State v. Ritchie

• Decision Date: 03 March 1970
• Docket Number: Nos. S,s. S
• Citation: 46 Wis.2d 47,174 N.W.2d 504
• Parties: STATE of Wisconsin, Respondent, v. Keith RITCHIE, Appellant. t. 83, 84.
• Court: Wisconsin Supreme Court

Page 504

174 N.W.2d 504

46 Wis.2d 47

STATE of Wisconsin, Respondent, v. Keith RITCHIE, Appellant.

Nos. St. 83, 84.

Supreme Court of Wisconsin.

March 3, 1970.

The defendant-appellant, Keith Ritchie (hereinafter defendant), was charged with two counts of forcible rape, sec. 944.01, Stats., and one count of kidnapping, sec. 940.31, as a result of incidents which occurred December 26, 1967. A jury trial was held in the county court of Kenosha county, Judge ZIEVERS, presiding, June 6 and June 7, 1968. The defendant was found guilty on all three charges and sentenced to the Wisconsin state reformatory for a period of eight years on each count, the sentences to be served concurrently.

The defendant filed a motion October 17, 1968, for vacation of the judgment and, in the alternative, for a new trial. That motion was denied by the county court November 19, 1968. Pursuant to sec. 957.255(2), Stats., an appeal of that denial was taken to the circuit court for Kenosha county. Circuit Judge HAROLD M. BODE filed a written decision April 1, 1969, affirming the order denying the motion for a new trial.

It is unnecessary to set forth with particularity the details of the incidents leading to the conviction for rape and kidnapping because there is no question raised as to the sufficiency of the evidence nor as to any error in the admission of evidence. It suffices to say that several acts of sexual intercourse with the complainant are admitted by the defendant. However, the testimony was in sharp dispute respecting the element of consent, the kidnapping charge, and the participation of other parties in the events of December 26, 1967.

The conviction on the kidnapping charge is based on the testimony of the complainant, Norma Mays, supported by circumstantial evidence, namely, certain articles of her clothing found in a field, and several bruises allegedly inflicted by Ritchie and other assailants. She testified the field was the place the initial rape occurred and that she was transported from there at knife point to the defendant's residence, the location of subsequent involuntary acts of sexual intercourse.

The essence of complainant's testimony was that she accepted an offer of a ride with the defendant from an all-night restaurant in Kenosha to her home in Racine (a distance of about 11 miles) at about six a.m., December 26, 1967. She had previously met the defendant at this restaurant at least two hours earlier while she awaited the first train to Racine. Upon leaving the restaurant she testified that Ritchie drove some distance and then into a deserted field, the location of the first rape.

After the initial act she stated that some friends of Ritchie's came on the scene and she was forcibly taken to his home, held captive, stripped of her clothing, and forced to engage in sexual intercourse with several different men until about three p.m. that day when she was able to escape and go to a neighbor's home to report the happenings.

Defendant Ritchie admitted meeting the prosecutrix at the restaurant and several acts of sexual intercourse at the house, but denied the incident at the field, denied that any force was used to compel the prosecutrix's co-operation and denied that any other persons engaged in intercourse with her at his house that day.

The facts most material to this appeal deal solely with the procedural matters of the trial after the jury had retired to deliberate. The record shows that the following proceedings took place during deliberations:

'The Jury notified the bailiff they would like to appear in the courtroom with a question. Court reconvened. Defendant Keith Ritchie appearing in court in person.

'BY THE COURT: Let the record show Mr. Vaudreuil stated he did not wish to be called. It is now 7:15, and the defendant is present. Be seated. Members of the Jury, you have made inquiry as to the reading of some testimony that may be in question. Which testimony would you like to have read?

'BY THE APPARENT FOREMAN: The depositions.

'BY THE COURT: The deposition of Keith Ritchie and the girl?

'BY THE APPARENT FOREMAN: Keith Ritchie and Sam Wasion.

'BY THE COURT: Refer to both of those and read the testimony. * * *

'BY A MEMBER OF THE JURY: Find the place in there where the girl mentioned the GTO and where they sat. (Thereafter the court reporter read from her notes the testimony as contained in this transcript from the middle of page 18, all of page 10, to and including the third question and answer on page 20.)

'BY THE COURT: Is that all? (No further heard from the jury.) Court is in recess.

'Jury retired to the jury room for continued deliberations.

'At 8:05 P.M. the Jury notified the bailiff they had reached a verdict. Court reconvened. Defendant, Keith Ritchie appearing in court in person.'

The portions of the record read to the jury contained prior inconsistent statements of the defendant and one of the alleged accomplices, Sam Wasion, that had been introduced by the state for impeachment of the testimony of each of them. Each of these men indicated in his prior statement that numerous men had been engaging in sexual intercourse with the complainant at defendant's house December 26, 1967. These statements were directly contra to the testimony of both defendant and Wasion at the trial.

The testimony of the complainant which was read to the jury pertained to the act of kidnapping when she was taken captive in the field and transported in the back seat of another car to defendant's residence. That testimony indicated that Ritchie and Wasion were the men who placed her in the back seat and held her there during the trip to the house.

Defendant's motion for new trial was premised upon the absence of his trial counsel at the reading of this testimony and the rendering of the verdict.

Defendant, Keith Ritchie, appeals from the judgment and the orders denying the motions.

Shellow, Shellow & Coffey, Robert H. Friebert, Milwaukee, for appellant.

Robert W. Warren, Atty. Gen., Betty R. Brown, Asst. Atty. Gen., Madison, Joseph B. Molinaro, Dist. Atty., for Kenosha County, Kenosha, for respondent.

BEILFUSS, Justice.

The issues are:

1. Is the defendant entitled to a new trial on the ground that he was denied the right to assistance of counsel due to his attorney's voluntary absence both when the jury requested the reading of certain testimony and when the verdict was rendered?

2. Did the trial court err in failing, sua sponte, to instruct the jury that certain evidence which was read to it showing prior inconsistent statements could be used only for impeachment purposes, but not as substantive evidence of the crimes?

3. Did the trial court err in having read to the jury certain designated portions of the testimony of two defense witnesses and one witness for the state at the jury's request?

The principal contention of the defendant is that the trial court erred when, in the absence of defense counsel, Attorney L. E. Vaudreuil, it permitted the jury to return to the courtroom to have read, at the jury's request, a portion of the cross examination of Ritchie, a portion of the cross examination of Wasion (a defense witness), and a part of the direct testimony of the complainant. It is further argued that the absence of counsel when the verdict was returned constitutes reversible error. Defendant asserts that the reading of testimony and the receipt of the verdict were both 'critical' stages of the proceedings against him and the trial court was under an obligation to assure him the assistance of counsel at those times.

As observed in the statement of facts, the only matter of record regarding the nature of defense counsel's absence is the judge's statement:

'Let the record show Mr. Vaudreuil stated he did not wish to be called. It is now 7:15, and the defendant is present.'

There is no evidence in the record showing an express waiver of counsel at these times by the defendant.

In an attempt to demonstrate the critical nature of this portion of the proceedings, reference is made by the defendant to numerous decisions of the United States Supreme Court in which counsel has been required at other stages of the proceedings: at a lineup, United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; at an interrogation, Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; at certain preliminary hearings, White v. Maryland (1963), 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193; at an arraignment, Hamilton v. Alabama (1961), 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114; at a trial, Gideon v. Wainwright (1963), 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; at sentencing, Mempa v. Rhay (1967), 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336; and for appeal, Douglas v. California (1963), 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811. ¹ None of these cases pertain directly to the controversy in the present appeal, but they do demonstrate a concern that counsel be present or expressly waived whenever alternatives of action are available to the accused, including opportunity for objection or for the presentation of arguments to the court, as in sentencing situations.

The state has argued that Ritchie's failure to object to the proceedings without counsel constitutes a waiver of the right to assistance of counsel under the doctrine of State v. Russell (1958), 5 Wis.2d 196 92 N.W.2d 210. In Russell this court said, at pp. 200, 201, 92 N.W.2d at p. 212:

'While counsel has a right and perhaps a duty to be present when a jury comes in for additional instructions, such right may be waived. What amounts to waiver depends on the facts in each case. Stoddard v. State (1907), 132 Wis. 520, 112 N.W. 453; Clemens v. State (1922), 176 Wis. 289, 185 N.W. 209, 21 A.L.R. 1490. Counsel must assume the risk of his own arrangements with the court reporter or other personnel to be called when the jury comes in for additional instructions or with a verdict if he absents himself from the courtroom during...