In York v. State, 45 Wis.2d 550, 173 N.W.2d 693 (1970), codefendants, York and Bowie, were jointly tried and convicted of burglary.Summary of this case from Woodson v. State
Nos. State 9, 10, 65.
Argued January 7, 1970. —
Decided February 3, 1970.
ERROR to review judgments and order of circuit court for Milwaukee county: CLARENCE TRAEGER, County Judge of Dodge county, Presiding. Affirmed.
For the plaintiff in error James C. York there was a brief and oral argument by Alvin R. Ugent of Milwaukee.
For the plaintiff in error Earl David Bowie there was a brief and oral argument by Gregory Gramling, Jr., of Milwaukee.
For the defendant in error the cause was argued by Michael Ash, assistant district attorney of Milwaukee county, with whom on the brief were Robert W. Warren, attorney general, and E. Michael McCann, district attorney.
On March 22, 1968, Patrolmen 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 5 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 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 pushed-in 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 5 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 courtroom 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.
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?
Defendant York's counsel did not object at the trial; neither did he make it a ground for his motion for a new trial. He apparently makes his first objection on this review. Since defendant Bowie objected in the proper way at the proper time we reach the merits of the objection.
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.
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, 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.
See generally 4 Wigmore, Evidence (3d ed.), pp. 301-304, secs. 1173-1175; McCormick, Evidence (hornbook series), pp. 408, 409, secs. 195, 196. See also Ernst v. Greenwald (1967), 35 Wis.2d 763, 151 N.W.2d 706. See 9A U. L. A., Rules of Evidence, Rule 70.
See Goetsch v. State, ante, p. 285, 172 N.W.2d 688. See also McCormick, Evidence (hornbook series), p. 411, sec. 199.
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. 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 of the officer that the piece of material and the coat were similar. However, it does not follow from this that because the coat and piece of material were not produced, the officer's testimony should be excluded.
Although there is indication in the record that the prosecution knew or should have known that the coat and swatch would probably not be returned from the FBI lab in time for the trial, there is nothing in the record to indicate that this evidence was deliberately sent out of the jurisdiction.
An attack is also made on the testimony of Detective Cornell claiming that this testimony should have been excluded as opinion evidence.
There is no doubt that Detective Cornell's testimony that the piece of cloth found on the nail was similar to Bowie's coat in color and weave and was approximately the same size as the tear in Bowie's coat was an impression gained by a firsthand observation of the facts. This is a first-class example of the difficulty raised in an effort to separate opinion from fact. This difficulty in distinguishing between "opinion" and "fact" was high-lighted in a criticism of the opinion rule by Judge LEARNED HAND, when he stated:
". . . The truth is, as Mr. Wigmore has observed at length (sections 1917-1929), that the exclusion of opinion evidence has been carried beyond reason in this country, and that it would be a large advance if courts were to admit it with freedom. The line between opinion and fact is at best only one of degree, and ought to depend solely upon practical considerations, as, for example, the saving of time and the mentality of the witness. It is hardly ever reversible error to admit such evidence; its foundation may generally be as conveniently left to cross-examination. Every judge of experience in the trial of causes has again and again seen the whole story garbled, because of insistence upon a form with which the witness cannot comply, since, like most men, he is unaware of the extent to which inference enters into his perceptions. He is telling the `facts' in the only way that he knows how, and the result of nagging and checking him is often to choke him altogether, which is, indeed, usually its purpose.
"It is a good rule as nearly as one can, to reproduce the scene as it was, and so to correct against the personal equations of the witnesses. But one must be careful not to miss the forest for the trees, as generally happens, unless much latitude is allowed. But, except in extreme cases, where we can see that harm' is done, all such matters are in the discretion of the trial judge."
Central Railroad Co. of New Jersey v. Monahan (2d Cir. 1926), 11 F.2d 212, 214.
Certainly, it is permissible for a witness to give a shorthand rendition of a total situation or a description of collective facts without his testimony colliding with a rule excluding opinions. A witness is generally permitted to testify about a personal experience or knowledge of a sensation, although the witness' answer is his opinion of the matter. The accuracy or strength of the testimony is to be tested by cross-examination.
Dealing with this subject, McCormick has said:
"It is believed that the standard actually applied by the trial judges of today approaches more nearly the principle espoused by Wigmore, namely, that the opinion should be rejected only when it is superfluous in the sense that it will be of no value to the jury."
McCormick, Evidence (hornbook series), p. 23, sec. 11.
Wigmore has stated his view that the opinion rule should not generally exclude a witness' testimony as to such things as the corporal appearance of persons and things; the capacity or tendency of an act or a machine; the probability or possibility of an event, form, identity, speed, time, size, weight and direction.
See 7 Wigmore, Evidence (3d ed.), pp. 113-141, secs. 1974 — 1978.
Here, Detective Cornell was permitted to testify regarding the size, shape, color, and weave of the swatch of material and the coat. He was then permitted to testify that he observed that the piece of material and defendant Bowie's coat were similar. Defense counsel were permitted extensive cross-examination of Detective Cornell regarding his observations of the swatch and the coat. Under the record presented by this case, there clearly was no abuse of discretion by the trial court in permitting Detective Cornell to testify that he observed that the piece of material found at the scene of the burglary and defendant Bowie's coat were similar.
Identity of Bowie at the Trial.
The second major issue presented by this review relates only to defendant Bowie: Was it error for the trial court to permit testimony regarding confessions made by Bowie when the police officer to whom such confessions were made could no longer identify him?
Defendant Bowie argues that since Detective Behrendt could not identify him at the trial as the person who confessed, there is nothing to link him to the confession and consequently, all testimony relating to this confession should not have been admitted. In other words, Bowie claims that no showing has been made that the person who gave such a confession and the person who was then on trial in court were one and the same.
We do not agree. There is ample evidence in this record to establish that the Bowie who confessed the crime to Detective Behrendt and the Bowie who was on trial for the crime were the same individual.
Detective Behrendt testified that he had questioned a person identified to him as Earl David Bowie in the interrogation room of the detectives' assembly at 10 a. m. on March 22, 1968, and had obtained a confession from him. Detective Cornell, although he did not testify to hearing defendant Bowie confess to Detective Behrendt, did testify that he had seen Detective Behrendt questioning defendant Bowie at the detective bureau on March 22, 1968, at about 10 a. m.
This testimony sufficiently identifies the defendant Bowie as the person who confessed to Detective Behrendt. The testimony regarding the confession was properly admitted.
Since Detective Behrendt's testimony concerning the confession was admissible, it follows that the notes made by Detective Behrendt during the confession identifying the person confessing as Earl David Bowie should not necessarily, as defendant Bowie claims, have been excluded as hearsay and self-serving. These notes appearing on what was called the "show-up sheet" were merely additional indications of the identity of defendant Bowie as the person who confessed.
The final issue raised by this review relates only to defendant York. This issue is: Was it error for the trial court, in sentencing him, to consider York's prior criminal record?
York concedes that the trial court may properly consider the prior criminal record of an individual in order to determine an appropriate sentence; however, he now claims that the trial court committed error by relying on his prior criminal record which might have contained inaccuracies. He claims that the trial court relied heavily on the fact that it appeared from his prior record that he had previously been convicted of burglary, when in fact this was not true.
The first problem facing this defendant in raising this issue before this court is that he failed to raise it below, either at the time of sentencing or at motions after verdict.
However, since there are two writs of error in this case, one from the judgment and one from the order of the trial court denying York's motion for a new trial, this is not similar to the situation in State v. Ruud. In that case, this court refused to review an alleged error committed by the trial court, on appeal from only the order denying a new trial, when such alleged error was not presented to the trial on the motion for a new trial. Here the writ of error is from the judgment as well as the order denying a new trial. However, here there was no objection made at the time of the sentencing that the record was inaccurate.
Nevertheless, in its discretion this court has reviewed this question and concludes that the claim is without merit.
While it is clear that the trial court, in sentencing, did rely on York's prior criminal record, it is not so clear that this was in any way detrimental to the defendant.
The trial court in its statement prior to sentencing indicated that it would be reluctant to give consideration in sentencing to individuals who commit similar offenses, and also to those who violate probation. Although here it is not clear whether York had previously ever been convicted of burglary, it is clear that he was at the time of sentencing either on parole or probation for a prior offense. Moreover, the maximum sentence that could have been imposed for this offense was ten years; York and Bowie were given relatively light sentences of three years. There is nothing to show that the trial court abused its discretion.
It is perhaps noteworthy that York's defense counsel in his brief does not contend that York had in fact never been convicted of burglary, only that the record relied on by the trial court in sentencing might have been inaccurate.
We are satisfied that the convictions of both York and Bowie, and the questioned sentencing of York, should be affirmed.
By the Court. — Judgments and order affirmed.