State v. O'Connor

• Decision Date: 19 April 1977
• Docket Number: No. 75-579-CR,75-579-CR
• Citation: 77 Wis.2d 261,252 N.W.2d 671
• Parties: STATE of Wisconsin, Respondent, v. Walter F. O'CONNOR, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 671

252 N.W.2d 671

77 Wis.2d 261

STATE of Wisconsin, Respondent, v. Walter F. O'CONNOR, Defendant-Appellant.

No. 75-579-CR.

Supreme Court of Wisconsin.

Argued Jan. 5, 1977.

Decided April 19, 1977.

Melvin Kie Washington, Asst. Atty. Gen., with whom on the brief was Bronson C. La Follette, Atty. Gen., for respondent.

David J. Cannon, Milwaukee, for defendant-appellant.

ABRAHAMSON, Justice.

In a complaint filed July 10, 1975, defendant Walter F. O'Connor was charged with two counts of violating sec. 221.40, Stats. ¹ The first count alleged in substance that on or about November 1, 1972, the defendant, while he was president of the Algoma Bank, Algoma, Wisconsin, received for himself from Camp Dells, Inc., the sum of $6,000 in consideration of the Bank's lending money to Camp Dells. The second count alleged that on or about August 23, 1973, the defendant similarly received $6,000 from Eric H. Zellmer and William K. Pankow, again in consideration of the Algoma Bank's lending money to those individuals. The case was tried to a jury and the defendant was found guilty on both counts.

This case was prosecuted by personnel of the Wisconsin Department of Justice, which had earlier conducted a secret John Doe investigation pursuant to sec. 968.26, Stats., ² into the affairs of Recreation International, Inc., a Minnesota corporation, and numerous other businesses and individuals associated therewith. ³ Evidence of the crimes of which defendant O'Connor stands convicted was produced at the John Doe investigation, and the complaint against defendant was in part based upon that evidence. On its face the complaint reveals that the complainant, Special Agent Dale A. Laine of the Wisconsin Department of Justice, Division of Criminal Investigation, had been present at the John Doe investigation and had read portions of the transcript of testimony taken thereat. The John Doe investigation had been held in Dane county before the Hon. William F. Eich, County Judge, while the complaint against defendant was filed in Milwaukee county court and a warrant for his arrest was issued by a Milwaukee county court commissioner.

Before the trial the defendant was informed by the prosecutor that the State intended to introduce certain evidence of other conduct of the defendant similar to the crimes charged pursuant to sec. 904.04(2), Wisconsin Rules of Evidence. On the morning of October 31, 1975, the third day of the trial, the prosecutor informed defense counsel that additional evidence of this type would be introduced through the testimony of Jeffrey DeGayner, who had only agreed to testify for the State the preceding evening. Defense motions seeking to prevent DeGayner from testifying and seeking a continuance on the ground of surprise were denied, and DeGayner was allowed to testify on November 3, 1975, following the weekend recess. The trial court had been provided with an affidavit of the prosecutor outlining the circumstances under which DeGayner had decided to testify at such a late date and with a copy of a signed statement given by DeGayner on October 31, 1975. DeGayner's statement related that O'Connor had been trying since July, 1975, to convince him either not to testify against O'Connor or to give a false explanation of the purpose of certain checks DeGayner had given to O'Connor. A copy of this statement, which also included the "other crimes" evidence which DeGayner would supply, was given to defense counsel as well as to the trial court on the morning of October 31, 1975.

The Algoma Bank failed subsequent to the crimes here involved. At the time of trial its affairs were in the hands of a liquidator acting for the Federal Deposit Insurance Company.

Defendant raises the following issues on this appeal:

1. Where a criminal complaint is based in part upon John Doe testimony, does the John Doe statute require that only the judge presiding over the John Doe investigation may determine whether the complaint shows probable cause?

2. Did the presence of a special agent of the Department of Justice at the John Doe proceeding or his access to the record thereof violate the secrecy provisions of the John Doe statute, sec. 968.26, Stats., and invalidate the complaint?

3. At the trial, did the court abuse its discretion in refusing to exclude the testimony of Jeffrey DeGayner on grounds of surprise or, in the alternative, grant a continuance?

4. Was the evidence sufficient to support the verdict?

5. Did the trial court have erroneous information before it when it determined to impose restitution as a condition of probation?

I.

The John Doe statute, sec. 968.26, Stats., provides in part "If it appears probable from the testimony given that a crime has been committed and who committed it, the complaint shall be reduced to writing and signed and verified; and thereupon a warrant shall issue for the arrest of the accused."

Defendant contends that by force of this provision only Judge Eich was authorized to determine whether the complaint against him stated probable cause. "For all we know," he asserts, "Judge Eich may have determined there was no probable cause after hearing all the testimony." His conclusion is that the procedure employed in this case, by which the complaint was sworn before a Milwaukee court commissioner who thereafter issued a warrant for defendant's arrest, was invalid. We disagree.

The factual basis of the complaint herein consists in part of the complainant's recitation of the substance of evidence presented in the Dane county John Doe. However, a substantial part of the complainant's information appears to have come from other sources: interviews with witnesses and examination of records and documents of several types. The complaint was sworn before a court commissioner in Milwaukee county and a warrant for defendant's arrest was issued. Defendant does not dispute that the complaint stated probable cause to believe him guilty of the crimes charged. Nor does defendant dispute that the procedures followed in respect to this complaint were in full compliance with secs. 968.01-968.04, Stats., which set forth the procedure for issuing complaints in criminal cases.

The cited provision of the John Doe statute does not require the conclusion defendant would draw. The statute directs that the complaint be reduced to writing and that a warrant be issued thereon if probable cause appears from the testimony. It does not specify that only the John Doe judge may perform these tasks. Clearly the John Doe judge may not issue a warrant upon a record that fails to show probable cause, but the statute does not state, either expressly or by reasonable implication, that if probable cause does not appear from the John Doe testimony no criminal action may ever be begun against an accused. If evidence adduced in the John Doe investigation together with information obtained by the authorities from other sources amounts to probable cause, we see no reason why a criminal action may not be initiated by means of a complaint filed with and a warrant issued by any judge or court commissioner having jurisdiction to act in the case. Even if it were true, as defendant hypothesizes, that Judge Eich did not believe probable cause had been shown in the John Doe, this fact alone would not bar charging the defendant with the crime.

The authority of judges and court commissioners to act upon criminal complaints appears in secs. 967.02(6), 968.03 and 968.04, Stats. It is suggested by the State that Judge Eich was in fact precluded from acting with respect to a complaint against this defendant because he is a county judge for Dane county and the offenses herein were not committed in that county. Sec. 968.02(1), states, with an exception not here material, that a complaint "shall be issued only by a district attorney of the county where the crime is alleged to have been committed." Sec. 968.04(1)(b) provides:

"A warrant or summons may be issued by a judge in another county when there is no available judge of the county in which the complaint is issued. The warrant shall be returnable before a judge in the county in which the offense alleged in the complaint was committed . . . ."

We find it unnecessary to decide here whether a valid warrant could have been issued by Judge Eich in this case. We hold only that the statutory jurisdiction of the Milwaukee county court commissioner who issued the warrant for defendant's arrest was not impaired by the fact that the complaint was based upon evidence adduced in a John Doe proceeding.

II.

Defendant contends that Special Agent Laine's presence at the John Doe investigation was improper in that it was a violation of the secrecy which the statute permits the judge to invoke (and which the judge did invoke here) and that Laine's access to transcripts of John Doe testimony violated the related provision of sec. 968.26, Stats., limiting inspection of the record of such proceedings. We consider first the threshold question whether, assuming arguendo that violations of secrecy have occurred, there has been under the circumstances any wrong of which this defendant may be heard to complain. We answer this question in the negative.

A criminal complaint is defined by statute to be "a written statement of the essential facts constituting the offense charged." Sec. 968.01, Stats. The complaint must charge a crime under the law, must describe the conduct alleged to constitute the offense, and must contain sufficient facts to persuade a neutral and detached magistrate that the charged crime has probably been committed by the accused. State v. Williams, 47 Wis.2d 242, 251, 177 N.W.2d 611 (1970); State v. Haugen, 52 Wis.2d 791, 191 N.W.2d 12 (1971); State ex rel. Cullen v. Ceci, 45 Wis.2d 432, 173 N.W.2d 175 (1970). It is not contended that the complaint in the instant case is defective in any of these respects. Nor does defendant claim either the state or the John Doe judge violated his...