State v. Smith
| Decision Date | 30 March 1971 |
| Docket Number | No. S,S |
| Citation | 50 Wis.2d 460,184 N.W.2d 889 |
| Parties | STATE of Wisconsin, Respondent, v. George E. SMITH, Jr., Appellant. tate 29. |
| Court | Wisconsin Supreme Court |
On March 5, 1969, defendant, a Janesville attorney, was in the courtroom of the Rock county courthouse in Janesville, preparatory to representing a client at a preliminary hearing on a charge of sodomy. Two of the witnesses for the state were Officer Norman E. Pierce and Captain Gerald Dilley of the Rock county sheriff's department.
Shortly before 2 p.m. an altercation occurred between the officers and defendant Smith. There is some dispute with respect to what was said:
Officer Pierce testified that he was seated by himself at the front of the courtroom when defendant entered, sat down at the counsel table and then turned to Pierce and asked: 'Are you the complainant in this matter?' When he did not respond, defendant then asked Captain Dilley if he a blow job?'
Shortly thereafter, Captain Dilley entered the courtroom and sat next to Officer Pierce. According to both officers, defendant then asked Captain Dilley if he had given defendant's client 'a blow job.' Thereafter several proceedings on entirely different matters were conducted by Judge Boyle. After these, and prior to the preliminary of defendant's client, the defendant again turned to Officer Pierce and asked 'Are you the complainant?' The officers then jumped to their feet and Officer Pierce, by his own admission at trial, told defendant that if defendant again said what he had previously said to him 'I would knock him on his ass.' Captain Dilley then told defendant to keep a civil tongue in his head.
Defendant denied use of this language toward the officers, stating that he said 'they must have done a snow job to get this particular statement,' referring to the obtaining of a written confession from his client.
The preliminary of defendant's client was then held, conducted by a court commissioner, George Blakely. At this preliminary Captain Dilley testified and was cross-examined by defendant. At the conclusion of the hearing, the two officers approached defendant and advised him he was under arrest for disorderly conduct. Defendant refused to go along with the officers and when the officers advanced toward him, he indicated he would resist. A scuffle ensued, defendant's right arm was handcuffed and he was dragged off to the county jail, with defendant verbally protesting the arrest and asking to be arraigned and to post bond. The officers did not have a warrant during the incident, which took place in full view of the county judge, the court commissioner, the court reporter, the assistant district attorney, and defendant's client. Defendant was subsequently charged with disorderly conduct and resisting arrest.
Later that afternoon defendant was arraigned on these charges in Rock county court, the Honorable Mark Farnum presiding, at which time a complaint was served on defendant which read:
'Norman Pierce being duly sworn says that on the 5th day of March, 1969, at the city of Janesville, in said county of Rock and state of Wisconsin
'Count One
'The said George Edward Smith, Jr. did unlawfully, in a public place, engage in indecent and otherwise disorderly conduct, under circumstances tending to cause a disturbance, contrary to section 947.01(1) of the Wisconsin Statutes; and
'Count Two
'That on the 5th day of March, 1969, * * * did unlawfully and knowingly resist an officer while such officer was doing an act in his official capacity and with lawful authority, contrary to section 946.41(1) of the Wisconsin Statutes; all against the peace and dignity of the state of Wisconsin and prays that the said George Edward Smith, Jr. may be arrested and dealt with according to law.'
Objections were then made 'to the form and the substance of this complaint' and that it '(did) not recite facts sufficient to establish' the offenses. These objections were not ruled upon. A motion was made for the immediate release of defendant, which motion was denied. The matter was then continued to March 11, 1969, and to March 13, 1969. On this date a motion to quash was made, the scope and effect of which is disputed on this appeal. Objections to the sufficiency of the complaint were made later in circuit court on a request for a bill of particulars prior to the commencement of the trial; further objections to the sufficiency of the complaint were made at the conclusion of the state's presentation, at the conclusion of the trial and in motions after verdict.
Defendant entered a plea of not guilty on March 13, 1969, in Rock county court, the Hon. Clarence Traeger presiding. The case was then transferred to circuit court for trial and defendant advised that court would convene in ten minutes. When defendant appeared, Circuit Judge Arthur Luebke, Rock county circuit judge, disqualified himself and County Judge Traeger was appointed acting circuit judge. Defendant then requested the court to set a date ten days hence to hear motions prior to trial, but this request was denied. Trial was set for April 10, 1969, with pre-trial motions to be heard on that date before trial.
Trial was held before a jury on April 10, and 11, 1969, and defendant was found guilty as charged. Defendant was fined $75 on the disorderly-conduct charge; on the charge of resisting arrest, defendant was fined $500 and sentenced to one year in the county jail, with sentence stayed and defendant placed on probation for six months; fines were to be paid within twenty days, and defendant was to be confined in the county jail for four nights from 6 p.m. until 6 a.m. during the first thirty days. Defendant was also ordered to pay all costs, including the legal fees of the special prosecutor. After the fines were paid, a stay was granted pending appeal.
Cleland P. Fisher and E. L. Nash, Janesville, Frank Kinast, Beloit, for appellant; John W. Roethe, Edgerton, of counsel.
Robert W. Warren, Atty. Gen., William A. Platz and Robert D. Martinson, Asst. Attys. Gen., Madison, for respondent.
Robert J. Ruth, Dist. Atty., Janesville, for Rock Co.
The first issue presented on this appeal is whether the complaint is sufficient on both counts. In order to reach this issue we must first determine whether, as the state contends, defendant waived his objections to the sufficiency of the complaint. We think not.
Defendant was arraigned before Judge Farnum at 5:50 p.m. on the day of his arrest. At this proceeding the complaint was read to defendant, and the record notes that defendant had been given a written copy thereof. Defendant then entered an objection 'to the form of the complaint and the substance of the complaint,' citing Massen v. State, 1 which requires objections of this nature to be entered at the earliest possible stage.
The court then asked:
'Court: You mean because it's a bare bones complaint in the common vernacular, rather than the lengthy factual affidavit?
'Mr. Kinast: Yes, it does not recite facts sufficient to establish--
'(Interruption by the prosecutor.)'
After some discussion of bail:
After further discussion of whether to set bond, defense counsel stated:
'Mr. Kinast: Judge, as I understand it, then, I keep harping on this, for the record the motion of counsel to release the defendant from custody on the grounds that the process and pleadings, substance and form, do not support the jurisdiction of the court, is denied?
'Court: Yes, right.'
Thereafter the case was continued until March 11, 1969, to be heard before Judge Boyle, under the assumption that there would be a substitute judge. No plea was entered. At the close of the proceeding, another defense counsel stated:
'Mr. Fisher: There is no waiver here of our right to renew our motions.
'Court: Absolutely not.'
'Mr. Fisher: Showing probable cause on the complaint.
'Court: Absolutely not.'
At the hearing on March 11, 1969, before Judge Boyle, the court advised defendant and counsel that he had referred the matter to the court administrator, and that Judge Clarence Traeger of Dodge county had been assigned to hear the matter on March 13, 1969. Any motions were to be made at that time.
At the hearing on March 13, 1969, before Judge Traeger, defendant entered a not guilty plea and requested a 12-man jury trial. At this hearing defendant moved to:
a. Quash the arrest made without a warrant on the grounds that (1) 'there was no probable cause for such arrest in that * * * the officers had no reasonable grounds to believe * * *' that defendant could not later be apprehended or that personal or property damage was likely ( sec. 954.03(1), Stats. 2); and (2) defendant was privileged from arrest since he was representing his client at a judicial proceeding in the courtroom;
b. 'quash the complaint and warrant issued for the reason that at the time of said arrest * * *' defendant was 'privileged from arrest' under the circumstances. (Emphasis added.)
c. '(Q)uash the complaint and warrant for there was no showing of probable cause made before any court or magistrate prior to or at the issuance of the said complaint and warrant for the arrest of the defendant for there was no showing that the arresting officers had reasonable grounds to believe that the defendant * * * if he had committed a misdemeanor * * *' could not later be apprehended or...
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