State v. Dunn, No. 83-1129-CR

• Court: United States State Supreme Court of Wisconsin
• Writing for the Court: CECI
• Citation: 121 Wis.2d 389,359 N.W.2d 151
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Ronald J. DUNN, Defendant-Respondent-Petitioner.
• Docket Number: No. 83-1129-CR
• Decision Date: 21 December 1984

Page 151

359 N.W.2d 151 121 Wis.2d 389 STATE of Wisconsin, Plaintiff-Appellant,
v.
Ronald J. DUNN, Defendant-Respondent-Petitioner. No. 83-1129-CR. Supreme Court of Wisconsin. Argued Oct. 3, 1984.
Decided Dec. 21, 1984.

Page 152

[121 Wis.2d 391] Jack E. Schairer, Asst. State Public Defender, for defendant-respondent-petitioner.

Thomas J. Balistreri, Asst. Atty. Gen., argued, for plaintiff-appellant; Bronson C. La Follette, Atty. Gen., on brief.

CECI, Justice.

This is a review of a decision of the court of appeals ¹ reversing an order of the circuit court for Dane county, Mark A. Frankel, circuit judge, following a preliminary examination, which dismissed the action for lack of probable cause to support a bindover on the charge of arson to a building. ² We affirm the court of appeals decision.

The facts in this case are undisputed. On February 27, 1983, Madison police arrested the defendant, Ronald [121 Wis.2d 392] J. Dunn, for arson to a building. Pursuant to section 970.03, Stats., ³ a preliminary hearing was held on April 25, 1983, before the Honorable Mark A. Frankel, circuit court judge for Dane county. The state's two witnesses included Edgar Anderson, a fire inspector, and Roger Attoe, a police detective.

Anderson testified that he investigated the scene and found fire damage in the closet of a back bedroom on the second floor of the building. The damaged items included clothing and books in the closet, the walls and doorsill of the closet, and the walls and ceiling of the bedroom. The origin of the fire was the floor area of the closet, but he found no causes of ignition (i.e., electrical sources or heaters). Although he concluded that the clothing had not been placed in a pile in a peculiar manner, and although he found no gasoline-laden rags or inflammatory material in the closet, he felt the fire was "definitely suspicious," because he could not identify the cause of the fire.

Attoe testified that he, too, had investigated the closet that had been burned. He spoke with Dunn, who told him that he had had an argument with his roommate. Dunn admitted to being in the bedroom, throwing lighted matches into his roommate's closet area and leaving the room. Attoe also stated that neither the roommate nor the landlord had given Dunn permission to set fire to their property.

[121 Wis.2d 393] The state's motion for a bindover was denied. The trial court concluded that, although Dunn may have intended to burn

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his roommate's property because he was angry with him, it could not infer from the evidence that Dunn intended to cause damage to the building. Additionally, the court held that the state had established the misdemeanor of criminal damage to property of Dunn's roommate, but not the felony of destroying property under section 943.03, Stats., ⁴ because the requisite property damage of $100 or more had not been established.

The issue argued and briefed is whether an examining judge at a preliminary examination is free to choose between competing inferences arising from undisputed historical facts in deciding whether there is probable cause to bind over a defendant.

A defendant may be bound over for trial when the evidence at the preliminary hearing is sufficient to establish probable cause that a felony has been committed and that the defendant probably committed it. Section 970.03(1), Stats. ⁵ Although the right to a preliminary [121 Wis.2d 394] examination was unknown to common law, State ex rel. Durner v. Huegin, 110 Wis. 189, 239, 85 N.W. 1046 (1901), the practice of a similar procedure was not.

"At common law it was customary, if not obligatory, for an arrested person to be brought before a justice of the peace shortly after arrest.... The justice of the peace would 'examine' the prisoner and the witnesses to determine whether there was reason to believe the prisoner had committed a crime. If there was, the suspect would be committed to jail or bailed pending trial. If not, he would be discharged from custody." Gerstein v. Pugh, 420 U.S. 103, 114-15, 95 S.Ct. 854, 863-64, 43 L.Ed.2d 54 (1975) (citations and footnote omitted).

It is clear that the right to a preliminary examination is solely a statutory right. We have stated that, "The right to such an examination stems purely from statute and is not considered a constitutional right." State ex rel. Klinkiewicz v. Duffy, 35 Wis.2d 369, 373, 151 N.W.2d 63 (1967) (footnote omitted), cited with approval in State ex rel. Funmaker v. Klamm, 106 Wis.2d 624, 633, 317 N.W.2d 458 (1982). ⁶

In deciding whether there was probable cause to bind the defendant over for trial, it is helpful to first discuss the purpose of a preliminary examination. Section 970.03(1), Stats., states that the purpose of a preliminary examination is to determine if there is probable cause to believe a felony has been committed by a defendant. Section 970.03(7), then commands the court to bind the defendant over for trial if probable cause is found to exist.

The underlying purpose of the examination is to determine whether the defendant should be subjected to [121 Wis.2d 395] criminal prosecution and further deprived of his liberty. This theme is echoed in both old and current decisions. In Thies v. State, 178 Wis. 98, 189 N.W. 539 (1922), this court said,

"The object or purpose of the preliminary investigation is to prevent hasty, malicious, improvident, and oppressive

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prosecutions, to protect the person charged from open and public accusations of crime, to avoid both for the defendant and the public the expense of a public trial, and to save the defendant from the humiliation and anxiety involved in public prosecution, and to discover whether or not there are substantial grounds upon which a prosecution may be based." Id., 178 Wis. at 103, 189 N.W. 539.

More recently, in State v. Hooper, 101 Wis.2d 517, 305 N.W.2d 110 (1981), we held that a preliminary examination is,

".... intended to be a summary proceeding for the purpose of determining whether there is a reasonable probability that the defendant committed a felony and thus 'a substantial basis for bringing the prosecution and further denying the accused his right to liberty.' State ex rel. Huser v. Rasmussen, 84 Wis.2d 600, 606, 267 N.W.2d 285 (1978)." Hooper, 101 Wis.2d at 544-45, 305 N.W.2d 110.

The parties in this case disagree as to what quantum of evidence is necessary at a preliminary hearing to establish to a reasonable probability that the defendant committed a felony. The court of appeals held that the probable cause requirement is satisfied if any reasonable inference supports a conclusion that the defendant probably committed a felony even though there are equally strong inferences to the contrary. In such instance, the state's evidence would not be required to reach the level that guilt is more likely than not. The defendant disagrees with the court of appeals, asserting that a judge at a preliminary hearing must weigh the evidence and choose between conflicting inferences.

[121 Wis.2d 396] A preliminary hearing may require more by way of evidence than other preliminary determinations of probable cause. Taylor v. State, 55 Wis.2d 168, 173, 197 N.W.2d 805 (1972). Starting with the probable cause that is required for a search warrant, we have held that "the term 'probable cause' means less than evidence which would justify condemnation or be competent in a preliminary examination."...