Angus v. State

• Decision Date: 01 March 1977
• Docket Number: No. 75-846-CR,75-846-CR
• Parties: , 97 A.L.R.3d 956 Donald Lee ANGUS, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 28

251 N.W.2d 28

76 Wis.2d 191, 97 A.L.R.3d 956

Donald Lee ANGUS, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. 75-846-CR.

Supreme Court of Wisconsin.

Argued Feb. 1, 1977.

Decided March 1, 1977.

Syllabus by the Court

The plaintiff in error (hereinafter defendant) was convicted, after trial by jury, of incest in violation of sec. 944.06, Stats. This conviction arose from allegations of the defendant's daughter, who was sixteen years of age at the time of the alleged offense, that on August 2, 1974, the defendant had sexual intercourse with her in his automobile parked in a lot on Jones Island in Milwaukee.

At the preliminary examination, the complainant testified she had been with her father, the defendant, throughout the day on August 2, 1974, and that the act of intercourse took place shortly after midnight, thus in the early morning of August 3, 1974. The complainant did state upon cross-examination, however, that she was not positive as to the date of the offense, but that it was in the beginning of August.

The defendant filed a timely notice of alibi and had assembled several witnesses to testify as to his whereabouts on the evening of August 2nd and early morning of August 3rd, but on the day of the trial the complainant informed the prosecution that at trial she would testify that the act occurred after being with her father on August 1, 1974, shortly after midnight in the early morning of August 2nd. After being notified of this change in testimony, defense counsel requested a continuance, a request which was denied by the trial judge.

The defendant claims error was committed by the denial of this continuance and also by the trial court's refusal to permit defense counsel to probe, upon cross-examination of the complainant, her prior sexual conduct.

Craig E. Miller (argued), Asst. State Public Defender, with whom on the brief was Howard B. Eisenberg, State Public Defender, for plaintiff in error.

Maryann S. Calef (argued), Asst. Atty. Gen., with whom on the brief was Bronson C. La Follette, Atty. Gen., for defendant in error.

HANLEY, Justice.

Two issues are presented on this appeal:

1. Did the trial judge abuse his discretion by denying the defendant's request for a continuance?

2. Was it error to refuse cross-examination of the complainant regarding her prior sexual conduct?

Denial of Continuance

The defendant contends the trial judge committed reversible error by denying his request for a continuance after the defense received notice on the day of the trial that his daughter intended at trial to testify differently than she did at the preliminary hearing as to the time the offense occurred.

At the preliminary hearing, the complainant testified that the act of incest took place shortly after midnight on August 2-3, 1974. She stated she had spent the day of August 2nd with her father, first meeting with him at 11:00 a. m., and that later in the evening, after going with him to a bar at about 8:00 p. m., she was taken by her father to a parking lot on Jones Island in Milwaukee where the act occurred. Upon cross-examination, however, the complainant stated she was not positive of the date on which the offense occurred, but that it was in the beginning of August.

Subsequent to the preliminary hearing, the defendant filed a notice of alibi, pursuant to sec. 971.23(8), Stats., which alibi was directed toward the evening hours of August 2, 1974. The record shows the defendant had several witnesses available to testify in support of this alibi.

On the day of trial, the complainant notified the prosecution that her testimony at trial would be that the act occurred shortly after midnight on August 1-2, 1974, after having been with her father during the day of August 1st. The prosecution immediately notified defense counsel, who then sought a continuance.

In requesting the continuance, counsel for the defendant stated the defense had been prepared upon the belief, held in reliance upon conferences with the prosecution and the daughter's testimony at the preliminary hearing, that the daughter would testify that the crime occurred shortly past midnight on August 2nd-3rd. Defense counsel further stated, after having conferred with the defendant and the alibi witnesses assembled to testify as to the evening of August 2nd, that the defendant recalled being at a particular home during the night of August 1st, that none of the alibi witnesses then present, except one, would have also been there, and that the one witness present who might have been there could not recall the evening of August 1st. A continuance was requested to investigate the evening of August 1st by talking to those persons, not present, at whose home the defendant recalled being on the evening of August 1st.

The trial judge declined the request for a continuance, noting that the information stated the date of the offense to be August 2, 1974, which would be consistent with the testimony that it occurred shortly after midnight in the early morning hours of August 2nd, the version the daughter now indicated she would give at the trial. The trial judge also, however, stated he would admit the testimony of alibi witnesses as to the evening of August 1st and morning of August 2nd, even though no notice of alibi for that period of time had been filed.

This court has stated that a motion for continuance is addressed to the sound discretion of the trial court, and thus, in the absence of a clear showing of abuse, the exercise of that discretion will not be disturbed. State v. Davis, 66 Wis.2d 636, 655, 225 N.W.2d 505, 514 (1975); Elam v. State, 50 Wis.2d 383, 389-90, 184 N.W.2d 176, 180 (1971).

The basis for the defendant's request for a continuance in this case was surprise at trial caused by unexpected testimony. Such surprise under certain circumstances is recognized as a proper basis for a continuance to allow the party against whom the unexpected testimony is offered an opportunity to investigate the situation and obtain disproving and impeachment evidence. United States v. Neff, 212 F.2d 297, 310 (3d Cir. 1954); 3 Wharton's (Torcia), Criminal Procedure, sec. 434 (12 ed. 1975). See First National Bank v. Scalzo, 70 Wis.2d 691, 698, 235 N.W.2d 472, 476 (1975); State v. Davis, supra, 66 Wis.2d at 654, 225 N.W.2d at 514.

Nevertheless, where a party claims surprise at trial, continuance is not automatically granted. While all the circumstances in each case must be considered, essentially three qualifications must be met before a denial of a continuance based upon surprise at trial caused by unexpected testimony will be held upon review to be an abuse of discretion:

1. There must have existed actual surprise; thus, the development must have been something which the party who sought the continuance could not reasonably have been expected to foresee or anticipate. United States v. Clements, 484 F.2d 928, 931 (5th Cir. 1973), cert, denied, 415 U.S. 991, 94 S.Ct. 1591, 39 L.Ed.2d 888 (1974); See Laev v. State, 152 Wis. 33, 40-42, 139 N.W. 416, 419 (1913).

2. Where the surprise is caused by unexpected testimony, the party who sought the continuance must have made some showing that contradictory or impeaching evidence could probably be obtained within a reasonable time. McKinney v. Jones, 55 Wis. 39, 48, 11 N.W. 606, 611 (1882).

3. The denial of the continuance must have been, in fact, prejudicial to the party who sought it. Page v. American Family Mutual Insurance Co., 42 Wis.2d 671, 679-81, 168 N.W.2d 65, 69 (1969); Druska v. Western Wisconsin Telephone Co., 177 Wis. 621, 623, 189 N.W. 152, 153 (1922).

It is at least arguable that the first two qualifications are met in this case. However, regardless of the determination relative to the first two qualifications, the record fails to disclose any actual prejudice to the defendant caused by the denial of the continuance. In deciding whether actual prejudice resulted, this court may use hindsight and view the question in light of the events subsequent to the trial court's ruling. 3 Wright, Federal Practice and Procedure, Criminal, sec. 832, at 334 (1969); Stein v. United States, 271 F.2d 895, 897 (9th Cir. 1959), cert. denied, 362 U.S. 950, 80 S.Ct. 860, 4 L.Ed.2d 868 (1960).

The defendant claims he was prejudiced by being forced to present evidence of an alibi for the evening of August 2nd-3rd even though the complainant testified the offense occurred the night before. This, defendant asserts, could only serve to convince the jury that he was attempting to confuse the issues. The denial of the continuance could not have forced the defense to present such evidence, and thus no prejudice which may have resulted from this presentation may be attributed to the decision of the trial judge.

There is nothing in the record to indicate the defendant was prejudiced in the presentation of his defense. Prejudice could only have occurred if, because of lack of time, the defendant could not prepare and present an alibi for the evening of August 1st-2nd. The record shows that although prior to trial the defendant told his counsel he recalled being at someone's house that night, at trial the defense did not make an effort to present any alibi for the evening of August 1st-2nd. Upon direct examination of the defendant, defense counsel asked no questions relating to his whereabouts that evening. Upon cross-examination, the defendant responded to questions of whether he was at the home of his friend Audrey Hites on the evening of August 1st-2nd by stating, "I would say so, yes." After the defendant denied taking his daughter to Jones Island that evening, the prosecutor asked if the reason for that denial was because the defendant was at the home of Audrey Hites, and the defendant responded affirmatively. Upon redirect examination, however, defense counsel questioned the defendant as to his reason for testifying he had been at Audrey Hites' home on the evening the crime...