Lemerond v. State

• Decision Date: 30 September 1969
• Docket Number: No. 23,23
• Citation: 170 N.W.2d 700,44 Wis.2d 158
• Parties: Philip J. LEMEROND, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. St.
• Court: Wisconsin Supreme Court

Page 700

170 N.W.2d 700

44 Wis.2d 158

Philip J. LEMEROND, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

St. No. 23.

Supreme Court of Wisconsin.

Sept. 30, 1969.

On March 12, 1968, in a trial before the court, the defendant Philip J. Lemerond was found guilty of the crimes of indecent behavior with a child in violation of sec. 944.11(2), Stats., ¹ and sexual perversion in violation of sec. 944.17(1), Stats. ² Defendant was ordered committed for a presentence sex deviate examination. The results of this examination indicated the defendant was not a sex deviate and sentencing in accordance with the Criminal Code was recommended. Defendant was sentenced to four and five year concurrent terms at the state prison at Waupun. Defendant made application to this court for counsel to represent him on an appeal from the judgment in circuit court and counsel was appointed.

The court appointed counsel concluded that an appeal was without merit; this court agreed with that conclusion and under the rule of Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, the attorney was relieved of any further obligation in the representation of the defendant (Unpublished Opinion 68/142). However, because the time within which a writ of error could be filed had not expired, the defendant brought this writ of error pro se.

Philip Jean Lemerond, pro se.

Robert W. Warren, Atty. Gen., Madison, E. Michael McCann, Dist. Atty., Theodore J. Hodan, Asst. Dist. Atty., Milwaukee, for defendant in error.

CONNOR T. HANSEN, Justice.

The defendant raised three issues

(1) Whether there is enough credible evidence to support a finding of guilty;

(2) Whether the defendant was denied effective assistance of counsel; and

(3) Whether a fair trial was had because the trial judge took part in questioning witnesses.

Sufficiency of the evidence.

'We have said many times that when the 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 defendants' guilt beyond a reasonable doubt. * * * This ultimate test is the same whether the trier of the facts is a court or a jury. * * * The test is not whether this court is convinced of the guilt of the defendant beyond a reasonable doubt but whether this court can conclude the trier of the facts could, acting reasonably, be convinced to the required degree of certitude by the evidence which it had a right to believe and accept as true.' Lock v. State (1966), 31 Wis.2d 110, 114, 115, 142 N.W.2d 183.

The state's only witness was the complainant, a young man who was sixteen at the time of the offenses. He testified that he spent the night in the defendant's home and in bed with the defendant when the violations took place.

The defense offered the testimony of a young woman and the defendant. She was eighteen at the time of the incidents and a girl friend of a Mr. Billie Huff, who was a roommate of the defendant. She testified that defendant brought the complainant home with him about 10 p.m. and at about midnight they all went to bed as follows: The sixteen year old boy slept on a couch in the living room; the defendant and Billie Huff slept together in the defendant's bedroom; and she slept in the other bedroom. She also testified that this was the way in which she found the parties when she awoke the next morning.

The defendant's testimony was a complete denial of any abnormal sexual advances or actions with the complainant and he related a sequence of events similar to that of the young woman.

While the testimony of the complainant was uncorroborated, the rule is well settled that this is sufficient for a conviction. State v. Pickett (1951), 259 Wis. 593, 597, 49 N.W.2d 712; Grayson v. State (1967), 35 Wis.2d 360, 151 N.W.2d 100. It is also clear that the credibility of witnesses is a proper function of the trier of fact.

'The credibility of the witnesses is properly the function of the jury or the trier of fact, in this case the trial judge. It is only when the evidence that the trier of fact has relied upon is inherently or patently incredible that the appellate court will substitute its judgment for that of the fact finder, who has the great advantage of being present at the trial.' Gauthier v. State (1965), 28 Wis.2d 412, 416, 137 N.W.2d 101, certiorari denied, 383 U.S. 916, 86 S.Ct. 910, 15 L.Ed.2d 671.

Although some statements by the complainant were inconsistent, the issue remained one of credibility. The testimony of the complainant could have been believed or disbelieved, but his testimony was not patently incredible and constitutes a sufficient basis upon which the trier of fact could sustain a finding of guilty beyond a reasonable doubt. This was the conclusion reached previously by this court (Unpublished Opinion 68/142) and another review of the record fails to show any reason for changing that decision.

Denial of effective assistance of counsel.

'* * * The rule is that representation by counsel must be so inadequate and of such low competency as to amount to no representation at all before this court will be persuaded relief should be granted. State v. Clarke (1967), 36 Wis.2d 263, 153 N.W.2d 61, and cases cited.' Lehmann v. State (1968), 39 Wis.2d 619, 630, 159 N.W.2d 607.

Defendant claims that appointed counsel failed to call certain witnesses whose testimony would have established the defendant's innocence. Defendant contends that defense counsel should have called Huff to testify in that he could corroborate the testimony of the defendant and the young woman. The record shows that Huff was present during the preliminary...