Dumer v. State

• Decision Date: 03 July 1974
• Docket Number: No. S,S
• Citation: 64 Wis.2d 590,219 N.W.2d 592
• Parties: Ritchie H. DUMER, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 49.
• Court: Wisconsin Supreme Court

Page 592

219 N.W.2d 592

64 Wis.2d 590

Ritchie H. DUMER, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 49.

Supreme Court of Wisconsin.

July 3, 1974.

David L. Walther, Walther & Halling, Milwaukee, for plaintiff in error.

Robert W. Warren, Atty. Gen., Robert D. Martinson, and James H. McDermott, Asst. Attys. Gen., Madison, for defendant in error.

HALLOWS, Chief Justice.

According to the complainant's testimony, about 5:15 in the afternoon on August 21, 1972, the complainant witness was walking from 56th and Hampton streets to her parents' home on North 65th street in Milwaukee. When she was about one and a half blocks from her parents' house near the intersection of West 64th and West Luther streets, Dumer came out between two houses and started to follow her. The complainant was a student at the University of Wisconsin-Milwaukee and at the time of the trial was 26 years old. Dumer was 18 years old and a stranger to the complaint. Although the complainant witness walked fast, Dumer came aside of her and asked her where she was going and whether she would like company. He put his arm around her waist but he was repulsed. Thinking she might scare Dumer away, the complainant turned to a house hoping Dumer would think it was her parents' home. However, Dumer grabbed her and pulled her to the sidewalk leading around the side of the house to the backyard. Twice she screamed for help as loud as she could but received a blow in the eye and a bloody nose by Dumer's closed fist and no help.

Dumer threatened her if she should scream again and then attempted to have intercourse in the backyard. She gave Dumer reasons why they should not have intercourse. She noticed two elderly people three houses away and pointed them out to Dumer. Dumer then pulled to complainant by the arm across the alley and into a clump of bushes where Dumer had intercourse although she made some attempts to prevent it. As soon as Dumer left, she ran into the alley and screamed that she had been raped.

A police officer testified that when he arrived at the scene, the complainant was visually upset, the right side of her face showed signs of swelling and redness. She had a bloody nose and her clothes and hair were disarrayed.

Dumer was arrested later that evening and admitted most of the facts detailed by the complainant through the point that he had bloodied her nose; the rest of the details Dumer claimed were voluntary on the complainant's part and that she willingly submitted to intercourse. While it may be true the complainant finally gave up resisting, the record does not impress us any more than the testimony did the jury that she willingly had intercourse but rather her will to resist was overcome by force.

I. Jurisdiction.

The first claim made by Dumer is that the circuit court branch 18 of Milwaukee county wherein Dumer was tried had (1) no subject-matter jurisdiction, hence the judgment was void, and (2) the conviction is erroneous, hence the jurisdiction of the trial court was not properly invoked.

As to the first point, Dumer argues that the civil branch 18 of the circuit court, presided over by Circuit Judge Christ T. Seraphim, did not have criminal jurisdiction (the case was assigned to him for trial). Dumer was arraigned and entered a plea of not guilty in branch 12 of the circuit court, criminal division, for Milwaukee county presided over by Judge John L. Coffey. Dumer expressed a desire for a jury trial and a preference for a trial sometime in October of 1972. Judge Coffey Circuit courts in Wisconsin have original jurisdiction of all matters civil and criminal not excepted in the constitution or not prohibited by law. ² Dumer argues civil circuit courts in Milwaukee county do not have criminal jurisdiction because such courts were 'prohibited by law' by secs. 252.015(2) and 252.02, Stats. These two sections provide special treatment for Milwaukee county in the court system. In sec. 252.015(2) ³ it is provided that in Milwaukee county 'branches 11, 12, and 17 shall be designated as criminal court branches.' In order to deprive circuit courts of their criminal jurisdiction, the designation of branches 11, 12 and 17 would have to be exclusive. As we view this section, it is no more than an administrative designation to be sure that criminal cases are assigned to the designated criminal branches. Neither does sec. 252.02 ⁴ contain any prohibition The administration of the courts in Milwaukee county is governed by the statutes, supreme court rules, and local rules. The judges of the circuit court of Milwaukee county have rules governing the transfer and reassignment of criminal cases, which are subject to other provisions of the statutes and the supreme court rules. The supreme court has promulgated rules ⁵ It is contended by Dumer that the procedure in the rules set up by the circuit judges was ignored in the instant case and an attempt was made to make branch 18 a criminal court branch contrary to the statute. It appears from the record that Judge Coffey had no power or authority as a calendar judge to transfer the case to Judge Seraphim as judge of civil branch 18. However, we think that Judge Coffey when he has the calendar and is also trying cases so that he cannot hear cases scheduled for trial, which amounts to a congestion in his court, he has power to transfer cases to judges assigned to the criminal branches by the chief justice, and Judge Seraphim was so assigned by the chief justice. When a case is to be reassigned to a civil branch, it should be sent to the chief judge for a reassignment by lot. However, the lottery system except for disqualification and other specific reason is not applicable to reassignment of cases within the criminal branch.

inquired whether Dumer objected to trying a case before Circuit Judge Christ T. Seraphim, which Dumer did. Judge Coffey then indicated he might not be able to take the trial in October because he was to be calendar judge that month. He informed Dumer the trial might be transferred at the last minute if he were not able to get another judge to take the calendar. The trial date was postponed several times by Judge Coffey, who finally set the date in January of 1973. However, in November Dumer requested an earlier trial date and the case was transferred to Judge Seraphim for trial. The transcript contained the following remarks by Judge Coffey, 'The court orders this case transferred to Judge Seraphim for trial.' The judgment roll recites the court ordered the 'case transferred to Hon. Christ T. Seraphim pursuant to Chapter 46, Laws of 1971, sec. 251.182, ¹ with consent of Judge Seraphim. Case set for jury trial on [64 Wis.2d 595] November 24, 1972, at 8:30 a.m. in Branch 18.' Branch 18 of the circuit court was the last court created by the legislature and was designated a civil branch. At the time of the transfer, Judge Seraphim had been appointed by the chief justice under a general assignment to branches 11, 12 and 17 of the circuit court under sec. 251.182, Stats., commencing September 12, 1972, because of the 'congested calendars in said branches of the court.' or limiting of circuit courts' criminal jurisdiction. This section is somewhat ambiguous in its reference to 'all cases specified in s. 252.015 for the 2nd circuit criminal branch jurisdiction' because sec. 252.015 does not designate cases but merely provides that branches 11, 12 and 17 shall be designated as the criminal branches. In sec. 252.02 it is also provided that the clerk shall assign all the cases specified in sec. 252.015 to the criminal branches and shall be reassigned out in case of disqualification, illness or vacation of the judges or vacancies in branches 11, 12 and 17. We read sec. 252.02 to empower the clerk as an administrative duty to assign cases to the criminal branch and reassign cases in the specified situations. This does not limit the jurisdiction of the civil branches of the circuit court. The statute is also ambiguous in its [64 Wis.2d 597] statements that all assignment of work to 'said branches' by the clerk shall be subject to the 'approval of said judges.' This means, and apparently Judge Coffey thought so, that a judge of a civil branch to which cases are assigned must approve the assignment, otherwise, a civil court branch's work could be controlled by the criminal branch. However, such consent is not jurisdiction and a reassignment for purposes stated does not confer subject-matter jurisdiction on the civil circuit branch but merely invokes the subject-matter jurisdiction. We doubt whether the words of the statute, 'the consent of said judges must be had,' means all the judges of the circuit court whose approval could be evidenced by rules of court adopted by them which were filed December 23, 1971 and amended June 6, 1973. [64 Wis.2d 598] The local rule (rules have been promulgated by the judges of the circuit court for Milwaukee county. See Milwaukee[64 Wis.2d 599] Code of Ordinances, Vol. II, secs. 10--50, Appendix, Rules of Civil and Criminal Practice of the Circuit Court of Milwaukee [64 Wis.2d 600] County, as amended to March 1, 1972), civil and criminal court branches, Rule 3--E, ⁶ provides the reassignment of which is basically controlled by sec. 252.017, but this seems to apply to the family court. Rule 3--B, ⁷ procedure for reassignment, provides in sebsec. (1) the chief judge shall reassign the case by lot in the manner as cases are [64 Wis.2d 601] originally assigned. Rule 4, ⁸ temporary absence of assigned judge, provides that in the absence of the trial judge because of illness or other reason the cases may be heard temporarily by any judge excepting that in a criminal branch such case is to be controlled by sec. 252.017, Stats. This latter exception refers to the family court and is apparently a mistake.

Dumer argues as his second point that his judgment of conviction was at least erroneous because the jurisdiction of the...