Summary
holding that “[t]he remedy for the use of excessive force in making an arrest may be a civil action for damages, but not dismissal of the criminal charge for which he was arrested”
Summary of this case from State v. McCoyOpinion
No. State 132.
Argued February 6, 1970. —
Decided March 3, 1970.
ERROR to review a judgment of the circuit court for Milwaukee county: JOHN A. FIORENZA, County Judge of Milwaukee county, Presiding. Affirmed.
For the plaintiff in error there was a brief by Roland J. Weber and Weber Raithel, all of Milwaukee, and oral argument by Roland J. Weber.
For the defendant in error the cause was argued by Terence T. Evans, assistant district attorney of Milwaukee county, with whom on the brief were Robert W. Warren, attorney general, William A. Platz, assistant attorney general, and E. Michael McCann, district attorney.
Plaintiff in error, Norman Nadolinski (hereinafter defendant), was convicted January 24, 1969, upon a jury's verdict of guilty on a charge of taking indecent liberties with a child in violation of sec. 944.11, Stats. The mandatory presentence investigation pursuant to sec. 959.15 indicated he should be treated under the Criminal Code and not as a sex deviate. The defendant was accordingly sentenced to five years' imprisonment, with the Wisconsin State Prison at Waupun designated as the reception center.
On October 14, 1968, the defendant first met the victim, Dale Krogman, a twelve-year-old boy. Krogman and two friends skipped school that afternoon and went to the waterfront area on Lake Michigan. Nadolinski was present with a camera and took pictures of the boys playing in the water at the beach.
The testimony given by the Krogman boy regarding the events following the meeting at the beach was disputed by the defendant. Dale Krogman testified that he was invited to the defendant's home to dry off his pants which were wet because he fell in the water. The boy said that Nadolinski paid the bus fare for both of them and they proceeded to take three buses and walk about six blocks to a basement house apartment on Milwaukee's south side. When the Krogman boy was ready to leave, after a shower and having something to eat, the defendant asked if he would like to listen to some opera. Then the defendant turned off the lights, pulled the shades down and committed two acts of indecent liberties. The complainant then took a bus home, arrived about 11 p.m., and related to his mother everything that had happened. She called the police.
At about 1 a.m., October 15, 1968, the police entered the defendant's residence, pointed out to them by Dale Krogman, and arrested Nadolinski. The testimony of the police and the defendant is in dispute as to whether permission was granted for them to enter his apartment. The defendant stated the police broke in, awakening him late at night and placed him under arrest. The arresting officer, Thomas McKale, testified that as the police approached the door the defendant peered out between the curtains, then the lights went out, and the sound of a toilet being flushed could be heard. McKale said they pounded the door for three or four minutes identifying themselves as police officers before Nadolinski opened it and admitted them. After querying him about his identity the defendant was placed under arrest.
After the arrest was effected, Officer McKale walked through a kitchen area and around a corner into the bathroom. There he found a roll of 35 millimeter undeveloped film in the toilet bowl. The film contained 20 exposures of which four were of Dale Krogman. Officer McKale further testified that, although the defendant extended permission for the officers to enter his residence, he did not consent to the removal of anything from the toilet bowl. The trial court refused admission of the developed photos from this film into evidence on the ground they were immaterial to the act itself.
The record in this matter shows that an examination was conducted pursuant to sec. 957.13, Stats.,by Drs. Bernard Schaeffer and Joseph Weber between October 29 and November 1, 1968, upon the order of the circuit court, Judge HUGH R. O'CONNELL presiding, to determine Nadolinski was mentally competent to stand trial. Consistent with the report of these physicians the court declared the defendant sane and not feebleminded and capacitated to act for himself.
"957.13 Mentally ill or deficient at time of trial. (1) If the court is reliably advised before or at his trial or after conviction and before commitment that the defendant is probably insane or feeble-minded, the court shall in a summary manner make inquiry thereof.
"(2) If the court finds that the defendant as a result of mental illness or deficiency lacks capacity to understand the proceedings against him or to assist in his own defense, his trial or sentence or commitment to prison shall be postponed indefinitely and the court shall thereupon commit the defendant to the central state hospital (if male) or the Winnebago state hospital (if female)."
On the day of trial, and immediately prior to trial, defendant's attorney requested another mental and physical examination to determine his physical and mental competency to stand trial. After being informed such an examination had been conducted by Judge O'CONNELL, the defendant's request was denied.
Pursuant to sec. 959.15, Stats., the defendant was committed after conviction to the Department of Health Social Services for a presentence social, physical and mental examination. The department recommended that defendant be dealt with under the Criminal Code as provided in sec. 959.15(5). The report of the consulting psychiatrist, Dr. Joseph Dzubay, indicated that some discussion was had among the staff to determine if Nadolinski should be handled under the Mental Health Act but no final conclusion was reached. His confidential report contained the following suggestions:
"In summary, according to our findings this patient does not manifest significant sexual psychopathology. The patient was evaluated as not being dangerous sexually. However, without proper supervision he might become a potential danger in the future because of the hostility coupled with his disorganized and paranoid thought pattern. It was felt that the patient could benefit from treatment, however, the treatment which was felt to be best or most appropriate for this individual would not be treatment for sexual psychopathology. The most appropriate treatment would be for his schizophrenic reaction, paranoid type. It would appear that he is in need of institutional treatment and Phenothiazine medication for this mental disorder."
At the sentencing proceeding defense counsel recommended sentencing under the Criminal Code and the placing of Nadolinski on a suspended sentence conditioned upon psychiatric care. The assistant district attorney agreed with the probation recommendation if it was conditioned upon the defendant's commitment to a mental institution. Alternatively, the prosecution recommended incarceration at Waupun. The sentence imposed by Judge FIORENZA was a five-year term at Waupun.
The writ of error seeks review of the judgment.
Issues raised by the defendant are:
(1) Did the trial court err when it refused to dismiss the action because of an alleged unauthorized entry into defendant's home?
(2) Was illegally obtained evidence used against defendant during the trial?
(3) Did the trial court err in not ordering a mental examination pursuant to sec. 957.13, Stats., on the day of the trial?
(4) Was the sentence improper?
(5) Should this court exercise its discretionary power under sec. 251.09, Stats., and reverse because of a probable miscarriage of justice?
The defendant presented the trial court with a motion to dismiss this case prior to the trial on the ground "[t]hat the Milwaukee Police Department, without reason, cause or warrant, physically broke down the door of the defendant's home and arrested him contrary to the Fourth Amendment to the Constitution of the United States." Officer McKale specifically denies breaking down the door and testified that he pounded on the door for three or four minutes before the defendant opened it and admitted the police officers. The defendant stated that he was asleep when the police "jimmied" the door open and told him he was under arrest.
The defendant concedes in his brief that the matter of credibility of his testimony juxtaposed with that of Officer McKale was for the trial court in denying the motion for dismissal. He insists, however, that the physical facts of the arrest situation support his testimony and render that of the arresting officer incredible. In support of this proposition he points to this court's opinion in McCarthy v. Thompson (1949), 256 Wis. 113, 40 N.W.2d 560, an automobile accident case, wherein it was said at page 116 that "physical facts may at times speak so directly of the actual situation that they may overcome the testimony of a witness." The physical fact relied on by Nadolinski was his assertion that the policeman claimed he found the toilet still flushing after the wait at the door and the placing of the defendant under arrest. An examination of the policeman's testimony discredits the claimed physical fact evidence of the defendant:
"Q. Now, in what point of time was it when you made this arrest as when you took the film out of the toilet bowl?
"A. I went right after placing him under arrest, I went to the bathroom right away because the water was still sort of spinning in the bowl.
"Q. Now, was this film just rolling in the bowl?
"A. It was laying there, it wasn't rolling, the water wasn't spinning that hard anymore where it would propel the film contained in the bowl, it — but there was movement yet."
Even if the policeman's testimony was rendered incredible, the state points out that if the police have probable cause to arrest without a warrant they may break the door to effect the arrest after announcing their purpose in demanding admission. The remedy for the use of excessive force in making an arrest may be a civil action for damages, but not dismissal of the criminal charge for which he was arrested. The police in this instance had probable cause to arrest the defendant and the forced entry (if in fact it was) does not compel a dismissal of the charge.
See Miller v. United States (1958), 357 U.S. 301, 78 Sup. Ct. 1190, 2 L.Ed.2d 1332.
The photographs taken by Nadolinski of Dale Krogman at the beach were not received in evidence by the trial judge upon the ground they were immaterial. The only testimony elicited from the state's witnesses respecting the film pertained to the lakeshore meeting of the defendant and the Krogman boy. This fact was admitted by the defendant on direct examination when he testified that he met the boys at the beach and took a picture of them.
No motion to suppress the testimony regarding the film appears in the record. The state is correct in stating that no objection to the admissibility of the officer's testimony was made by the defendant at the trial. An objection to viewing the film was sustained, one as to the relevance was sustained, and three objections to leading questions regarding the film were sustained. No other attempt was made to keep the testimony out. As stated in Collier v. State (1966), 30 Wis.2d 101, 104, 140 N.W.2d 152, "[i]t is one of the most elementary rules of evidence that an objection must be made as soon as the opponent might reasonably be aware of the objectionable nature of the testimony . . . ." Failure to so object results in a waiver of any contest to that evidence. See Collier, supra, page 105.
The cases cited by defendant on search and seizure are all irrelevant since they pertain to the suppression of illegally obtained evidence. Even if the film was obtained in violation of the fourth amendment to the United States Constitution the testimony pertaining to it was not objected to nor sought to be suppressed by defendant and he, in fact, amplified it by testifying about the pictures on direct examination. The testimony about the film was probative of nothing more than Nadolinski's presence at the beach, which he admitted. It was not used as evidence of the alleged acts with the complainant.
In any event, the pictures themselves were not incriminating and in view of defendant's statement on direct examination that he took them, reference and an admission into the evidence of a reference to them could not be prejudicial error if error at all.
The defendant was examined pursuant to sec. 957.13(1), Stats.,approximately two and one-half months prior to trial to determine his mental capacity to stand trial and was found sufficiently capacitated to act himself based upon the findings and testimony of two psychiatrists appointed by the court. Immediately preceding the trial of this matter the defendant requested a Further examination by doctors of his own choosing. No plea of insanity was entered; defendant alleged only that he felt the first examination was inadequate.
See footnote 1.
No authority on the issue of a second examination has been presented by either side. The three principal arguments waged by the state are, first, that the determination made by Judge O'CONNELL in early November was an adequate test of the defendant's ability to stand trial, and secondly, that the request was not timely, since there were "50 to 60 jurors" waiting in the courtroom. In addition, it is urged that the defendant is entitled to only one examination as a matter of right, subsequent inquisitions, being discretionary.
There is not sufficient showing here that the mental condition of the defendant was any different on the day of trial than it was at the date of his examination about two months before when he was found to be competent to stand trial.
The trial lasted only a few hours and the trial judge remarked, "I have observed the defendant during the course of the trial and feel that he was capable in assisting in his own defense." This observation bolsters the conclusion that the trial court did not have reliable information presented to it just before the trial that the defendant was probably insane or feebleminded. We find no error in the trial court's refusal to grant the second mental examination of the accused to test his ability to stand trial.
The sentence imposed by the circuit court was a five-year term with the Wisconsin State Prison at Waupun the designated reception center. A presentence investigation was made by the HSS Department pursuant to sec. 959.15, Stats. The department's recommendation was that Nadolinski be handled under the Criminal Code as provided in sec. 959.15(5).
The defendant cites language of this court in State v. Sorenson (1966), 31 Wis.2d 368, 142 N.W.2d 785, to the effect that the trial court is obligated to commit the defendant to the department when it has recommended specialized treatment. The holding in Sorenson was premised upon language of State ex rel. Volden v. Haas (1953), 264 Wis. 127, 58 N.W.2d 577, which was subsequently modified in Huebner v. State (1967), 33 Wis.2d 505, 147 N.W.2d 646. Huebner held that due process required a hearing on the department's recommendation for specialized treatment and thus, of necessity, the department's recommendation could not be mandatory on the court's sentencing proceedings. Therefore, even if the department's report could be construed as recommending some form of special treatment, the sentence imposed is still within the discretion of the trial court and reversible only for an abuse of that discretion. State v. Tuttle (1963), 21 Wis.2d 147, 124 N.W.2d 9.
In any case, the defendant's argument ignores the plain recommendation of the department. The report states that Nadolinski should be handled under the Criminal Code. An inference is made that psychiatric care is needed, but the examiners decline to make any recommendation other than the one suggesting incarceration.
We are of the opinion the sentence was proper and within the discretion of the trial court.
Defendant premises a claim that justice has probably miscarried, thus entitling him to a new trial under sec. 251.09, Stats., on two factors. First, he realleges that his constitutional rights were violated by the search and seizure in his apartment. That argument has been fully dealt with above. Secondly, he asserts that the failure of the HSS Department to provide the medical treatment suggested as appropriate in the presentence report should entitle him to resentencing. If he is truly suffering mental aberrations, as alleged, there are adequate statutory provisions for his transfer to Central State Hospital for treatment.
As stated in Commodore v. State (1967), 33 Wis.2d 373, 383, 147 N.W.2d 283, the authority under sec. 251.09, Stats., "is exercised with `some reluctance and with great caution' and only in the event of a probable miscarriage of justice."
We find no probable miscarriage of justice and, therefore, decline to grant a discretionary reversal under sec. 251.09, Stats.
By the Court. — Judgment affirmed.