Gaddis v. State

• Decision Date: 12 April 1974
• Docket Number: No. S,S
• Citation: 216 N.W.2d 527,63 Wis.2d 120
• Court: Wisconsin Supreme Court
• Parties: Daniel GADDIS, Jr., Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 18.

Page 527

216 N.W.2d 527

63 Wis.2d 120

Daniel GADDIS, Jr., Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 18.

Supreme Court of Wisconsin.

April 12, 1974.

Rehearing Denied June 4, 1974.

Donald J. Hanaway, Condon & Hanaway, Green Bay, Howard B. Eisenberg, State Public Defender, Madison, for plaintiff in error.

Robert W. Warren, Atty. Gen., Christine M. Wiseman, Asst. Atty. Gen., Madison, for defendant in error.

FACTS

Plaintiff in error, Daniel Gaddis, Jr., was charged in a criminal complaint, filed November 15, 1971, with causing bodily harm to an officer, employee, visitor, or another inmate of a prison or institution without his consent, contrary to sec. 946.43(2), Stats. The charge arose from a riotous disturbance at the reformatory in Green Bay during which prison inmates attacked a prison guard, Captain John McLimans, inflicting serious injuries including a fractured arm, three broken ribs, head lacerations requiring twenty stitches, bruises to the right side of the body and cuts in his right hand requiring stitches. Preliminary hearing was held on November 23--24, 1971, and the defendant Gaddis was bound over to the circuit court for trial. On February 11, 1972, the jury found the defendant guilty of causing bodily harm to an employee of the Wisconsin state reformatory. Postverdict motions were denied on February 16, 1972, and the defendant was sentenced by the trial court to an indeterminate term of not more than ten years in the Wisconsin state prison system consecutive to the term then being served by defendant. Defendant appeals.

ROBERT W. HANSEN, Justice.

Challenges are raised to each step of the proceedings--from the preliminary hearing to the place of trial, through the conduct of the trial to the jury verdict and sentence imposed by the court.

THE HEARING. The challenge to the bind over claims that the evidence produced at the preliminary hearing was insufficient to establish probable cause as to: (1) That the defendant struck the victim; (2) that the victim was an officer or employee of the prison; and (3) that the victim sustained bodily injury at the hands of the defendant. All three particulars are elements of the crime charged. ¹ The purpose of a preliminary hearing, as codified by statute, ² is to determine if there is probable cause that a felony has been committed. ³ Guilt need not be established at such hearing beyond reasonable doubt. ⁴ As to the defendant striking the victim, a witness at the preliminary hearing testified that he saw the defendant '. . . swinging the chair on to the shoulders and back of Captain McLimans . . . about three or four times.' As to the victim being an officer or employee, the fellow officer testifying at the preliminary, repeatedly referred to the victim as 'Captain McLimans' and, when asked for the names of officers within the dining room area, the same witness named 'Captain McLimans.' The reasonableness of the inference that 'Captain McLimans' was an officer is heightened by the statutory reference to 'officer, employe, visitor or another inmate.' It is difficult to conceive of a victim of an in-prison assault not coming within one of the statutorily-mentioned categories. As to the victim being injured by defendant's acts, from the testimony that defendant was observed striking the victim with a chair and that the victim was bleeding profusely and that his face and back were covered with blood, it was not unreasonable for the magistrate to conclude that defendant's conduct did cause bodily harm. A preliminary hearing is to be '. . . concerned with the practical and nontechnical probabilities of everyday life in determining the existence of probable cause. . . .' ⁵ The evidence here was sufficient for bind over as to all elements of the offense involved.

PLACE OF TRIAL. The issue raised relates to defendant's motion for change of venue. There was a discussion of issues raised by such motion at the time of arraignment, and at a subsequent court hearing on motions. At such hearing the court stated that the number of witnesses to be called would bear upon any decision to change the place of trial. There is no need here to review the weight properly to be given to convenience of witnesses in changing venue since, on the day of trial, just subsequent to the selection of the jury, the court stated on and for the record that the defendant had withdrawn his motion for change of venue and defense counsel confirmed that he had. Both the motion and whether it should have been granted vanish with such withdrawal, confirmed by defense counsel's statement on the record:

'MR. HANAWAY (defense counsel): Yes, your Honor, I indicated to the Court several days ago that I wished to withdraw and do at this time withdraw my previous motion regarding a change of venue. I indicate in the record and on behalf of the defendant we are perfectly satisfied with the jury that is sworn in. Obviously the jury has been sworn and I have waived any objection to it.'

THE TRIAL. The claim of error in the conducting of the trial is to the trial court's refusing to admit into evidence the graphs and expert opinion testimony concerning the results of a polygraph test taken by the defendant prior to trial. The test was given by the state crime laboratory. (For the purpose of review upon appeal only, the trial court made part of the record the conclusion of the experienced examiner who conducted the test which was that the defendant was truthful in his responses to questions asked.) It appears that the defendant requested, and the trial court approved the request, that the state crime laboratory conduct a polygraph examination of the defendant. ⁶ Defendant subsequent to the giving of the test, offered to submit to another polygraph examination to be conducted by an examiner selected by the prosecution, agreeing to stipulate in advance the results of such test would be admissible in evidence. The defendant's offer of proof included his statement that he would testify during the trial as, in fact, he did. When defense counsel sought to introduce the test and expert opinion related thereto into evidence at time of trial, the court held it inadmissible, holding: '. . . the law is still in this state that the results of those tests are inadmissible.' At the time they were. ⁷ Since then, and at this term of court, the ban against polygraphic evidence in criminal cases in this state has been relaxed, ⁸ the court adopting in Stanislawski what it termed the Valdez rule ⁹ with the procedure to be followed, ¹⁰ including the first of four prescribed qualifying conditions for admission of polygraphic evidence to be: 'That the district attorney, defendant and his counsel all sign a written stipulation providing for defendant's submission to the test and for the subsequent admission at trial of the graphs, and the examiner's opinion thereon on behalf of either defendant or the state.' ¹¹ There was no such stipulation in the case before us, so it follows that the Stanislawski decision did not authorize the admission of the polygraph test under the procedure followed in the case before us.

The procedure here followed--defendant's request, the court's approval and the state crime laboratory examiner's conducting the test, under sec. 165.79, Stats.--could be viewed as an additional alternative procedure to that authorized in the Stanislawski Case, particularly where the defendant offered to submit to another polygraph examination administered by any examiner the prosecutor cared to designate. However, all justices agree that, having determined in Stanislawski the proper procedure for the admission of polygraph evidence in this state, we ought not consider additional or alternative procedures so soon after relaxing the forty-year-old total ban on such evidence. Some experience with the by-stipulation-only procedure should be had before additions to it should be considered. Also, it is to be noted that no state supreme court, ¹² and only one federal district court, ¹³ has yet gone beyond the admitting of polygraph evidence only where its admissibility is stipulated to by the parties involved. ¹⁴ The trial court ruling holding the polygraph evidence in this case inadmissible is upheld.

THE JURY VERDICT. The attack upon the jury verdict is as to the sufficiency of the evidence to sustain it. When this question of the sufficiency of the evidence is presented on appeal in a criminal case the only question for this court is whether the evidence adduced, believed and rationally considered by the jury was sufficient to prove the defendant's guilt beyond a reasonable doubt. ¹⁵ This ultimate test is the same whether the trier of the facts is a court or jury. ¹⁶ As to the challenge to the sufficiency of defendant's identification by the state's witnesses because each observed the defendant for a matter of seconds, it is enough to note that all such witnesses stated that they were familiar with defendant's appearance and that they recognized him when they saw him. Time of observing goes to weight of their testimony for the jury to determine. As to the claim of lack of proof that defendant caused the injuries sustained by the victim, it is enough to note that the statute requires only that he inflict 'bodily harm,' ¹⁷ not that he be the only one inflicting harm or that he caused all of the injuries sustained. The testimony of a prosecution witness that he saw the defendant strike the victim three or four times with a chair supports a jury inference that defendant's assault resulted in some of the injuries sustained. To the claim that a reasonable jury could not have found the defendant guilty because of the number of witnesses who testified that he was in the prison gymnasium at a basketball practice during the assault and the others in the dining room who did not place the defendant in the group beating the officer, the response has to be that a question of credibility of...