State v. Camara

• Decision Date: 05 October 1965
• Citation: 28 Wis.2d 365,137 N.W.2d 1
• Parties: STATE of Wisconsin, Respondent, v. Carlos Manuel CAMARA, Appellant.
• Court: Wisconsin Supreme Court

Page 1

137 N.W.2d 1

28 Wis.2d 365

STATE of Wisconsin, Respondent, v. Carlos Manuel CAMARA, Appellant.

Supreme Court of Wisconsin.

Oct. 5, 1965.

Robert L. Habush, Milwaukee, James M. Shellow, Shellow & Shellow, Milwaukee, of counsel, for appellant.

Bronson C. La Follette, Atty. Gen., William A. Platz, Asst. Atty. Gen., Madison, Hugh R. O'Connell, Dist. Atty., David E. Leichtfuss, First Asst. Dist. Atty., Milwaukee, for respondent.

BEILFUSS, Justice.

Appellant raises only two issues on this appeal: (1) invalid denial of the preliminary examination, and (2) illegal search.

It is well established under Wisconsin law that the right to a preliminary examination is not a constitutional right, but a statutory right. State v. Strickland (1965), 27 Wis.2d 623, 633, 135 N.W.2d 295; State ex rel. Offerdahl v. State (1962), 17 Wis.2d 334, 336, 116 N.W.2d 809; Thies v. State (1922), 178 Wis. 98, 103, 189 N.W. 539.

Appellant contends, however, that he has met the requirements under the statute, ¹ and that denial of the preliminary examination was error. The statute is couched in language conveying discretion to the trial judge. Thus, the trial court is not obliged to remand upon defendant's unsubstantiated allegations alone. But the appellant argues that permissive language is in fact mandatory when the statutes '* * * provide for the doing of acts or the exercise of power or authority by public officers, and private rights or the public interest require the doing of such acts or the exercise of such power or authority, * * *.' 3 Sutherland, Statutory Construction (3d ed.), p. 86, sec. 5808. Appellant cites City of Wauwatosa v. Milwaukee County (1963), 22 Wis.2d 184, 191, 125 N.W.2d 386, in support of this rule.

A close reading of the rule and the cases indicates that the rule is designed for application when the statute reads 'may,' or contains some other permissive term. This statute reads '* * * the trial court may in its discretion * * *.' That the rule does not apply to a statute made expressly permissive by plain language appears in the Wauwatosa Case: '* * * Generally in construing statutes, 'may' is construed as permissive and 'shall' is construed as mandatory unless a different construction is demanded by the statute in order to carry out the clear intent of the legislature. * * *' (22 Wis.2d p. 191, 125 N.W.2d p. 389) Furthermore, the Wauwatosa Case must be distinguished upon the ground that it deals with administrative duties of municipal officers and not judicial discretion of a court. One can scarcely imagine language which more clearly spells out the intent of the legislature that the judge have discretion on the remand.

Since the remand is discretionary, we must determine whether or not that discretion was abused. While the exercise of discretion by the trial court must be grounded on some rational basis, the general rule is that an appellate court will not reverse the trial court unless an abuse of discretion is found. Estate of Korleski (1964), 22 Wis.2d 617, 622, 126 N.W.2d 492. The supreme court cannot substitute its discretion for that of the trial court. Estate of Korleski, supra; In re Johnson (1960), 9 Wis.2d 65, 75, 100 N.W.2d 383.

The trial court had before it the uncontradicted statement of the district attorney that the defendant had had considerable experience before his court, and other courts, which was unsupported by affidavits, the statement of defendant's counsel that he needed the preliminary examination to adequately prepare for trial, and defendant's handwritten affidavit of prejudice. Upon these facts the trial court concluded that defendant's waiver of the preliminary examination was made intelligently. This decision, while not elaborately explained in the record, was not an abuse of discretion.

While a court may not take judicial notice of its records of convictions or appearances by the particular defendant before it for purposes of creating a 'bad man' inference in determining guilt or innocence, the court may take judicial notice of its own records for purposes of creating an inference that the defendant is familiar with the procedure of that particular court. This inference bears on the issue of intelligent waiver. The trial court did not indicate in the record that it was taking judicial notice, but we conclude that that was the basis of the trial court's ruling.

In Thies v. State, supra, 178 Wis. at p. 103, 189 N.W. 539, 541, this court stated the historical purposes for a preliminary examination:

'The object or purpose of the preliminary investigation is to prevent hasty, malicious, improvident, and oppressive prosecutions, to protect the person charged from open and public accusations of crime, to avoid both for the defendant and the public the expense of a public trial, and to save the defendant from the humiliation and anxiety involved in public prosecution, and to discover whether or not there are substantial grounds upon which a prosecution may be based.'

Nowhere in any decided case of which we are aware is discovery by the defendant given as a reason for the existence of the preliminary examination. Discovery, however, may be one of the valuable by-products of a preliminary examination from the defendant's point of view. Thus, the trial court could have inferred that defendant sought the preliminary examination not to avail himself of one of its traditional purposes, but to obtain discovery from the state, and that the statement by counsel was a concession by defendant that probable cause to hold him for trial did exist. Defendant's desire to prepare for trial indicates his belief that he would be bound over upon a finding of probable cause.

Finally, defendant's affidavit of prejudice in proper form indicates that the defendant was quite familiar with criminal law and procedure. From this combination of factors the trial court could infer that defendant intelligently waived his preliminary examination, and that he did not seriously contend that there was a lack of probable cause.

Appellant contends that the search of his premises was illegal because not incidental to a valid arrest. For a search incidental to an arrest to be legal the arrest itself must be legal, and for the arrest to be legal probable cause for the arrest must exist. Ker v. State of California (1963), 374 U.S. 23, 34, 35, 83 S.Ct. 1623, 10 L.Ed.2d 726; Carroll v. United States (1925), 267 U.S. 132, 155, 156, 45 S.Ct. 280, 69 L.Ed. 543.

'Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed.' Henry v. United States (1959), 361 U.S. 98, 102, 80 S.Ct. 168, 171, 4 L.Ed.2d 134.

'Probable cause to arrest refers to that quantum of evidence which would lead a reasonable police officer to believe that the defendant probably committed a crime.' Browne v. State (1964), 24 Wis.2d 491, 129 N.W.2d 175, 131 N.W.2d 169.

The quantum of evidence required to establish probable cause is less than that which would justify conviction. United States v. Ventresca (1965), 380 U.S. 102, 107, 85 S.Ct. 741, 13 L.Ed.2d 684; Draper v. United States (1959), 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed....