176 N.W.2d 349

ABRAHAM, Plaintiff in error, v. STATE, Defendant in error.

Supreme Court of Wisconsin.
No. State 158.Argued April 3, 1970. —
Decided April 28, 1970.

Page 45

ERROR to review a judgment of the circuit court for La Crosse county: ALBERT L. TWESME, County Judge of Trempealeau county, Presiding. Affirmed.

Michael Gordon Abraham, plaintiff in error (hereinafter referred to as defendant), was charged during June, 1968, with two counts of violation of sec. 943.10(1), Stats. (burglary). At all material times defendant was represented by court-appointed counsel, Attorney Charles N. Goerdt. Trial was to a jury, which found the defendant guilty as charged. On October 30, 1968, he was sentenced to four years on each count at the wisconsin reformatory at Green Bay. The sentences were to run concurrently.

Defendant, a twenty-seven-year-old man, was living with his wife, Patricia, and their two young daughters in La Crosse, Wisconsin. On Saturday evening, June 29, 1968, the defendant and his wife went to a tavern in La Crosse to celebrate Patricia’s birthday. Two boys, Donald and David Diderrich, brothers aged fifteen and fourteen, with whom the defendant was friend]y, took care of the defendant’s small children during this time. The defendant and his wife returned home about 2 a.m. on the morning of June 30th. Patricia had been drinking quite heavily and upon returning home went directly to bed, whereupon she immediately fell asleep.

Page 46

From this point on, one version of what happened is presented by the testimony of the two boys, the defendant’s wife, all of the burglary victims, and an investigating policeman.

Donald, the fifteen-year-old baby-sitter, testified as follows for the state: After defendant’s wife went to bed, the boys accompanied the defendant to the University Inn, a restaurant in La Crosse. At defendant’s suggestion they broke into the restaurant. Defendant pried out a rear window with a screwdriver with a yellow fiberglass handle. The defendant was at this time wearing a pair of yellow rubber gloves. Abraham entered first and Donald followed; his fourteen-year-old brother, David, remained outside as a lookout. In the restaurant Donald and the defendant found approximately $60 in change in the cash register. They transferred the money to a bag and left the premises through the same rear window. The two boys and the defendant then hid the money in a bush in the backyard of the boys’ home which was located across the street from the restaurant.

From there the three of them proceeded on foot to the home of Mr. and Mrs. Charles Vaslow. The boys’ mother worked as a cleaning lady for the Vaslows and the boys’ knew that Mr. and Mrs. Vaslow were out of town.

Upon reaching the home, the defendant forced open an aluminum door on a second floor porch. He again used a screwdriver with a yellow fiberglass handle. Donald and the defendant went into the house and David again remained outside as a lookout. In one of the bedrooms of the house Donald and the defendant found a Skippy peanut butter jar filled with $34 in change, which they took. They also found and took a lady’s silver Waltham wristwatch and a transistor radio that did not work.

The three then left the Vaslow home and about a block and a half away defendant threw the rubber gloves in

Page 47

some bushes and emptied the change into his pockets and threw the peanut butter jar in some bushes at a nearby church.

They then returned to the boys’ yard and picked up the bag of money they had previously obtained from the restaurant and carried it back to the defendant’s apartment. The defendant and the boys went into the bedroom and dumped the approximately $94 in change on the bed. This awakened defendant’s wife, Patricia. She asked where the money had come from and defendant, in the presence of the boys, told her that they had broken into the University Inn and the Vaslow home.

The money was split three ways, but the boys gave some of their individual shares to the defendant to help him pay the rent for the apartment. The next day the boys also combined some of their money to buy a Polaroid camera for Patricia’s birthday. Thus, each of the boys ended up with approximately $8 as his share of the loot. The defendant gave his wife the silver wristwatch as a birthday present and kept the transistor radio for himself.

David, the fourteen-year-old, also testified for the state and corroborated much of Donald’s testimony in detail.

Abraham’s wife, Patricia, confirmed much of the story related by the boys, including the late-night money counting in her bedroom. She testified that a few days later she turned over the watch and two coins which she had discovered in her jewelry box to the police and presumably reported her husband’s participation in the burglaries. One of the coins was a 1943 Australian florin and the other was a dime with a baby ring pounded around it.

In addition to the two youthful alleged accomplices and the defendant’s wife, Mrs. Charles Vaslow, one of the burglary victims, testified for the state. She stated that

Page 48

neither she nor her husband knew defendant, or gave him permission to enter their home. Mrs. Vaslow also testified that the radio recovered from one of the boys was similar in make to the one they had in their home prior to June 30, 1968; that their radio did not work because it had been soaked in water. Mrs. Vaslow identified the watch turned over by defendant’s wife to the police as “look[ing] like one that belongs to me.” She testified that prior to leaving town on a trip she left the watch in a dresser drawer. When asked if she could state that it was positively her watch, she responded, “Yes, I believe it is.”

In addition, Mrs. Vaslow testified that prior to June 30, 1968, she had certain coins in her possession in her home. These coins were of significance to her since they were Australian coins and she was from Australia.

James Shay, owner and operator of the University Inn, another burglary victim, also testified for the state. Mr. Shay testified that when he arrived at his place of business on June 30, 1968, at about 5 p. m., he discovered that the back window had been removed and that the cash drawer was out. He thought there was about $85 in change missing from the cash drawer. Mr. Shay indicated that he never gave anyone permission to enter his restaurant during the evening of June 29, or June 30, 1968.

Arrayed against this version of what transpired, defendant testified on his own behalf and related a story that was materially different. According to the defendant, both he and his wife were intoxicated when they returned home from the birthday celebration. He testified that the two boys left and he and Patricia went to bed. Later he was awakened by the two boys and shown a jar full of change. The defendant claimed that the boys told him that if he would help them count the change and convert it into currency, they would lend him some of the money to pay his rent. The defendant

Page 49

further testified that the boys gave him the woman’s watch and three lighters in exchange for a butane lighter of his own. He then gave the watch to his wife as a belated birthday gift. He denied being involved in any burglaries and denied knowing where the boys got the change.

The jury found the defendant guilty of burglarizing both the University Inn and the Vaslow residence. After judgment of conviction was entered and Abraham was sentenced, a writ of error was issued to review the conviction judgment.

On the review proceedings, court-appointed counsel either withdrew for cause or were relieved (twice, including the state public defender) by the court at the specific request of defendant. Defendant now prosecutes his appeal pro se.

For the plaintiff in error the cause was submitted on the brief of Michael G. Abraham of Gordon, pro se, and for the defendant in error on the brief of Robert W. Warren, attorney general, Betty R. Brown, assistant attorney general, and Burleigh Randolph, district attorney of La Crosse county.

WILKIE, J.

Defendant makes the usual challenge as to the sufficiency of the evidence. The trial court was not presented with any postconviction motion asking for a new trial or raising the question of the sufficiency of the evidence to support the jury’s verdict. Thus, this court is not bound to consider defendant’s claims in this review. However, since defendant appears pro se we think this case presents compelling circumstances that cause this court in its discretion to consider those claims.[1]

When the issue of the sufficiency of the evidence to support a conviction is raised, the question before this court becomes: “`whether the evidence adduced, believed

Page 50

and rationally considered by the jury, was sufficient to prove the defendant’s guilt beyond a reasonable doubt.'”[2] However, this court will not and cannot, when confronted with this issue, retry the case on the facts in the record to determine if it is convinced of defendant’s guilt beyond a reasonable doubt. The crucial question is whether the evidence was sufficient to convince a jury of the defendant’s guilt beyond a reasonable doubt.

Here, without question, the evidence was sufficient. For the most part, this was not a circumstantial-evidence case. Rather, here there was a great deal of direct evidence supplied by two accomplices and defendant’s wife going to prove the defendant’s guilt. Thus, the jury was confronted with the .typical situation where there were two versions of what happened, the state’s and the defendant’s. The jury was entirely justified in believing the state’s version and in disbelieving the defendant’s. The state’s version clearly supplied sufficient evidence to support the conviction.

Defendant presents an array of issues pointing to alleged error by the trial court that in Abraham’s opinion would dictate reversal. None has merit. They are:

1. Were the items stolen from the burglarized premises admissible against the defendant charged with burglary?

2. Was it necessary before these could be admitted at trial that the prosecution give pretrial notice to the defendant that it would offer them in evidence?

3. Was it error for the trial court to permit defendant’s wife to testify over defense objection of privileged spousal communications?

Page 51

4. Was it error for the magistrate at defendant’s preliminary hearing and the trial court not to, sua sponte, order the separation or sequestration of the witnesses?

Admissibility of items.
An element of the crime of burglary is that intentional entry was made with intent to steal or commit a felony therein.[3] Various items, allegedly taken from the Vaslow home, were introduced into evidence, including the watch, the Australian florin, the Lloyd transistor radio, and the Skippy peanut butter jar which had been recovered by the police from the bushes near the church where both Donald and David testified defendant had thrown it. These items were admissible because they tend to directly establish that entry was made with intent to steal.[4] That these items coincidentally prove theft is of no import for the defendant was not charged with theft in addition to burglary as he could have been.[5] Defendant’s objection to the introduction of these items for the reason that they were not sufficiently identified by the Vaslows as belonging to them has no merit. On the record the items were sufficiently identified to permit the jury to consider them in its determination of guilt.[6] The fact that defendant was not in actual possession of these items at the time of his arrest is immaterial since the testimony clearly showed a link to the defendant.[7]

Page 52

Pretrial notice.
The defendant contends that the state should be precluded from offering recovered fruits of the crime and instrumentalities used in the commission of the crime, since the state did not give him pretrial notice of its intention. This court said in State v. Miller:[8]

“Further, Wisconsin does not recognize a right in defendant to a pretrial discovery of the prosecution’s evidence. . . .”

The state had no duty to give the defendant pretrial notice of the evidence against him.

Spouse’s testimony.
The defendant’s wife was permitted to testify, over defense objections, as to the defendant’s response to her question of where the change had come from. She testified that the two young accomplices were in the bedroom at the time defendant told her the money had come from two break-ins, one at the University Inn and one at the Vaslow home. Thus it is apparent the wife’s testimony is very important to the state’s case as being corroborative of the two young boys’ story.

Sec. 885.18, Stats., provides, in part:

“A husband or wife shall be a competent witness for or against the other in all cases, except that neither one without the consent of the other, during marriage, nor

Page 53

afterwards, shall be permitted to disclose a private communication, made during marriage, by one to the other, when such private communication is privileged. . . .” (Emphasis supplied.)

The trial court correctly overruled defense objection to this testimony. The reason for so doing was that the statute only prevented one spouse from disclosing private communication from the other spouse. The trial court correctly reasoned that since the two young accomplices were present during this communication from the defendant to his wife, the communication was not private and therefore not privileged.[9] The instant privilege, although it has been characterized as an “extremely effective . . . stumbling-block . . . to obstruct the attainment of justice”[10] is founded on a sound public policy to promote confidence between husband and wife. This policy would not be served by applying that privilege to the circumstances here considered.

Failure to separate witnesses.
Defendant claims that it was error for both the magistrate at the preliminary hearing and the trial court not to sua sponte order the separation of the witnesses, especially the minor accomplices. It is true that the testimony of the brothers mirrored each other’s almost exactly; however, this without more does not indicate that it was error for either the magistrate or the court not to order their separation. Especially is this true since no request was made by the defense that this be done. Even when a proper request for separation is made, the matter falls within the discretion of the magistrate and the court.[11]

Page 54

In Ramer v. State[12] this court said:

“. . . It has long been the majority rule in this country and the specific rule in Wisconsin following the early English rule that the exclusion, separation, sequestration of witnesses or `putting witnesses under the rule’ is not a matter of right but lies in the legal discretion of the trial court. . . . Consequently, unless there is an abuse of discretion, this court on appeal will not reverse for a refusal to sequester witnesses. . . . It may turn out that a failure to sequester witnesses results in prejudice to the defendant, but unless it does so it can hardly be said that there was an abuse of discretion. The majority rule does not presume prejudice from a failure to sequester.” (Citations omitted.)[13]

On the record here there does not appear to be any prejudice flowing to the defendant by reason of failure to separate the witnesses. Rather, each witness, although testifying very similarly to the others, added a bit more to the evidence to be considered by the jury. There was no abuse of discretion on the part of the trial court in its failure to order separation of these witnesses.

Discretionary reversal.
After an independent review of the entire record, we are convinced that justice has not miscarried and it would be completely inappropriate for this court to exercise its discretionary reversal power under sec. 251.09, Stats.[14]

Effective assistance of counsel.
Defendant finally claims that he was denied effective assistance of counsel. A thorough review of the record reveals that this claim is completely baseless, that there

Page 55

is nothing indicating less than a vigorous, competent defense waged on defendant’s behalf.[15]
By the Court. — Judgment affirmed.

[1] State v. Escobedo (1969), 44 Wis.2d 85, 170 N.W.2d 709; State v. Van Beek (1966), 31 Wis.2d 51, 141 N.W.2d 873.
[2] State v. Stevens (1965), 26 Wis.2d 451, 463, 132 N.W.2d 502. See also: State v. Dombrowski (1969), 44 Wis.2d 486, 501, 171. N.W.2d 349; Lock v. State (1966), 31 Wis.2d 110, 115, 142 N.W.2d 183.
[3] See sec. 943.10, Stats.
[4] See generally: Strait v. State (1969), 41 Wis.2d 552, 164 N.W.2d 505.
[5] See Cullen v. State (1965), 26 Wis.2d 652, 133 N.W.2d 284.
[6] See State v. Johnson (1960), 11 Wis.2d 130, 138, 104 N.W.2d 379.
[7] See generally: Kluck v. State (1967), 37 Wis.2d 378, 155 W. 2d 26. See also: State v. Johnson, supra, footnote 6.
[8] (1967), 35 Wis.2d 454, 478, 151 N.W.2d 157 see State v. Watkins (1968), 40 Wis.2d 398, 162 N.W.2d 48; see also: Cheney v. State (1969), 44 Wis.2d 454, 171 N.W.2d 339, 174 N.W.2d 1. The pretrial production of physical evidence to be used at the trial is required on motion under the provisions of sec. 971.23(4), ch. 255, Laws of 1969, effective July 1, 1970 (not applicable here).
[9] See McCormick, Evidence (hornbook series), p. 172, sec. 84. See also: 97 C. J. S., Witnesses, p. 777, sec. 271.
[10] McCormick, supra, footnote 9, at page 172, sec. 83.
[11] See sec. 954.08(2), Stats.
[12] (1968), 40 Wis.2d 79, 161 N.W.2d 209.
[13] Id. at pages 82, 83.
[14] See Lock v. State, supra, footnote 2, at page 118.
[15] See Pulaski v. State (1964), 23 Wis.2d 138, 126 N.W.2d 625. See also: State v. Clarke (1967), 36 Wis.2d 263, 153 N.W.2d 61, and cases cited therein.