Cleghorn v. State

• Decision Date: 30 June 1972
• Docket Number: No. S,S
• Citation: 198 N.W.2d 577,55 Wis.2d 466
• Parties: Norman Lee CLEGHORN, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 210.
• Court: Wisconsin Supreme Court

Page 577

198 N.W.2d 577

55 Wis.2d 466

Norman Lee CLEGHORN, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 210.

Supreme Court of Wisconsin.

June 30, 1972.

On the evening of February 16, 1968, in Knox's tavern in Milwaukee, Norman Lee Cleghorn, plaintiff-in-error, was involved in a shooting incident with Clarence Weaver. Weaver was seriously wounded and Cleghorn was charged with attempted first-degree murder, tried before a jury, found guilty and sentenced to an indeterminate term of not more than 12 years. A motion for a new trial was denied. Counsel was appointed for Cleghorn to represent him on appeal. In due time counsel submitted a no-merit report stating that an appeal would be wholly frivolous and without merit, and, after an independent investigation of the record by this court, the report was accepted. An unpublished opinion (No. 71/95) was filed in June, 1971, in which this court concluded there were no issues upon which an appeal could be successfully predicated and any issue raised would be wholly frivolous and without arguable merit. From the judgment of conviction, Cleghorn proceeded with his appeal pro se with the assistance of a third-year law student. ¹

Norman Lee Cleghorn, pro se.

Robert W. Warren, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., Madison, for defendant in error.

HALLOWS, Chief Justice.

Three of the issues raised on this appeal were considered by the court in its unpublished opinion. We have carefully reexamined the record, our unpublished opinion, the arguments of Cleghorn, and we are unpersuaded these issues have any arguable merit. We therefore decline to make any extended discussion. Bies v. State (1972), 53 Wis.2d 322, 193 N.W.2d 46.

Cleghorn claims he is entitled to an instruction on self-defense, but he testified he did not intend to shoot or to kill Weaver. One exercising the privilege of self-defense must intend to use some force or to threaten force against another for the purpose of self-defense. The versions of the shooting affair differ, with Weaver claiming Cleghorn pulled a gun and fired at him and Cleghorn claiming Weaver had a gun, fired at him, and any later shots were accidental and resulted from the scuffle. On this record, self-defense was not in the case. Thomas v. State (1972), 53 Wis.2d 483, 488, 192 N.W.2d 864. The case of Campbell v. State (1901) 111 Wis. 152, 86 N.W. 855, is not in point because there the defendant intended to use force to stop an attack although he denied any intention to kill.

Cleghorn claims he requested an instruction on aggravated battery (sec. 940.22, Stats.) and injury by negligent use of a weapon (sec. 940.24 Stats.). The record discloses no such request before the jury retired and a trial court does not commit error in failing on its own motion to instruct on and submit a lesser and includable crime. Green v. State (1968), 38 Wis.2d 361, 363, 156 N.W.2d 477; Hayes v. State (1968) 39 Wis.2d 125, 136, 158 N.W.2d 545. We do not pass on the question of whether the alleged requested instructions involved an includable crime, but we note the trial court did instruct on endangering safety by conduct regardless of life (sec. 941.30, Stats.).

The argument that a new trial was warranted on the basis of newly discovered evidence stands on a statement of an inmate in the state prison, stating he was in Knox's tavern that night and saw Weaver first pull a gun and start shooting. Aside from the value of such testimony, which in the unpublished opinion we stated would be merely cumulative, a motion for a new trial on newly discovered evidence must be made within one year of trial as the law stood at that time. ² See sec. 958.06(1), Stats.1967. No such motion was brought within a year of the October 23, 1969, conviction.

Cleghorn now claims the trial court made three more errors in instructing the jury, i.e., substituting the word 'usual' for 'deliberate' in instruction Wis. J I--Criminal 1105, failing to state the presumption that one intends the natural and probable consequences of his acts is rebuttable, and omitting the final paragraph of instruction Wis. J I--Criminal 170 on the effect of circumstantial evidence. None of these objections was brought to the trial court's attention during the trial and only two of them were raised in the post-conviction motion. Therefore, these issues are not properly before us. Likewise, the claim of inflamatory evidence, which consisted of Weaver's blood-stained shirt on the prosecutor's table, was not raised during the trial and is not properly before us. An appeal can only raise errors properly preserved on the record; it is not a device to fine comb the transcript to find by hindsight new defenses, arguments or trial strategies.

In a new argument on this appeal, Cleghorn contends the state's no-merit procedure violates his right to appellate counsel as guaranteed by Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396 18 L.Ed.2d 493, in that it allows appointed counsel to argue against his client. In Anders, the United States Supreme Court found that permitting counsel's withdrawal was improper because his stated basis for so acting was only a conclusory opinion of no merit in the appeal. Such an opinion was not equivalent to an evaluation of the appeal as frivolous, furnished no help to the court in determining the merits of the appeal and did not provide a basis for the reviewing court to determine whether the attorney had given adequate representation to the indigent. Anders requires that appointed counsel must perform his duties as adequately as paid counsel so the indigent will not be deprived of adequate representation because of his indigency.

However, neither a paid counsel nor an appointed counsel in this state, without violating his oath as an attorney, can argue on appeal any question of law or fact 'which is not honestly debatable.' ³ The oath does not prevent an attorney, when the existing doctrine of law does not support a reversal, from arguing there is a sound basis for a change in the law. However, in many cases, although counsel uses his best effort to find meritorious ground for appeal, he will find an appeal would be wholly frivolous and the record devoid of prejudicial error; in such cases, appointed counsel generally asks for leave to withdraw from the case.

It is Wisconsin's procedure of allowing appointed counsel to withdraw from such a case which is challenged by Cleghorn, who argues the procedure encourages an attorney to argue points, which seemingly lack merit, against his client. Specifically, Cleghorn argues Thomas Whipp, counsel appointed by this court, in making his no-merit report acted in the role of amicus curiae to the court and not as an advocate for him as required by Anders. But Anders at p. 744, 87 S.Ct. at p. 1400 states that if counsel finds the case to be 'wholly frivolous' after a conscientious examination of it, he may so advise the court and request permission to withdraw. The request, however, must be accompanied by 'a brief referring to anything in the record that might arguably support the appeal.'

Under our procedure, upon appointment each attorney is furnished with detailed instructions and is required to make periodic reports of progress. The attorney is urged to consult with trial counsel and the indigent, as well as making a careful examination of the record. If the appointed attorney concludes an appeal would be frivolous, he prepares a no-merit brief and sends a copy of it to the indigent, who is given 15 days in which to comment thereon to the supreme court. The instructions to counsel do not require him to argue against his client but demand a fair evaluation of the record and a search for meritorious arguments grounded thereon. The indigent may not only disagree with the no-merit brief but he may add new arguments or issues he wishes to be considered by the court, as was done in this case. The supreme court not only examines the no-merit brief but any brief or correspondence filed by the indigent and also makes a new investigation and determination of the merits of the appeal from scratch. Occasionally under our no-merit-report procedure, the independent investigation of the record by this court leads it to differ with the no-merit brief of counsel; and in such cases, we point out to counsel there are issues of arguble merit and deny his request for withdrawal and order him to proceed with the appeal. In each case a memorandum is prepared for the court by a law clerk of one of the justices. This memo covers not only the issues dealt with in the no-merit brief but also any additional issues brought to our attention by the indigent or discovered in the record. The nomerit brief, the memorandum, and the material from the indigent are all presented to the whole court by a justice and all the issues are discussed by the court in conference. A decision is then made and a written opinion filed but not always published. If the court independently decides there is no merit to any of the arguments or the issues raised, it permits the attorney to withdraw and dismisses the appeal. ^3a

Under a new procedure hereby adopted when this court has found there is no merit to any of the issues raised or discovered, besides allowing counsel to withdraw, this court will summarily decide the merits and affirm the conviction when an appeal has been taken or a writ of error has been issued. The possibility of such summary disposition of the merits will be given by notice to the indigent at the time he receives notice of his right to file a brief modifying or in opposition to or in addition to the no-merit brief of his appointed counsel.

In the instant case, Mr. Whipp filed with this court in February, 1971, a seven-page no-merit brief in which he reviewed the testimony, citing the pages of the transcript for each fact. Cleghorn was sent a copy and given time to respond, which he did,...