State v. Walberg
| Decision Date | 03 January 1983 |
| Docket Number | No. 81-605,81-605 |
| Citation | 109 Wis.2d 96,325 N.W.2d 687 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Robert WALBERG, Defendant-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
William J. Tyroler, Asst. State Public Defender, for defendant-appellant-petitioner.
Jerome S. Schmidt, Asst. Atty. Gen., argued, with whom on brief was Bronson C. La Follette, Atty. Gen., for plaintiff-respondent.
This is a review of an unpublished decision of the court of appeals, 105 Wis.2d 764, 318 N.W.2d 23, which affirmed the circuit court's order, Judge Robert W. Landry, presiding, denying the defendant's motion for postconviction relief pursuant to sec. 974.06, Stats.
The defendant Robert Walberg, was convicted after a trial by jury of one count of burglary, sec. 943.10(1)(a), Stats.1977, one count of possession of burglarious tools, sec. 943.12, and habitual criminality, sec. 939.62, as to both counts. 1 Prior to trial, the defendant brought several motions, including a motion to suppress evidence based on an illegal arrest and improper interrogation, and a motion to change venue. On June 19, 1978, the defendant filed a motion requesting that the trial judge, Christ T. Seraphim, recuse himself. The motion was based on the claim that during the motion hearings the judge had shown prejudice and bias in his remarks to defense counsel, to the detriment of the defendant. All the alleged misconduct occurred outside the presence of the jury. Judge Seraphim refused to recuse himself, disclaiming any prejudice, and presided at the trial.
Following the trial and conviction the defendant did not appeal but subsequently brought a motion to vacate the conviction pursuant to sec. 974.06, Stats., claiming that his constitutional rights to due process and effective assistance of counsel were violated by the trial court's refusal to recuse itself. The motion was heard and denied by Judge Landry, the successor to Judge Seraphim in this action.
The motion challenges statements made by Judge Seraphim to defense counsel during the pretrial motion hearing held on March 6, 1978. During this hearing the judge, on several occasions, expressed irritation with defense counsel because he believed he was wasting the court's time and the taxpayers' money with "frivolous" objections and motions, and his habit of asking too many questions. The defendant also challenges the court's conduct in criticizing a police officer who in response to a question by defense counsel made an estimate of the defendant's height that did not match the suspect's broadcast description. In that instance, the court ordered a recess and remarked to the prosecutor, "[d]on't you practice with these witnesses." The defendant also claims that bias was shown at this hearing when, during direct examination of the defendant as to his physical and mental state during interrogation, the court interposed answers for the defendant.
Other challenged conduct at the March 6th hearing includes the court's action in holding irrelevant a line of questioning by the defense attorney and the court's expression of disbelief following the defendant's testimony that he had been denied a request to use the restroom. Another statement challenged by the defendant was the court's remark in response to the defense counsel's argument that the description of the suspect, upon which the arrest of the defendant was made, was vague. The court stated that "[i]f I were to leave it to you [defense counsel] the police would never be able to arrest anybody."
The motion further challenges statements made at another pretrial hearing held on June 19, 1978. During the hearing Judge Seraphim ordered a change of venue when he was informed that the Supreme Court would probably grant a pretrial stay until the venue issue could be litigated. 2 While off the record, defense counsel approached the prosecutor and asked if he had an ex parte conversation with the trial court. The court overheard the question, took it as an insult, and an off-the-record exchange occurred. When they went back on the record the defendant's attorney alleged that during the off-the-record exchange Judge Seraphim told him, "I am going to fix you on the trial of this case." 3 At this point counsel asked the court to recuse itself. The court responded:
Judge Seraphim went on to disclaim any prejudice against either the defendant or defense counsel.
Defense counsel then indicated that he was going to seek extraordinary relief in the Supreme Court. The court responded that he was ashamed of the defendant attorney's conduct and asked him if he wanted the defendant to get a trial. The attorney stated that he wanted him to get a fair and impartial trial and the court responded:
A continuation of the pretrial motion hearing was held on June 21, 1978. At this time the court and the district attorney attempted to clarify the statements made at the June 19th hearing. The court denied stating it was going to "fix" defense counsel. Judge Seraphim acknowledged, stating "that if he [defense attorney] continued his tactics during the trial I was going to take care of him." The court then asked the district attorney what he remembered the court saying. The district attorney responded:
"My recollection was that you indicated at the conclusion of your statement to Mr. Clark that you would control this trial and that you would control Mr. Clark during the trial and not allow the type of conduct that had preceded his actions yesterday."
The court then stated:
As previously noted, Judge Landry denied the defendant's motion for a new trial. The court found that there was no evidence that the statements made by Judge Seraphim amounted to a deprivation of rights or a violation of due process. The trial court emphasized the fact that the challenged remarks occurred in preliminary motions and outside the presence of the jury, and that there was no evidence that the trial court's actions affected the defendant's case. The court noted that while Judge Seraphim's actions were "not an example for judges to follow," it was a part of the judge's role to maintain discipline in the courtroom, which sometimes included criticizing attorneys for their courtroom conduct.
The court of appeals affirmed, finding that although the remarks were "intemperate and improper courtroom conduct," the defendant did not establish by clear and convincing evidence that the defendant was denied due process. The court found that the defendant's counsel "responded coolly, calmly and courteously to the trial court's onslaughts and courageously and effectively continued the defense of his client."
The first issue on appeal is what burden of proof applies in a motion for postconviction relief pursuant to sec. 974.06, Stats. Sec. 974.06(6) provides:
"(6) Proceedings under this section shall be considered civil in nature, and the burden of proof shall be upon the prisoner."
Although denominating the proceeding as civil and placing the burden on the defendant, the statute does not articulate the quantum of proof necessary to meet this burden. We conclude on the basis of public policy that the higher civil burden of clear and convincing evidence applies to sec. 974.06 motions.
There are two different burdens of proof that apply in civil actions: fair preponderance of the evidence and clear and convincing evidence. 4 The fair preponderance standard applies in ordinary civil actions. 5 The clear and convincing standard applies in cases where public policy requires a higher standard of proof than in the ordinary civil action. 6 This so-called middle burden of proof has been required in such cases as fraud, undue influence, and prosecutions of civil ordinance violations which are also crimes under state law. 7
The court of appeals, relying on its decision in Rohl v. State, 90 Wis.2d 18, 28-29, 279 N.W.2d 722, 279 N.W.2d 731 (Ct.App.1979), modified on other grounds, 96 Wis.2d 621, 292 N.W.2d 636 (1980), held that the clear and convincing burden of proof was applicable to sec. 974.06 motions. We agree. The court in Rohl cited to State v. Carlson, 48 Wis.2d 222, 230, 179 N.W.2d 851 (1970), and State v. Reppin, 35 Wis.2d 377, 385, 151 N.W.2d 9 (1967), as authority for its holding. In Carlson and Reppin we held that a defendant seeking...
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