Schleiss v. State
| Decision Date | 02 March 1976 |
| Docket Number | No. S,S |
| Citation | 239 N.W.2d 68,71 Wis.2d 733 |
| Parties | Donald J. SCHLEISS, Jr., Plaintiff-in-error, v. STATE of Wisconsin, Defendant-in-error. tate 206 (1974). |
| Court | Wisconsin Supreme Court |
Howard B. Eisenberg, State Public Defender, for plaintiff-in-error.
David J. Becker, Asst. Atty. Gen. (argued), with whom on the brief was Bronson C. La Follette, Atty. Gen., for defendant-in-error.
We set forth only those facts relevant to this review, some at this time and others in considering the issues raised by the defendant.
A second alleged party to the crime, Ronald Mathwick, was tried in a separate proceeding, which took place prior to defendant's trial. Mathwick was adjudged not guilty. The defendant moved the court for dismissal on the ground that the issue to be tried had been fully litigated in the case of State v. Mathwick and, thus, the state was foreclosed from relitigation of the alleged criminal violation with respect to defendant. This motion was denied.
In both the trial of this defendant and that of Mathwick, one of the main witnesses for the state was Deland Powers. During the course of the trial, outside the presence of the jury, counsel for defendant offered the testimony of Dr. Edward Orman, a psychiatrist. This offer of proof related to the reliability of Powers' testimony. The court determined that Dr. Orman's testimony should not be admitted, because of lack of proper foundation. Counsel for the defendant then requested that Dr. Orman be allowed to conduct a psychiatric examination of Powers. The court denied this request, basing the determination on prior case law, the fact that no motion for examination had been previously made, and the length of time required for such an examination while a jury trial was in progress.
The initial portion of the prosecutor's closing argument was not recorded. However, the record shows that counsel for the defendant moved for a mistrial based on a comment made by the prosecutor, which the defendant alleges referred to defendant's failure to testify. The court denied the motion; however, the jury was instructed that no adverse inference was to be drawn from the fact that defendant did not testify.
This review presents the following issues:
1. Did the circuit court lack subject matter jurisdiction in this case?
2. Was the trial of this defendant barred by the doctrine of collateral estoppel?
3. Was it error for the court to refuse to admit psychiatric testimony regarding the reliability of a particular witness?
4. Was it error for the court to refuse to allow a particular witness to submit to a psychiatric examination?
5. Was it error for the court to refuse to grant a mistrial on the grounds of allegedly improper remarks made by the prosecutor during closing argument?
SUBJECT MATTER JURISDICTION.
Defendant was charged with violation of sec. 943.10, Stats.:
'. . . (1) Whoever intentionally enters any of the following places without the consent of the person in lawful possession and with intent to steal or commit a felony therein may be imprisoned not more than 10 years:
'(a) Any building or dwelling; . . .'
The criminal information charged defendant with the following criminal acts:
'. . . (T)he defendant did: feloniously and burglariously (sic) intentionally enter a building, to wit: Forest Feed Mill, Inc., located at Village of Forest, in said county, and the office within said building, then and there occupied by the Forest Feed Mill, and with intent then and there to steal the property of the said Forest Feed Mill, Inc. contrary to Section 943.10, Wisconsin Statutes. . . .'
The information did not contain the statutory language, 'without the consent of the person in lawful possession.' Thus, the defendant argues, the information did not allege all of the material elements of the crime charged and, therefore, the trial court lacked jurisdiction and the proceedings were void.
Several recent decisions of this court have discussed the effect of failure to include a specific element of an alleged criminal violation in the complaint or information. In Clark v. State (1974), 62 Wis.2d 194, 199, 200, 214 N.W.2d 450, 453, the information:
'. . . alleged that the defendant was feloniously involved in the commission of the murder of Troy Pulliam, a human being, contrary to the form of the statute, sec. 940.01 and sec. 939.05.'
Certain material elements of the crime charged were not specifically set forth in the information. However, this court noted, relying on State v. Bachmeyer (1945), 247 Wis. 294, 19 N.W.2d 261, that reference was made in the information to the statute containing the substantive elements of the crime charged. The incorporation of the statutory section was deemed sufficient to comply with the requirement that all material elements of the alleged violation be set forth in the information. Therefore, it was concluded that:
Clark v. State, supra, 62 Wis.2d pp. 203, 204, 214 N.W.2d p. 455.
In State v. Nowakowski (1975), 67 Wis.2d 545, 227 N.W.2d 697, defendant was charged with failure to report a campaign contribution, contrary to secs. 12.09(1) and 12.09(3)(a), Stats., 1971. It was contended that the indictment therein was void because it failed to allege a material element of the crime, pages 568, 569, 227 N.W.2d 697. This court held that because the statute allegedly violated was cited by number in the indictment, the indictment was not jurisdictionally void, page 571, 227 N.W.2d 697.
In both Clark, supra, and Nowakowski, supra, collateral circumstances relating to lack of prejudice to the defendant were emphasized. Thus, in Clark, it was pointed out that defendant did not contend that he was not fully aware of the nature and cause of the accusation against him. It was noted, moreover, that the rights of the defendant had not been prejudiced in any way. Clark v. State, supra, 62 Wis.2d p. 200, 214 N.W.2d 450. In Nowakowski, supra, pp. 571, 572, 227 N.W.2d 697, this court recognized that, beside the fact that the statute had been cited by number in the indictment, the requirement of proof of the omitted element had been stated by the trial court prior to trial. In addition, the jury had been properly instructed on the nature of the missing element.
A review of these cases demonstrates that although a poorly drafted information produces unnecessary litigation, the failure to specifically allege a material element of the crime within the factual statement contained in the information does not ipso facto render the information void, if the statute which contains the substantive elements of the offense is cited therein. The statutory cite is incorporated, the defendant is adequately apprised of the nature and substance of the charge, and thus is not prejudiced by the omission from the factual statement of a substantive element of the alleged violation.
The defendant relies, in part, on Champlain v. State (1972), 53 Wis.2d 751, 193 N.W.2d 868, wherein it was determined the trial court was without jurisdiction because of a fatally defective complaint. In Champlain the defendant was charged with armed robbery contrary to sec. 943.32(2), Stats. Sec. 943.32(2) increases the maximum penalty for robbery, as defined by sec. 943.32(1) from 10 years to 30 years when the act is committed while the defendant is armed with a dangerous weapon. The problem was presented in Champlain because sec. 943.32(1) defines two separate and distinct crimes of robbery, one in subsection (a) and a second in subsection (b). The information did not allege which of the two possible crimes of robbery the defendant was alleged to have committed while armed with a dangerous weapon. Such is not the situation in the instant case. Clark v. State, supra, 62 Wis.2d p. 203, 214 N.W.2d 450.
The defendant also directs our attention to State v. Reichert (1975), 67 Wis.2d 69, 226 N.W.2d 196, in which the defendant was charged with possessing for sale obscene material, contrary to sec. 944.21, Stats. Consistent with the policy of this court in criminal obscenity cases, it was stated in State v. Reichert, supra, p. 73, 226 N.W.2d p. 198: 1
'In State v. Schneider (1973), 60 Wis.2d 563, 211 N.W.2d 630, we held that an allegation of scienter, or criminal intent, in a criminal complaint was a jurisdictional prerequisite in obscenity cases and that, absent such allegation, the complaint charges no offense known to law and the proceedings are void ab initio . . .'
The required allegation of scienter or criminal intent as a jurisdictional prerequisite in obscenity cases evolves from the dimensions of first amendment rights as they relate to statutes which control obscene material, State v. Clark, supra; State v. Nowakowski supra.
In the instant case the allegations of the information and the direction to the specific statutes fairly informed the defendant of the charges against him and all the substantive elements of the crime. He was able to and did defend on the specific offense charged. His conviction enables him to plead it in bar of future prosecutions for the same offense. He was fully informed of the nature of the charges against him and no prejudice to the defendant has occurred. Hamling v. United States (1974), 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590, rehearing denied 419 U.S. 885, 95 S.Ct. 157, 42 L.Ed.2d 129.
The trial court had subject matter jurisdiction.
DOUBLE JEOPARDY.
The defendant contends that the acquittal of Mathwick, a second alleged party to the crime,...
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