State v. Simmons

• Citation: 57 Wis.2d 285,203 N.W.2d 887
• Decision Date: 08 February 1973
• Docket Number: No. S,S
• Parties: STATE of Wisconsin, Respondent, v. Ronald SIMMONS, Appellant. tate 108.
• Court: Wisconsin Supreme Court

Page 887

203 N.W.2d 887

57 Wis.2d 285

STATE of Wisconsin, Respondent, v. Ronald SIMMONS, Appellant.

No. State 108.

Supreme Court of Wisconsin.

Feb. 8, 1973.

Percy L. Julian, Jr., Madison, for appellant.

Robert W. Warren, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., Madison, for respondent.

HEFFERNAN, Justice.

Counsel on this appeal neglected to invoke the jurisdiction of this court until January 14, 1972. This was twenty-two months after the date of the conviction and eighteen months following the imposition of the sentence. Accordingly, no matter how meritorious the appeal from these judgments might have been, this court lacks jurisdiction to review either judgment. Babbitt v. State (1964), 23 Wis.2d 446, 451, 127 N.W.2d 405. See, also, State v. Wollmer (1970), 46 Wis.2d 334, 174 N.W.2d 491. The one-year period within which the appeal involved in this action could be brought is prescribed by the statutes applicable to criminal prosecution commenced before July 1, 1970, secs. 958.06(2) and 958.13, Stats.1967. Only the defendant's appeal from the order denying the motion for a new trial is timely. The appeal from the judgments must be dismissed.

When an appeal is taken from an order denying a new trial, the test to be applied to the trial court's decision is whether there has been an abuse of discretion. The order will not be reversed unless an abuse of discretion has been clearly shown. Logan v. State (1969), 43 Wis.2d 128, 133, 168 N.W.2d 171; State v. Waters (1965), 28 Wis.2d 148, 152, 135 N.W.2d 768. The moving party in a motion for new trial has the obligation to raise the issues which trigger the court's discretion. It is not sufficient to merely assert that an error has occurred in the trial or that a verdict is contrary to the evidence or the law. An appeal from the denial of a motion for a new trial does not raise in this court all of the issues that would be available to an appellant were there a direct appeal from the conviction. The appeal from a denial of a motion for a new trial can only raise those questions which, with particularity, were directed to the trial court's attention in the motion or in an evidentiary hearing held upon the motion. Since we review the discretion of the trial judge, matters not brought to his attention in the proceedings on the motion for a new trial are not before us upon an appeal from the ensuing order.

The record fails to include any transcript of any argument made by defendant's counsel in support of his motion for a new trial. One moving for a new trial has the obligation to include in his motion allegations, prima facie at least, to show reasons for a new trial. It is not sufficient to make assertions of a general nature. Moreover, where the allegations made can only be supported by the submission of additional evidence, an evidentiary showing must be made either by affidavit or by oral testimony.

Insofar as the record reveals, only one evidentiary matter was submitted to the trial judge in support of the motion. An affidavit was submitted which purported to show that, prior to the trial, defense counsel had been denied access to the prosecution's complaining witness and to her mother. The affidavit signed by Bryan Borman, who stated that he was working as a representative of the Dane County Legal Services, the organization that was appointed by the trial court to provide the defendant with counsel, stated that he attempted to talk to the victim 'regarding the arrest of Ronald Simmons.' He stated that the victim refused to talk to him because 'she was ordered not to talk to anyone representing Ronald Simmons unless her mother was present.' He further stated that, upon calling the girl's mother to ask that he talk to mother and daughter together, he was told, 'Assistant District Attorney John Daley had instructed her not to talk to anyone about the case except in his presence.' This affidavit is the only evidentiary underpinning for the allegation in the motion:

'That the state through the office of the district attorney unlawful interfered with defendant's rights to interview and question prosecution witnesses in violation of his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I, sections 7 and 8 of the Wisconsin Constitution, by instructing the state's witnesses to refuse to discuss the case with the defendant's attorney and his investigators.'

There is no evidence of record to show that the instructions allegedly given by the prosecutor to the victim's mother were in fact made.

This court has held that an accused's counsel has the right to interview prosecution witnesses before trial. In State v. Watkins (1968), 40 Wis.2d 398, 162 N.W.2d 48, we said that the prosecution cannot deny such access, although the witness cannot be compelled to submit to such interview against his wishes. In Watkins, we found no denial of access to a prosecution witness, because the witness himself did not wish to talk to defense counsel.

The right of an accused to interview prosecution witnesses is recognized by the federal courts. United States v. Long (8th Cir., 1971), 449 F.2d 288, 295; United States v. Miller (2nd Cir., 1967), 381 F.2d 529, 538, fn. 7; Callahan v. United States (9th Cir., 1967), 371 F.2d 658. Gregory v. United States (1966), 125 U.S.App.D.C. 140, 369 F.2d 185, 188, supports the defendant's assertion here that it is a denial of due process for a prosecutor to instruct government witnesses not to talk to defense attorneys unless the prosecutor is present. A similar constitutional basis was relied upon in Coppolino v. Helpern (D.C.S.D.N.Y.1967), 266 F.Supp. 930, 935. Moreover, according to the American Bar Association Project on Standards for Criminal Justice, Standards Relating to The Presecution Function (Approved Draft, 1971), Supplement page 6:

'A prosecutor should not discourage or obstruct communication between prosecutive witnesses and defense counsel. It is unprofessional conduct for the prosecutor to advise any person or cause any person to be advised to decline to give to the defense information which he has the right to give.' Standard 3.1(c).

The rationale behind this standard is discussed on page 78 of the Standards Relating to The Prosecution Function:

'Prospective witnesses are not partisans; they should be regarded as impartial spokesmen for the facts as they see them. Because witnesses do not 'belong' to either party, it is improper for a prosecutor, defense counsel, or anyone acting for either to suggest to a witness that he not submit to an interview by opposing counsel. It is not only proper but it may be the duty of the prosecutor and defense counsel to interview any person who may be called as a witness in the case (except that the prosecutor is not entitled to interview a defendant represented by counsel). In the event a witness asks the prosecutor or defense counsel or a member of their staffs whether it is proper for the witness to submit to an interview by opposing counsel or whether he is under a duty to do so, the witness should be informed that, although he is not under a legal duty to submit to an interview, it is proper and may be the duty of both counsel to interview all persons who may be witnesses and that it is in the interest of justice that the witness make himself available for interview by counsel.

'Counsel may properly request an opportunity to be present at opposing counsel's interview of a witness, but he may not make his presence a condition of the interview.'

Based upon our holding in Watkins, we conclude that Standard 3.1(c) properly reflects Wisconsin law, and we adopt that standard as a guide to future conduct by prosecutors. ¹ Nevertheless, while defendant herein asserts a proper rule of law, the evidence falls short of showing a constitutional deprivation and is not persuasive in convincing us that the trial judge abused his discretion when he failed to grant a new trial on the basis of this evidence. The affidavit is completely hearsay and was not underpinned by any evidence adduced at the hearing on the motion or by any other affidavits. Further evidence, if available, should have been submitted at the hearing on the motion.

Neither the victim nor her mother testified or signed an affidavit to show that they had received the alleged instructions from the assistant district attorney, nor was the prosecutor called either to affirm or to deny that he had given such instructions. The defendant relies upon Gregory v. United States, supra, but there the prosecutor appeared in court and admitted that he had given the instructions to the witnesses. Moreover, given a literal interpretation, the affidavit does not show a complete denial of access to the prosecution witnesses. Rather, it indicates that the witnesses were asked not to testify out of the presence of the prosecutor. It would not have been improper for the prosecutor to ask to be present, although he could not insist on that condition. Standards (Commentary), supra, p. 78. The showing made in the trial court was insufficient to indicate that the defendant had been denied his constitutional rights to access to prosecution witnesses. The trial judge did not abuse his discretion in denying a new trial on this ground.

Additionally, in the motion for a new trial, the defendant claims his court-appointed counsel was ineffective because he failed to raise certain objections to evidence and to other alleged constitutional deprivations. This court has repeatedly stated it will find trial counsel ineffective only when it is shown that the representation was so inadequate and of such low competence that it amounted to no representation at all and reduced the trial to a sham and a mockery of justice. Swonger v. State (1972), 54 Wis.2d 468, 474, 195 N.W.2d 598; Quinn v. State (1972), 53 Wis.2d 821, 825, 193 N.W.2d 665; Milburn v. State (1971), 50 Wis.2d 53, 65, 183 N.W.2d 70.

In this...