State v. Mann

• Decision Date: 09 May 1985
• Docket Number: No. 84-044-CR,84-044-CR
• Parties: STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. John C. MANN, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 209

367 N.W.2d 209

123 Wis.2d 375

STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. John C. MANN, Defendant-Respondent.

No. 84-044-CR.

Supreme Court of Wisconsin.

Argued April 3, 1985.

Decided May 9, 1985.

Michael R. Klos, Asst. Atty. Gen., argued, for plaintiff-appellant-petitioner; Bronson C. La Follette, Atty. Gen., on briefs.

Glenn L. Cushing, Asst. State Public Defender, for defendant-respondent.

STEINMETZ, Justice.

There are three issues in this case. The first is whether a hearing, as mandated by Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), for a search warrant challenge should appropriately be held in the context of a challenge to a criminal complaint. Secondly, can the Franks remedy apply to a situation where the prosecution is alleged to have intentionally or recklessly omitted material facts from the criminal complaint as contrasted to allegedly having included misrepresentations in a criminal complaint. Thirdly, did this criminal complaint, if modified by the omitted evidence adduced at the Franks hearing, state probable cause to believe that the defendant violated his statutory duty to remain at the accident scene and fulfill the obligations imposed on him by sec. 346.67(1)(a), (b) and (c), Stats. ¹

The original criminal complaint was drafted by the district attorney and signed by Trooper Schroeder. It was filed on February 21, 1983, at which time the defendant made his initial appearance. Bond was set and the defendant requested a preliminary hearing to be held within ten days. On March 3, 1983, the date set for the preliminary hearing, the defendant waived his statutory right to a preliminary hearing in exchange for an opportunity to have his attorney examine all witness statements and reports contained in the district attorney's file. A day later, the district attorney filed the original information and defense counsel filed a demand for discovery and inspection pursuant to secs. 971.23, 971.24 and 971.25, Stats.

The defendant was arraigned on March 23, 1983. He pled not guilty and dates were set for a status conference and jury trial. That same day, Frank Sezemsky, the victim of the accident, died as a result of injuries sustained in the February 15, 1983, accident with an automobile operated by the defendant. On March 30, 1983, defense counsel, having reviewed the district attorney's files, filed a motion to dismiss the complaint on the ground that the facts set forth in the police reports failed to establish the defendant violated sec. 346.67(1), Stats. Specifically, the defendant alleged:

"On February 15, 1983, at 3:15 p.m., there was an automobile accident caused when the alleged victim Frank Sezemsky, who was travelling west bound, did not stop for a control (stop sign) and thus was collided with by the defendant. The defendant's car came to rest on the southwest corner of the intersection. The defendant then left his car, went into the house where his car came to rest. He asked the couple who were living there to call the ambulance and police. After he left the residence, Officer Wally Landry was already on the scene administering first aid to the victim, Frank Sezemsky.

"Further the emergency reports filed concerning Mr. Sezemsky do not show any injuries that the defendant would have been capable of diagnosing and/or treating. Your affiant would state on information and belief, therefore, that the defendant did all in his power to meet his obligation of either rendering aid or securing aid to one injured in an accident pursuant to section 346.67(1)(c)."

On May 4, 1983, because the victim had died, the district attorney filed an amended information charging the defendant with leaving the scene of an accident in which the death of a person resulted. On May 13, 1983, defense counsel filed a motion to dismiss on grounds: the amended information lacked probable cause, no amended criminal complaint had been issued against the defendant, and no preliminary hearing had been held with respect to that amended information.

At the status conference on July 14, 1983, the defendant demanded a preliminary hearing because an amended information had been filed. The trial court remanded the case for a preliminary hearing and directed the state to file an amended complaint. On July 28, 1983, the state filed an amended criminal complaint, drafted by an assistant district attorney and signed by Trooper Schroeder. The amended complaint alleged that the defendant left the scene of an accident involving death, in violation of sec. 346.67(1)(a), (b) and (c), Stats. Section 346.74 provides graduated penalties for a violation of sec. 346.67, depending on whether the victim was injured, suffered great bodily harm or died. The amended complaint copied the contents of the original and only modified the language to reflect that the victim had died.

Subsequently, on August 12, 1983, the defendant filed a motion to dismiss based on the insufficiency of the complaint and requested a hearing pursuant to Franks v. Delaware on the ground certain facts were either intentionally or recklessly omitted from the complaint. The defendant claimed that if those facts had been made part of the complaint, probable cause that the defendant left the scene prior to the rendering of assistance would not have been established. The defendant also filed a motion to dismiss and a memorandum of law on the question of whether sec. 346.67(1)(a) and (b), Stats., is unconstitutionally vague. This motion is not before this court since it has not been ruled on in the trial court. On August 17, 1983, a preliminary hearing was held and the court reset a date for hearing defendant's motions.

At an evidentiary hearing on October 10, 1983, the defense filed three exhibits taken from the district attorney's file to support its claim that the state knowingly or with reckless disregard for the truth omitted material facts in the amended criminal complaint.

The first exhibit is an accident report filed by a Trooper Reis. It states that on February 15, 1985, at approximately 3:20 p.m., she received a dispatch instructing her to proceed to an automobile accident at the intersection of Highway 31 and County Trunk Q. She arrived at the accident scene and was told that a car had left the area with a possible hit-and-run driver in it as a passenger. Trooper Reis states she spoke with a woman who lived in a house on the property where one of the vehicles came to rest. The woman stated that the driver of one of the vehicles came to her door and asked that an ambulance be called. She described the man as five feet eight inches, 160-165 pounds, dark haired and clean looking. She added he appeared dazed and excited.

A woman who identified herself as Ms. V. Babel told Trooper Reis that she lived five houses away from the accident scene. Ms. Babel arrived at her house just after the accident occurred. A man approached her and explained that he had been hitchhiking when he witnessed the accident. The man explained that the incident had caused him to be excited and nervous and asked if Ms. Babel would give him a ride. Ms. Babel told Trooper Reis that she drove the man to Timber Ridge Road and 125th Street where he got out of the car. She described the man as five feet ten inches, kind of heavy, dark hair, blue or green eyes, bushy mustache and wearing a brown jacket with sheepskin lining, brown belt, blue jeans and hiking boots. Trooper Reis subsequently determined from the vehicle license plates that one of the automobiles belonged to an individual named Michael Houlette. Trooper Reis stated that before being asked any questions Houlette stated that if it had anything to do with his car, he had reported it stolen. Michael Houlette denied any knowledge of the accident and told Trooper Reis that at approximately 3:50 p.m. (approximately 20 minutes after the accident) he had reported to the police that his car had been stolen. Michael Houlette voluntarily returned with the trooper to the house of the first witness. The first witness stated Houlette was not the man who came to her door and asked that an ambulance be called. The record is silent as to whether Houlette was presented to the second witness for identification.

Defense exhibit 2 is a statement given by the defendant to Trooper Turner on February 17, 1983, at which time the defendant surrendered himself to police. The defendant admits driving one of the vehicles involved in the accident. The defendant stated that he ran to the corner house and called the police. When he left the house a state patrol vehicle was already at the accident scene. He was in a state of shock and did not remember leaving. He just went home.

Defense exhibit 3 is a memorandum written by Trooper Barnes and addressed to the district attorney. Trooper Barnes stated that he interviewed a woman who lived in the corner house at the intersection where the accident occurred. The woman told Trooper Barnes that a man had come to her door and told her that a Volkswagen had just run a stop sign and that she should call the sheriff's department.

On November 23, 1983, the Kenosha county circuit court, the Honorable Michael S. Fisher, relying on information received during the evidentiary hearing of October 10, 1983, granted the defendant's motion to dismiss based upon the insufficiency of the complaint and held that the state recklessly omitted certain facts which had they been included would have resulted in a lack of probable cause on the face of the complaint that the crime charged had been committed. The court stated that to leave that information out is misleading and unfair and prevents the judge from making an impartial determination on the question of probable cause. The trial court found the state's failure to include the following portion of the defendant's statement relating directly to the elements of the crime charged constituted an intentional and knowing omission of a...