Gray v. State

Citation161 N.W.2d 892,40 Wis.2d 379
PartiesRonald GRAY, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
Decision Date29 October 1968
CourtUnited States State Supreme Court of Wisconsin

Harley Brown, Racine, for plaintiff in error.

Bronson C. La Follette, Atty. Gen., William A. Platz and Betty R. Brown, Asst. Attys. Gen., Madison, for defendant in error.


It is sometimes said in jest that an appellate court's reference to '* * * the learned trial judge' precedes a reversal of the trial court's reasoning and ruling. The suggestion is that trial judges, reading and reviewing court's salute to their learning, are likely to say, 'Here comes the reversal.' If we revived the phrase in this case, it would be only to acknowledge that a clear, concise and correct answer to each of the contentions of appellant is to be found in the memorandum decision of the trial judge in this case. Nothing new needs to be added. Nothing more remains that needs saying.


The facts as to the issuance of the complaint and subsequent proceedings are summarized by the trial court as follows:

'The complaint of (the complainant) returned to this court sets forth that she 'being duly sworn and examined on oath makes complaint' that Ronald Grey, and thereafter recites the offense. She signed the complaint, but the court commissioner only dated the jurat February 2, 1965 but did not sign the same. The return of Oscar M. Edwards shows that on February 2, 1965, (the complainant) was 'duly sworn and examined on oath', 'that she makes complaint' on February 2, 1965. Said return further shows that 'the said complainant was duly sworn and examined on oath, his complaint reduced to writing and subscribed by him' and 'complaint duly filed' and that the warrant issued thereon. The minutes of the proceedings of March 29, 1965 reveal that the defendant did on that day enter a plea of not guilty to the information which was filed the same day. He had been afforded a preliminary hearing on February 26, 1965. At arraignment before the Honorable Judge Howard J. DuRocher he was represented by counsel. No motions were made. The case went to trial on the merits on May 19, 1966.

On this record, the trial judge concluded:

'By entering this plea of not guilty at his arraignment, the defendant submitted to the jurisdiction of the county court over his person, no challenge having been made as to the sufficiency of the complaint. If the defendant relied upon the insufficiency of the complaint, he should have made his challenge before entering his plea.'

The trial judge cites Wisconsin cases to support his ruling. 1 They do.


At the trial defense counsel put the defendant's wife on the witness stand. Upon ascertaining that the intention of the defense was to establish an alibi, the trial court sustained the prosecution's objection to the question asked as to what time the defendant came home on the night of the alleged rape. The court ruling was based on sec. 955.07, Stats. 2 No reasons were given as to why the witness should be permitted to testify despite the lack of notice, and defense counsel withdrew her as a witness. Post-conviction counsel argues that the alibi statute 'was designed to prevent the sudden 'popping up' of witnesses to prove that the accused was not at the scene of the crime at the time of its commission.' 3 and that reports by police investigators eliminated any element of surprise by the proffer of alibi testimony. The trial judge correctly explained the intent and result of the alibi statute in these words:

'Knowledge of potential alibi witnesses, even if they have been checked out, will not insure fairness on trial if a defendant is permitted to bring them in, without notice, to create reasonable doubt about the testimony of the State's witnesses. The State may rely on the statute and not be forced to prepare its case and summon witnesses to disprove alibi in the absence of notice.'

The trial court correctly adds 'The court should consider in each case the situation presented as to whether the alibi witness may testify in the absence of notice.' In this case, the court asked defense counsel who had represented the defendant at the preliminary hearing if there was any particular reason why the state was not notified of intent to offer alibi testimony and was told, "No, there is no reason." No good cause was shown for the failure to comply with the statutory requirement. As the trial court put it, 'The court read the statute at length in open court, called attention to the good cause requirement, no good cause was shown, the witness was excused. While the record discloses that the court held itself open to receive evidence of good cause, nothing was offered sufficient to form a basis for the court to exercise its discretion at time of trial, nor does good cause exist today.' On this record, the trial court properly excluded the alibi testimony because the required notice of alibi had not been given. 4


It is contended on this appeal that the district attorney failed to disclose to the court material facts and witnesses favorable to the accused. The complaint is as to (1) witnesses that would have provided an alibi by placing the defendant elsewhere at the time of the alleged rape; (2) statements indicating inconsistencies in the account given by the prosecutrix.

Of the claim that the prosecutrix was required to present witnesses to establish an alibi for the defendant, the trial court observes:

'It is not possible to ascertain from the manner in which counsel argues whether he is faulting the court for not permitting alibi evidence to be introduced, over objection, in the face of the statutory requirement of good cause shown before the court may exercise its discretionary power, when none in fact was shown; or faulting the district attorney for not calling, as his own, witnesses to establish alibi for the defendant when the defendant gave no notice of intention to call such witnesses and the witnesses themselves were friends and the wife of the defendant. Either way we approach this argument is of no benefit to the defendant.'

We agree. If the defendant, by failing to give written notice or make a showing of good cause for the exercise of court discretion, may not offer alibi testimony, he has no right to insist that the district attorney do for him what the statute prohibits his doing for himself. The decision as to whether an alibi defense is to be offered is up to the defendant to make. It is no responsibility of the district attorney to do for the defendant what the defendant has elected not to do for himself.

As to the 'inconsistent statements and contradictions by the prosecutrix' the trial court in its memorandum decision examines each such asserted inconsistency and finds as to prosecutrix's statements on visiting a home and tavern on the evening involved 'The inconsistency argued by counsel doesn't exist.' Concerning her identification of the automobile involved, it was stated 'The court can find no inconsistency.' Concerning the circumstances of her entering the defendant's car, 'defendant's counsel * * * has again not shown any inconsistency.' Concerning the place of the assault, her statements 'would in no way be inconsistent.' Concerning her prior acquaintance with Billy Knight, who is also alleged to have raped the prosecutrix, the court found the differences to be '* * * a matter of semantics, not inconsistency.' The court's analysis demolishes the defendant's complaints, brick by brick.

As to cases holding that due process is violated by the government's suppression of evidence through non-disclosure, 5 which were cited to the trial court and on appeal, the trial judge correctly finds them inapplicable to the situation here presented where: '* * * the witnesses were all available to the defendant, and * * * the names of witnesses were not only available to the defense attorney through the defendant, but also through the records of the district attorney's office which were available to him. Certainly the defendant never complained in any way that he was blocked from obtaining information from the State; the record does not disclose any request for information from the State.' The defense attorney at the time of argument of his motion told the court "After I was appointed, I asked the district attorney to look at the file and he gave it to me.' There is no basis in this case for argument that the State withheld information of any kind requested by the defense.' We agree. It appears clear, as the trial court in its decision states that: 'There was no evidence unknown to the defendant which the district attorney had the duty to bring forth which might have led the court to entertain a reasonable doubt concerning the defendant's guilt.'


Defendant failed to move the trial court to review the sufficiency of the evidence. In such a...

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