State v. Kenyon

• Decision Date: 03 October 1978
• Docket Number: Nos. 77-483-C,77-484-CR,s. 77-483-C
• Citation: 270 N.W.2d 160,85 Wis.2d 36
• Parties: STATE of Wisconsin, Plaintiff in Error, v. Jack KENYON, Defendant in Error (two cases).
• Court: Wisconsin Supreme Court

Page 160

270 N.W.2d 160

85 Wis.2d 36

STATE of Wisconsin, Plaintiff in Error, v. Jack KENYON, Defendant in Error (two cases).

Nos. 77-483-CR, 77-484-CR.

Supreme Court of Wisconsin.

Argued Sept. 7, 1978.

Decided Oct. 3, 1978.

These two cases are consolidated for the purpose of appellate review. Both appeals involve pretrial procedural questions. In Case No. 77-484-CR, the writ of error challenges two orders. The first one denied the state's motion to dismiss a felony charge at the conclusion of the preliminary examination. The second one denied the state's motion to dismiss the misdemeanor charge which followed the court's reducing the original felony charge to a misdemeanor. In Case No. 77-483-CR, the writ of error was taken from an order dismissing a second felony complaint for the same acts as the first felony complaint.

David J. Becker, Asst. Atty. Gen., for plaintiff in error; Bronson C. La Follette, Atty. Gen., on brief.

Dennis M. Scallon, Mineral Point, for defendant in error.

BEILFUSS, Chief Justice.

The defendant in error, Jack Kenyon (defendant), was charged with a violation of sec. 943.01 (3), Stats., which makes it a crime to intentionally cause damage to the property of another without his or her consent. If the damage is $1,000 or more, the offense is a felony; if the damage is less than $1,000, it is a misdemeanor. The complaint here alleged that on August 8, 1977, the defendant feloniously, intentionally and without consent of the owners caused damage to four motorcycles by driving his car into them while they were legally parked, and that the damages were in excess of $1,000.

At the time the complaint was issued the defendant was in Texas. Pursuant to an agreement between the district attorney and the defense counsel, the defendant returned to Wisconsin for a combined initial appearance and preliminary examination.

At the preliminary hearing, Eva Jackson, who had been a passenger in the defendant's car at the time in question, testified that she was with the defendant at Gramp's bar in Mineral Point and asked the defendant for a ride down the street. Eva Jackson and defendant got into his car which was parked in an alley behind Gramp's bar. The defendant drove out into Chestnut Street and drove up the street. He ran over some motorcycles that were parked on the right hand side of the street. He turned into High Street where there was a second group of motorcycles parked on the defendant's left hand side of the street. He drove his car across the street and ran over those motorcycles and then returned to his right hand side of the street.

The state called four persons whose motorcycles had been parked and damaged. They all testified the damage was without their consent. They were all also asked to testify as to the dollar amount of the damage to their respective motorcycles. The court sustained objections to this offered testimony on the ground it was hearsay. ¹

The district attorney then made a motion to dismiss the complaint without prejudice. This motion was denied and the order denying the motion is before us for review. In denying the motion to dismiss, the trial court stated that because the defendant had already "incurred a certain amount of expense" to come back to Wisconsin from Texas, and "to grant the motion now to dismiss without prejudice, which I assume would permit the District Attorney to then reissue the charge and result in a second preliminary, would be unfair."

After the motion to dismiss the original complaint was denied, the trial court invoked sec. 970.03 (8), Stats., ² to amend the complaint so that it charged a misdemeanor rather than a felony. On November 9, 1977, the district attorney moved to dismiss the complaint as amended. In support of his motion the district attorney advised the court that he now had additional evidence as to the damage estimates and that he intended to recommence this action charging a felony. The trial court refused to do so. The court again stated it would be unfair to the defendant and that sec. 970.03 (8) required the case proceed as a misdemeanor. This ruling is the second order challenged by the writ of error in Case No. 77-484-CR. The amended complaint is still pending and awaits a trial date.

On November 15, 1977, the district attorney issued a second felony complaint essentially identical to the original felony complaint and based upon the same incidents.

Prior to serving the defendant, a hearing was held on the complaint. At the hearing the trial court noted the existence of the pending misdemeanor charge and, consequently, dismissed the second felony complaint. It first declared that sec. 970.04, Stats., ³ allowing the issuance of another complaint, was inapplicable because the defendant had not been discharged after the first preliminary examination. It then concluded that to permit two separate complaints to be processed under the circumstances of the case would be "intolerable." A writ of error to review the order dismissing the second felony complaint was issued in Case No. 77-483-CR and is before us for review.

The issues are whether it was error to deny the motion to dismiss the complaint without prejudice at the close of the preliminary examination and error to deny the motion to dismiss the complaint after the court amended it so as to reduce it to a misdemeanor. Further, whether it was error to dismiss the second felony complaint.

In support of its position the state contends a prosecutor in Wisconsin has the right to dismiss a pending prosecution without prior approval of the court. The defendant argues that prosecutorial discretion is necessarily restricted by the trial court's own discrete authority and responsibility with respect to the disposition of pending criminal proceedings. Among these responsibilities, the defendant argues, is the duty to consider the individual merits of all motions made in the proceedings before it, including motions to dismiss by the district attorney.

The district attorney's principal duties are spelled out in sec. 59.47, Stats. The statute declares in part:

"The district attorney shall:

"(1) Prosecute or defend all actions, applications or motions, civil or criminal, in the courts of his county in which the state or county is interested or a party; . . .

"(2) Prosecute all criminal actions before any court in his county, other than those exercising the police jurisdiction or incorporated cities and villages in cases arising under the charter or ordinances thereof, when requested by such court; and upon like request, conduct all criminal examinations which may be had before such court, and prosecute or defend all civil actions before such courts in which the county is interested or a party."

In the performance of these duties it is settled that the district attorney is vested with a great deal of discretion:

"The district attorney in Wisconsin is a constitutional officer and is endowed with a discretion that approaches the quasi-judicial. State v. Peterson (1928), 195 Wis. 351, 359, 218 N.W. 367.

"It is clear that in his functions as a prosecutor he has great discretion in determining whether or not to prosecute. There is no obligation or duty upon a district attorney to prosecute all complaints that may be filed with him. While it is his duty to prosecute criminals it is obvious that a great portion of the power of the state has been placed in his hands for him to use in the furtherance of justice, and this does not per se require prosecution in all cases where there appears to be a violation of the law no matter how trivial. In general, the district attorney is not answerable to any other officer of the state in respect to the manner in which he exercises those powers." State ex rel. Kurkierewicz v. Cannon, 42 Wis.2d 368, 378, 166 N.W.2d 255, 260 (1969).

However, Kurkierewicz, at p. 380, 166 N.W.2d at 261, qualifies this discretion as follows:

" . . . the position of district attorney, though constitutional, was not one of inherent powers, but was answerable to specific directions of the legislature. It appears settled, therefore, in Wisconsin at least, that the prosecutor is subject to the enactments of the legislature. . . .

"While it is thus apparent that the district attorney is invested with great discretion and in the usual case can manage his office free from the overseership of the courts or the legislature, it is equally clear that the legislature may, if it desires, spell out the limits of the district attorney's discretion and can define the situations that will compel him to act in the performance of his legislatively prescribed duties."

With respect to prosecutorial discretion to enter a Nolle prosequi, what if any limitation is there to the district attorney's broad, essentially unqualified authority under sec. 59.47, Stats., to "prosecute" criminal actions?

The general rule regarding Nolle prosequi has been summarized as follows:

"Sec. 514. Power of prosecuting attorney.

"In the absence of a controlling statute or rule of court, the power to enter a nolle prosequi before the jury is impaneled and sworn lies in the sole discretion of the prosecuting officer. This is true regardless of the attitude of the court." 21 Am.Jur.2d, Criminal Law, p. 504, sec. 514 (1965).

However, we believe Wisconsin has departed from the general rule and has retained in the courts some limitation on the discretion of the district attorney in Nolle prosequi cases. Guinther v. Milwaukee, 217 Wis. 334, 258 N.W. 865 (1935), involved a writ of error to review a judgment of the municipal court denying a city attorney's motion to dismiss and appointing counsel to appear for the city after the city attorney refused to continue with the action. This court, upholding the trial court's action, set forth a general standard for limited judicial supervision of prosecutorial motions to dismiss which departed from the common law and clearly removed Wisconsin from the group of...