Opinion
October 5, 1966. —
November 1, 1966.
ERROR to review a judgment of the circuit court for Milwaukee county: HENRY G. GERGEN, JR., Circuit Judge of the Thirteenth circuit, Presiding. Affirmed.
For the plaintiff in error there was a brief and oral argument by Milton M. Cohn of Milwaukee.
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.
The defendant Onecimo B. Tobar was charged and found guilty by a jury in the circuit court of the illegal sale of narcotic drugs, contrary to sec. 161.02(1), Stats., and was sentenced to the state prison at Waupun to an indeterminate term of not less than two nor more than ten years.
The facts in this case are in dispute. Two witnesses testified on behalf of the state concerning the alleged sale.
Procopio Sandoval, a Milwaukee police officer, working under cover as a member of the vice squad, on March 7, 1965, met one Ullenberg, a heroin addict, at the National Ballroom, 600 West National Avenue, Milwaukee. On March 11, 1965, at 8 p.m. the police officer, together with one Williams, called for Ullenberg at the latter's home and gave Ullenberg $25 for the purchase of narcotics for the officer. They drove to an address on North Eighth street where Ullenberg said narcotics could be obtained. Sandoval stopped at the address. Ullenberg got out of the car and said he would return. Sandoval and Williams waited for Ullenberg to return and then concluded he had "run out" on them. Later that evening Sandoval and Williams drove to the place where Ullenberg was employed as a pianist and demanded return of the $25. Ullenberg stated that he had spent $10 of the money for two $5 bags of heroin. Ullenberg returned $15 of the $25 and agreed he would get some heroin at $5 a bag if Sandoval would return after 1 a.m. when Ullenberg was through work.
At 1 a.m. of the morning of March 12, 1965, Sandoval gave Ullenberg $10, and they proceeded to the North Eighth street address but were unable to obtain any drugs. Ullenberg then directed Sandoval to the premises at 708-A South Seventh street.
Officer Sandoval observed Ullenberg being admitted into the premises but could not see the person who answered the door. After a short period of time Ullenberg came out and gave the bag of heroin to Officer Sandoval.
Ullenberg testified he approached the premises at 708-A South Seventh street after 1:30 a.m. and that the defendant Tobar opened the door, admitted him inside about eight feet from the doorway and sold him a $5 bag of heroin.
Further testimony established that Ullenberg was subsequently arrested on March 12th about 7 p.m. and was taken before a magistrate and gave some testimony which was the basis for the issuance of a search warrant for the premises at 708-A South Seventh street. The premises were searched on March 12, 1965, at 11:40 p.m., and certain paraphernalia was seized in the search, including an eyedropper, hypodermic needle, bottle cap, two eyedropper needles, heroin, tinfoil packets containing heroin, marijuana seeds and $387 in cash discovered behind a television set.
The defendant Tobar took the witness stand in his own behalf and testified he had known Ullenberg for nearly ten months but did not see him or sell him any narcotics on March 12, 1965. Tobar denied knowledge of a search but later admitted he was present when the search was made.
Mary Silva, who resided at 708-A South Seventh street, testified that Tobar was not in the house when Ullenberg came to the door, that Tobar came to the premises nine or ten hours later. She denied any knowledge or control over any of the seized narcotic paraphernalia found in the search. She admitted being a close friend of Tobar and that he was the father of one of her four children. She also testified that Ullenberg on several occasions made indecent proposals to her.
Two issues are raised on this review:
(1) Was the evidence presented at the trial sufficient to prove defendant's guilt beyond a reasonable doubt?
(2) Was evidence seized in the search made twenty-two hours subsequent to the specific offense charged relevant to the issues and admissible in rebuttal?
Sufficiency of Evidence.
The test employed in assessing the sufficiency of the evidence was most recently stated in Lock v. State (1966), 31 Wis.2d 110, 114, 142 N.W.2d 183:
"We have said many times that when the question of the sufficiency of the evidence is presented on appeal in a criminal case the only question for this court is whether the evidence adduced, believed and rationally considered by the jury, was sufficient to prove the defendants' guilt beyond a reasonable doubt. State v. Johnson (1960), 11 Wis.2d 130, 137, 104 N.W.2d 379; State v. John (1960), 11 Wis.2d 1, 103 N.W.2d 304; Parke v. State (1931), 204 Wis. 443, 235 N.W. 775; State v. Stevens (1965), 26 Wis.2d 451, 132 N.W.2d 502. This ultimate test is the same whether the trier of the facts is a court or a jury. State v. Waters (1965), 28 Wis.2d 148, 135 N.W.2d 768; Gauthier v. State (1965), 28 Wis.2d 412, 137 N.W.2d 101. Invariably the briefs and arguments on this issue point to what the trier of the facts could have found or what this court should determine. The test is not whether this court is convinced of the guilt of the defendant beyond a reasonable doubt but whether this court can conclude the trier of the facts could, acting reasonably, be convinced to the required degree of certitude by the evidence which it had a right to believe and accept as true."
In the case at bar the state presented evidence from one Ullenberg that he had purchased heroin from the defendant at the time and place alleged. The defendant denied the sale. It is clear the evidence was in conflict, and the substantial issue in the case was the credibility of the witnesses.
The function of an appellate court in assessing credibility of witnesses was declared in State v. Cohen (1966), 31 Wis.2d 97, 106, 142 N.W.2d 161:
"The appraisal of the relative credibility of the several witnesses was a proper function of the trial court and one which this court finds no basis for upsetting. Drane v. State (1965), 29 Wis.2d 208, 211, 138 N.W.2d 273; Gauthier v. State (1965), 28 Wis.2d 412, 417, 137 N.W.2d 101."
The appellate court is not a place to reargue questions of credibility. See United States v. Kelly (2d Cir. 1965), 349 F.2d 720, 766, and State v. Freeman (1965), 195 Kan. 561, 408 P.2d 612.
The defendant in challenging the credibility of the state's witness Ullenberg argues that since he was a narcotic addict his testimony should be rendered incompetent as a matter of law. It is well settled that a narcotic addict is competent to testify although his use of narcotics is a proper consideration concerning the weight to be given his testimony. See Anno. 52 A.L.R.2d 848, 859, Use of drugs as affecting competency or credibility of witness; People v. Romero (1964), 54 Ill. App.2d 184, 203 N.E.2d 635, 638; Commonwealth v. Aikens (1955), 179 Pa. Super. 501, 118 A.2d 205, 208; Brown v. United States (9th Cir. 1955), 222 F.2d 293.
The precise issue raised by the defendant in the instant case was considered in the Aikens Case, supra. The court concluded that the uncorroborated testimony of a drug addict was sufficient to support a conviction for the unlawful sale of drugs.
In Sparkman v. State (1965), 27 Wis.2d 92, 95, 133 N.W.2d 776, this court held:
"The uncorroborated testimony of an accomplice is, however, competent evidence upon which to base a verdict of guilty if it is of such a nature that it is entitled to belief and the jury believes it."
The defendant also contends that Ullenberg had an ulterior motive in testifying against the defendant Tobar, namely, to have defendant convicted so that he might have access to the witness Mary Silva.
This contention is based on the fact that Mary Silva testified that Ullenberg had propositioned her on several occasions prior to March 12, 1965, and that on the night of the alleged sale he tried to proposition her again and then left the premises within ten minutes. The witness Ullenberg specifically denied the accusation made by Mary Silva.
It may have been difficult for the jury to believe that Mary Silva would readily admit Ullenberg into her home at 1:45 a.m. in view of his alleged prior propositioning. The jury could have reasonably concluded that the defendant Tobar was present when Ullenberg was admitted and that the accusations made against Ullenberg were fabricated to discredit his testimony in the eyes of the jury.
We believe that the issue is not competency but credibility, and the jury could, after rational deliberation, come to the conclusion that Tobar had made the sale of narcotics.
Alleged Improper Evidence.
In rebuttal to the defense the state presented evidence that some twenty-two hours subsequent to the offense charged police officers conducted a search of the premises in question pursuant to a search warrant and that at the time of the search the defendant was found on the premises as was also contraband in the nature of narcotics and paraphernalia used for the injection thereof.
In its case in chief the state presented testimony from two witnesses only. The direct examination of these witnesses made no reference to a search warrant for the premises in question or the search thereof but was directed only to the time and circumstances of the alleged sale. However, the defense counsel in the cross-examination of two of the state's witnesses explored in some detail whether or not a search warrant for the premises had been obtained and the circumstances thereof.
Such cross-examination on the part of the defense counsel to establish a fact of the issuance of the search warrant could serve but one purpose, and that was to leave an inference with the jury that a search of the premises at 708-A South Seventh street was fruitless. We think the state was entitled to offer evidence in rebuttal to such inference.
It is well settled that the degree and manner of cross-examination is a matter within the discretion of the trial judge. O'Connor v. State (1966), 31 Wis.2d 684, 143 N.W.2d 489; Nehls v. Nehls (1963), 21 Wis.2d 231, 238, 124 N.W.2d 18.
What issues are covered in direct examination and therefore "within its scope" for purposes of cross-examination are governed by and dependent upon the quantitative and not the semantic precision of questions and answers on direct examination. Iva Ikuko Toguri D'Aquino v. United States (9th Cir. 1951), 192 F.2d 338, 370, and State ex rel. Burns v. Vernon (1965), 26 Wis.2d 563, 568, 133 N.W.2d 292.
Defendant contends the evidence is inadmissible as impeachment on a collateral issue. What is collateral within the meaning of the rule that a witness may not be impeached on collaterial [collateral] issues depends upon the issues in the particular case. Hall v. Iosco County Board of Road Commissioners (1966), 2 Mich. App. 511, 140 N.W.2d 761; Flande v. Brazel (1963), 236 Or. 156, 386 P.2d 920; and Hyland v. Millers National Ins. Co. (1932), 58 F.2d 1003, 1010.
The trial court in the exercise of its discretion obviously concluded that the collateral matters gone into were relevant to the issue and therefore admissible.
The trial court stated:
"It is true that the only issue in the case is whether or not a single transaction took place, but the availability of what is to be sold becomes important because of the issue which is raised.
"Now, the defendant has taken the stand and he has denied that there was a store and he denies that he was the storekeeper. It becomes relevant and material whether or not there was a store in which such transactions took place. He is not charged with keeping a store, he is not charged with being a person who has these things available — he is charged solely with a single transaction — yet it is relevant and material whether or not there was available to him the facilities out of which a transaction such as was described by the eye witness could take place."
We conclude the evidence offered in rebuttal was properly admissible for the purposes of impeachment and that the conviction and sentence must be upheld.
By the Court. — Judgment affirmed.