State v. Midell

• Decision Date: 01 November 1968
• Citation: 40 Wis.2d 516,162 N.W.2d 54
• Parties: STATE of Wisconsin, Respondent, v. Lynn MIDELL, Appellant.
• Court: Wisconsin Supreme Court

Page 54

162 N.W.2d 54

40 Wis.2d 516

STATE of Wisconsin, Respondent, v. Lynn MIDELL, Appellant.

Supreme Court of Wisconsin.

Nov. 1, 1968.

Harvey L. McCormick, Milwaukee, for appellant.

Bronson C. La Follette, Atty. Gen., Madison, David J. Cannon, Dist. Atty., Milwaukee County, Terence T. Evans, Asst. Dist. Atty., Milwaukee, for respondent.

CONNOR T. HANSEN, Justice.

Five issues are presented for determination on this appeal.

1. Did the interval between the date of the alleged offense and the date of arrest deprive the defendant of due process of law?

2. Did the trial court err in not requiring a witness to disclose the identity of an informer?

3. Were the facts as alleged in the complaint sufficient to permit a finding of probable cause for the issuance of a warrant of arrest?

4. Did the unavailability of the original complaint at the time of trial constitute sufficient grounds for dismissal?

5. Did the trial court err in sentencing the defendant as a second offender pursuant to the provisions of sec. 161.28, Stats.?

1.

INTERVAL BETWEEN OFFENSE & ARREST

The record discloses that on April 14, 1966, Hector Jordan, an agent for the Federal Bureau of Narcotics, made a $20 purchase of marijuana from the defendant. Jordan was operating out of the Chicago regional office of the Bureau of Narcotics.

A warrant for the arrest of the defendant was issued April 6, 1967, and served the same day. The defendant had been confined in the Milwaukee county jail as the result of another offense from February 24, 1967, to the date of the arrest.

No claim is made that the defendant was denied a speedy trial due to the interval between the arrest (April 6, 1967) and the trial (November 29, 1967).

The issue presented by the defendant raises a due process question, Fifth Amendment, and Sec. 8, art. I, Wis.Const. The defendant urges that he was denied due This is the first time such an application of denial of due process has been presented to this court.

process because of the delay of nearly one year from the date of the offense to the date of arrest.

On these grounds the defendant moved for a dismissal of the prosecution. The trial court conducted a pretrial hearing on this motion, and after hearing the evidence offered by both the state and the defendant, the motion was denied.

In situations concerning a prearrest interval of time, the statute of limitations is usually considered the primary guarantee against bringing overly stale criminal charges. United States v. Ewell (1966), 383 U.S. 116, 122, 86 S.Ct. 773, 15 L.Ed.2d 627, 632. However, a substantial majority of state and federal jurisdictions confronted with this issue have recognized that a statute of limitations is not the sole standard by which delay between offense and arrest is to be measured. ¹

The defendant supports his position with Ross v. United States (1965), 121 U.S.App.D.C. 233, 349 F.2d 210. In reversing, the District of Columbia Court of Appeals considered the interval of seven months between the date of the offense and the date of arrest a deprivation of the defendant's Fifth amendment due process rights. Initially it can be stated that we do not consider Ross to be the law of this case. Furthermore, Ross is readily distinguishable from the facts in this case. For instance, in Ross the enforcement officers knew of the defendant's whereabouts during the entire seven month delay.

In post arrest cases this court has determined that the mere lapse of time is insufficient to establish a denial of a speedy trial. Commodore v. State (1967), 33 Wis.2d 373, 377, 147 N.W.2d 283. Absent the tolling of the statute of limitations we see no reason to hold that lapse of time, standing alone, should be sufficient grounds to demonstrate a denial of due process in pre-warrant situations.

An examination of the record of the pre-trial hearing and of the trial reveals ample justification for the interval between the offense and the arrest and fails to reflect any evidence of a denial of due process.

At the pre-trial hearing Agent Jordan testified it was his intention to make more and larger purchases of marijuana from the defendant, that it is customary to make several purchases, and that the defendant told him he could get larger amounts. Defendant testified that on the day after the alleged purchase he went to Detroit. He specifically remembered certain clothing purchases he made and the time the bus left, but could not remember any of his activities of the day before. He made trips to Toledo and Minneapolis between April 14, 1966, and his incarceration on February 24, 1967. The agents were looking for him during this time. The Detroit agents were notified that he was wanted. The agents received information that the defendant might have gone to Texas. Though the The defendant presented absolutely no defense and in our opinion the record is barren of any demonstration of prejudice to the defendant as a result of the delay in arrest.

defendant claims to have been in Milwaukee most of the year between the alleged offense and arrest, he testified at the pre-trial hearing that he moved but did not use his own address for mail as, 'I never wanted anyone to know where I lived.' Also the record reflects that the warrant was obtained within a few days after the federal narcotics agents learned that the defendant was in the Milwaukee jail.

We, therefore, conclude that the trial court properly denied the motion to dismiss.

2.

IDENTITY OF AN INFORMER

Hector Jordan testified that he made the purchase of the marijuana from the defendant. Agent Jordan was the complainant and one of the principal witnesses at the trial.

In cross-examining Jordan, counsel for the defendant sought to have him disclose the identity of an informer who told him that the defendant would be present at the time and place the offense is alleged to have taken place. Objections to this cross-examination were taken by the state and sustained by the court.

Defendant now submits that the trial court erred in not requiring Jordan to disclose the identity of such an informer.

The identity of an informer may be required where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of the accused. However, in this case the identity of the informant is not even remotely relevant to the issue of guilt or innocence. Roviaro v. United States (1957), 353 U.S. 53, 60, 77 S.Ct. 623, 1 L.Ed.2d 639, 645.

This court and the United States Supreme Court have recognized that the identity of an informer need not always be disclosed. Stelloh v. Liban (1963), 21 Wis.2d 119, 126--127, 124 N.W.2d 101; McCray v. State of Illinois (1967), 386 U.S. 300, 310, 87 S.Ct. 1056, 18 L.Ed.2d 62.

In this case we conclude that the trial court did not err in not requiring the witness to identify the informer.

3.

SUFFICIENCY OF COMPLAINT

The defendant asserts that the allegations contained in the complaint were not sufficient to permit a finding of probable cause upon which to issue a warrant for defendant's arrest.

The complaint and warrant were both executed on April 6, 1967. Defendant was arrested the same day. A preliminary examination was had before a county judge sitting as magistrate and the defendant was bound over to circuit court for trial.

He was arraigned in circuit court on an information on May 19, 1967, pled not guilty, and trial was set for July 18, 1967. July 7, 1967, on motion of defendant, the trial date was adjourned to September 19, 1967. There were further adjournments and the case was ultimately tried November 29, 1967.

After arraignment in circuit court, but before trial, the defendant moved for a dismissal on the basis of the insufficiency of the complaint.

We are of the opinion that the trial court properly denied this motion.

We do not reach the alleged constitutional question raised by the appellant. Such an objection, assuming one existed, was waived because it was not raised until long after the defendant pleaded to the information in circuit court. Gaertner v. State (1967), 35 Wis.2d 159, 150 N.W.2d In any event, we have examined the record, considered the arguments advanced by counsel and conclude that the complaint was not constitutionally defective.

370; State ex rel. LaFollette v. Raskin (1966), 30 Wis.2d 39, 139 N.W.2d 667; State ex rel. LaFollette v. Moser (1966), 30 Wis.2d 56, 139 N.W.2d 632.

4.

UNAVAILABILITY OF ORIGINAL COMPLAINT

November 29, 1967, the date of the trial, the court, the prosecutor and the defendant's attorney discovered for the first time that the original complaint was not a part of the trial court record.

Defendant thereupon moved for a dismissal and the trial court denied the motion. We are of the opinion that the decision of the trial court on this motion was correct.

Several copies of the original complaint were available and the record convinces us that an original complaint issued in this case. In fact, the defendant does not directly argue that there was none.

Furthermore, after the preliminary examination had been conducted and probable cause determined, the defendant was bound over to the circuit court for trial. Following the bind-over an information was filed to which the defendant entered a plea on May 19, 1967, and was tried.

In felony cases the information is the accusatory pleading under our criminal procedure and its filing is not jurisdictionally dependent upon a valid complaint. Pillsbury v. State (1966), 31 Wis.2d 87, 93, 142 N.W.2d 187. At the time of the arraignment on the information no objection was made to any of the proceedings in the lower court.

The fact that the original complaint is now missing does not vitiate the conviction of the defendant.

5.

SECOND OFFENDER SENTENCE

The trial court determined that the defendant was a second offender within the purview of sec. 161.28, Stats., and thereupon imposed the mandatory minimum sentence of five years.

The...