State v. Hungerford

• Decision Date: 02 May 1972
• Docket Number: No. 186,186
• Citation: 54 Wis.2d 744,196 N.W.2d 647
• Parties: STATE of Wisconsin, Respondent, v. Elmer Charles HUNGERFORD, Appellant. State
• Court: Wisconsin Supreme Court

Page 647

196 N.W.2d 647

54 Wis.2d 744

STATE of Wisconsin, Respondent, v. Elmer Charles HUNGERFORD, Appellant.

State No. 186.

Supreme Court of Wisconsin.

May 2, 1972.

Elmer Charles Hungerford, appellant (hereinafter defendant), was convicted of two counts of indecent behavior with a child, in violation of sec. 944.11(1) and (3), Stats. It was determined that the defendant was in need of specialized treatment and he was ultimately committed to the Wisconsin Department of Health & Social Services pursuant to the provisions of sec. 975.06.

The defendant appeals from the judgment of conviction.

Brady, Pachefsky & Sullivan, Milwaukee, for appellant.

Robert W. Warren, Atty. Gen., Thomas J. Balistreri, Asst. Atty. Gen., Madison, for respondent.

CONNOR T. HANSEN, Justice.

The defendant was employed at a gasoline service station. The alleged misconduct took place at the defendant's place of employment and involved an eight-year old boy and his ten-year old sister, who were frequent visitors at the service station.

It is not necessary to further detail the facts of the case because the issues here presented concern trial procedures relating to the defendant's prior criminal convictions.

During the course of the trial, both counsel for the State and the defendant had access to a two-and-one-half page report of the Federal Bureau of Investigation, United States Department of Justice, which reflected defendant's police and court contacts as reported to the F.B.I.

On cross-examination by the State, the defendant tesified that he could have been convicted of a crime three or four times, but that he did not know if it could have been more than four times, '(b)ecause I don't keep track of it.' The district attorney then asked the defendant six relatively short and general questions concerning conversations the defendant had with the two children about sex. The district attorney then continued by commencing to propound a question, as follows: 'Isn't it a fact that in 1949--' At this time, defense counsel interposed an objection and the trial court adjourned to chambers.

After the in-chambers examination of the F.B.I. report, the court concluded it was unclear as to the number of defendant's prior convictions. The court recessed for noon, and both counsel were asked to review defendant's prior criminal record. A parole officer was also asked to investigate the defendant's prior criminal record. After recess, the in-chambers session continued. The parole officer reported the results of this investigation. Defense counsel indicated he would object to testimony by the parole officer of his investigation on the grounds that any such testimony would be hearsay. Ultimately, the trial was adjourned so that official records might be produced.

The foregoing proceedings occurred on June 7, 1971, and because of calendar complications of the trial court and respective counsel, it was necessary to adjourn the trial. The in-chambers conference continued on the morning of June 10, 1971, at which time it was disclosed that the official records reflected the defendant had been convicted eleven times. The trial court ruled that the defendant could be asked about each of the convictions in open court unless he would stipulate that he had been convicted of a crime eleven times. The dfendant refused to so stipulate.

The trial then resumed and cross-examination of the defendant continued in open court. Defendant was asked about the names and dates of other prior convictions, some of which were sex crimes. On redirect, defense counsel attempted to show that the defendant misunderstood the initial inquiry by the district attorney into his prior criminal record and also that the defendant was under the impression he had only been convicted three times. On three separate occasions, the trial court stated it would not allow such an impression to be created. Because the defendant equivocated as to his recollection of past convictions, the trial court also questioned him in regard to this matter. Following a further refusal by the defendant to stipulate as to his record of convictions, the parole officer testified to the official court records of defendant's past convictions, relating the name, the date and the disposition of each conviction.

Defendant first argues that the trial court erred in allowing inquiry into his prior criminal convictions.

It is the rule in Wisconsin that where a defendant has answered truthfully and accurately in response to questions concerning prior criminal convictions, further inquiry into the nature of the convictions is not permitted. State v. Cathey (1966), 32 Wis.2d 79, 145 N.W.2d 100; State v. Adams (1950), 257 Wis. 433, 43 N.W.2d 446. Where, however, the defendant denies having been previously convicted, Harris v. State (1971), 52 Wis.2d 703, 705, 191 N.W.2d 198; Nicholas v. State (1971), 49 Wis.2d 683, 183 N.W.2d 11, or fails to accurately state the number of convictions, Liphford v. State (1969), 43 Wis.2d 367, 168 N.W.2d 549; Strait v State (1969), 41 Wis.2d 552, 164 N.W.2d 505; State v. Midell (1968), 39 Wis.2d 733, 159 N.W.2d 614, such inquiry is proper for the purpose of impeachng the defendant's credibility. See also sec. 885.19, Stats. In such a case the inquiry is not limited to the fact of conviction, but the conviction(s) may be expressly mentioned by name. Nicholas v. State, supra; Rausch v. Buisse (1966), 33 Wis.2d 154, 146 N.W.2d 801.

The record reflects that the defendant incorrectly stated, and failed to recall, the number of prior convictions in response to cross-examination by the district attorney. This opened the door to evidence of other convictions. See Strait v. State, supra; Nicholas v. State, supra. Defendant was afforded an opportunity to correct any misunderstanding with regard to the number of convictions, or to any reliance misplaced on the F.B.I. report during the in-chambers conference, by examining and acknowledging the official...