State v. Cummings
| Decision Date | 01 April 1996 |
| Docket Number | Nos. 93-2445-C,94-0218-CR,s. 93-2445-C |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Leon O. CUMMINGS, D.D.S., Defendant-Appellant. STATE of Wisconsin, Plaintiff-Respondent, v. Thomas NEWTON, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
Appeal from Circuit Court, Sheboygan/Manitowoc County, John B. Murphy/Fred H. Hazlewood, Judges.
93-2445-CR: For the defendant-appellant there were briefs by Dean A. Strang, Craig W. Albee and Shellow, Shellow & Glynn, S.C., Milwaukee, and oral argument by Dean A. Strang.
For the plaintiff-respondent the cause was argued by Barbara Oswald, Assistant Attorney General, with whom on the brief was Diane M. Nicks, Barbara Oswald and James E. Doyle, Attorney General.
94-0218-CR: For the defendant-appellant there were briefs by Norman L. Goeschko and Love, Voss, Murray & Goeschko, Waukesha and oral argument by Norman L. Goeschko.
For the plaintiff-respondent the cause was argued by Barbara Oswald, Assistant Attorney General, with whom on the brief was Sharon Ruhly, Assistant Attorney General and James E. Doyle, Attorney General.
These cases were consolidated by the court of appeals and certified to this court pursuant to Wis.Stat. § 809.61 (1993-94). Although each case is factually dissimilar, we accepted certification in order to collectively address questions concerning the interpretation of Wis.Stat. § 968.26 (1993-94), 1 the statute authorizing Wisconsin's John Doe proceeding.
There are four issues regarding the John Doe proceeding before this court: (1) does a John Doe judge have the power to issue a search warrant; (2) does a John Doe judge have the power to seal a search warrant; (3) may a district attorney, pursuant to Wis.Stat. § 968.02 (1993-94), 2 issue a criminal complaint to a defendant prior to the conclusion of a John Doe proceeding involving that defendant; and (4) what limits are there in the use of a John Doe proceeding by the district attorney once an information has been filed against the defendant. Furthermore, defendant Newton raises various constitutional challenges relating to his Sixth Amendment right to assistance of counsel.
We hold that a John Doe judge may issue and seal a search warrant under appropriate circumstances and that a district attorney may independently issue a criminal complaint regardless of the existence of a John Doe proceeding involving the defendant. We also reaffirm our holding in State v. Washington, 83 Wis.2d 808, 266 N.W.2d 597 (1978), that a John Doe proceeding cannot be used to obtain evidence against a defendant for crimes with which that defendant has already been charged. Finally, we dismiss defendant Newton's Sixth Amendment challenges.
The facts are not in dispute in either case. The initial complaint against defendant Leon Cummings was made to the Sheboygan County Human Social Services Department in April 1991. The complainant, Holly Jean Bartz, was concerned that the defendant, a dentist, was defrauding her 75-year-old aunt, LuEllen Kolk. Mrs. Bartz reviewed her aunt's accounts and allegedly discovered that the defendant charged her aunt more than $55,000 during a three-year period for relatively minor dental work. Mrs. Bartz then examined the defendant's records and apparently found that the defendant's accounting ledgers indicated "NC" (no charge) for appointments for which her aunt had issued a check. Even more suspicious was that these checks had supposedly been endorsed and cashed by the defendant personally rather than having been deposited into the dental office business account.
A petition for a John Doe proceeding was filed by the State on December 17, 1991. The order finding good cause for the John Doe and granting the State's petition for secrecy was signed by Judge Edward Stengel, Sheboygan County Circuit Court, on December 18, 1991. In addition, a search warrant was issued for the records of the defendant on December 18, 1991. Each of these documents was signed by Judge Stengel who identified himself as "Circuit Court, Branch # 1." On December 19, 1991, another order was issued by Judge Stengel, "Circuit Court Branch # 1," sealing all of the search warrant documents subject to the conditions set forth in the order of secrecy. The search warrant was executed on December 18 or 19, 1991, and was returned and filed with the clerk of courts on December 19, 1991. A preliminary inventory was filed on December 20, 1991, while a more detailed inventory was filed on December 26, 1991.
The defendant was charged with four counts of theft by fraud on January 8, 1993, by the district attorney. The complaint resulted from information received from numerous sources, including two victims, Patricia Luedtke and LuEllen Kolk, several employees of the defendant, two dentists, the investigator who reviewed the defendant's office records, agents of the Wisconsin Department of Regulation and Licensing and the State Bank of Howard Grove. It is undisputed that the criminal complaint's factual basis consisted entirely of information obtained independently from and without recourse to the John Doe proceeding.
The defendant moved to dismiss the complaint on the grounds that the John Doe procedure had been abused. The Sheboygan County Circuit Court, Judge John B. Murphy, denied this motion finding that a John Doe had never actually commenced. The defendant then moved to suppress the evidence obtained as a result of the search warrant on the grounds that the sealing of the warrant was improper. The court also denied this motion finding that, although there was no authority for sealing the warrant documents, the defendant's remedies did not include suppression since any error caused by the seal was harmless.
Defendant Thomas Newton was arrested on December 1, 1991. This arrest was based upon evidence discovered through a search warrant issued by Manitowoc County Circuit Court, Judge Allan J. Deehr, on the morning of December 1. A John Doe proceeding was not commenced until December 5. The defendant was charged at his arraignment on December 9 with the possession of cocaine with the intent to deliver, failure to pay a drug tax, possession of drug paraphernalia and possession of THC. All of these charges were based upon evidence discovered through the initial search warrants issued before the commencement of the John Doe proceeding.
The defendant filed a motion to dismiss the complaint on September 9, 1992, alleging that the State's improper use of the John Doe proceeding resulted in a lack of competency in the circuit court. Circuit Court Judge Fred H. Hazlewood, Manitowoc County, denied the motion on September 17 for lack of timeliness.
Both defendants appealed the decisions of the circuit courts. The court of appeals consolidated the cases and requested certification by this court. This court accepted certification on February 21, 1995, in order to clarify the roles and delineate the authority of both judges and prosecutors in a John Doe proceeding. These are questions of statutory interpretation which this court reviews de novo without deference to the circuit court or court of appeals. See Eby v. Kozarek, 153 Wis.2d 75, 79, 450 N.W.2d 249 (1990).
The first case, State v. Cummings, presents questions regarding the ability of a John Doe judge to issue and seal a search warrant. 3 Defendant first argues that a John Doe judge does not have the power to issue a search warrant since such power is not explicitly granted in the John Doe statute. However, since the authority to issue a search warrant is conferred upon all judges independently by Wis.Stat. § 968.12, 4 the John Doe statute need not specifically mention the issuance of search warrants for a John Doe judge to have such power. Furthermore, statutes should be interpreted in a manner which support their underlying purpose. See State v. Swatek, 178 Wis.2d 1, 6-7, 502 N.W.2d 909 (Ct.App.1993). This court has repeatedly held that the John Doe proceeding was designed as an investigatory tool to be used as an "inquest for the discovery of crime." Washington, 83 Wis.2d at 822, 266 N.W.2d 597. Denying John Doe judges the ability to issue search warrants would seriously reduce the investigatory power of the John Doe proceeding.
Next, defendant asserts that a John Doe judge does not have the authority to seal a search warrant. 5 It is true that there is no statutory authority in Wisconsin granting judges this ability. However, a John Doe judge has been granted jurisdiction, the legal right to exercise its authority, pursuant to Wis.Stat. § 968.27. A grant of jurisdiction by its very nature includes those powers necessary to fulfill the jurisdictional mandate.
The statutory jurisdiction of a John Doe judge has been defined as the authority of the judge to conduct a John Doe investigation. See In re Wis. Family Counseling v. State, 95 Wis.2d 670, 676, 291 N.W.2d 631 (1980). "From a relatively early date ... the jurisdiction conferred upon [John Doe judges] was adapted to serve a broader investigatory purpose." Washington, 83 Wis.2d at 820, 266 N.W.2d 597. In fact, the function of the John Doe proceeding has almost always been to "ascertain whether [a] crime has been committed and by whom...." Wolke v. Fleming, 24 Wis.2d 606, 613, 129 N.W.2d 841 (1964). This court has recognized that at many times it is desirable for this function to be carried out in secrecy, see, e.g., State ex rel. Newspapers Inc. v. Circuit Court for Milwaukee County, 65 Wis.2d 66, 72, 221 N.W.2d 894 (1974), and has identified a number of reasons why such secrecy is vital to the very effectiveness of the John Doe proceeding. These include: (1) keeping knowledge from an unarrested defendant which could encourage escape; (2) preventing the defendant from collecting perjured testimony for the trial; (3) preventing those interested in thwarting the inquiry from tampering with prosecutive testimony or...
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