State v. Chacon
| Decision Date | 02 February 1971 |
| Docket Number | No. S,S |
| Citation | 50 Wis.2d 73,183 N.W.2d 84 |
| Parties | STATE of Wisconsin, Respondent, v. Ernesto CHACON, Ruth LaVerne Pollard, and Jose Puente, Appellants. tate 142. |
| Court | Wisconsin Supreme Court |
On March 11, 1970, the defendants Ernesto Chacon, Ruth LaVerne Pollard, and Jose Puente were convicted in the county court of disorderly conduct contrary to sec. 947.01(1), Stats., and of criminal damage to property contrary to sec. 943.01(1), Stats. They received 90 days sentences on each charge to be served consecutively by Chacon and Puente but concurrently by Pollard. On appeal to the circuit court, the convictions and sentences were affirmed, and the defendants appeal.
Robert J. Lerner, Milwaukee, for appellants.
Robert W. Warren, Atty. Gen., William A. Platz and Thomas J. Balistreri, Asst. Attys. Gen., Madison, E. Michael McCann, Milwaukee County Dist. Atty., Milwaukee, for respondent.
Although this is the second review of the judgments of conviction, the rules on appeal are the same as if the first appeal were direct to this court. City of Madison v. Geier (1965), 27 Wis.2d 687, 135 N.W.2d 761. Nor will we retry the case on the record to see if each member of this court is convinced of the guilt of the defendants beyond a reasonable doubt. Kopacka v. State (1964), 22 Wis.2d 457, 126 N.W.2d 78; State v. Johnson (1960), 11 Wis.2d 130, 104 N.W.2d 379; Parke v. State (1931), 204 Wis. 443, 235 N.W. 775.
The defendants contend the credible evidence is insufficient to sustain the court's finding of guilt, but we find no merit in this argument. It was sufficiently proved by the state that the three defendants pushed a police officer through a plate glass door of Chapman's Department Store on Wisconsin avenue in Milwaukee on January 26th, 1970, while a large group of persons were marching on Wisconsin avenue to protest a reduction in welfare payments. A disturbance had broken out at the Boston Store on Wisconsin avenue, several blocks away, during which some of the demonstrators attempted to attack the police. At Chapman's six or seven demonstrators with Chacon and Puente in the lead rushed one of the entrances but were repelled by the police. Again, with Chacon and Puente in the lead and Pollard in the front row, a second charge was made which pinned Patrolman Donald Ervin against the plate glass door and smashed him through the plate glass. The three defendants fell through the broken door on top of the police officer and other officers arrested them.
The defendants raise inconsequential details in the testimony and the failure to prove immaterial points, but the main thrust of their argument is that the trial court did not believe their testimony. This is an ordinary case of conflicting testimony. There is nothing in the nature of the testimony of the police which renders it inherently incredible. Nor was the testimony self-contradictory. Unless this court can say as a matter of law the police testimony was inherently incredible, we are bound by it because the testimony was accepted by the trial court. Since the trial court had the right to accept the testimony of the police and reject the testimony of the defendants, this court on appeal is to determine only whether the trial court acting reasonably could be convinced beyond a reasonable doubt by the evidence it thought credible. State v. Johnson, supra,; Lock v. State (1966), 31 Wis.2d 110, 142 N.W.2d 183; State v. Cassel (1970), 48 Wis.2d 619, 180 N.W.2d 607.
We think the credible evidence is sufficient to convince the trier of the fact of the guilt of these defendants beyond a reasonable doubt. It is quite true that if the testimony of the defendants were believed, a reasonable hypothesis consistent with their innocence would be established; but that is not the test. All the credible evidence must be reconciled or some testimony must be rejected as incredible. Here, the trial court rejected the defendants' evidence, which it had a right to do.
The trial court did not shift the burden of proof by commenting on the defendants' failure to rebut the testimony of Patrolman Anthony. The judge was talking about the defendants' burden to go forward with the evidence, not the burden to convince. Nor did this comment show any doubt of the guilt of the defendants on the part of the judge. A judge frequently comments upon the evidence and its strength and weakness. While a similar argument was successfully made against the same judge in Meyer v. State (1964), 25 Wis.2d 418, 130 N.W.2d 848, we think the comments here involved no uncertainty by the trial court as to guilt.
At the close of the state's rebuttal, the defendants moved for the production of the other police officers who were at the scene when the offense occurred so the defendants could question these officers to ascertain whether their testimony would corroborate the defendants' defense. It is also claimed the failure of the district attorney to determine whether any of these officers could testify in favor of the defendants constitutes reversible error, citing as authority Brady v. Maryland (1963), charged; * * *' Barbee v. Warden, Maryland Penitentiary (4th Cir., 1964), 331 F.2d 842; Jackson v. Wainwright (5th Cir., 1968), 390 F.2d 288. The defendants misread these cases; while they do hold the state cannot suppress evidence favorable to the defendants, they do not hold it is the state's duty to conduct a discovery examination for a defendant. Here, there is no claim the district attorney knew the names or the content of the testimony other officers might give; consequently, the district attorney could hardly be suppressing evidence.
What the defendants expected to do during this trial was to conduct a discovery examination--to go on a fishing expedition. At the time of their request, the defendants knew the names of some of the other officers and sufficient identity of others to enable them to call such officers, if they wished.
Prior to July 1, 1970, and at the time this case was tried, a defendant had no right to pretrial discovery of prosecution evidence. Santry v. State (1886), 67 Wis. 65, 30 N.W. 226; State v. Miller (1967), 35 Wis.2d 454, 151 N.W.2d 157. 1 It has been held that the state could not be required to produce at a pretrial conference all the witnesses' statements taken. Ramer v. State (1968), 40 Wis.2d 79, 87, 161 N.W.2d 209. Nor was the state obligated to produce at trial every possible witness to the commission of the alleged crime. Dillon v. State (1909), 137 Wis. 655, 119 N.W. 352; Brown v. State (1965), 28 Wis.2d 383, 137 N.W.2d 53. Whether these cases are still valid is not now before us.
In their last argument, the defendants urge that upon the evidence presented the...
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Dumer v. State
...of a request therefore because 'the constitution imposes no duty upon the state to produce unrequested documents.' State v. Chacon (1971), 50 Wis.2d 73, 76, 77, 183 N.W.2d 84, held the state is not required to conduct a discovery examination for the defendant. In State v. Cole (1971), 50 Wi......
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...evidence favorable to [a defendant, it is not] the state's duty to conduct a discovery examination for a defendant." State v. Chacon, 50 Wis.2d 73, 183 N.W.2d 84, 86 (1971). "Brady does not impose on the prosecution a general duty to help the defense find witnesses who might be favorable to......
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