State v. Doe, 75-174

CourtUnited States State Supreme Court of Wisconsin
Citation254 N.W.2d 210,78 Wis.2d 161
Docket NumberNo. 75-174,75-174
PartiesSTATE of Wisconsin, Respondent, v. John DOE, Appellant.
Decision Date01 June 1977

Page 210

254 N.W.2d 210
78 Wis.2d 161
STATE of Wisconsin, Respondent,
John DOE, Appellant.
No. 75-174.
Supreme Court of Wisconsin.
Argued Jan. 31, 1977.
Decided June 1, 1977.

Page 211

Ted M. Warshafsky (argued), and Warshafsky, Rotter & Tarnoff, S. C., Milwaukee, on brief, for appellant.

J. Douglas Haag, Asst. Atty. Gen., argued, Bronson C. La Follette, Atty. Gen., on brief, for respondent.

[78 Wis.2d 162] HEFFERNAN, Justice.

In a proceeding held in open court on June 9, 1975, William B. Chappie was adjudged guilty of contempt of court and was ordered confined to the county jail of Waukesha county for a period of sixty days. The appeal is from that order of contempt and commitment. The commitment to county jail was stayed by the circuit court pending disposition of the appeal by this court.

The order arose out of a John Doe proceeding conducted under the provisions of sec. 968.26, Stats. 1

At the John Doe proceeding, presided over by Circuit Judge William E. Gramling, Chappie appeared on May 15, 1975, pursuant to a subpoena and in response to two subpoena duces tecum directing him to produce various documents and records. He appeared with counsel, who was permitted, during the course of the proceedings which led to the contempt, to argue questions of law and also the reasonableness of the production order of the presiding judge. In respect to the documents which [78 Wis.2d 163] Chappie was ordered to produce, his counsel told the judge that such documents were not in his client's possession. This statement was accepted by the judge and by the assistant attorney general, who was representing the state at the John Doe.

The assistant attorney general then requested that the judge order Chappie to provide the court with handwriting exemplars. Counsel for Chappie argued that this was unreasonable inasmuch as Chappie, as a businessman, had frequently been obliged to sign his name to license applications, that such applications were matters of public record, and, hence, that it was unreasonable to require exemplars to be produced in a John Doe proceeding.

Counsel for Chappie also questioned the purpose for which the exemplars were sought. The assistant attorney general replied:

"They are obviously for the purpose of assisting in this investigation. . . . Comparisons might well be used, evidence might be used in other instances other than comparisons. . . . We are getting

Page 212

these samples solely for the purpose of comparison. They, at some later date in trial, might be used as evidence against the potential defendant, but we are not using them to secure any conflict against his interest."

The state denied that it could obtain the samples of handwriting elsewhere, and the court concluded that the purpose for which the exemplars were sought was for comparison only.

Counsel for the state and counsel for Chappie argued the constitutional propriety of the demand for handwriting exemplars.

The United States Supreme Court case of United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973), was relied upon by the state; and upon the basis of that case, the judge concluded that no constitutional right of Chappie would be violated by ordering the production of the handwriting exemplars.

[78 Wis.2d 164] In the closed John Doe proceedings, the trial judge ordered the execution or production of the exemplars, but, despite Chappie's refusal to comply, withheld an immediate finding of contempt. He did so because he concluded that a substantial constitutional question was presented. He stated that he wished to afford Chappie and his counsel the opportunity to have the constitutional issue the possible infringement of Chappie's constitutional rights under the Fourth and Fifth Amendments decided by the Wisconsin Supreme Court prior to the issuance of an order finding contempt. The finding of contempt was held in abeyance while Chappie sought a writ of prohibition from the Wisconsin Supreme Court to test the constitutionality of the order to produce the handwriting samples.

This court on May 22, 1975, declined to exercise its jurisdiction to issue the writ.

Further John Doe proceedings were held on May 29, 1975, and the presiding judge again stated that the refusal to furnish the handwriting exemplars would result in a finding of contempt. At this hearing, Chappie and his counsel waived irregularities in the proceedings, and a further hearing was scheduled to be held in open court on June 9, 1975. Following a hearing on that date, Judge Gramling, as judge of the circuit court for Waukesha county, in open court entered a finding of contempt and the sixty-day commitment set forth above.

Counsel for Chappie argued that an important question of constitutional law was involved and asked for a stay of execution of the commitment pending an appeal to this court. The circuit judge agreed and ordered a stay of execution, which has remained in effect during the course of this appeal.

We have extensively discussed the procedural background of this case, for it demonstrates that, under the John Doe procedure of the State of Wisconsin, a person who is the object of an investigation is entitled to substantial[78 Wis.2d 165] rights and due process protections. Under sec. 968.26, Stats., supra, a John Doe proceeding can be commenced only if a person complains to a judge that he has reason to believe that a crime has been committed within the jurisdiction. Before John Doe proceedings are commenced, the complainant is required to be examined under oath. It is within the discretion of the judge to determine whether such proceedings shall be instituted, and he also has the discretion to determine the scope and extent of the inquiry. Under the statute a witness is entitled to have counsel present. Although the statute does not, as a matter of right, permit counsel to argue or to examine his client, in the instant case Chappie's attorney, without restriction, was permitted to do both.

The document which may be finally issued as a result of a John Doe proceeding is a complaint, which must be reduced to writing. Such complaint has no more standing than a complaint issued by a magistrate on the verified oath of any informant, and it is subsequently subject to be tested on the question of probable cause at a preliminary examination prior to the filing of an information.

It is apparent from the recitation of the statutory provisions that John Doe proceedings,

Page 213

although held in secret, afford substantially more protection to a potential accused than does a grand jury. The proceedings of the John Doe are constantly under the scrutiny of a judge. Moreover, the document which comes out of the grand jury, the indictment, is proof of probable cause sufficient to bring the accused to trial. 2 In the John Doe proceedings, all that may issue is a complaint. Probable cause [78 Wis.2d 166] to bind over for arraignment and trial may still be tested in a preliminary examination.

We emphasize these additional protections afforded to a putative defendant in a John Doe, because the United States Supreme Court has repeatedly held that what the defendant was ordered to do here produce handwriting exemplars has been found not to be violative of constitutional rights in federal grand jury proceedings. If such order is not violative of constitutional rights in grand jury proceedings, we think it clear that similar rights are not infringed in the course of a Wisconsin John Doe.

The principal United States Supreme Court cases that we conclude are dispositive of Chappie's contention that his rights under the Fourth and Fifth Amendments to the Constitution of the United States are infringed by the John Doe order are United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973), and Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).

In Dionisio, an order of a federal grand jury required a witness to furnish voice exemplars. The United States Supreme Court reversed the decision of the Court of Appeals for the Seventh Circuit in Dionisio v. United States, 442 F.2d 276 (7th Cir. 1971), which held the demand for voice exemplars constituted a seizure and that, under the strictures of the Fourth Amendment, the reasonableness of the seizure must be demonstrated.

The Court of Appeals for the Seventh Circuit, however, rejected the contention that the compelled production of voice exemplars would violate the Fifth Amendment prohibition against self-incrimination. The United States Supreme Court agreed with the Seventh Circuit's position in that respect. The United States Supreme Court relied upon the authority of Schmerber v. California, 384 U.S. [78 Wis.2d 167] 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); and United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). The general rationale of these three cases is that stated in Schmerber, 384 U.S. at 764, 86 S.Ct. at 1832:

"(T)he privilege is a bar against compelling 'communications' or 'testimony,' but that compulsion which makes a suspect or accused the source of 'real or physical evidence' does not violate it."

In Schmerber, it was held that taking a blood sample involved no testimonial compulsion. In Gilbert, it was held that...

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