State v. Edwardsen

• Decision Date: 03 August 1988
• Docket Number: No. 87-2443-CR,87-2443-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Charles D. EDWARDSEN, Defendant-Appellant. *
• Court: Wisconsin Court of Appeals

Page 604

430 N.W.2d 604

146 Wis.2d 198

STATE of Wisconsin, Plaintiff-Respondent, v. Charles D. EDWARDSEN, Defendant-Appellant. ^*

No. 87-2443-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs July 5, 1988.

Opinion Released Aug. 3, 1988.

Opinion Filed Aug. 3, 1988.

Mark Lukoff, First Asst. State Public Defender, for defendant-appellant.

Donald J. Hanaway, Atty. Gen. and Christoper G. Wren, Asst. Atty. Gen., for plaintiff-respondent.

Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.

BROWN, Presiding Judge.

Defendant appeals from a three-count judgment of conviction: possession of cocaine with intent to deliver, battery to a peace officer, and attempting to disarm a peace officer. He makes four claims of error. He argues that the prosecution acted vindictively in adding the "attempt to disarm" charge following defendant's successful appeal of the possession and battery convictions. See State v. Edwardsen, 135 Wis.2d 208, 400 N.W.2d 18 (Ct.App.1986) (hereinafter Edwardsen I ). He argues that the prosecution cross-examined a defense witness using evidence suppressed in Edwardsen I, thereby committing prejudicial error. He argues that the trial court erroneously ruled that a potential defense witness could assert a privilege not to testify, thereby depriving defendant of his right to call witnesses on his own behalf. Finally, he argues that the prosecutor's closing argument violated defendant's constitutional right to remain silent by impermissibly commenting on defendant's failure to testify. We reject all four claims of error and affirm.

Some of the pertinent facts have been previously set out in Edwardsen I. Edwardsen was a passenger in Stacy Steber's car when she was stopped for speeding. During the course of the stop, defendant and the constable came to blows and defendant grabbed for the constable's firearm. Defendant and his niece were subsequently arrested, Steber's car was searched, and two ounces of chunky cocaine were found.

While in custody, defendant received assurances that he could make incriminating statements with impunity. The statements made included admissions of defendant's familiarity with a drug dealer. The police gave the information to the district attorney's office in connection with their allegations against Edwardsen.

The sheriff's office requested that the prosecution issue the three charges of which defendant presently stands convicted. However, the prosecution instead agreed that if defendant waived his preliminary hearing, the state would not charge him with "attempt to disarm." This agreement was kept. Defendant then moved to suppress certain statements and admissions made while in custody. He lost the motion and pled no contest. We reversed in Edwardsen I, suppressed the statements, and remanded for a new trial.

After remand, the state added the charge of attempting to disarm a peace officer. The defendant had a preliminary hearing on all three counts and was bound over for trial.

At the trial, defendant appeared pro se with standby counsel. He made his own closing argument, but did not take the stand.

I. VINDICTIVE PROSECUTION

We begin our analysis of this issue by reiterating that the prosecutorial function is quasi-judicial. As such, it encompasses an "almost limitless" discretion to charge or not. State ex rel. Unnamed Petitioners v. Conners, 136 Wis.2d 118, 129, 401 N.W.2d 782, 786 (1987). In general, the prosecuting attorney is answerable to the people of the state and not to the courts or the legislature as to the way in which he exercises the power to prosecute criminals. State v. Karpinsky, 92 Wis.2d 599, 608, 285 N.W.2d 729, 734-35 (1979). Among the electorate's, and therefore the prosecutor's, concerns is the safety of the people from particular perpetrators, and one means of protection is incarceration of criminals. Charging decisions are therefore legitimately based upon, among other things, the penalties available upon conviction. Karpinsky, 92 Wis.2d at 610-11, 285 N.W.2d at 736, citing United States v. Batchelder, 442 U.S. 114, 125, 99 S.Ct. 2198, 2205, 60 L.Ed.2d 755 (1979).

On the other hand, we also recognize the constitutional problems that can arise when a defendant, exercising his legal right to an appeal, obtains a second trial of previously decided issues. Institutional dislike of retrials--rather than legitimate concerns for the public welfare--might subconsciously motivate a vindictive judicial or prosecutorial response to a defendant's exercise of his right to obtain a retrial of a decided question. United States v. Goodwin, 457 U.S. 368, 376-77, 102 S.Ct. 2485, 2490-91, 73 L.Ed.2d 74 (1982). Yet to punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort. Id. at 372, 102 S.Ct. at 2488. Therefore, the United States Supreme Court holds that a presumption of vindictiveness attaches to a prosecutor who increases charges when, as in the instant case, the state is pursuing a second conviction for the same course of conduct following a defendant's successful appeal. Id. at 376, 102 S.Ct. at 2490, citing Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). The parties do not dispute that Blackledge applies here ¹ and that a presumption of vindictiveness arises under the facts of this case. The defendant claims that the Blackledge presumption is irrebuttable. We disagree.

While the Blackledge Court did not spell out a procedure for overcoming the presumption of prosecutorial vindictiveness, such a procedure was clearly contemplated. The Supreme Court wrote: "[T]his would clearly be a different case if the state had shown that it was impossible to proceed on the more serious charge from the outset." Blackledge, 417 U.S. at 29 n. 7, 94 S.Ct. at 2103 n. 7. The Supreme Court later stated: "[W]e note that the Blackledge presumption is rebuttable. The state had ample opportunity below to attempt to rebut it but did not do so. Its only argument has been that Blackledge should not apply." Thigpen v. Roberts, 468 U.S. 27, 32 n. 6, 104 S.Ct. 2916, 2920 n. 6, 82 L.Ed.2d 23 (1984) (citations omitted). We conclude that the Blackledge presumption of vindictiveness is rebuttable. Other courts are in accord. See, e.g., United States v. Taylor, 749 F.2d 1511, 1513 (11th Cir.1985), and cases cited therein.

Although we address for the first time the scope of the Blackledge doctrine as it affects Wisconsin cases, we observe that our supreme court has discussed the analogous federal presumption of judicial vindictiveness where the trial court increases a defendant's sentence following appeal or successful motion to withdraw a guilty plea. State v. Stubbendick, 110 Wis.2d 693, 329 N.W.2d 399 (1983). ² The court determined that the federal presumption is consistent with Wisconsin's doctrine of abuse of sentencing discretion. Id. at 699, 329 N.W.2d at 402. The court reiterated that failure to state sufficient reasons for any sentence constitutes an abuse of discretion. Id. The requirement of reasoned exposition safeguards the defendant from impermissible judicial vindictiveness. Id.

As we have noted, the prosecutorial function is quasi-judicial and encompasses a wide latitude in charging decisions. We think it clear that vindictiveness constitutes an abuse of prosecutorial as well as judicial discretion. Therefore, a requirement analogous to that set forth in Stubbendick is mandated when the prosecutor increases charges following a successful appeal. The requirement is that the prosecutor give sufficient reasons for the increase on the record.

In this case, the prosecutor did put his reasons on the record. His rationale for adding a charge previously bargained away was the loss of evidence and the possible sentencing consequences of that loss. His explanation was as follows:

[I]t was determined that the State was seeking a particular disposition of this case. Recognizing Mr. Edwardson's [sic] past criminal record, we thought it would be adequate to convict Mr. Edwardson [sic] on two charges, the possession with intent to deliver and the battery to peace officer [sic]. Since that time, of course, some of our evidence, when we're coming back for retrial, has been suppressed by the Court of Appeals.

The posture of the case now is such that we do not--are not as confident of a possible conviction on Mr. Edwardson [sic] for these two charges because a substantial portion of our evidence has been suppressed.

Edwardsen claims that this is not an adequate reason, but we hold that it is.

In a case cited by the state, the Eleventh Circuit dealt with a similar prosecutorial explanation for new charges following a successful appeal. Taylor, 749 F.2d at 1514. In that case, Taylor was convicted of possession with intent to deliver a controlled substance following a bench trial. The court of appeals found the evidence inadequate to support the conviction, holding it sufficient only to support a conviction for simple possession. Taylor no longer faced the fifteen-year exposure that the state had originally anticipated. The state therefore indicted Taylor on new charges resulting from the same "spree of activity" as the original delivery charge. Id. at 1513.

As here, the prosecutor in Taylor denied a vindictive motive for the new charges, and stated that the decision to indict on new charges was "based primarily on his view of an equitable and appropriate sentence for Taylor's criminal conduct." Id. at 1514. Such a sentence had been obtainable on the initial charge alone; it was no longer obtainable after the court of appeals' conclusion that the state had not made an adequate record for proving intent to deliver. The Taylor court held:

Under these circumstances, the district court correctly concluded that the prosecutor's motivation for indicting Taylor on additional charges was to secure a conviction and sentence commensurate with his assessment of Taylor's criminal conduct...