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Vogel v. Percy

decided: October 29, 1982.

DAVID VOGEL, PETITIONER-APPELLANT,
v.
DONALD PERCY, RESPONDENT-APPELLEE



Appeal from the United States District Court for the Eastern District of Wisconsin. No. 80 C 966 -- John W. Reynolds, Judge.

Cummings, Chief Judge, Bauer, and Eschbach, Circuit Judges.

Author: Bauer

BAUER, Circuit Judge.

This is an appeal from an order of the District Court for the Eastern District of Wisconsin denying petitioner David Vogel's request for habeas corpus relief. We find Vogel's petition to be without merit and affirm.

I

On December 7, 1976, two men wearing nylon stocking masks to conceal their faces robbed a market in Beloit, Wisconsin. One of these men was armed with a knife. The men were later identified as the petitioner's brother, Daniel Vogel (Daniel), and William Lindsey (Lindsey). The robbery occurred shortly before midnight; Lindsey was arrested and taken into custody within a few hours. Approximately ten hours after the robbery, police took a question and answer statement from Lindsey. This signed, unsworn statement implicated petitioner in the planning and execution of the robbery. According to Lindsey's statement, petitioner's role in the armed robbery included: (1) suggesting that the market be robbed; (2) driving Daniel and Lindsey to the market; (3) purchasing the nylon stockings used to conceal the robbers' identities; and (4) arranging to pick up Daniel and Lindsey after the robbery.

Petitioner Vogel subsequently was charged as a party to the crime of armed robbery in violation of Wisconsin Statutes §§ 943.32(2) and 939.05(2) (b), and with concealing identity in violation of § 946.62.

At petitioner's trial, Lindsey testified as a witness for the state.*fn1 Lindsey fully related the events of the night of the robbery. Contrary to the state's expectation, however, Lindsey failed to testify to petitioner's involvement. In fact, Lindsey testified that he and Daniel planned the robbery themselves sometime after petitioner purchased a pair of pantyhose for them, and dropped them off in the vicinity of the market. The state then sought to introduce as substantive evidence*fn2 the question and answer statement Lindsey had given the police on the morning following the robbery. Over defense counsel's objection, the prosecutor read the statement to Lindsey asking whether Lindsey recalled making each response. Throughout the reading of his signed statement Lindsey maintained that he had no memory or knowledge of making the statement -- Lindsey attributed his lack of memory to having been intoxicated at the time the statement was taken.*fn3

Additional witnesses for the state positively identified petitioner Vogel as having purchased a pair of nylon pantyhose the evening of the robbery;*fn4 as having been in the vicinity of the robbery under suspicious circumstances at the time the market alarm was sounded;*fn5 and as having asked a friend to dispose of certain clothing approximately two hours after the robbery.*fn6

Vogel then testified in his own behalf. He admitted the substance of the statements against him, but offered exculpatory explanations for each of his acts on the night of the robbery.

The jury found Vogel guilty and a judgment of conviction was entered on June 1, 1977. Vogel's conviction was affirmed by both the Wisconsin Court of Appeals, District IV, 87 Wis. 2d 541, 275 N.W.2d 180 (1978), and the Wisconsin Supreme Court, 96 Wis. 2d 372, 291 N.W. 2d 838 (1980).

Vogel then petitioned the District Court for the Eastern District of Wisconsin for the issuance of a writ of habeas corpus. It is the denial of this petition that is before us on appeal.

Vogel's petition for a writ of habeas corpus raises two issues: (1) whether petitioner's Sixth Amendment right of confrontation*fn7 was violated by the admission of Lindsey's unsworn, prior inconsistent statement; and (2) whether the admission of Lindsey's unsworn statement as substantive ...


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