State ex rel. Harris v. Schmidt

• Decision Date: 08 July 1975
• Docket Number: No. 561,561
• Citation: 69 Wis.2d 668,230 N.W.2d 890
• Parties: STATE ex rel. James H. HARRIS, Appellant, v. Wilbur J. SCHMIDT, Secretary, Dept. of Health and Social Services, State of Wisconsin, and Sanger B. Powers, Administrator, Division of Corrections, State of Wisconsin, Department of Health and Social Services, respondents.
• Court: Wisconsin Supreme Court

Page 890

230 N.W.2d 890

69 Wis.2d 668

STATE ex rel. James H. HARRIS, Appellant, v. Wilbur J. SCHMIDT, Secretary, Dept. of Health and Social

Services, State of Wisconsin, and Sanger B. Powers,

Administrator, Division of Corrections, State of Wisconsin,

Department of Health and Social Services, respondents.

No. 561.

Supreme Court of Wisconsin.

July 8, 1975.

Howard B. Eisenberg, State Public Defender, Madison, for appellant.

Bronson C. LaFollette, Atty. Gen., Michael R. Klos, Asst. Atty. Gen., Madison, for respondents.

DAY, Justice.

This is an appeal from a judgment entered in the Kenosha county court on August 5, 1974, affirming the revocation of appellant's probation.

On September 12, 1969, the appellant James H. Harris (hereinafter 'defendant') was found guilty by a jury of taking indecent liberties with a minor and of sexual perversion, in violation of secs. 944.11(2) and 944.17(1), Stats. On December 17, 1969, the defendant was sentenced in the county court of Kenosha county to five years on the first count and three years on the second count, such terms to run concurrently; the sentence was stayed, and the defendant was placed on three years' probation, the first six months of which were to be served in the Kenosha county jail during nonworking hours.

In June, 1972, defendant's probation was transferred to the state of Tennessee, where he moved with his wife and her two young sons by a previous marriage. Defendant's probation was due to be terminated on December 17, 1972. On November 3, 1972, Mrs. Harris left her husband at Humboldt, Tennessee, and returned to Wisconsin. On November 4 she saw his probation officer in Wisconsin and based on statements made by her to him, a probation violation warrant was issued November 27, 1972, in Wisconsin by the then administrator of the division of corrections, department of health and social services, alleging that defendant violated rule one of his probation agreement by committing or attempting to commit sodomy on his wife's 5-year-old son on November 2, 1972. Agents of the department of social services traveled to Tennessee and took the defendant in custody on November 17, 1972; he was returned to Wisconsin and has been incarcerated since that time. On December 19, 1972, defendant was notified of a preliminary hearing beginning the proceedings to revoke his probation. Such hearing was apparently held on December 21, 1972, and resulted in a finding that there was probable cause to hold the defendant for a full hearing.

Prior to the full hearing, defendant through his counsel demanded that the place of the hearing be transferred to Humboldt, Tennessee, the place of the alleged act which gave rise to the revocation proceedings, so that exculpatory witnesses would be available to him; in the alternative, he argued that some other procedure, such as depositions, should be devised whereby the testimony of witnesses in Tennessee could be secured; these requests were denied.

His full probation revocation hearing was conducted on January 31, 1973, in Kenosha by a hearing examiner employed by the department. No provision was made for conducting the hearing or any part of it in Tennessee or for taking depositions of witnesses there. After the hearing was concluded, defendant was able to get affidavits from some of his potential witnesses and the hearing examiner received and considered them.

On March 16, 1973, the secretary of the department of health and social services executed a probation revocation order requiring the defendant's imprisonment.

Mrs. Harris testified at the January 31, 1973, revocation hearing that on November 2, 1972, the defendant drove her to work at about 11:30 a.m. Prior to that the son in question had left for kindergarten and she said he either walked or that the defendant drove him to school. She also said that a close friend of her husband had stopped that morning at about 8:00 or 8:30 to borrow something. She testified she did not see her husband again that day until 4:00 or 4:15 p.m. when he came to the restaurant where she was employed to get a package of cigarettes. She said her two sons were with him and that he told her he was taking them to his mother's house. The defendant picked his wife up at work at about 8:00 or 8:15 p.m. and they then went to his mother's house where the two boys were waiting. She testified that the next morning between 8:30 and 9:00 o'clock the defendant had already left the trailer where they lived and gone to see his mother. She said between 9:00 and 9:30 a.m. the son in question, who was 5-years old, came to her and described an episode between him and the defendant from the prior day that indicated the defendant either did have or tried to have anal intercourse with the boy. Sometime between 9:30 and 10:00 a.m. on November 3rd the defendant returned to the trailer and she confronted him with what she said her son had told her; the defendant denied the accusation. She testified she decided to leave her husband and return to Wisconsin with her children and that he drove her to the bus station, arriving there about 10:30 a.m. She said he talked her out of leaving and they went shopping and she bought a pair of slacks; they also stopped at his mother's house briefly, before Mrs. Harris went to work. That afternoon between 2:00 and 2:30 Mrs. Harris said she changed her mind about leaving. She also called the chief of detectives of the Humboldt police department and reported what her son allegedly told her. In a letter to the defendant's hearing counsel, this detective stated that he interviewed Mrs. Harris at her place of employment about 2:00 o'clock on November 3, 1972, and she related the episode described by her son. The detective then interviewed the boy and he made a similar statement. The detective told Mrs. Harris it was very important to his investigation that she have the boy examined by a physician but she refused. According to the detective, she said she just wanted to get her children away from her husband. She refused to cooperate and the detective concluded Mrs. Harris' conduct in the matter was very suspicious. Mrs. Harris testified that the reason she did not cooperate with the authorities was because she had no one to turn to and she also said that she had received a threatening phone call from the defendant's brother. On November 6, 1972, the boy was examined by a doctor but the results of the examination were inconclusive.

At the revocation hearing the probation agent for the defendant testified that Mrs. Harris contacted him on November 4, 1972, and related the story she said she had gotten from her son. On November 17, 1972, he interviewed the boy and the child related the same thing to him. It was on this basis that the probation agent recommended that a probation-violation warrant be issued. He said it was done without making any other investigation and without receipt of any information from Tennessee.

The defendant's testimony is at variance with that of Mrs. Harris. The defendant, who was 49-years old at the time of these events, testified that on November 2, 1972, he arose about 6:30 a.m.; fed the two boys; went to his mother's for up to an hour; and returned to find his friend Wayne Pickard at the trailer. Mr. Pickard took the boy to school and Mrs. Harris to work. He then returned and took the defendant and the other boy, a 3-year-old, to defendant's mother. The defendant and Mr. Pickard then went to do some work. The two of them visited a friend and about 3:00 p.m. picked up the boy in question at school; they then left him at the defendant's mother's and the two men went to a pool hall. At about 7:30 p.m. the friend dropped the defendant off at his mother's house where defendant got his own car and went to get his wife at work. He said they had dinner and then went to his mother's to get the boys. The defendant testified that on the following day, November 3, 1972, he arose early, fed the boys, visited his mother, and returned to the trailer. He then left with his wife and the two boys and went shopping and his wife purchased some clothes; they visited his mother and his wife had her hair done. He dropped her off at work and took the boy in question to school and then went to his mother's with the younger boy. Later that afternoon he picked up the boy at school, visited his wife briefly and returned to his mother's with the older boy. Shortly thereafter Mrs. Harris arrived and demanded to be taken to the bus station; she said that it was nothing that any of them had done but 'I just got to get out of here.' The defendant testified that she was shaking all over; he said he took her to the bus station and she left. He said his wife never told him anything about him having assaulted the boy and that she never did give him a reason for leaving.

After Mrs. Harris left, the defendant was contacted by two Tennessee probation officers who advised him that his wife wanted him arrested. The defendant said that they told him it involved the boy but were not specific as to the charges, although the report from the probation officers indicates that they had told him in more detail what her allegations were. These probation officers made a report in which they indicated the whole episode was probably a domestic quarrel. Certain of the witnesses that the defendant said would testify for him if the hearing were held in Tennessee did submit affidavits. His mother and sister-in-law said in affidavits that the boy to their personal knowledge was at the defendant's mother's house from immediately after school until he was picked up by both of his parents on the evening of November 2nd. Another affiant said she was at the defendant's mother's house and saw the boy left there after school at about 3:00 p.m. The defendant's friend accounts for the day in his affidavit much as the defendant did in his testimony, claiming he was with the defendant throughout and that the boy was...