Commodore v. State

• Decision Date: 03 January 1967
• Citation: 147 N.W.2d 283,33 Wis.2d 373
• Parties: Norman COMMODORE, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 283

147 N.W.2d 283

33 Wis.2d 373

Norman COMMODORE, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

Supreme Court of Wisconsin.

Jan. 3, 1967.

Henry Dorman, Racine, for plaintiff in error.

Bronson C. La Follette, Atty. Gen., William A. Platz, Asst. Atty. Gen., Betty R. Brown, Asst. Atty. Gen., Madison, Gerald E. Clickner, Dist. Atty., Racine, for defendant in error.

HEFFERNAN, Justice.

The defendant contends that he was denied a speedy trial, that he was adversely affected by prejudicial publicity that attended his prosecution, that the display to the jury of the money found in the washbasin was prejudicial, and that the judge failed to instruct the jury that it could make a finding of guilt in regard to lesser but included offenses. On the basis of all these contentions, the defendant maintains that the judgment should be reversed and a new trial ordered in the interest of justice.

1. Was Commodore denied his constitutional right to a speedy trial?

Sec. 7, Art. I, of the Wisconsin constitution provides, among other things, that, 'In all criminal prosecutions the accused shall enjoy the right * * * to a speedy public trial by an impartial jury * * *.' It is apparent from the record that the defendant was jailed in October of 1964 and was not brought to trial until July 20, 1965. However, as we have recently pointed out in State v. Reynolds (1965), 28 Wis.2d 350, 354, 137 N.W.2d 14, the mere lapse of time does not constitute a denial of the right to speedy trial. We have pointed out that the accused must be tried as soon as the orderly operation of the court permits. Kopacka v. State (1964), 22 Wis.2d 457, 461, 126 N.W.2d 78. This court has also consistently held that, in addition, the accused is required to take affirmative action to see that his case is brought on for trial before he can demand dismissal of charges on the basis of a denial of the constitutional right to speedy trial. State v. Reynolds (1965), 28 Wis.2d 350, 354, 137 N.W.2d 14; Hansen v. State (1965), 26 Wis.2d 238, 243, 131 N.W.2d 837; Kopacka v. State (1964), 22 Wis.2d 457, 460, 126 N.W.2d 78. Shortly after Commodore's apprehension, a detainer warrant was filed as a result of a previous sentence. He commenced a habeas corpus proceeding in this court as a result of that detainer. The record of this case is absolutely devoid of any affirmative action until after the disposition of that habeas corpus proceeding. Moreover, the trial judge found, and there is convincing evidence to support such finding, that the delay from October to May was attributable to the defendant's agreement with the district attorney to postpone further proceedings pending the outcome of the habeas corpus proceeding in this court arising from an earlier conviction. The trial judge stated:

'* * * the defendant has personally at no time requested a hearing or a preliminary hearing upon the present charge that of burglary, however, it does appear that throughout the course of this proceeding the defendant has been represented by counsel, presumably of his own choice, who on his behalf acquiesced, participated or consented to, if not in fact, he did not procure the delays which have intervened between the present and the arrest of the defendant.'

An affidavit of the district attorney, made a part of the record and which is not contradicted, states:

'(The) Court Commissioner of Racine County, had on numerous occasions personally contacted the defendant and requested of him whether a speedy preliminary hearing was requested and that the defendant personally informed the Court Commissioner that he did not want further proceedings on this matter until the determination by the Supreme Court on the motion in habeas corpus.'

Subsequent to the disposition of the petition for habeas corpus in this court adverse to the defendant, the defendant discharged the attorney who first represented him, and on May 14, 1965, his newly selected trial counsel waived preliminary hearing. He was arraigned on May 17, 1965, and was brought to trial on July 20, 1965. It is therefore apparent that, once the defendant took affirmative action to have his matter brought to trial, the matter was disposed of promptly. Whatever delay there was in bringing this matter to a conclusion was to a great degree at least of the defendant's own making. The defendant was not deprived of his constitutional right to a speedy trial.

We note also that, as a remedy for failure to provide a speedy trial, the defendant demands a new trial. Such remedy would appear inappropriate, for were the defendant deprived of that constitutional right, the defect could not be remedied by another trial further delayed--the remedy would be a dismissal of the charge and a bar to further prosecution.

2. Was the defendant prejudiced by improper publicity or by the judge's failure properly to instruct the jury in regard thereto?

The defendant also claims that prejudicial publicity made a fair trial impossible and that it was error for the trial judge to refuse to instruct the jury or to refuse to question the jury to determine whether any of its members had read an article appearing in the local paper during the course of trial. There is no evidence to show that the particular article or any of the other publicity attendant upon Commodore's apprehension or trial was prejudicial. The article appeared in a two-column story at the bottom of page 5 of the Racine Journal Times. The relatively inconspicuous headline stated, 'Testifies to Apprehension of Suspect in Burglary.' The news story appears to be a completely accurate and dispassionate account of the testimony elicited at trial. Moreover, the record does not reveal that trial counsel asked for a special instruction to disregard prejudicial newspaper publicity. Trial counsel asked that the jurors be questioned to determine whether or not they had read the story. The judge denied this request. Under the circumstances we cannot conclude that this was error. On the face of it, the newspaper article was not prejudicial, nor is there any evidence that it was. The record also contains a photograph taken at the time of defendant's apprehension on the night of Cotober 22--23, 1964. This photograph appeared in the Milwaukee Journal, and there is nothing to show that any of the jurors had seen the photograph prior to the time is was introduced into evidence at the instance of the defendant. Nothing in either of these newspaper reports is indicative of any bias or feeling against the defendant on the part of the press or public which might prejudice the jurors in arriving at an impartial verdict. Although counsel states that the defendant was apprehended by the police in the midst of a 'circus-like atmosphere,' there is nothing in the record to indicate that circumstances of that apprehension or the publicity attendant thereto (which appeared in the newspaper in another city) prejudiced the defendant at trial. Counsel relies upon Sheppard v. Maxwell (1966), 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600. The very quotation used by counsel, however, makes apparent the inappropriateness of the Sheppard Case to the instant one:

"'With his life at stake, it is not requiring too much that petitioner be tried in an atmosphere undisturbed by so huge a wave of public passion."'

We find no circumstances here that are indicative of prejudicial publicity. The usual admonition that was given by the court stating, 'In determining the guilt or innocence of the defendant, you should be governed solely by the evidence brought before you and the instruction of the court * * *,' was adequate to safeguard the rights of the defendant under these particular circumstances.

3. Did the conduct of the district...