Ramer v. State
| Decision Date | 01 October 1968 |
| Citation | 40 Wis.2d 79,161 N.W.2d 209 |
| Parties | Ronald H. RAMER, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error (two cases). |
| Court | Wisconsin Supreme Court |
Whelan, Morey & Morey, Randall E. Morey, Mondovi, for plaintiff in error.
Bronson, C. La Follette, Atty. Gen., William A. Platz and Betty R. Brown, Asst. Attys. Gen., Madison, Roger L. Hartman, Dist. Atty. of Buffalo County, Alma, for defendant in error.
The defendant raises several errors occurring during the trial which will be discussed seriatim.
During the trial the court refused to separate the minor witnesses from each other while testifying and this ruling is claimed by the defendant to be error. It has long been the majority rule in this country and the specific rule in Wisconsin following the early English rule that the exclusion, separation, sequestration of witnesses or 'putting witnesses under the rule' is not a matter of right but lies in the legal discretion of the trial court. Annot., 32 A.L.R.2d 358; 53 Am.Jur., Trial, p. 46, sec. 31. Consequently, unless there is an abuse of discretion, this court on appeal will not reverse for a refusal to sequester witnesses. The basis for sequestration of witnesses is to assure a fair trial, which sometimes can only be obtained by excluding other witnesses from the courtroom while a witness is testifying. It may turn out that a failure to sequester witnesses results in prejudice to the defendant, but unless it does so it can hardly be said that there was an abuse of discretion. The majority rule does not presume prejudice from a failure to sequester. Loose v. State (1903), 120 Wis. 115, 97 N.W. 526; Zoldoske v. State (1892), 82 Wis. 580, 52 N.W. 778.
We find no abuse of discretion in this record. The inconsistencies in the children's testimony with their prior statements are minor annd refer to circumstances prior to the crime. Their testimony in relation to the actual crime was consistent with their prior statements. Only the 6-year-old girl was a witness to the criminal acts.
The defendant claims the court should not have questioned the children concerning their competency as witnesses in the presence of the jury. The motion to remove the jury was denied on the ground that unless the jury saw the determination of the competency they would be skeptical of children 9 and 6 years old testifying. We think the defendant has no absolute right to an examination outside the presence of the jury. This issue has been recently decided contrary to the argument of the defendant in Collier v. State (1966), 30 Wis.2d 101, 140 N.W.2d 252. While in some cases it may be preferable practice to conduct a competency voir dire outside the jury's presence, as stated in State v. Wrosch (1952), 262 Wis. 104, 53 N.W.2d 779, we cannot hold on these facts that it was error to conduct the examination in the jury's presence. It was a matter of legal discretion with the trial court and we find no abuse or lack of fairness in the procedure.
During the trial the superintendent of schools requested that he be not called as a witness. His arguments were heard by the court in chambers in the presence of attorneys but the defendant was not present. The court ruled the superintendent enjoyed no immunity and would be required to testify. Thereupon, the defendant's counsel excused him as a witness. The defendant contends his right to be present during the trial extends to be present at such a conference in the judge's chambers and the right is of such a nature his counsel cannot waive it. The defendant relies on French v. State (1893), 85 Wis. 400, 55 N.W. 566, 21 L.R.A. 402, wherein this court stated an accused has a right which he may not waive to be present during the whole trial and to meet the witnesses face to face and to be confronted with witnesses against him. However, a defendant may waive his right at least temporarily to be present at trial. See State v. Sasse (1888), 72 Wis. 3, 38 N.W. 343; State v. Biller (1952), 262 Wis. 472, 55 N.W.2d 414.
The question here is not waiver but whether the defendant has a right to attend a conference in chambers and admits of no categorical 'yes' or 'no' answer. A conference in chambers might well constitute part of the trial depending upon what matters are discussed or passed upon. Likewise, such a conference might not be a part of the trial in the of one's constitutional right to be present. See Annot., 85 A.L.R.2d 1111. When a conference in chambers deals solely with a question of law or preliminary matters of procedure, it has been held not to constitute a part of the trial in the constitutional sense. In Snyder v. Commonwealth of Massachusetts (1934), 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674, 90 A.L.R. 575, in denying a claim that the right to due process under the Fourteenth Amendment of the federal constitution was denied an accused by a state court's refusal to allow him to be present at a jury view, the court pointed out '* * * the presence of a defendant is a condition due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.'
In United States v. Johnson (3d Cir. 1942), 129 F.2d 954, the court held it was not a denial of the Sixth Amendment to exclude the defendant during a hearing on his counsel's objection to the cross examination of the defendant. The court considered the right to a defendant to be present when the jury is absent was not absolute but qualified by the condition that nothing should occur when he is not present which would put him in jeopardy. In Root v. Cunningham (4th Cir. 1965), 344 F.2d 1, the court held the accused had no state or federal constitutional right to be present when the attorney and the judge discussed proposed instructions on the theory questions of law are subsidiary to the trial itself and the ultimate ruling of the judge is made in the presence of the defendant and the jury when objections on his behalf can be noted on the record. The defendant's rights are thus protected in open court.
We think, however, that conferences of the court and attorneys outside the presence of the accused should be rarely held during the trial and the trial judge should be solicitous in allowing the defendant to be present at a conference in chambers when he requests it. There is always a risk of the conference exceeding a nonconstitutional scope or causing misunderstanding.
Prior to the defendant's taking the stand on his own behalf it had been agreed in chambers that the defendant would admit he had been convicted of a felony and the number thereof and the prosecutor would not go into the matter during cross examination. The defendant claims the prosecutor violated this understanding by referring to 'correctional institution' during the cross examination and asking the defendant if he had an automobile driver's license. Objections were made and sustained, and the jury was instructed to disregard the...
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