Pamanet v. State, S

• Decision Date: 05 January 1971
• Docket Number: No. S,S
• Citation: 49 Wis.2d 501,182 N.W.2d 459
• Parties: Louis PAMANET, Jr., Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 4.
• Court: Wisconsin Supreme Court

Page 459

182 N.W.2d 459

49 Wis.2d 501

Louis PAMANET, Jr., Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 4.

Supreme Court of Wisconsin.

Jan. 5, 1971.

On May 9, 1968, the plaintiff in error, Louis Pamanet, Jr., hereinafter referred to as the defendant, was charged with causing great bodily harm to another human being by conduct imminently dangerous to another and evincing a depraved mind, regardless of human life. On June 5, 1968, trial was commenced before a jury. On June 6, 1968, the defendant was found guilty as charged. On June 7, 1968, motions for a new trial were heard and denied. On June 7, 1968, defendant was sentenced to a term of ten years. On April 16, 1969, a writ of error was issued to review the judgment. On July 18, 1969, and November 20, 1969, a motion for an order dismissing the action or, alternatively, for a new trial, was heard. On January 16, 1970, such motion was denied. On January 21, 1970, a writ of error was issued to review the order denying such motion.

James H. McDermott, State Public Defender, Madison, for plaintiff in error.

Robert W. Warren, Atty. Gen., William A. Platz, Thomas J. Balistreri, Asst. Attys. Gen., Madison, Daniel F. Aschenbrener, Dist. Atty., Shawano, for defendant in error.

ROBERT W. HANSEN, Justice.

The challenge here is to the constitutionality of the court, district attorney and jury involved in the trial of the defendant on a serious felony charge.

(1) AS TO THE TRIAL COURT.

The defendant contends that the establishment by the legislature of a joint Shawano-Menominee county court ¹ violates art. VII, sec. 2, Wisconsin Constitution. ² Defendant's counsel would have us read into the constitutional provision a prohibition against the establishment of county or inferior courts serving more than one county. Instead we have interpreted this provision to give broad powers to the legislature in the creation of county or inferior courts. ³ In fact, we have recognized the existence of the exact court whose existence of the exact court whose existence is here challenged. ⁴ Here we deal with the creation of a new county so it might be sufficient to recall decisions making clear that a county may be organized for county purposes, and be attached to some other county for judicial purposes. ⁵ However, we go farther to hold that when a judicial district is established including two or more counties, the county court in such district is a county court for each such county. The question as to whether several counties are to be served by a single judge is a matter of legislative policy, not of constitutional mandate.

(2) AS TO THE DISTRICT ATTORNEY.

Here the argument is that the statute providing that 'the district attorney of Shawano county shall serve as district attorney for Menominee county' ⁶ conflicts with the constitutional requirement that district attorneys be chosen by the electors of a county once in every two years. ⁷ Defendant's counsel argues that electors of Menominee county are being deprived of the constitutional right to elect their district attorney. The counter argument includes the contention that, since Menominee county has been and can be organized for county purposes, but not judicial purposes, the county simply does not exist for judicial purposes, including that of electing its own district attorney. There is precedent in this state for the constitutional organization of a county absent an organization for judicial purposes. We need not find an exact analogy between the situation of Lincoln county then, with Menominee county now, to note that in both situations the assertion is of a constitutional right to vote for the district attorney. As to Marathon county then, and Shawano county now, there could be no claim that there was not a lawfully established office of district attorney. As to Lincoln county then, Menominee county now, the issue is as to the legality of the acts of the district attorney. As to the right of such at least acting district attorney to prosecute him, this court long ago established that is not an available defense to the defendant in a criminal prosecution. ⁹ It is only where the existence of the office is questioned that collateral attack has been allowed. ¹⁰ Here, in any event, the district attorney, at the very least, was an officer de facto, ¹¹ and, even if his acts were arguably illegal as to Menominee electors, such acts are still valid. ¹² So, on the facts here, the defendant cannot collaterally attack the authority of the district attorney to prosecute the case, and, even if permitted, would not here invalidate the acts of the district attorney in prosecuting this case.

(3) AS TO THE JURY.

The claim here is that the trial by a jury of the 'single judicial district' violates art. 1, sec. 7, Wisconsin Constitution, providing for trial by a jury 'of the county or district wherein the offense shall have been committed.' Postconviction counsel seems to read into this provision some requirement that a jury must be commprised of residents of the county in which the offense was committed or case tried. However, this court clearly has interpreted the word 'district' to mean something other than a county, ¹³ that can be smaller, or larger, than a county. ¹⁴ The organization of a 'single judicial district' for Shawano-Menominee counties was a valid exercise of legislative authority. The jury drawn from such district was a proper jury to try the defendant.

The defendant contends, and the state concedes, technical irregularities in the assembling of the jury list in that a new list should have been drawn up two months earlier and the list used was drawn up on the first Monday in April rather than before the first Monday in April. Defendant finds a constitutional right invaded by such failure to strictly comply with statutory requirements. However, the general rule is that statutes prescribing the mode of drawing a jury panel are directory, and irregularities in carrying out such provisions are not material unless the defendant is prejudiced thereby, ¹⁵ and that is the rule followed in this state. ¹⁶ No claim of prejudice to the defendant is here made. The challenge is not to the method of selection, but only as to the date of the list. As to the date of the document, '* * * the substantive method of choice which was in fact utilized is the crucial element, rather than the document which stands as a symbol of the approved method. * * *' ¹⁷ On the claim that the uniformity requirement of art. IV, sec. 23, Wis.Const., is violated by districtbased jury lists, the obvious answer is that jury lists are exempt from such requirement by art. 1, sec. 7, Wis.Const. On the claim that the general statute providing for three jury commissioners in each county ¹⁸ is violated by the statute providing for jury commissioners serving Menominee county, ¹⁹ the simple answer is that the special statute, subsequently enacted, governs and controls.

CLAIMS OF ERROR.

The transparent lack of merit or substance to the claims of trial court error warrant capsulized comment. (1) Error is alleged in the trial court instructing the jury to 'keept an open mind.' The admonition is to be complimented, not condemned. (2) Error is suggested in the trial court reading of the not guilty verdict at the end of the instructions. If last impressions are at all lasting, the state, not the defendant, should be claiming to have been prejudiced by the sequence followed. (3) Error is claimed in the failure to instruct the jury that intoxication was a defense. The case was tried for the defendant on the theory of self-defense, not on the claim of intoxication to the degree negativing the existence of a state of mind essential to the crime. No instruction as to intoxication was requested. It was not error to fail to include such instruction. (4) Error, it is argued, occurred in the following colloquy on cross-examination: Asked if he had ever been convicted of a crime, defendant answered, Yes. Then asked, 'How many times?', defendant answered 'I don't know.' Then asked, over objection, 'Would it be fair to say you have been convicted of a crime at least 12 or 13 times?' defendant answered, 'I don't keep track of records. I wouldn't know.' The defendant having taken the witness stand, could be asked if he had ever been convicted of a crime and, if so, how many times. ²⁰ Where incorrect answers are given by the witness, further inquiry is permitted, ²¹ although the nature of the convictions cannot be inquired into if the witness answers truthfully the questions initially asked. ²² Here the inconclusive answer given by the defendant as to the number of convictions warranted the additional inquiry. If an inaccurate inference was left by the final question asked, the defendant had the opportunity on redirect examination to rebut any such inference.

COMPETENCE OF COUNSEL.

As has become almost par for the course, postconviction counsel challenges the competence of trial counsel. Here the Monday-morning-quarter-backing ²³ goes no further than suggesting that an attorney who did not try the case would have tried it differently than the attorney who did. It is always easy to suggest a different game plan after the contest is concluded. Here the unwarranted challenge to competence relates entirely to trial tactics, tactical decisions at the time of trial that are not to be second-guessed on appellate review. ²⁴ (1) Postconviction counsel suggests that he, if he had tried the case, would have asked more questions of prospective jurors. Not being a member of the local bar and not having tried cases before the same jury panel, he might well have felt obliged to do so. The extent of any such interrogation is for the attorney trying the case to deterine. (2) Postconviction counsel suggests he would have made intoxication a principal defense and would have requested an instruction on intoxication as a defense. Trial counsel tried the case on the...