State v. Cassel, S
| Decision Date | 03 November 1970 |
| Docket Number | No. S,S |
| Citation | 48 Wis.2d 619,180 N.W.2d 607 |
| Parties | STATE of Wisconsin, Respondent, v. Earl L. CASSEL, Appellant. tate 84. |
| Court | Wisconsin Supreme Court |
On November 14, 1968, Earl L. Cassel was convicted by a jury of endangering safety by conduct regardless of life in violation of sec. 941.30, Stats., and was sentenced to an indeterminate term of imprisonment not exceeding two years. He appeals from the judgment of conviction and from the order denying a new trial.
J. Curtis McKay, James M. LaPointe, Cedarburg, for appellant.
Robert W. Warren, Atty. Gen., Madison, E. Michael McCann, Milwaukee County Dist. Atty., Joseph Wilson, Asst. Dist. Atty., Milwaukee, for respondent.
Cassel raises four issues on this appeal: (1) Did the trial court abuse its discretion in refusing to allow the defense to recall the key prosecution witness for further cross-examination; (2) did the trial court err in denying the defense's motion for a mistrial; (3) was the evidence sufficient to sustain the jury's verdict of conviction; and (4) should a new trial be granted in the interest of justice?
According to Cassel's testimony, he was on parole on the evening of April 12, 1968, and was engaged in drinking with his cousin at his sister's house in Milwaukee. Without Cassel's knowledge during the course of the evening, his cousin put a .22 caliber hand gun under the driver's seat of his cousin's automobile. About 2 a.m. on April 13, Cassel had his cousin left his sister's residence and went to a tavern on North Avenue to obtain more beer. They parked the car behind the tavern and his cousin went into the building to purchase the beer from the bartender who lived above the tavern. While the cousin was gone, Cassel noticed the pistol lying on the floor of the car and picked it up to examine it. It discharged, cracked the horn ring of the car and the windshield.
Daniel Hundt, a police officer on patrol near the tavern, testified he heard a noise in the alley behind the tavern and upon investigation saw Cassel standing near the car with a pistol in his hand. He ordered Cassel away from the car and he attempted to flee. Hundt ordered him to stop or he would shoot. At this point, Cassel allegedly whirled, firing a shot and kept on running. The officer returned the fire with two shots from his revolver. Cassel claims he attempted to elude the officer because of his parole status and did not shoot at Hundt.
Refusal to Allow Recall of Prosecution Witness.
During the trial the prosecution called Officer Hundt, the cousin and an uncle of Cassel. After the prosecution rested and after the defense had called a few preliminary witnesses, Cassel's counsel attempted to recall Officer Hundt for further examination. The state objected and the court refused to allow further cross-examination on the ground that Richards v. State (1892), 82 Wis. 172, 51 N.W. 652, prohibited such procedure and that Cassel's attorney had stated at the conclusion of his cross-examination of Hundt that he had no further questions to ask of the witness. The Richards Case is not in point; this is conceded by both sides. All Richards held was that one cannot impeach his own witness.
However, after an attorney has stated to the court he has no further questions of an adverse witness, he may nevertheless have a limited right to recall such witness if he has good reason to do so. The exercise of such right, however, is subject to the discretion of the trial court. 3 Wigmore, Evidence, (3rd ed.), pp. 720, 721, sec. 1036; 3 Wharton's, Anderson, Criminal Evidence, (12th ed.), p. 341, sec. 917. Here, defense counsel stated as such a reason that he would 'be pursuing him to determine whether or not his veracity as a witness truly reflects itself; and if it does not, I think it should be brought to the attention of the jurors.' In his brief, Cassel's counsel states the reason for the recall was to lay a foundation for impeachment, but we do not find this is clear in the record as that reason is generally understood.
After an attorney has excused an adverse witness from cross-examination, he has no right to recall such witness to continue general cross-examination and that is all this record shows Cassel's counsel proposed to do. The record indicates counsel intended to engage in a fishing expedition to find some evidence for impeachment, not to lay a specific ground for the use of impeachment evidence. If counsel had disclosed the fact, if it were a fact, that he had evidence which he would lose because he had inadvertently omitted to cross-examine the witness to lay a foundation for its use, the trial court would be obliged to allow the recall of the witness for such purpose.
In Perkins v. State (1891), 78 Wis. 551, 47 N.W. 827, we held it was an abuse of discretion for a trial court not to allow further examination when the party requesting the recall had attempted to impeach the witness during his original cross-examination but failed to prove the precise out-of-court statement which would have laid the foundation for impeachment. And more recently in Sipero v. State (1969), 41 Wis.2d 390, 164 N.W.2d 230, we extended this rationale and held it an abuse of discretion not to allow the defense to recall a prosecution witness which it sought to impeach even though counsel had neglected to lay a proper foundation to impeach the witness during the initial cross-examination. While other areas of impeachment were explored, the defendant did not lay a proper foundation for the impeaching evidence he offered to prove and he would lose the use of evidence having some value to him if he could not recall the witness.
That is not the case here and without some indication of the foundation for impeachment, the trial court did not abuse its discretion in not allowing the recall of the witness for further cross-examination.
During the trial Cassel, while being transferred from the courtroom to the jail, was by some jurors seen handcuffed and chained. These incidents occurred in a hall near a tunnel in the courthouse or near the courthouse but outside the courtroom. These views, it is claimed, prejudiced the jury and the court should have granted a motion for a new trial and, failing to do so, should have sua sponte instructed the jury to disregard the incident.
The question here presented is whether a view by some members of the jury of the accused in chains and handcuffs outside the courtroom should be treated as such a view in the courtroom by the jury. We think not. In Sparkman v. State (1965), 27 Wis.2d 92, 96, 133 N.W.2d 776, this court followed the general rule phrased in Way v. United States (10th Cir., 1960), 285 F.2d 253, 254, that a defendant during the trial of a criminal case should not be in shackles, manacles or handcuffs because such freedom was 'an important component of a fair and impartial trial.' The opinion explained that the evil sought to be avoided was a creation of prejudice in the minds of the jury before whom the defendant is tried. Prejudice is likely to be engendered psychologically by view of a man presumed to be innocent in the chains and handcuffs...
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