal:
(1) Was it prejudicial error to permit the state to question the defendant concerning the number of his prior convictions after the defendant admitted having been convicted of a crime; and
(2) Was defendant's statement to the detective admissible?
Number of Prior Convictions.
In State v. Midell (1968), 39 Wis.2d 733, 159 N.W.2d 614, this court squarely held that under sec. 885.19, Stats., a defendant who takes the stand may be asked if he has ever been convicted of a crime and the number of times he has been so convicted.
" Convict. A person who has been convicted of a criminal offense is, notwithstanding, a competent witness, but the conviction may be proved to affect his credibility, either by the record or by his own cross-examination, upon which he must answer any question relevant to that inquiry, and the party cross-examining him is not concluded by his answer."
". . . sec. 885.19, Stats., expressly provides that a defendant who takes the stand may be asked if he has ever been convicted of crime. State v. Ketchum [(1953), 263 Wis. 82, 87, 56 N.W.2d 531] ruled that such defendant may be asked the number of times he has been so convicted. In State v. Adams [(1950), 257 Wis. 433, 43 N.W.2d 446] the defendant had testified on direct examination to four previous convictions. On cross-examination, the district attorney referred to the nature of such previous offenses and this court held that it was error to permit such inquiry. The court did not conclude that the mere number of convictions may not be brought out. . . ." State v. Midell, supra, at pages 738 and 739.
The defendant contends that the only purpose of asking "how many convictions" was to show that the defendant had a propensity for committing crimes. This is not the purpose of the question. Under sec. 885.19, Stats., a person who commits a crime is considered to be less credible than the ordinary witness. A person who has been convicted 11 times previously (as was the defendant here) is considerably less credible than a person who has only been convicted once.
There can be no doubt that the defendant's credibility was in issue in this case. He asserted an alibi that placed him away from the scene of the alleged robbery. Had the jury believed his testimony, there could have been no conviction.
We think the question concerning the number of prior convictions was permissible impeachment evidence. We deny defendant's request to overrule State v. Midell, supra.
Reception of Statement into Evidence.
The defendant was arrested at 12:30 a.m., on December 20, 1967. At 4:30 a.m., two police officers questioned him regarding his involvement in the armed robbery. At 9:40 a.m., prior to his initial appearance before a magistrate, the defendant was questioned by Detective Almendi. At that time the defendant gave the detective an oral exculpatory statement which was inconsistent with the alibi proposed at the trial. This custodial exculpatory statement was subsequently used at the trial to impeach the defendant's alibi.
The defendant now contends that any statement taken from him prior to his initial appearance before a magistrate is inadmissible for any purpose whatsoever. The record contains a statement from the trial court that the magistrates in Milwaukee county do not begin processing cases before 9 a.m. Although the record is not clear, it appears that the defendant was taken before the magistrate shortly after 10 a.m., on December 20. That would be about nine and one-half hours after he was arrested and about one hour after the magistrate began handling cases.
The defendant does not contend here that the statement was involuntary; nor does he argue that the detective failed to advise him of his constitutional rights. He does contend, however, that the failure to take him before the magistrate "at the first strike of the gavel" rendered any subsequent statement inadmissible.
This court fully discussed the development of the McNabb-Mallory rule and its applicability in Wisconsin in Phillips v. State (1966), 29 Wis.2d 521, 139 N.W.2d 41. Subsequent to the opinion in the Phillips Case, this court has summarized the effect of that decision.
McNabb v. United States (1943), 318 U.S. 332, 63 Sup. Ct. 608, 87 L. Ed. 819, provided for the exclusion of a confession, although voluntary, which is made during an illegal detention due to the failure promptly to bring the prisoner before a committing magistrate. In Mallory v. United States (1957), 354 U.S. 449, 77 Sup. Ct. 1356, 1 L. Ed. 2d 1479, McNabb was reaffirmed and applied as a federal criminal procedure rule.
"In Phillips v. State (1966), 29 Wis.2d 521, 535, 139 N.W.2d 41, this court adopted an exclusionary rule that rendered inadmissible any statement obtained from a defendant during a period of unreasonable detention. In Phillips it is further stated (p. 535): `While one may be detained by the police and interrogated to secure sufficient evidence to either charge him with a crime or to release him, the police cannot continue to detain an arrested person to "sew up" the case by obtaining or extracting a confession or culpable statements to support the arrest or the guilt.'" Massen v. State (1969), 41 Wis.2d 245, 252, 163 N.W.2d 616.
We hold that under no circumstances can a defendant contend that he was subject to an unreasonable detention when he was brought before the magistrate within the first hour that the court was open after he was arrested.
One other item should be commented upon. The state contends that the McNabb-Mallory rule should be confined solely to confessions and not to exculpatory statements. The contention must be rejected since it is clear the McNabb-Mallory "unreasonable detention" rule applies to any statement, whether that statement is an admission, a confession, or exculpatory in nature. This holding affirms the following statement in Massen v. State, supra, at page 252:
"In Phillips v. State (1966), 29 Wis.2d 521, 535, 139 N.W.2d 41, this court adopted an exclusionary rule that rendered inadmissible any statement obtained from a defendant during a period of unreasonable detention. . . ." (Emphasis supplied.)
Under certain circumstances, as in the case at bar, an exculpatory statement may adversely affect the defendant's case.
We conclude it was not error to permit the state to establish the number of prior convictions and that defendant's statement to the detective was admissible.
By the Court. — Judgment affirmed.