Sears v. State

• Decision Date: 07 February 1980
• Docket Number: No. 77-308-CR,77-308-CR
• Citation: 94 Wis.2d 128,287 N.W.2d 785
• Parties: David SEARS, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 785

287 N.W.2d 785

94 Wis.2d 128

David SEARS, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. 77-308-CR.

Supreme Court of Wisconsin.

Argued Dec. 4, 1979.

Decided Feb. 7, 1980.

Jack E. Schairer, Asst. State Public Defender, with whom on the briefs was Howard B. Eisenberg, State Public Defender, for plaintiff in error.

Maryann S. Sumi, Asst. Atty. Gen., with whom on the brief was Bronson C. La Follette, Atty. Gen., for defendant in error.

CALLOW, Justice.

Following a jury trial, plaintiff in error David Sears (defendant) was convicted of solicitation to commit an act of sexual perversion in violation of secs. 939.30 and 944.17(1), Stats., 1975. The facts supporting the charge and subsequent conviction are not disputed. On October 14, 1976, the defendant, while dressed in women's clothing, approached a male undercover police officer and offered to perform an act of oral sex in exchange for $20, whereupon the defendant was arrested. A criminal complaint was filed the same day, charging the defendant with solicitation to commit sexual perversion and obstructing an officer. In response to defendant's pretrial motion to dismiss the criminal complaint, an evidentiary hearing was held to consider defendant's contention that the decision to charge him with solicitation to commit sexual perversion, rather than with prostitution or disorderly conduct, amounted to unconstitutional selective and discriminatory prosecution. ¹

Following the hearing, the submission of briefs and argument on defendant's claim of discriminatory prosecution, the trial court denied the defendant's motion to dismiss:

"The Court is satisfied that the State has acted properly, that the charge is appropriate, that the defendant is not being discriminated against, nor is he being selected for some discriminatory type of prosecution. I don't think this is a case of selective prosecution because the facts in this situation are so unique. Therefore, the motion is denied."

A trial by jury took place on February 2-3, 1977, and the defendant was found guilty of solicitation of sexual perversion. A presentence examination and a sex deviate examination were ordered. Specialized treatment was not recommended, and the defendant was sentenced to an indeterminate term not to exceed two years, less 203 days' credit for preconviction jail time.

On this review, the defendant urges his conviction be vacated on three grounds: his prosecution for solicitation of sexual perversion rather than disorderly conduct denies him the equal protection of the law; application of the prostitution statute, sec. 944.30, Stats., 1975, to females only denies him the equal protection of the law; and the sentence imposed on him violates the Eighth Amendment prohibition against cruel and unusual punishment. We affirm the judgment of the trial court.

The district attorney in Wisconsin has great discretion in deciding whether to initiate prosecution in a particular case. As stated in State ex rel. Kurkierewicz v. Cannon, 42 Wis.2d 368, 378, 166 N.W.2d 255, 260 (1969),

"There is no obligation or duty upon a district attorney to prosecute all complaints that may be filed with him. While it is his duty to prosecute criminals, it is obvious that a great portion of the power of the state has been placed in his hands for him to use in the furtherance of justice, and this does not per se require prosecution in all cases where there appears to be a violation of the law no matter how trivial."

See also: Locklear v. State, 86 Wis.2d 603, 609-10, 273 N.W.2d 334 (1979); State v. Johnson, 74 Wis.2d 169, 173, 246 N.W.2d 503 (1976); Brown, The Wisconsin District Attorney and the Criminal Case, 41 (2d ed. 1977). In addition to his discretion in determining whether or not to prosecute, the prosecuting attorney is afforded great latitude in determining which of several related crimes he chooses to file against the defendant. State v. Karpinski, 92 Wis.2d 599, 610-11, 285 N.W.2d 729 (1979); Harris v. State, 78 Wis.2d 357, 368, 254 N.W.2d 291 (1977). "In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion." Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 668, 54 L.Ed.2d 604 (1978). The Wisconsin legislature, recognizing that prosecuting attorneys may frequently be faced with conduct which may violate more than one criminal statute, has specifically granted the prosecuting attorney the power to choose the statute under which to proceed. Sec. 939.65, Stats., provides that "(i)f an act forms the basis for a crime punishable under more than one statutory provision, prosecution may proceed under any or all such provisions."

Exercise of this discretion necessarily involves a degree of selectivity. However, "the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation" so long as "the selection was (not) deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification." Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446 (1962); Bordenkircher v. Hayes, supra 434 U.S. at 364, 98 S.Ct. at 668; State v. Johnson, supra 74 Wis.2d at 174, 246 N.W.2d 503. Conversely, "(i)f the defendant can establish a persistent and intentional discrimination in the enforcement of a statute in the absence of a valid exercise of prosecutorial discretion this may be interpreted as a violation of equal protection and a defense to the charge." Locklear v. State, supra 86 Wis.2d at 610, 273 N.W.2d at 337.

On this review, the defendant attempts to establish two bases for such a defense. Defendant's first claim of selective prosecution is grounded on his contention that only he and one other male had been charged with solicitation to commit sexual perversion, whereas other defendants arrested for homosexual activity were usually charged with disorderly conduct. Relying on State v. Boutch, 60 Wis.2d 397, 210 N.W.2d 751 (1973), the defendant claims that evidence that he was the first in eight years to be charged with solicitation to commit sexual perversion establishes that the prosecution was discriminatory.

In State v. Boutch, supra at 402, 210 N.W.2d at 754, this court stated that a "defendant's claim cannot come within the class of unconstitutional discriminatory enforcement" "(i)n the absence of an allegation and proof that the defendant is a member of a class being prosecuted solely because of race, religion, color or other arbitrary classifications, or That he alone is the only person who has been prosecuted under this statute." (Emphasis added.) In support of this statement, the court in Boutch relied on McFarland v. American Sugar Co., 241 U.S. 79, 86, 36 S.Ct. 498, 501, 60 L.Ed. 899 (1916), where the United States Supreme Court indicated that grave constitutional questions were raised by a statute that could not apply to any defendant other than the one charged with its violations. Neither State v. Boutch, supra, nor McFarland v. American Sugar Co., supra, stand for the proposition that the initial application of a criminal statute is an unconstitutional and discriminatory prosecution. Solitary prosecutions may present a prima facie defense of selective or discriminatory prosecution when coupled with a substantial showing by the defendant that the government's discriminatory selection for prosecution is based on a desire to prevent the exercise of constitutional rights; United States v. Steele, 461 F.2d 1148, 1151 (9th Cir. 1972); United States v. Falk, 479 F.2d 616, 619-24 (7th Cir. 1973) (en banc); United States v. Berrios, 501 F.2d 1207, 1211 (2nd Cir. 1974); or motivated by personal vindictiveness on the part of a prosecutor or the responsible member of the administrative agency recommending prosecution. United States v. Bourque, 541 F.2d 290, 293 (1st Cir. 1976). The defendant has shown neither of these circumstances.

Moreover, we are not persuaded that defendant has met his burden to establish an "absence of a valid exercise of prosecutorial discretion." Locklear v. State, supra 86 Wis.2d at 610, 273 N.W.2d at 337. At the evidentiary hearing on the defendant's claim, Deputy District Attorney Gardner and Assistant District Attorney Sklenarz (Sklenarz issued the criminal complaint against the defendant) testified that four factors influenced the decision to charge defendant with solicitation to commit sexual perversion rather than disorderly conduct. First, Gardner stated he had reservations about the latter charge's applicability, noting the difficulties of proving that the act of solicitation would provoke a disturbance between an undercover officer and the propositioning male. Second, Sklenarz testified that defendant's recidivism, as demonstrated by twenty-one to twenty-four prior charges involving similar conduct, influenced his decision to issue a more substantial charge. Defendant's past record distinguishes him from other actors arrested under circumstances similar to the incident that is the basis of his prosecution. This court stated in State v. Roggensack, 20 Wis.2d 468, 470, 122 N.W.2d 408, 409 (1963), a criminal prosecution for failure to file income tax returns, that "there was no denial to defendant of equal protection of the law on the ground that other violators have not been prosecuted. The testimony shows that defendant was prosecuted because he was a flagrant delinquent and not because of any invidious selection or discrimination among those who had failed to file returns on time." ²

A third reason for the charge was Sklenarz's desire to maintain consistency between the charges brought against would-be patrons arrested by undercover policewomen and the charges brought against would-be prostitutes arrested by undercover policemen. Sklenarz...