Price v. State

• Decision Date: 28 November 1967
• Parties: Marvin A. PRICE, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 222

154 N.W.2d 222

37 Wis.2d 117

Marvin A. PRICE, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

Supreme Court of Wisconsin.

Nov. 28, 1967.

Robert H. Friebert, State Public Defender, Madison, for plaintiff in error.

Bronson C. La Follette, Atty. Gen., Madison, Hugh R. O'Connell, Dist. Atty., Milwaukee County, and E. Michael McCann, Asst. Dist. Atty., Milwaukee, for defendant in error.

HEFFERNAN, Justice.

Did the conduct of the prosecutor in calling the witness to the stand, though he knew that the fifth amendment would be invoked, constitute prejudicial error warranting a new trial?

Rogers, McLaughlin, and the defendant herein, Price, were all co-defendants, but a motion for severance and separate trial was granted. Both Rogers and McLaughlin testified at the preliminary examination. Shortly before the trial began, apparently on the very morning of trial, McLaughlin's attorney told the prosecutor that his client would invoke his fifth-amendment privilege and refuse to testify. Shortly after the reading of the information, the jury was excused and, out of the presence of the jury, the court was advised that Rogers was willing to testify on behalf of the state.

The judge ascertained that Rogers was waiving his right against self-incrimination after being advised by counsel. The judge also advised Rogers that he need not testify and, if he did so, that such testimony might be used against him. Rogers elected to testify.

Upon the jury's return, the trial commenced with testimony by an employee of Tel-Air that tended to prove that the premises had been burglarized. At this juncture, McLaughlin, who, by the reading of the information to the jury, had been identified as a co-defendant, was called. Upon being asked his name, he answered; but, on fifth-amendment grounds, he refused to state whether he knew the accused. When asked whether he would make that response to every question asked, he responded in the affirmative. The district attorney thereupon ceased further questioning.

The trial judge, by ordering the clerk to read the judgment roll, then ascertained that McLaughlin had been subpoenaed to appear and give testimony in the Price trial. He allowed McLaughlin to leave the courtroom but ordered him to return at two o'clock in the afternoon.

The state then called Rogers, who again was advised of his constitutional rights, this time in the presence of the jury. He again stated that upon advice of counsel he was willing to testify. His testimony, as set forth above, tended to prove that Price helped to plan the robbery and in fact made the burglarious entry.

Defendant relies on a recent case of this court, State v. Yancey (1966), 32 Wis.2d 104, 145 N.W.2d 145, for the proposition that calling a witness who the state knows will refuse to testify is ipso facto prosecutorial misconduct of such a nature that a new trial is mandatory.

Arguably, certain statements in Yancey, if taken out of context, could lead to that conclusion. We said therein:

'The appellant relies particularly on San Fratello v. United States (5th Cir. 1965), 340 F.2d 560; United States v. Maloney (2d Cir. 1959), 262 F.2d 535; Fletcher v. United States (1964), 118 U.S.App.D.C. 137, 332 F.2d 724. Each of these cases, however, involve a prosecutor calling a witness whom he knew would invoke his privilege. In San Fratello, the witness had claimed her privilege in a previous trial and had advised the prosecutor she would again assert it. In Maloney, the prosecution conceded it knew or anticipated two of its key witnesses would invoke the privilege against self-incrimination. In Fletcher the court permitted detailed questions to be asked concerning the witness' relationship to the defendant after the witness claimed the privilege. The conduct of the prosecutor in these cases amounted to deliberate misconduct which denied the accused a fair trial.' (Emphasis supplied.) (Yancey, supra p. 110, 145 N.W.2d p. 149.)

It should be noted, however, that in each of the cases cited therein the controlling factor was not that the prosecution called the witness to the stand, but rather that it put questions to the witness which if not answered lead to the inference that the answers if given would be unfavorable to the accused. The vice of this, of course, is that an inference or presumed answer that is based on nontestimony is not under oath and, more importantly, cannot be tested by cross-examination.

In San Fratello the court of appeals dwelt upon the inferences to be drawn from the fact that the wife of the accused 'took the fifth' as to her marital status and questions relating to her picking up photographs that purportedly were used in 'casing' the scene of the crime. In Maloney Judge Learned Hand points out that specific and relevant questions were asked which the jury could presume, in view of the exercise of the privilege, would have been answered unfavorably to the accused. (Moreover, the express holding of Maloney was based on the failure to properly admonish the jury.) In Fletcher, the witness claiming the privilege was questioned in extenso to the point that Judge Prettyman pointed out that the prosecutor asked a series of questions which depicted the alleged offense in its entirety.

It is apparent that the cases upon which Yancey is based do not stand for the proposition that the defendant herein claims. An analysis of each case demonstrates that specific inferences were generated by the prosecutor's questions, and in addition these inferences were unfairly exploited subsequently by the prosecution. In Yancey we quoted United States v. Compton (6th Cir. 1966), 365 F.2d 1, for the proposition that the prosecution need not refrain from calling a witness merely because his attorney appears and advises counsel that the privilege will be claimed. That same case pointed out that:

'It is an unfair trial tactic if it appears that counsel calls such a witness merely to get him to claim his privilege before the jury to a series of questions not pertinent to the issues on trial or not admissible under applicable rules of evidence.' (Emphasis supplied.) Compton, supra p. 5.

The rule of Compton is in accord with accepted rules of evidence that no error is committed by the mere fact of calling a witness who will claim the privilege. See VIII Wigmore, Evidence (McNaughton Revision), sec. 2268, p. 402; McCormick, Evidence (hornbook series), sec. 122, p. 257, and sec. 133, p. 281. We therefore reject the defendant's contention that calling of a witness who would assert his privilege constituted evidentiary error warranting a reversal.

Yancey correctly interpreted Namet v. United States (1963), 373 U.S. 179, 83 S.Ct. 1151, 10 L.Ed.2d 278, in concluding that reversals were warranted in the event of prosecutorial 'misconduct' or on a finding that the failure of a witness to testify added 'critical weight' to the prosecutor's case.

As set forth above we do not conclude that the mere calling of a privileged witness amounts to misconduct. The defendant, however, asks us to contrast the handling of Rogers, who turned state's evidence, with the handling of McLaughlin, who stood on his privilege. Rogers was treated differently. The jury was dismissed when he was advised of his rights, but McLaughlin was obliged to assert his rights in the presence of the jury. Had the state made an effort to exploit this difference, i.e., the ready willingness of Rogers to 'spill the beans,' as contrasted to McLaughlin's adherence to his privilege, we might well hold that the conduct was misconduct. A careful perusal of the record reveals no instance following McLaughlin's claiming of the privilege that the prosecution ever alluded to his testimony. At no time did the prosecution ever contrast Rogers with McLaughlin or intimate that, had McLaughlin testified, his testimony would have been unfavorable to Price. In short, while the prosecution made the most of the fact that Rogers' testimony should be regarded as highly credible since he implicated himself, it at no time used the McLaughlin appearance to add 'critical weight' to the Rogers testimony. Had McLaughlin been asked the same series of questions that were put to Rogers, the jury could have inferred from the witness' refusal to answer that the answer, if given, would be unfavorable. But those questions were not asked. True, McLaughlin did refuse to testify as to whether he knew the defendant, but the fact that he and Price were 'associates' was revealed by Price and did not need to derived from an inference. No additional inferences could possibly be drawn from McLaughlin's refusals that added 'critical weight' to the state's case.

Namet makes it clear that the forbidden conduct is the 'conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege.' (Emphasis supplied.) Namet, supra p. 186, 83 S.Ct. p. 1154. It emphasizes that, in addition, the conduct be planned and deliberate.

These elements of prosecutorial conduct proscribed by Namet are totally lacking in the instant case. As we said in Yancey, supra, 32 Wis.2d page 111, 145 N.W.2d page 149, the record reveals no "planned or deliberate attempts by the government to make capital out of' the witness' refusal to testify or to 'build its case out of inferences arising from use of the testimonial privilege." It is sheer speculation and conjecture to conclude that the jury could draw any inferences damaging to Price from the innocuous questions asked of McLaughlin.

We conclude the defendant's allegation of an additional count of prosecutorial misconduct to be equally ephemeral. A police officer who took Price, McLaughlin, and Rogers into custody was questioned. The following exchange took place during direct examination by the prosecutor:

'Q Now would you relate what statements, if any, were made and by whom at that time?

A McLaughlin stated in the presence--Mr. Weiner: I object to any...