Hayes v. State, 130

CourtUnited States State Supreme Court of Wisconsin
Citation175 N.W.2d 625,46 Wis.2d 93
Docket NumberNo. 130,130
PartiesJoseph HAYES, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. State
Decision Date03 April 1970

On August 16, 1968, Joseph Hayes, plaintiff in error, was convicted by a jury of robbery in violation of sec. 943.32(1)(b) and sec. 939.05, Stats., and was sentenced by the court to an indeterminate term not exceeding 10 years. In June, 1969, Hayes moved for a new trial and the court denied the motion but reduced the sentence to a maxmum of eight years. The writs of error are from the judgment of conviction and the order denying the new trial and reducing the sentence.

The warden of the state prison refused to recognize the reduction of the sentence and a petition for a writ of mandamus was filed in this court. The petition was dismissed pending this appeal on the ground the trial court had no power to modify the sentence. In addition to the assignment of errors relating to his conviction Hayes requests a review of the rule governing the power of the trial court to modify his sentence.

Arthur L. Ebert, Jr., Milwaukee, for plaintiff in error.

Robert W. Warren, Atty. Gen., Madison, E. Michael McCann, Dist. Atty., Michael Ash, Asst. Dist. Atty., Milwaukee County, Milwaukee, for defendant in error.

HALLOWS, Chief Justice.

On the evening of April 24th, 1968, Joseph Hayes and Robert Brock are alleged to have robbed a food store on West Wells street in Milwaukee of about $87. Brock, the codefendant of Hayes, at gunpoint took the money from the storekeeper while Hayes proceeded to 'take care' of an employee in another part of the store. About an hour later Hayes and Brock were found by the police hiding in a nearby apartment and were arrested. Within two hours both of them stood in a police line-up at the station with two members of the police force and were identified as the robbers by the store owner and his clerk. At this time Hayes was not represented by counsel.

At the preliminary examination counsel for Hayes was not allowed to cross-examine the store owner and his clerk to ascertain whether their identification was based upon the police line-up. Hayes was bound over for trial but prior thereto he filed a motion pro se for dismissal on the grounds of an illegal search and seizure, an illegal line-up, and a denial of counsel at the time of the line-up. Just prior to trial Hayes then claimed to be indigent and counsel was appointed for him. Before trial the illegal search-and-seizure part of the motion was heard and denied. The part concerning the illegal line-up, which in fact amounted to a motion to suppress evidence, was deferred with consent of counsel until the question of exclusion of evidence arose during the trial by the prosecution attempting to put in evidence of identification based upon the line-up.

Hayes' first argument on appeal is that he was denied counsel at the line-up to which he was entitled under United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California (1967), 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178. Today this court in State Nos. 125 and 126, Wright v. State of Wisconsin, 46 Wis.2d 75, 175 N.W.2d 646, and in State Nos. 127 and 128, Jones v. State of Wisconsin, 46 Wis.2d 75, 175 N.W.2d 646, decided that a person after the issuance of a complaint and a criminal warrant for his arrest is entitled under Wade and Gilbert to counsel at a police line-up because such situation constitutes a critical stage substantially equivalent to a post indictment line-up in the accusatorial period of a criminal prosecution.

In the instant case, although no complaint had been made and a warrant issued, we think the matter moved from a purely investigatory to an accusatorial stage. Here, Hayes was known by the police to be a law violator, was out on parole, expected to be arrested when apprehended, was hiding from the police, was arrested in the immediate area of the crime within an hour of the commission of the alleged crime, was taken to the police station and there subjected to a policestaged line-up. Under these facts the police line-up constituted a critical stage and Hayes was entitled to counsel. Even the police realized they had reached this stage and advised Hayes he had a right to counsel at the line-up. We make it clear, however, we are not deciding that a person has a right to counsel at a line-up held during an investigatory stage of the criminal process.

Although Hayes was not represented by counsel at the time of the line-up, the police did advise him of his right to counsel. It is true this advice was incomplete in that it was not explained to Hayes that if he were indigent counsel could be appointed for him at county expense. But this inadequacy in advice was not prejudicial beyond a reasonable doubt because Hayes was able to hire his own counsel for the preliminary and he does not claim he was indigent at the time of the line-up. The decisive answer to this challenge, however, is found in the record made on the motion for a new trial. The evidence clearly disclosed that Hayes voluntarily and understandingly waived counsel at the time of the line-up and this he could do. See State v. Ruud (1969), 41 Wis.2d 720, 165 N.W.2d 153; State v. Strickland (1965), 27 Wis.2d 623, 135 N.W.2d 295; Hack v. State (1910), 141 Wis. 346, 124 N.W. 492, 45 L.R.A.,N.S., 664.

Hayes further contends the manner in which the line-up was conducted was so unnecessarily suggestive and conducive of irreparable mistaken identification as to constitute a denial of due process. The trial court on motion for a new trial received evidence on this issue and decided the line-up was fair and fairly conducted. We agree and we need not go into the details of this testimony because even if the line-up were unfair, no identification based upon the line-up was introduced at the trial. Thus it is immaterial that the court did not hear the motion to dismiss or to suppress. Besides, counsel consented to the commencement of the trial and to a postponement of the hearing. Thus a violation of due process in the line-up, if any there was, was not only harmless but harmless beyond a reasonable doubt, which is the test for harmlessness of a constitutional violation. Whitty v. State (1967), 34 Wis.2d 278, 149 N.W.2d 557; Harrington v. California (1969), 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284. Since no objection was made by the trial counsel that the in-court identification was in any way dependent upon the identification at the police line-up, this aspect of the assigned error was waived at trial and no basis exists to raise this error on appeal. See State v. Halverson (1966), 32 Wis.2d 503, 145 N.W.2d 739; Jones v. State (1967), 37 Wis.2d 56, 154 N.W.2d 278, 155 N.W.2d 571; Okershauser v. State (1908), 136 Wis. 111, 169 N.W. 769.

It was error for the county court at the preliminary examination to restrict the cross-examination of the state witnesses who identified Hayes at the preliminary and who viewed him and identified him in the police line-up. Hayes had a right on cross-examination to find out the basis for the witnesses' in-court identification so he could take effective action. If the identification were based upon the police line-up and the line-up were unfair or conducted in a manner which violated his rights, he could move before trial to have the evidence suppressed or at the trial object to the admission in evidence of the identification or to an in-court identification if tainted by the line-up identification. United States v. Wade, supra; Pointer v. Texas (1965), 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923; Wong Sun v. United States (1963), 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. However, this error was not prejudicial because the line-up was fair and besides Hayes did not argue his motion to suppress before trial or object to identification testimony at the trial.

Because the next issue involves a substantial question directly concerning the powers of a trial court and the administration of criminal justice in Wisconsin, this court has decided to review the law concerning the power of the trial court to modify a sentence. The present rule was first stated in State ex rel. Zabel v. Municipal Court (1923), 179 Wis. 195, 199, 190 N.W.2d 121, 191 N.W. 565: 'It is a rule of general application that a court has power to reconsider the judgment and sentence in a criminal case and to revise and correct it by modifying and even by increasing its severity if done during the term at which the judgment and sentence is pronounced and before the sentence has been executed or put into operation. 16 Corpus Juris, 1314. At common law a court had no power to revise its judgment and sentence in a criminal case after the expiration of the term or after the execution of the sentence has commenced.' Whether this language in Zabel was dicta or law, it has been accepted and followed by this court down to the present. 1

At the time the rule was adopted there was a conflict in the common law of the various states. In 16 Corp.Jur. 1314, sec. 3097, the only authority relied on in Zabel, it was also stated that it had been held that a sentence which had been partly executed may be revised and other diminution or mitigation substituted for it during the term. Over the years this version or what might be considered numerically the minority rule has gained favor with the authorities which have replowed the problem.

The view that a trial court could not change or modify a sentence after the commencement of the execution of the sentence was based in part upon Ex Parte Lange (1873), 18 Wall. 163, 21 L.Ed. 872. In Lange it was held where a statute authorized an imprisonment or in the alternative a fine that a sentence which imposed both could not be modified and a new sentence of imprisonment only imposed after the payment of the fine which operated as a satisfaction of the first judgment. The Lange Case was...

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