State v. Burke

• Decision Date: 26 February 1990
• Docket Number: No. 88-0631-CR,88-0631-CR
• Citation: 153 Wis.2d 445,451 N.W.2d 739
• Parties: STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. John J. BURKE, IV, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 739

451 N.W.2d 739

153 Wis.2d 445

STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. John J. BURKE, IV, Defendant-Respondent.

No. 88-0631-CR.

Supreme Court of Wisconsin.

Submitted on Briefs Oct. 5, 1989.

Decided Feb. 26, 1990.

Daniel J. O'Brien, Asst. Atty. Gen., Donald J. Hanaway, Atty. Gen., on brief, for plaintiff-appellant-petitioner.

Krista M. Ralston, Madison, on brief (in court of appeals), for defendant-respondent.

DAY, Justice.

This is a review of the decision of the court of appeals in State v. Burke, 148 Wis.2d 125, 434 N.W.2d 788 (Ct.App.1988), which affirmed the order of the Honorable Mark A. Frankel, Judge for the Circuit Court for Dane County, which had dismissed four counts of a five count information charging defendant John J. Burke, IV, with second-degree sexual assault of a person over the age of twelve and under the age of sixteen, contrary to sec. 940.225(2)(e), Stats.1987-88. ¹ The issue is whether a prosecutor may, pursuant to sec. 971.01(1), Stats.1987-88, include in an information charges for which there was no direct evidence presented at the preliminary examination.

Mr. Burke was arrested on August 18, 1987. At 4:51 a.m. on that day, the city of Madison police responded to a sexual assault complaint by B.L.K., a female minor age thirteen. B.L.K. reported that the previous evening, she and a friend had arrived in Madison on a bus from Milwaukee. B.L.K. and her friend spent most of the evening together in downtown Madison, but were separated. B.L.K. then met a man, whom she later identified as Burke, who offered to take her back to the bus station. Burke stated he first needed to stop at his residence. While there, Burke took B.L.K. to his bedroom to listen to music. Over B.L.K.'s protests, Burke began to touch her. Burke then closed the bedroom door, unscrewed the bedroom light bulb, and demanded that B.L.K. lay on the bed. When B.L.K. refused, Burke threatened to hurt her. B.L.K. alleged that Burke then pushed her onto the bed, partially disrobed her and himself, and attempted to force B.L.K. to perform fellatio. B.L.K. refused. Burke forced B.L.K. to submit to anal intercourse and then vaginal intercourse. Approximately fifteen minutes after those assaults, B.L.K. alleged, Burke again forcibly had anal intercourse and then vaginal intercourse with her. After relating her account of what transpired, B.L.K. took the police to Burke's residence where she identified Burke as the assailant and he was arrested.

The complaint against Burke charged four counts of second-degree sexual assault, contrary to sec. 940.225(2)(e), Stats. Counts one and three each alleged an act of anal intercourse. Counts two and four each alleged an act of vaginal intercourse.

A preliminary examination was held on September 15, 1987. After the case had been called but before the taking of any testimony, the State moved to dismiss all but one count of the complaint. Burke did not object. The circuit court granted the motion.

The remaining count in the complaint alleged an act of anal intercourse. The preliminary examination proceeded. The State sought to establish probable cause solely on the basis of statements made by Burke to the police following his arrest. An investigating officer testified that Burke admitted touching B.L.K.'s breasts and attempting to have vaginal intercourse with her. Burke further admitted having anal intercourse with B.L.K. On the basis of the officer's testimony, the circuit court bound Burke over for trial pursuant to sec. 970.03(7), Stats.1987-88. ²

In the information which was subsequently filed, the State alleged that Burke had committed five counts of second-degree sexual assault, contrary to sec. 940.225(2)(e), Stats. The additional counts were not identical to those originally alleged in the complaint. Count one alleged an act of anal intercourse. Count two alleged an act of vaginal intercourse. Count three alleged an additional act of anal intercourse. Count four alleged an act of touching B.L.K.'s breasts. Count five alleged an act of Burke touching his penis to B.L.K.'s mouth. Burke moved to dismiss counts two, three, four and five. The circuit court granted the motion on the basis those counts were not directly supported by the evidence presented at the preliminary examination, which the circuit court concluded was required by sec. 971.01(1), Stats.

The State moved the court of appeals for leave to appeal the circuit court's non-final order, pursuant to sec. (Rule) 809.50, Stats.1987-88. The court of appeals granted the State's petition, see sec. (Rule) 808.03(2), Stats.1987-88, and affirmed the circuit court's order. The State argued in the court of appeals that the charging of counts two through five was proper under this court's decision in Bailey v. State, 65 Wis.2d 331, 222 N.W.2d 871 (1974). The court of appeals concluded, however, that "decisions following Bailey explain that sec. 971.01(1), Stats., requires the prosecutor to file an information containing only charges based on evidence presented at the preliminary hearing." Burke, 148 Wis.2d at 129, 434 N.W.2d 788.

The State petitioned this court for review which was granted. ³ The State asserts it had voluntarily dismissed the additional counts in the complaint only to spare B.L.K. the unnecessary trauma of recounting the sexual assaults at the preliminary examination. The State contends counts two through five were properly included in the information pursuant to sec. 971.01(1), Stats., and Bailey because those counts were "not wholly unrelated" to the transactions or facts considered or testified to at Burke's preliminary examination. ⁴ We agree with the State and reverse.

Prosecutors in Wisconsin are afforded broad discretion for purposes of determining whether to bring charges against a defendant and initiate criminal proceedings. State v. Hooper, 101 Wis.2d 517, 532, 305 N.W.2d 110 (1981). A prosecutor's discretion is not without bounds, however, and may be limited by the legislature. State ex rel. Kurkierewicz v. Cannon, 42 Wis.2d 368, 378-79, 166 N.W.2d 255 (1969).

Burke contends sec. 971.01(1), Stats., prohibits the State from charging counts two through five in the information. Burke argues the statute requires that sufficient evidence must be presented at the preliminary examination to support a probable cause finding for each separate count in the information. The charging of the additional counts in the information was an abuse of prosecutorial discretion, Burke asserts, because there was no direct evidence concerning those counts presented at the preliminary examination.

Section 971.01(1), Stats., provides:

Filing of the information. (1) The district attorney shall examine all facts and circumstances connected with any preliminary examination touching the commission of any crime if the defendant has been bound over for trial and, subject to s. 970.03(10), shall file an information according to the evidence on such examination subscribing his name thereto.

At issue is the meaning of the language "according to the evidence on such examination" in sec. 971.01(1), Stats. The interpretation of a statute is a question of law which this court may review without deference to the lower courts. State v. Sher, 149 Wis.2d 1, 8, 437 N.W.2d 878 (1989).

Section 971.01(1), Stats., and its predecessors have often been considered by this court. Early decisions involved primarily single-offense transactions and held a prosecutor was not bound in the information to charging the same offense charged in the complaint. See, e.g., Porath v. State, 90 Wis. 527, 534, 63 N.W. 1061 (1895); Thies v. State, 178 Wis. 98, 105, 189 N.W. 539 (1922); Faull v. State, 178 Wis. 66, 69-70, 189 N.W. 274 (1922); Mark v. State, 228 Wis. 377, 384, 280 N.W. 299 (1938).

In two subsequent decisions involving multiple-offense transactions, State v. Fish, 20 Wis.2d 431, 122 N.W.2d 381 (1963), and Bailey, this court extended the early rule in a manner which proves controlling here. In Fish, this court stated a prosecutor may in the information "allege acts in addition to those advanced on preliminary hearing so long as they are not wholly unrelated to the transactions or facts considered or testified to at the preliminary." Fish, 20 Wis.2d at 438, 122 N.W.2d 381 (Emphasis added). In Bailey, this court stated:

In our view, sec. 970.03(10), Stats., does not prohibit a prosecutor from including in the information, once a defendant has been bound over, charges in addition to those advanced at the preliminary hearing, "so long as they are not wholly unrelated to the transactions or facts considered or testified to at the preliminary." This view is consistent with the legislative statement in sec. 970.03(1), that a preliminary hearing is held "... for the purpose of determining if there is probable cause to believe a felony has been committed by the defendant." Once it is determined that the defendant should be bound over for trial on at least one count, the purpose of the preliminary has been satisfied and the prosecutor may, in his discretion, allege such other offenses as permitted by the limitation stated above.

In this case, even assuming there was no evidence presented as to them at the preliminary, it is clear that the sex-related offenses, counts 2, 3 and 4, were not "wholly unrelated" to the murder count. They are related in terms of parties involved, witnesses involved, geographical proximity, time, physical evidence, motive and intent.

Bailey, 65 Wis.2d at 341, 222 N.W.2d 871 (Citations omitted; emphasis added).

Fish and Bailey hold that in a multiple-offense transaction case, once the defendant has been bound over for trial on at least one count relating to the transaction, the prosecutor may in the information charge additional counts not wholly unrelated. Bailey further establishes that direct evidence relating to the additional counts need not have been presented at the preliminary examination....