Mulkovich v. State, 75--325--CR

• Decision Date: 30 June 1976
• Docket Number: No. 75--325--CR,75--325--CR
• Parties: Michael C. MULKOVICH, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.
• Court: Wisconsin Supreme Court

Page 198

243 N.W.2d 198

73 Wis.2d 464

Michael C. MULKOVICH, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.

No. 75--325--CR.

Supreme Court of Wisconsin.

Argued June 3, 1976.

Decided June 30, 1976.

Howard B. Eisenberg, State Public Defender, Richard M. Sals, Asst. State Public Defender, Madison, argued, for plaintiff in error; and Mark A. Frankel, Madison, of counsel, on brief.

Thomas J. Balistreri, Asst. Atty. Gen., argued, for defendant in error; Bronson C. La Follette, Atty. Gen., on brief.

HEFFERNAN, Justice.

Michael C. Mulkovich, after a trial by jury, was found guilty of burglary for a violation of sec. 943.10(1)(a), Stats. On April 30, 1974, he was sentenced to eleven years in the state prison on a burglary repeater charge, with the sentence to run consecutive to a seven-year sentence previously imposed after the revocation of probation. Writs of error were issued by this court to review the judgment of conviction and the orders denying the defendant's motions for a new trial and modification of sentence.

We conclude that the trial judge committed prejudicial error when, shortly after the impanelling of the jury, he read to the jury not only the portion of the information charging the defendant with the crime for which he was being tried, but also the allegations in the district attorney's information that the defendant was a repeater and had been previously convicted of a felony. We conclude also that the trial judge committed an error of constitutional proportions when, without justifiable cause, he denied the defendant the right to counsel of his own choosing at the time of sentencing. Such error is prejudicial as a matter of law. The latter error, however, would vitiate only the sentence; but, because of the prejudicial error with respect to reading the repeater charge to the jury, we reverse the conviction and remand for a new trial.

After the jury was impanelled to hear the case, the judge personally read the information to the jury. The first count recited the district attorney's charge that the defendant committed the crime of burglary. This was properly read to the jury. However, the judge read the second count, which recited that the defendant 'was convicted of a felony during the five (5) year period immediately preceding the commission of the crime' charged in count one, that '. . . Michael Charles Mulkovich was convicted . . . of the crime of Forgery . . . and said Michael Charles Mulkovich is a Repeater . . ..'

That it was error to read this repeater charge to the jury is without question. A repeater charge is relevant only to the action of the trial judge in imposing sentence after the jury has made the finding of guilt in respect to the crime tried before it. It must be withheld from the jury's knowledge.

Since at least 1909 this court has held that a defendant charged under a repeater statute has the right to have all evidence of any prior conviction kept from the jury trying the instant offense. Prejudicial error is committed when such information is given to the jury. Howard v. State (1909), 139 Wis. 529, 121 N.W. 133; Block v. State (1968), 41 Wis.2d 205, 163 N.W.2d 196; State v. Meyer (1951), 258 Wis. 326, 46 N.W.2d 341; and Wells v. State (1968), 40 Wis.2d 724, 162 N.W.2d 634.

The state argues that the defendant waived any objection to the reading of the repeater charge by not immediately objecting and moving for a mistrial. A party to litigation cannot, knowing that an error has been committed, rely on the hope that a jury may nevertheless rule in his favor and later claim that there was error warranting a mistrial. We have said that the failure to object promptly constitutes waiver. An objection should be made as soon as possible so the trial court may forthwith take appropriate steps to cure the error or to minimize possible prejudice. Moreover, in a criminal case, a defendant who delays a motion for a mistrial knowing that grounds exist prejudices the state in the operation of its criminal law system and causes inordinate delay and unnecessary expenditure of public funds. See, Kink v. Combs (1965), 28 Wis.2d 65, 135 N.W.2d 789; Davis v. State (1973), 61 Wis.2d 284, 212 N.W.2d 139; Wagner v. American Family Mutual Ins. Co. (1974), 65 Wis.2d 243, 222 N.W.2d 652. None of these cases stating the general proposition controls the instant situation.

Although the state contends that no objection was made to the reading of the repeater charge until the following morning, this assertion is unsupported by the record. The record shows that, late in the afternoon and immediately after the impanelling of the jury, and following the reading of the information, the assistant district attorney, in the absence of the jury, questioned the propriety of placing sec. 939.62, Stats., the repeater charge, before the jury. Defense counsel also said that he wished to be heard in respect to this question. The trial judge stated that the matter would be considered at the commencement of court the following morning. The next morning, before the jury was called to the courtroom, defense counsel specifically objected to the reading of the repeater charge to the jury and moved for a mistrial.

The trial judge, although apparently acknowledging that it was error to have read the repeater charge to the jury, concluded that it was not prejudicial and denied the motion. Under these circumstances, where the issue was brought to the trial judge's attention immediately after the jury was dismissed from the courtroom, and the appropriate motion was made, argued, and ruled upon before any further proceedings were had in the trial, there was no waiver. The motion for mistrial was promptly made and the error was timely brought to the trial court's attention.

Although the trial judge indicated, upon the denial of the motion, that he would inform the jury that the matters in the information were charges only and subject to proof in accordance with the rules of evidence, and he gave such general instruction, he never again adverted to the repeater charge, and, of course, he could not have told the jury that the repeater allegation was a matter to be proved during the course of the trial. Clearly the cat was out of the bag, and the general admonitions of reaching a verdict in conformance with the proof was irrelevant to the judge's assertion that the defendant had committed one or more felonies in the past.

It is also argued that this acknowledged error was not prejudicial, because the defendant admitted, in the course of trial, that he had committed previous felonies. We do not find this persuasive, for the defendant was almost compelled to take the stand and admit prior felonies once the judge had read the repeater information. The reading of the information was direct evidence of prior crime put in by the state before the defendant had an opportunity to admit or deny prior convictions. It was not used, as perhaps it could have been, for impeachment purposes. The fact that this information was brought in erroneously at an inappropriate time may have had a substantial influence on the defendant's decision to take the stand. Had the defendant elected to not take the stand, evidence of prior crimes would have been inadmissible. Once, however, the repeater charge had been read to the jury, the defendant and his counsel might have concluded that the damage had been done and there was nothing to lose by admitting other felonies.

It is argued by the state, relying on Wisconsin cases, that the error was not prejudicial. In those cases, it appears either, as in Wells, supra, there was evidence of a deliberate waiver, or the district attorney, not the judge, read the information to the jurors.

We find those cases which have held an error of this kind not prejudicial do not conform with the facts here. We believe that the legal principles of Wells, supra, control this case. Wells held unequivocally that, '. . . comment by the state on voir dire, either by way of statement or by way of reading the entire information, was prejudicial.' (P. 732 of 40 Wis.2d, p. 638 of 162 N.W.2d.) In Wells, our court, in affirming the jury's conviction, emphasized that the defendant, as a matter of deliberate strategy, did not move for a mistrial. The contrary is true here.

We believe the language used by Justice Gehl in the dissent to Meyer, supra, on the general subject is appropriate here. As Wells demonstrates, the majority opinion in Meyer no longer represents the law of Wisconsin. Justice Gehl said:

'I am of the opinion that the court erred in permitting the state to show in its presentation of the case and in the presence of the jury, the fact of defendant's conviction of an offense in 1931. Manifestly, it was not nor could it have been offered for the purpose of impeachment; defendant had not yet taken the stand. At that stage of the trial it had no place in the case except as it might have been received for the purpose of imposing sentence under the 'repeater' statute.

'The court should hesitate to abandon the rule granting to an accused the fundamental right to be tried only upon evidence which bears upon the specific offense charged against him--an ancient right firmly imbedded in our jurisprudence--and one as valuable to the body of society as it is to the individual on trial. Important to society, because if we permit it here, where it may seem on account of the apparent guilt of the defendant that he has not been prejudiced, it is at least possible that it may be permitted in the case of an innocent person accused of a violation.

"From the time when advancing civilization began to recognize that the purpose and end of a criminal trial is as much to discharge the innocent accused as to punish the guilty, it has been held that evidence against him should be confined to the very offense charged, and that neither general bad character nor commission of other specific disconnected acts, whether...