Opinion
No. State 98.
Submitted under sec. (Rule) 251.54 February 1, 1973. —
Decided February 27, 1973.
ERRORS to review a judgment and an order of the circuit court for Milwaukee county: ROBERT C. CANNON, Circuit Judge. Affirmed.
ERROR to review a judgment of the circuit court for Milwaukee county: HERBERT J. STEFFES, Circuit Judge. Affirmed.
For the plaintiff in error the cause was submitted on the brief of John H. Niebler and Niebler Niebler of Menomonee Falls.
For the defendant in error the cause was submitted on the brief of Robert W. Warren, attorney general, and Robert D. Martinson, assistant attorney general.
Facts.
On July 2, 1970, after a trial to the court (Circuit Court No. G-9832) John Fulton Tate, hereinafter referred to as defendant, was convicted as a party to the crime of burglary in violation of secs. 943.10(1)(a) and 939.05, Stats. He was sentenced to a term of ten years. On June 4, 1971, motions after verdict seeking dismissal of the complaint, a new trial and, alternatively, a reduction of sentence, were denied. On June 7, 1971, writs of error were issued to review the judgment of conviction and sentence, and the order denying motions after verdict.
On July 24, 1969, William J. Godswell was on duty as the manager of the Hales Corners Savings Loan Association. He left work at approximately 5:15 p.m. and, being the last to leave, activated the burglar alarm on the vault door and tear-gas device on the combination of the safe. He then locked the rear door and left.
On July 25, 1969, shortly after midnight, at 12:01 a.m., the burglar alarm sounded and a city of Greenfield police officer went to the savings and loan building. He then left in his police car to look for the burglars. Seconds or minutes later, at 12:09 a.m., he observed an automobile two blocks from the savings and loan with two occupants in it. He told the two occupants, defendant and one Richard Marciniak, to get out of the car. He observed that both men appeared to be perspiring heavily. Securing the names of the two, the officer recognized their names as having been on burglary suspect sheets he had seen. He knew Marciniak to be a safe burglar, having seen his picture and a description of his mode of operation in police bulletins. The officer observed a pair of dark-colored cloth gloves on the front seat of the car.
Defendant and Marciniak were placed under arrest.
Hales Corners police officer Herbert Miller arrived at the scene of arrest at about 12:20 a.m. He observed that the defendant's shoes were wet. (It had not rained that evening.) He also observed on the defendant's shoes a considerable collection of blades of grass (mostly short grass clippings, the longest being two inches). The officer testified there was very little grass at Muskego Beach amusement park, where Marciniak said he had been before the questioning.
A Hales Corners police officer testified that he arrived at the savings and loan office shortly after the burglary. He found that the grass around the building had been recently cut and was wet. He found a sledgehammer in a rear yard near the savings and loan office.
Investigating sergeant for the Hales Corners police department, Carl Jungbluth, testified that, upon hearing the burglar alarm at the police station, he immediately went to the savings and loan building. He observed a back door standing open, the casing broken, and the door apparently smashed open. The door to the vault was open, the dial of the lock having been smashed off. The tear-gas device had been activated, and there was a considerable amount of tear gas in the building.
Sergeant Jungbluth collected sweepings from the front of the safe and the washroom which had a common wall with the safe. He picked up fragments of the rear door and paint chips from in front of the safe. He also found a chisel and a punch tool. He obtained a search warrant and searched the car in which defendant and Marciniak had been riding. In its trunk he found a crowbar inside a tote bag, and a sledgehammer. Some sweepage from the floor of the car was collected. Castings of footprints found near the savings and loan were made.
All of the above items, plus defendant's clothing and shoes and the sledgehammer found near the savings and loan, were properly packaged and sent to the Federal Bureau of Investigation for analysis.
FBI staff member Elmer T. Miller, qualified as an expert in the area of comparing specimens of a mineral nature, testified that he examined all items sent to the FBI laboratory in connection with the safecracking. He made a detailed comparison analysis. He testified that various paint deposits on the sledgehammer, crowbar, the sweepings and the chisel specifically matched each other, and also matched certain other fragments found the tote bag and deposits on the crowbar found in the tote bag. Also, James Daniel Beck of the FBI testified that wood fragments found in the tote bag came from the sledgehammer found outside the savings and loan building.
In the second case (Circuit Court No. G-8116) on March 17, 1969, the defendant entered a plea of guilty to the charge of burglary. On March 25, 1970, the court accepted the plea and found the defendant guilty of burglary. On August 14, 1970, the defendant was sentenced to a term of five years. On June 7, 1971, a writ of error was issued in regard to this judgment. No issues being raised as to this trial and conviction, the facts involved in this second case will not be set forth.
For his part in the safecracking at the savings and loan association, the defendant was charged and convicted of burglary as a party to the crime. By writ he challenges the conviction and sentence, and, alternatively, seeks a new trial. Three issues are raised:
Sec. 943.10(1)(a), Stats.
Sec. 939.05, Stats. See also: State v. Nutley (1964), 24 Wis.2d 527, 554, 555, 129 N.W.2d 155; Bautista v. State (1971), 53 Wis.2d 218, 224, 191 N.W.2d 725; Bethards v. State (1970), 45 Wis.2d 606, 619, 173 N.W.2d 634.
Sufficiency of evidence
1. . The evidence, circumstantial as it usually is in burglary cases, is ample to warrant a trier of fact, acting reasonably, in finding the defendant guilty beyond any reasonable doubt. The defendant and Marciniak were stopped about two blocks from the scene of the crime five or ten minutes after the burglar alarm had sounded. They were both perspiring heavily. The paint deposits on the sledgehammer, in the sweepings and on the chisel specifically matched the fragments found in the tote bag and on the crowbar found in the car in which the defendant had been stopped. Wood fragments in the tote bag came from the sledgehammer found outside the savings and loan. Entirely reasonable is the inference that the sledgehammer at the scene of the crime had been in the tote bag, and that the crowbar in the tote bag was used in the burglary. The finding that the defendant was a party to the crime of burglary is supported by such compelling evidence. The evidence here is at least as strong as it was in two recent cases where convictions were sustained in similar situations.New trial sought
2. . Defendant asserts a new trial should be ordered "in the interest of justice" because his partner, Richard Marciniak, has stated defendant was not with him at the time of the savings and loan safecracking. (The Marciniak statement was made when he pleaded guilty in another court to charges arising out of this same savings and loan burglary.)Marciniak's statement does not impair the credibility of the state's witnesses and in light of a number of factors is itself worthy of little credibility. Defendant and Marciniak were arrested two blocks from the savings and loan building five to ten minutes after the alarm sounded. In another case, both have been convicted as a result of their joint effort to burglarize a West Allis credit union. Marciniak's long record for criminal activity would hardly enhance his reputation for truth and veracity of new trials ordered in the interest of justice, this court has termed them an ". . . extraordinary remedy . . . to be resorted to on appeal only when it clearly appears that there has been a miscarriage, of justice." We find no such miscarriage here.
Freeman v. State (1971), 51 Wis.2d 537, 541, 187 N.W.2d 191. See also: State v. Lindsey (1972), 53 Wis.2d 759, 769, 193 N.W.2d 699; Zdiarstek v. State (1972), 53 Wis.2d 420, 430, 192 N.W.2d 833.
Sentences imposed
3. . As to the sentence imposed by the Honorable ROBERT C. CANNON in the savings and loan safecracking, defendant claims error based on the trial judge's not ordering or using a presentence report, and in his not stating reasons for the particular sentence imposed. We find no abuse of discretion, under the facts here, in not ordering a presentence report or using one available from another conviction in another case of this defendant. As to stating reasons for a sentence, this case was concluded six months before the McCleary mandate, and, nonetheless, the trial judge here did set forth his reasons. He stressed the seriousness of the offense and the long juvenile record of defendant in incidents involving thefts and burglaries. Also, the court had before it the exact nature of the offense — a professional style safecracking with the tools and modus operandi that make safecracking a craft more demanding than snitching an apple from a fruit, stand or a bottle of spirits from a backbar. Given the record of the defendant, the gravity of the crime and the professional nature of the criminal activity involved, the trial judge concluded that the maximum sentence ought to be imposed. We find no abuse of discretion, reiterating our ". . . strong policy against interference with the discretion of the trial court in passing sentence . . . ."As to the other sentence challenged, there is involved a sentence imposed by the Honorable HERBERT J. STEFFES for another burglary committed by defendant and his partner, Marciniak. They were arrested at the scene of the crime, a credit union in West Allis. The defendant pleaded guilty and was sentenced to a term of five years to run concurrent with the ten-year term imposed in the savings and loan burglary. The complaint of defendant is that both Judge STEFFES and Judge CANNON took into account the conviction in the other case. The answer is that Judge CANNON did consider the credit union burglary conviction, but Judge STEFFES did not consider the savings and loan conviction in determining an appropriate sentence. Judge STEFFES specifically stated:
". . . I am not predicating my sentence on the crime on which Judge CANNON sentenced him, so I am going to give him the same kind of sentence I gave Marciniak, except it won't be consecutive — it's concurrent. . . ."
As Judge STEFFES stated:
". . . on the facts in this case and on the prior and complete history of this defendant prior to this offense, and the nature of this offense — this was a `safe job' — a safe burglary — he deserves the kind of sentence I am going to give him . . . ."
These facts — with this record — given the nature of these burglaries — the gravity of the offenses — the juvenile court appearances — the sentences imposed in the two cases present no abuse of discretion on the part of either sentencing judge.
By the Court. — In Case Number G-9832, the judgment of conviction and sentence, and the order denying motions after verdict are affirmed.
In Case Number G-8116, the judgment of sentence is affirmed.