State v. Selders, No. 90-1699-CR

• Court: Court of Appeals of Wisconsin
• Writing for the Court: FINE
• Citation: 163 Wis.2d 607,472 N.W.2d 526
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Bernell SELDERS, Jr., Defendant-Appellant. d
• Decision Date: 04 June 1991
• Docket Number: No. 90-1699-CR

Page 526

472 N.W.2d 526 163 Wis.2d 607 STATE of Wisconsin, Plaintiff-Respondent,
v.
Bernell SELDERS, Jr., Defendant-Appellant. ^d No. 90-1699-CR. Court of Appeals of Wisconsin. Submitted on Briefs April 2, 1991.
Opinion Released June 4, 1991.
Opinion Filed June 4, 1991.

Page 527

[163 Wis.2d 610] Richard D. Martin, Asst. State Public Defender, for defendant-appellant.

Donald J. Hanaway, Atty. Gen., and Daniel J. O'Brien, Asst. Atty. Gen., for plaintiff-respondent.

Before MOSER, P.J., and SULLIVAN and FINE, JJ.

FINE, Judge.

Bernell Selders, Jr., appeals from a judgment of conviction entered on jury verdicts finding him guilty of two counts of first degree sexual assault. ¹ He raises three issues on appeal. First, he contends that the trial court lacked personal jurisdiction over him because the preliminary examination was not held within ten days of his initial appearance, as required by section 970.03(2), Stats. Second, he argues that the trial court erred in not permitting him to call a witness to testify [163 Wis.2d 611] that the witness saw the victim just prior to the line-up at which she identified Selders as her assailant and that she did not appear to be upset. Third, Selders claims that the trial court should not have instructed the jury that they could consider his alleged flight as evidence of guilt. We affirm.

I.

On June 7, 1989, a complaint was issued charging Selders with two counts of first-degree sexual assault of K.L. in connection with incidents that were alleged to have happened on June 2, 1989. Selders left Wisconsin after the incidents and was returned to this state by extradition. He made his initial appearance before the circuit court in Milwaukee County on September 11, 1989. See sec. 970.01, Stats. Cash bail of $50,000 was set. Unable to post bail, Selders remained in custody.

Selders' preliminary examination was held on September 22, 1989, and he was bound over for trial. Following Selders' bindover, an information was filed charging him with four counts of first degree sexual assault and one count of armed robbery. As noted, Selders was convicted of two counts of first degree sexual assault.

II.

A. Selders' first argument on appeal is that the trial court lost personal jurisdiction over him because the preliminary examination was not held within ten days after his initial appearance as is required by section 970.03(2), Stats. See Godard v. State, 55 Wis.2d 189, 190, 197 N.W.2d 811, 812 (1972) (trial court loses personal jurisdiction over defendant if preliminary examination not timely held). Section 970.03(2), Stats., provides:

[163 Wis.2d 612] The preliminary examination shall be commenced within 20 days after the initial appearance of the defendant if the defendant has been released from custody or within 10 days if the defendant is in custody and bail has been fixed in excess of $500. On stipulation of the parties or on motion and for cause, the court may extend such time.

As we have seen, Selders made his initial appearance on September 11, 1989. Accordingly,

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the ten-day period--applicable because he remained in custody--would have run on September 21, 1989.

On September 20, 1989, the state sought to have the preliminary examination adjourned for cause. As is permitted by section 757.69(1)(b), Stats., the proceedings were before a court commissioner. After first relating that Selders was extradited from Nebraska, the prosecution explained the reasons it needed the adjournment:

The attempts to conduct a line up have not been successful. The first time it was tried, which was very shortly after officers went to Nebraska to get him, the line up was ready to go and the victim was, in fact, down here and the Public Defenders' office indicated that they were swamped with new cases and couldn't come to the line up.

....

[The line up] was then scheduled for last night and I advised the detective to call [defense counsel] and ultimately spoke with him myself. [Defense counsel] had a conflict last night and on short notice wasn't able to appear.

I advised him since there has only been a photo identification, it seemed unwise to conduct a preliminary hearing where the victim would have an opportunity to see the defendant at counsel table without a line up.

[163 Wis.2d 613] I did advise him we would be asking for an adjournment for cause for that reason.

[Defense counsel] indicated he also has a conflict tonight. Apparently the early evening is when the line ups are being done.

We have now scheduled the line up for Thursday evening. I am advised [defense counsel] is available and the victim has been informed.

For that reason I am requesting an adjournment for cause.

The prosecution asked that the preliminary examination be postponed until Friday, September 22, 1989, the day after the scheduled Thursday evening line-up. The commissioner granted the adjournment over Selders' objection. In finding cause for the adjournment, the commissioner noted that a line-up was appropriate so that the alleged victim's identification of Selders as the assailant would not be tainted by his appearance at the preliminary examination "wearing orange clothing and the only person so attired sitting at the defense table."

In this case of first impression, we conclude that whether to adjourn a preliminary examination for cause is within the trial court's discretion. This determination is significant because it defines the scope of appellate review.

For purposes of standard of review, decisions by judges are traditionally divided into three categories, denominated questions of law (reviewable de novo ), questions of fact (reviewable for clear error), and matters of discretion (reviewable for "abuse of discretion").

Pierce v. Underwood, 487 U.S. 552, 558, 108 S.Ct. 2541, 2546, 101 L.Ed.2d 490 (1988). Matters that involve "what can be broadly labeled 'supervision of [163 Wis.2d 614] litigation' " are generally within the trial court's discretion. Id., 487 U.S. at 558 n. 1, 108 S.Ct. at 2546 n. 1; see also Salve Regina College v. Russell, 499 U.S. 225, ----, 111 S.Ct. 1217, 1222, 113 L.Ed.2d 190, 199 (1991). The authority granted by section 970.03(2) to adjourn preliminary examinations for cause clearly implicates the tribunal's supervisory responsibilities over that proceeding. Cf. Swonger v. State, 54 Wis.2d 468, 473, 195 N.W.2d 598, 601 (1972) (whether to excuse defendant's failure to timely give notice of alibi is within the trial court's discretion). Additionally, the authority to adjourn for cause under section 970.03(2) requires the weighing of competing interests, and this suggests that the legislature intended that the decision whether to grant the adjournment be given deference on appeal. Cf. Pierce, 487 U.S. at 559, 108 S.Ct. at 2547 (interpreting the phrase in the Equal Access to Justice Act, at 28 U.S.C. § 2412(d), "unless the court finds the position of the United States was substantially justified" rather than the possible alternative of "unless the position of the United States was substantially justified" as suggesting legislative intent that some deference

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be given to the trial court's determination). Finally, trial courts are " 'better positioned' " to make adjournment decisions than are appellate courts, and "probing appellate scrutiny" in this area "will not contribute to the clarity of legal doctrine." See Salve Regina College, 499 U.S. at...