McClelland v. State

• Court: Wisconsin Supreme Court
• Writing for the Court: HEFFERNAN; CONNOR T. HANSEN
• Citation: McClelland v. State, 84 Wis.2d 145, 267 N.W.2d 843 (Wis. 1978)
• Decision Date: 30 June 1978
• Docket Number: No. 76-367-CR,76-367-CR
• Parties: Jerry McCLELLAND, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

Page 843

267 N.W.2d 843

84 Wis.2d 145

Jerry McCLELLAND, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. 76-367-CR.

Supreme Court of Wisconsin.

Argued April 6, 1978.

June 30, 1978.

Robert J. Paul, Deputy State Public Defender, argued, Howard B. Eisenberg, State Public Defender, on briefs, for plaintiff in error.

Marquerite M. Moeller, Asst. Atty. Gen., argued, Bronson C. La Follette, Atty. Gen., on brief, for defendant in error.

HEFFERNAN, Justice.

The defendant, Jerry McClelland, was charged with an armed robbery, which took place at a farmhouse in Rock county on December 23, 1975. After a trial by jury, the defendant was found guilty, and following conviction was sentenced to a term of not to exceed twenty-five years in the state prison. A motion for a new trial was denied. Writs of error were issued to review the judgment of conviction and to review the order denying the motion for a new trial.

No challenge has been made to the sufficiency of the evidence. Suffice it to say that the testimony believed by the jury established that defendant McClelland, together with another person identified as James Tubbs, at pistol point robbed three residents of a rural farmhouse of $45 in cash, a quantity of marijuana, two shotguns, a .22 caliber rifle, and a movie camera.

The defense was predicated on mistaken identification and on alibi.

On this appeal, two grounds for reversal are urged. The first is that the trial judge abused his discretion by the exclusion of the testimony of a proposed alibi witness. The second is that the trial court committed prejudicial error when it permitted the admission of evidence offered by the state which tended to show criminal activity by the defendant in an incident unrelated to the armed robbery and which occurred subsequent to the armed robbery. Although we find no error in respect to the exclusion of the alibi witness, we conclude that the admission of extrinsic evidence to show unrelated and arguably criminal conduct constituted plain error. We reverse.

The first error charged is in respect to the exclusion of an alibi witness by the name of Winston Bowdin. Bowdin's name was furnished to the district attorney four days prior to trial. At that time the district attorney stated that he did not think he would oppose the use of Bowdin's testimony. At the time of trial, however, he objected to such testimony because the information received was insufficient to make possible any investigation of the witness prior to trial. The district attorney's objection to Bowdin's appearance was sustained, and Bowdin was not permitted to appear.

The pertinent statutes are secs. 971.23(8)(a) and (b), Stats.1973:

"971.23 Discovery and inspection.

"(8) Notice of Alibi. (a) If the defendant intends to rely upon an alibi as a defense, he shall give written notice thereof to the district attorney at the arraignment or at least 20 days before trial stating particularly the place where he claims to have been when the crime is alleged to have been committed together with the names and addresses of witnesses to the alibi, if known.

"(b) In default of such notice, no evidence of the alibi shall be received unless the court, for cause, orders otherwise."

The trial in this case commenced on May 26, 1976. The first notice of an alibi defense was not filed until May 18, 1976, only eight days prior to trial. The record reveals, however, that both the prosecutor and the defense counsel were engaged in another trial, and it was agreed that alibi notices in the McClelland trial need not be filed until the completion of that earlier case.

The notice of alibi filed on May 18, 1976, stated that, at the time the armed robbery allegedly was committed, the defendant was in Rockford, Illinois. He stated that four named witnesses would be called to establish the alibi defense. No objection was made to the production of any of these witnesses at trial, although the alibi notice and the list of witnesses was not submitted by the defense attorney in conformity with the time limitations of the statute. Subsequently, on May 22, only four days before trial, the names of two additional alibi witnesses were submitted to the prosecutor, and still another alibi witness' name was submitted on the second day of trial.

Winston Bowdin's name was submitted on May 22, 1976, just four days before trial, and it was his appearance and testimony that was objected to.

The trial judge, in sustaining the objection to the production of Bowdin, stated that the defendant had been out on bond for a substantial period of time, that the notice of trial had been sent out on April 6, 1976, and that the defendant himself had an obligation to supply his counsel with the names and addresses of alibi witnesses at such time that the prosecution could have made a reasonable investigation. The trial court, in referring to the defendant, said:

"He has been out on bond for a substantial period of time. . . . Magically at the last minute the defendant is able to come up with witnesses whereas he couldn't before. The Statute is clear that the notice is insufficient. This is a matter in the sound discretion of the Court. The Court for cause shown can alter the situation or change the time. The Court does not see that cause shown. I just can't find it within myself to hold that way. That to me would be a perversion of the purpose of the alibi Statute. I will allow those witnesses to testify, namely, Mr. Williams and Mr. Davis and the defendant's wife as consented to by Mr. Miller, since he is willing to let the defendant's wife testify even though she wasn't mentioned on the list as an alibi witness, and that's as far as the Court will go."

On this appeal it is argued that cause for permitting the late-listed witness to appear was shown, because the defendant met most of the alibi witnesses but once at a party which he claimed he was attending when the armed robbery took place. He claimed he did not know these people previously. In addition, some of these people had moved since the party, and it was difficult to identify and locate them. Defendant's position is that he did the best he could under the circumstances.

It is also argued that the defense counsel, as a white person, had difficulty in getting information from the black community of Rockford, Illinois, in respect to the witnesses, all of whom were black.

The purpose of the alibi statute, as stated in State v. DiMaggio, 49 Wis.2d 565, 182 N.W.2d 466 (1971), is to avoid the sudden and unexpected appearance of witnesses for the first time at trial under such circumstances that it is impossible for the state to make any investigation in respect to the alibi defense or in respect to the witnesses who intend to establish that defense. See, State ex rel. Simos v. Burke, 41 Wis.2d 129, 163 N.W.2d 177 (1968). The statute does, nevertheless, provide that evidence of alibi may be received in the exercise of judicial discretion for cause shown. Sec. 971.23(8)(b), Stats.; Jensen v. State, 36 Wis.2d 598, 153 N.W.2d 566, 154 N.W.2d 769 (1967).

The defendant contends that the trial judge's rejection of Bowdin's testimony evidenced no reasoning process and, accordingly, the exclusion of the testimony was the product of an abuse of discretion. The statement of the trial judge quoted above demonstrates that discretion was exercised. Three appropriate reasons for the exclusion of Bowdin's testimony were set forth in the record. The trial judge stated that the defendant was out on bond and had an obligation to cooperate with his counsel to seek out and provide his counsel with the appropriate information for the alibi defense, that the purpose of the statute would be perverted by the allowance of the testimony of last-minute alibi witnesses, and that the prosecutor had taken into account that defense counsel was engaged in another trial and had not unreasonably insisted on the statutory time limits.

The trial judge's decision to exclude the testimony was clearly the result of an expressed rationale based on the facts. Under the standards set forth in McCleary v. State, 49 Wis.2d 263, 182 N.W.2d 512 (1971), this constituted an exercise of discretion, since it showed a considered decision on the basis of the facts in the record and upon the appropriate legal standards.

It is argued, however, on appeal that the trial judge used an inappropriate standard, because the duty to investigate and to secure alibi witnesses is an obligation of the defendant's attorney and not of the defendant personally. In essence, this argument denies the accepted obligation of a defendant to cooperate with his defense counsel. It was upon this obligation of the defendant personally that the trial judge rested the first consideration for the exclusion of Bowdin's testimony.

The rationale of State v. Moffett, 46 Wis.2d 164, 174 N.W.2d 263 (1970), supports the trial judge's decision. In Moffett, the defendant, on the morning of trial, first provided his defense attorney with the name of a purportedly essential witness, who could not be produced forthwith. This court, in upholding the trial court's refusal to grant Moffett a continuance, stated that the prejudice, if any, stemmed from the defendant's own lack of diligence. It is the implicit holding of Moffett that the defendant personally is to be held responsible when he has not timely cooperated with his attorney to insure the production of necessary witnesses. The same rationale is appropriate here.

The same case, State v. Moffett, is authority for the proposition that, where error is claimed as a result of the exclusion of evidence, an offer of proof must be made in the trial court as a condition precedent to the review of any alleged error. The rationale of Moffett is specifically incorporated in the Wisconsin Rules of Evidence, sec. 901.03(1)(b), Stats.:

"Sec. 901.03 Rulings on evidence. (1) Effect of Erroneous Ruling. Error may not be predicated upon...