State ex rel. La Follette v. Raskin

Decision Date09 May 1967
Docket NumberNo. 2,2
Citation34 Wis.2d 607,150 N.W.2d 318
PartiesSTATE ex rel. Bronson C. La FOLLETTE, Atty. Gen., and Hugh R. O'Connell, Dist. Atty. in and for Milwaukee County, Wisconsin, Petitioners, v. Hon. Max RASKIN, Judge of Branchof the Circuit Court in and for Milwaukee County, Wisconsin, Respondent.
CourtWisconsin Supreme Court

Bronson C. La Follette, Atty. Gen., Madison, Hugh R. O'Connell, Dist. Atty., Milwaukee Co., Gerald P. Boyle, Deputy Dist. Atty., Milwaukee, for petitioners.

James M. Shellow, Shellow, Shellow & Coffey, Milwaukee, for respondent.

HALLOWS, Justice.

Alexander William Shoffner, Jr., was convicted of the crimes of armed robbery, arson, and burglary on his pleas of not guilty and not guilty by reason of insanity. Those convictions were reversed by this court and the cause remanded for further proceedings. State v. Shoffner (1966), 31 Wis.2d 412, 143 N.W.2d 458. In that case for the third time 1 this court considered arguments for a modification of the legal test of insanity, but a majority of its members was unwilling to abandon the M'Naghten rule. However, it was decided by another majority of the court that the defendant on his special plea of not guilty by reason of insanity would have an election either to be tried under the M'Naghten rule as modified in the Esser Case or to be tried under the insanity rule of sec. 4.01 of the Model Penal Code of the American Law Institute. In the latter event the defendant waives the statutory burden of proof upon the state by virtue of sec. 957.11(2), Stats., 2 and assumes the burden of convincing the jury of his insanity to a reasonable certainty by the greater weight of the credible evidence.

Upon remand, Shoffner chose to be tried under the A.L.I. rule of insanity and the trial court pursuant to sec. 957.27(1), Stats., the compulsory-mental-examination act, appointed Dr. William Studley and Dr. Joseph Weber to examine Shoffner on his special plea of insanity. Upon Dr. Studley's statement to the court that it was necessary that he examine Shoffner concerning the commission of the offense with which he was charged and his past prior criminal conduct, 3 Shoffner moved for an order vacating Dr. Studley's appointment; but this motion was denied. Dr. Joseph Weber requested his appointment to be vacated and this request was granted and Dr. Edward Schmidt was appointed in his stead. Drs. Studley and Schmidt attempted to make a psychiatric examination of Shoffner but upon the advice of his counsel, who was present at the examination with permission of the court, 4 Shoffner refused to answer many of the questions asked by invoking his privilege against compulsory self-incrimination.

A motion was made by Shoffner to have the issue of his criminal responsibility under his plea of not guilty determined first and the proof adduced in a sequential manner so that the jury would not be informed of his special plea of insanity, and no psychiatric testimony be taken thereon until a verdict of guilty had been returned on the issue of his guilt or innocence. Although the trial court had previously denied Shoffner's motion for a bifurcated or split trial or what the court considered to be two separate trials, it granted this motion for what was characterized as a sequential order of proof in a continuous trial. The State of Wisconsin promptly petitioned for and this court granted leave to bring this action for a writ of prohibition.

Thus the question is presented whether the constitutional guarantee of a fair trial under the due process clause requires a trial court, in a criminal case where the defendant enters a plea of not guilty and a special plea of not guilty by reason of insanity and asserts he has a privilege against compulsory self-incrimination to the inquires of a court-appointed psychiatrist, to so control the order of proof as to have presented sequentially to the jury the question of guilt first and then if necessary the issue of criminal responsibility under the special insanity plea. The state argues that under sec. 957.11, Stats., 5 such a bifurcated trial is not permitted, that there is no necessity for such trial, that no constitutional issue is presented because of a compulsory mental examination and in any event there has already been a finding of guilty in this case and hence no prejudice can attach from the admission of inculpatory statements. We think only the first argument has arguable merit.

The respondent contends sec. 957.11(1) does not prohibit a bifurcated trial in the sense of a sequential order of proof before the same jury and to try Shoffner on both issues of insanity and guilt concurrently violates his constitutional right to a fair trial guaranteed him by art. I, sec. 8, of the Wisconsin Constitution and by the Fourteenth Amendment to the United States Constitution.

While some cases refer to a 'bifurcated trial,' 'split trial,' 'two-part trial,' or a 'trial with a sequential order of proof' indiscriminately, such terms are not necessarily synonymous. A bifurcated trial or a split trial, as opposed to a unitary trial, sometimes means complete separate trials before the same or different juries resulting in partial determinations of the controversy. While they are not common they are not unknown in the law. 23 C.J.S. Criminal Law § 940(6), p. 754 et seq. Insurance-coverage questions are sometimes tried separate from the issue of negligence and damages. See sec. 260.11(2), Stats. A split trial results when this court reverses and grants a retrial on one of the issues while affirming another issue. Ultimately, if there is a recovery, the result may be based on two partial verdicts and two separate trials by two separate juries. Recently much has been written for a split trial of the negligence and the damage issues in automobile-accident cases. 6 Bifurcation has been less common in criminal cases but the demands of a fair trial have caused some 30 states to make provision by statute in recidivist cases for the separation of evidence of prior convictions on the enhanced sentence issue from the issue of guilt on which the defendant is currently being tried. Spencer v. State of Texas (Jan. 23, 1967), 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (Opinion of Warren, note 11).

The question of a fair trial is raised in the instant case in the context of a compulsory mental examination and the privilege against compuslory self-incrimination. It is argued that if the compulsory mental examination includes confessions or inculpatory statements of the accused they are admissible on the insanity issue but their collateral effect on the guilt issue is so fatal and prejudicial even under instructions to the jury to disregard the statements for such purpose as to deny the fundamental fairness required by due process in the trial. Hence in order to insure a constitutionally fair trial the two issues must be tried and determined separately and independently of each other. This contention would pose no great procedural problem excepting for sec. 957.11 which on its face requires the special plea of insanity to be interposed at the time of arraignment and 'shall be tried with the plea of not guilty.'

This section has a long history in Wisconsin which furnishes the interpretative background of the phrase 'tried with the plea of not guilty.' Prior to 1878 the two issues were tried together, at least the statutes made no reference to split trials. See sec. 13, ch. 148, R.S.1849; sec. 11, ch. 179, R.S.1858; State v. Wilner (1876), 40 Wis. 304. But in that year secs. 4697--98--99, R.S.1878, were enacted and provided for a split trial in which the insanity issue was tried first and if the accused was found sane he was then tried on his plea of not guilty before the same jury. No proof of insanity could be offered on the guilt issue. Sec. 4699. If the jury determined the accused was insane at the time of the offense or there was reasonable doubt of his sanity, the jury would further find if he was currently sane and if he was he would be freed. However, if he was found to be still insane at the time of the trial he was sentenced to a mental hospital under sec. 4698. The reason given for the statute was that the issue of insanity was difficult of determination and should not be further complicated and confused with the evidence on the issue of guilt. (Supplement to the Revised Statutes of Wisconsin (1878) Reviser's Notes, Sanford & Barryman's Anno., pp. 891--892.)

The section came under constitutional attack as not providing a common-law impartial jury trial in Bennett v. State (1883), 57 Wis. 69, 14 N.W. 912. Holding the section constitutional the court pointed out the so-called bifurcation of the criminal trial went only to the form of the trial and not to the substance and the trying of the two issues separately was to be treated as one trial within the meaning of the requirement of a common-law trial by jury. By ch. 164, Laws of 1883, section 4697 was amended to provide that if a jury did not agree on the insanity issue, then a new jury was to hear both the issues of not guilty and of insanity together. However, in the first instance the issue of insanity was to be tried first and kept distinct and separate from the issue of guilt. In Hoiss v. State (1891), 79 Wis. 513, 48 N.W. 517, the two issues were not kept separate at the trial and the court reversed the conviction and held the jury in trying the insanity question misconceived the nature of that issue and actually tried the guilt of the accused. In French v. State (1893), 85 Wis. 400, 55 N.W. 566, 21 L.R.A. 402, a reversal resulted because the jury had disagreed on the insanity issue and therefore under the statute was disqualified from passing on the question of guilt. The court held that the jury having once disagreed on the insanity issue was no longer a fair and impartial jury for the trial of the plea of not guilty which would then include the issue of insanity and such...

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