Opinion
September 10, 1965 —
October 5, 1965.
ERROR to review a judgment of the circuit court for Milwaukee county: HERBERT J. STEFFES, Circuit Judge. Affirmed.
For the plaintiff in error there was a brief by Charlton, Yanisch, Binzak Ritchay of Milwaukee, and oral argument by Earl A. Charlton.
For the defendant in error the cause was argued by Robert E. Sutton, assistant district attorney of Milwaukee county, with whom on the brief were Bronson C. La Follette, attorney general, and Hugh R. O'Connell, district attorney.
Plaintiff in error, Massey (hereinafter the "defendant"), upon his plea of guilty on December 6, 1963, was convicted of the offense of possession of burglarious tools in violation of sec. 943.12, Stats.
On September 9, 1963, at about 11:15 p.m., a deputy sheriff observed defendant in a telephone booth on South Twenty-seventh street in the city of Milwaukee with a screwdriver in his hand attempting to remove part of the telephone, and another man, James Clyde Sullivan, standing outside the booth. The deputy arrested both men. Subsequently Milwaukee county detectives noticed a 1949 Plymouth automobile bearing Florida license plates parked about 150 feet distant from this telephone booth. They searched the car without a search warrant and under the front seat found a modified rifle so adapted that the end of the barrel could be inserted in the key slot of a pay telephone so as to blow off the front cover. Subsequent investigation disclosed defendant to be the owner of the car.
Both defendant and Sullivan were charged with a violation of sec. 943.12, Stats., for possessing the modified rifle and screwdriver. Defendant waived preliminary hearing but a preliminary hearing was held with respect to Sullivan. Thereafter the circuit court, being satisfied that defendant and Sullivan were indigent, appointed Attorney Harold J. McGrath as their counsel with their consent, and pleas of "Not Guilty" were entered.
On November 29, 1963, with the consent of the district attorney, the charges against Sullivan were dismissed for lack of evidence. At the same time Attorney McGrath announced that defendant would change his plea from "Not Guilty" to "Guilty." On December 6, 1963, McGrath, with the consent of defendant, did so change the plea. Before accepting the plea of guilty the court advised defendant of the possible ranges of punishment and carefully questioned defendant to ascertain that defendant had changed his plea freely and voluntarily.
After acceptance of the plea of guilty the arresting officer's testimony was taken. Defendant was then called to the stand by Attorney McGrath and questioned by him. Defendant testified as follows: He is thirty-three years old and he finished high school and attended business college for a year and a half and has followed the occupations of mechanic, truck driver, and cabinetmaker. On the day of arrest defendant purchased the modified rifle for $175. He had then gone to the telephone booth where the arrest occurred at approximately 7 p.m. and fired the rifle into the coin box. Because of the loud report made by the rifle defendant feared apprehension and fled, but returned some hours later to complete the opening of the telephone coin box with the screwdriver. Sullivan had nothing to do with "this operation" (referring to the attempted burglary of the telephone coin box). Defendant has a criminal record of convictions for crime in other states.
At the conclusion of the testimony the court adjudged defendant guilty of the offense charged in the information. In considering the sentence to be imposed, the court questioned defendant about having been discharged from the Jacksonville police force in 1958, and defendant admitted that this discharge partly resulted from a charge that he had been tampering with phone boxes. An indeterminate sentence was imposed of not more than eight years at the state prison.
On March 17, 1964, defendant without the benefit of counsel filed a motion for new trial in which he alleged that the evidence used by the state against him had been obtained by an unlawful search and seizure. Attorney William L. Randall was thereafter appointed by the circuit court to represent defendant with respect to this motion. Attorney Randall moved to allow defendant to withdraw his plea of guilty and this motion together with the motion for new trial were heard together. Both motions were denied by the circuit court on May 29, 1964.
The instant writ of error is only for review of the judgment of conviction of December 6, 1963, and does not include the order denying the motions for new trial and to withdraw the plea. Attorney Earl A. Charlton was appointed by the supreme court to represent defendant in the prosecution of the writ of error.
Defendant seeks reversal of the judgment of conviction on these two grounds:
(1) The appointment of the same counsel to represent both defendant and Sullivan because of claimed conflict of interests.
(2) The alleged illegal search of the automobile and seizure of the modified rifle.
Appointment of Same Counsel.
In support of the contention that it was prejudicial error for the trial court to have appointed Attorney McGrath to represent both Sullivan and defendant, defendant cites Glasser v. United States and People v. Bopp.
(1942), 315 U.S. 60, 62 Sup. Ct. 457, 86 L.Ed. 680.
(1917), 279 Ill. 184, 116 N.E. 679.
The Glasser Case involved a prosecution of several defendants for conspiracy to defraud the United States, and five were convicted, among them Glasser and Kretske. Glasser, Kretske, and another appealed their convictions to the circuit court of appeals, and the convictions were affirmed. The United States supreme court granted certiorari. The trial court appointed one Stewart, who had been retained as counsel for Glasser, as attorney for Kretske. Under the facts presented this was held to be error, and the court stated:
"In conspiracy cases, where the liberal rules of evidence and the wide latitude accorded the prosecution may, and sometimes do, operate unfairly against an individual defendant, it is especially important that he be given the benefit of the undivided assistance of his counsel without the court's becoming a party to encumbering that assistance. Here the court was advised of the possibility that conflicting interests might arise which would diminish Stewart's usefulness to Glasser. Nevertheless Stewart was appointed as Kretske's counsel. Our examination of the record leads to the conclusion that Stewart's representation of Glasser was not as effective as it might have been if the appointment had not been made. We hold that the court thereby denied Glasser his right to have the effective assistance of counsel, guaranteed by the Sixth Amendment. This error requires that the verdict be set aside and a new trial ordered as to Glasser."
In People v. Bopp the defendant Bopp was indicted for first-degree murder and one McErlane as accessory after the fact. When the case was called for trial McErlane was represented by one Williams as counsel but Bopp was without counsel or means to hire one. The trial court then appointed Williams as counsel for Bopp over the protest of Williams that the facts as told him by McErlane indicated that the latter's interests were opposed to those of Bopp. Bopp was subsequently convicted but this conviction was reversed by the Illinois supreme court. One of the errors held to have occurred at the trial was the appointment of Williams to represent Bopp, and the court declared:
(1917), 279 Ill. 184, 116 N.E. 679.
279 Ill. 184, 191, 192.
"The defenses of these two defendants were not the same. Each was an alibi, but each was dependent upon different testimony from the other. It might well be that testimony tending to exculpate one would tend to inculpate the other . . . . When the attorney stated to the court that his duty to' his client by whom he was retained was inconsistent with the duty which the court sought to impose on him his statement should have been accepted. He should not have been required to disclose the facts showing the inconsistency."
The facts in the instant case are clearly distinguishable from those in Glasser and Bopp. McGrath accepted without protest his appointment to represent both defendants and both defendants consented thereto. At the time Judge STEFFES appointed McGrath, the judge stated to defendant and Sullivan, "He [McGrath] can tell you whether there is any conflict of interest requiring any further appointments." There is nothing in the record which would indicate that there was any conflict of interests in McGrath's representation of both. By defendant's own testimony it is clear that he was the owner and possessor of the modified rifle, possession of which furnished the basis of his conviction. No doubt is created by this record with respect to defendant's own guilt, but only a suspicion that he may have falsified the fact that Sullivan had no connection with the crime. This suspicion is partly due to McGrath's statement to the court at time of sentencing defendant, "In going over the whole situation with Massey I spoke to him about the connection of Sullivan in the deal and he told me what he told the Court. At least he can stand and say that he did that good turn for his pal." To have inculpated Sullivan would not have exculpated defendant.
In view of these facts we find no merit to defendant's contention that he was denied effective representation by counsel because of McGrath's also having been appointed to represent Sullivan.
Alleged Illegal Search and Seizure.
Here defendant pleaded guilty with assistance of counsel. The learned trial judge very carefully questioned defendant to be sure that the change of plea to guilty was voluntarily and freely made.
This court in Hawkins v. State, after thoroughly reviewing the authorities, held that a plea of guilty is properly deemed a waiver of a claim of unlawful search and seizure where the plea, as here, was voluntarily and understandingly entered by one who had the assistance of counsel. That holding controls the result here.
(1965), 26 Wis.2d 443, 132 N.W.2d 545.
A timely motion was made in the trial court to vacate the judgment of conviction and withdraw the plea of guilty. The motion was denied. We deem it significant that this denial has not been challenged by appeal or writ of error.
By the Court. — Judgment affirmed.