Elam v. State, S

• Decision Date: 02 March 1971
• Docket Number: No. S,S
• Citation: 50 Wis.2d 383,184 N.W.2d 176
• Parties: Harold ELAM, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 135.
• Court: Wisconsin Supreme Court

Page 176

184 N.W.2d 176

50 Wis.2d 383

Harold ELAM, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 135.

Supreme Court of Wisconsin.

March 2, 1971.

On July 25, 1969, Harold Elam, the plaintiff in error (hereinafter defendant), was convicted of burglary after a jury had returned a verdict of guilty. A presentence investigation was ordered and on September 2, 1969, the defendant was sentenced to an indeterminate term of not more than three years in prison consecutive to a sentence previously imposed. A writ of error was issued to challenge the judgment of September 2, 1969. A second writ of error was issued to review an order of the same court entered on September 8, 1970, denying the defendant's motion for postconviction relief brought pursuant to sec. 974.06, Stats.

Defendant and two accomplices were charged with a violation of sec. 943.10(1) (d), Stats., for the burglary of a truck belonging to Servomation of Wisconsin, Inc., a vending machine company, in Milwakee on November 5, 1968. The truck was broken into, during daylight hours, while parked and locked but unattended. Cash and cigarettes were stolen. They were tried separately and all three were convicted and sentenced.

The defendant-Elam's trial in this matter was originally scheduled before Judge William I. O'Neill for March 19, 1969. He had been incarcerated at Fox Lake by reason of revocation of probation on a previous narcotics conviction, and Judge O'Neill ordered defendant to be brought to Milwaukee by March 15, 1969. The defendant had timely filed a notice of alibi on January 9, 1969, and subpoenas were issued for James Butcher and John Crowley, the alibi witnesses listed in the notice. Neither witness appeared on March 19th. However, defendant's trial was adjourned because the sheriff did not produce defendant until the date of trial, contrary to the direction of Judge O'Neill.

On June 5, 1969, the case was transferred to Judge CANNON, and on June 10, 1969, trial was set for July 24, 1969.

On July 24, 1969, the date of trial, defendant's counsel advised the court that he had issued subpoenas for the two alibi witnesses on July 23rd, the previous day, and that the sheriff was unable to serve them. He asked for an adjournment to enable him to locate the witnesses, and the motion was denied. The trial proceeded and the state rested; the jury returned its verdict only one who identified defendant as one of the participants in the burglary. The defendant did not put in any case after the state rested, the jury returned its verdict and the defendant was sentenced as set forth above.

The defendant was represented throughout the proceedings through September 2, 1969, by retained counsel.

By order dated December 16, 1969, this court appointed Attorney James R. Mattison to represent defendant in any postconviction proceedings. On March 9, 1970, defendant filed an order to show cause why he should not be granted a new trial pursuant to sec. 958.06, Stats., by reason of his being denied the right to present his defense, contrary to the sixth and fourteenth amendments to the United States Constitution. After a hearing on March 23, 1970, the motion was denied.

Subsequent to the denial of that motion, defendant's wife advised Mr. Mattison that she had learned that one Talmadge Edwards, who was incarcerated at Green Bay, was actually the third man involved in the burglary instead of her husband. In April of 1970, Mr. Mattison spoke with Talmadge Edwards, Robert Words (a codefendant who had also been convicted of the burglary involved here), and one Jerry Johnson at the reformatory. After a lengthy conference, Talmadge Edwards admitted that he in fact had committed the offense and that defendant was not involved. He further stated that he had confessed the offense to Milwaukee Police Detective Robert Schroeder, but that at the time of his trial the confession was not read into the record. He told Mr. Mattison that he would testify to these facts 'if it would not affect his present situation.'

Mr. Mattison then contacted Detective Schroeder who told him that Edwards had confessed to many unsolved crimes, but he could not remember his confessing to this burglary.

On or about July 3, 1970, Mr. Mattison against visited Talmadge Edwards and Robert Words and asked each to sign a statement under oath. They refused, stating that if they were subpoenaed they would testify only if they were granted immunity from further prosecution.

On August 10, 1970, defendant filed a second order to show cause why he should not be granted a new trial by reason of his being denied the right to present his defense, supported by the affidavit of Mr. Mattison setting forth the above facts and, in addition, that he had located one of the alibi witnesses, James Butcher, who was willing to testify in behalf of the defendant. Further, defendant sought the issuance of a writ of habeas corpus ad testificandum and the granting of immunity to Edwards and Words.

A hearing was held on August 18, 1970, and Edwards and Words were subpoenaed and sworn as witnesses. The court refused to grant them immunity and both refused to testify, pleading the fifth amendment. The trial court again denied defendant's motion.

On August 19, 1970, defendant requested issuance of a writ of error. A writ of error was issued directed to the judgment of sentencing entered on September 2, 1969, but defendant was advised that the time for appeal or writ of error from the judgment of conviction entered on July 25, 1969, had expired.

On September 1, 1970, defendant filed a motion for postconviction relief pursuant to sec. 974.06, Stats., alleging the same grounds discussed above. After a hearing on September 8, 1970, the trial court denied defendant's motion. A writ of error directed to the order denying this motion was issued on September 10, 1970.

James R. Mattison, Becker, Kinnel, Doucette & Mattison, Milwaukee, for plaintiff in error.

Robert W. Warren, Atty. Gen., William A. Platz and Robert D. Martinson, Asst. Attys. Gen., Madison, E. Michael McCann, Dist. Atty., Milwaukee County, Milwaukee, for defendant in error.

BEILFUSS, Justice.

No question is raised concerning the propriety of the sentence imposed, and the arguments made on this writ of error relate solely to the issue of whether defendant should be granted a new trial.

Three questions are presented:

(1) Did the trial court abuse its discretion in denying defendant's motion for a continuance made on the day of trial?

(2) Did the trial court abuse its discretion in refusing to grant immunity from prosecution to Talmadge Edwards and Robert Words at the postconviction hearing?

(3) Should defendant be granted a new trial in the interest of justice pursuant to sec. 251.09, Stats.?

Defendant's first argument is that he was denied the right to present his defense at trial in that he was not afforded the benefit of compulsory process to compel the attendance of his alibi witnesses. In view of the facts contained in the record this appears to be somewhat of a misstatement, the real question being not whether he was denied the benefit of compulsory process but rather whether the trial court abused its discretion in refusing to grant him a continuance to locate his alibi witnesses.

The sixth amendment to the United States Constitution and art. I, sec. 7 of the Wisconsin Constitution guarantee to a criminal defendant the right 'to have compulsory process' to obtain witnesses in his behalf. This right has been incorporated in the due process clause of the fourteenth amendment and applies equally to the state. In addition to the constitutional provisions for this right, it is also expressed in sec. 955.04, Stats., which provides that: '(A)ny defendant shall have compulsory process to compel the attendance of witnesses in his behalf.' ¹ The sixth amendment does not require that the state be successful in attempting to subpoena the defendant's witnesses, but only that the process issue and that a diligent, good faith attempt be made by the officer to secure service of the process. Maguire v. United States (9th Cir. 1968), 396 F.2d 327, 330.

While a state may not by statute, rule, or otherwise deny a defendant the right to compulsory process, it may, as in the case of other constitutional rights, provide reasonable regulations for the exercise and administration of the right. Since the primary responsibility for having witnesses present in court rests with the parties and not the court, the rule is that a motion for a continuance to obtain the attendance of witnesses is addressed to the discretion of the trial court, and the exercise of that discretion will not be disturbed upon appeal or review except where it is clearly shown that there has been an abuse. Galloway v. Burke (E.D.Wis.1969), 297 F.Supp. 624; Arndt v. United States (E.D.Wis.1966, 256 F.Supp. 822; State v. Moffett (1970), 46 Wis.2d 164, 174 N.W.2d 263; State v. Whitney (1945), 247 Wis. 112, 18 N.W.2d 705.

In passing upon a motion for a continuance due to the absence of a witness, several factors should be considered by the trial court. Generally, the court may consider whether the testimony of the absent witness is material, whether the moving party has been guilty of any neglect in endeavoring to procure the attendance of the witness, and whether there is a reasonable expectation that the witness can be located. See 22A C.J.S. Criminal Law § 486, p. 103. Where a satisfactory showing is made with respect to these elements, the moving party is ordinarily entitled to a continuance, particularly in a case such as the instant one where the facts sought to be established cannot be proved by other witnesses, and the defendant has a constitutional right to compel their attendance.

The testimony sought to be elicited from the absent witness was material. Testimony which tends to prove that the accused was at another place at the time the crime was committed, and...