State v. Webb

• Decision Date: 26 March 1991
• Docket Number: No. 89-0593-CR,89-0593-CR
• Citation: 467 N.W.2d 108,160 Wis.2d 622
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Cross-Petitioner, v. Richard L. WEBB, Defendant-Appellant-Petitioner. d
• Court: Wisconsin Supreme Court

Page 108

467 N.W.2d 108

160 Wis.2d 622

STATE of Wisconsin, Plaintiff-Respondent-Cross-Petitioner, v.Richard L. WEBB, Defendant-Appellant-Petitioner.^d

No. 89-0593-CR.

Supreme Court of Wisconsin.

Argued Jan. 4, 1991.

Decided March 26, 1991.

Glenn L. Cushing, Asst. State Public Defender, for defendant-appellant-petitioner.

Daniel J. O'Brien, Asst. Atty. Gen., argued, Donald J. Hanaway, Atty. Gen., on briefs, for plaintiff-respondent-cross-petitioner.

STEINMETZ, Justice.

The issue presented in this case is what, if any, relief should be available to a defendant who was duly convicted at a fair and errorless trial when it is determined on appeal that his preliminary hearing was closed in violation of the Sixth Amendment to the United States Constitution.¹

After a jury trial in the circuit court for Dane county, before Judge George Northrup, the defendant, Richard L. Webb, was convicted of first-degree sexual assault in violation of sec. 940.225(1)(d),Stats. 1985-86.² The victim, a step-daughter of the defendant, was eleven years of age at the time of the crime.The defendant appealed from the judgment of conviction ³ to the court of appeals, asserting that his sixth amendment right to a public trial was violated insofar as the preliminary examination ⁴ was improperly closed to the public.⁵

The preliminary examination was conducted by Judge Michael Nowakowski, Dane county circuit court.At the prosecutor's request and over objections by the defendant, the court, pursuant to sec. 970.03(4), Stats., closed the preliminary hearing to the defendant's mother and niece, apparently out of concern that the victim-witness not be intimidated.The victim's mother and a "rape-crisis unit" member were not included in the closure order and remained at the hearing.The parties are in disagreement as to whether the closure order applied to any members of the public besides the defendant's mother and niece.The defendant objected to the order arguing that sec. 970.03(4) did not permit whatever partial closure occurred.However, the defendant did indicate that he was willing to accept complete closure of the hearing.Overruling the defendant's objections, the court, based upon the victim's testimony, found probable cause that the defendant had committed a felony and so bound the defendant over to Judge Northrup's branch of the circuit court"for arraignment, trial and further proceedings."

After arraignment, the defendant filed a pretrial motion in Judge Northrup's court to dismiss for "lack of jurisdiction" based upon the "improper" closure of the preliminary hearing.The motion did not specify whether lack of personal jurisdiction or lack of subject matter jurisdiction was being claimed.The circuit court denied the motion on its merits.Subsequent to our decision in Stevens v. Manitowoc Cir. Ct., 141 Wis.2d 239, 414 N.W.2d 832(1987), the defendant filed a renewed motion to dismiss, specifying that his challenge was to the "lack of subject matter jurisdiction" of Judge Northrup's branch of the circuit court because of the allegedly defective bindover from Judge Nowakowski's branch of the circuit court.The circuit court denied this motion, holding that the defendant's preliminary hearing was properly closed to his mother and niece in conformity with Stevens, even though Stevens had not been decided at the time of the preliminary hearing.The defendant proceeded to trial without ever having sought interlocutory relief from the bindover order or from either of the circuit court orders denying his motions to dismiss for lack of jurisdiction.

On the basis of the alleged closure error the defendant appealed.He requested a reversal of his conviction and a new trial to be preceded by a new preliminary hearing.He did not claim, however, that the alleged error at the preliminary hearing had any impact on the trial itself.We regard the trial to have been fair and errorless, completely untainted by the alleged error at the preliminary hearing.

The court of appeals in State v. Webb, 154 Wis.2d 320, 453 N.W.2d 628(Ct.App.1990), agreed with the defendant that his sixth amendment right was violated by the circuit court's closure of the preliminary hearing.The court of appeals reversed the defendant's conviction and remanded the case for a new preliminary hearing in the circuit court if the defendant requested one in a timely manner.If the defendant were to do so, the court of appeals said, then the defendant's conviction should be reinstated without a new trial should the new preliminary hearing, properly conducted, result in findings justifying a bindover for trial.

The state petitioned this court for review of the court of appeals decision.The defendant also petitioned for review of that portion of the decision adverse to him.Both petitions were held in abeyance pending our decision in State v. Moats, 156 Wis.2d 74, 457 N.W.2d 299(1990).After the decision in Moats, we granted both the petition and cross-petition in this case for review, designating the defendant as the "petitioner" and the state as the "cross-petitioner."

We do not decide the question of whether there was error at the preliminary hearing in this case, because we hold that a conviction resulting from a fair and errorless trial in effect cures any error at the preliminary hearing.Accordingly, a defendant who claims error occurred at his preliminary hearing may only obtain relief before trial.Thus, no relief is available to the defendant in the case at bar.

Our holding effectively overrules what up to now remained of State v. Sorenson, 135 Wis.2d 468, 471, 400 N.W.2d 508(Ct.App.1986), rev'd on other grounds, 143 Wis.2d 226, 421 N.W.2d 77(1988).In Sorenson, the court of appeals held that the use of evidence at a preliminary examination in violation of the statutory rules of evidence required that the trial and resulting conviction be declared a nullity and the case be remanded for a new preliminary examination.In other words, based on the court of appeals holdings in Sorenson and this case, Wisconsin law up to now permitted a defendant to overturn his conviction after a fair and errorless trial simply by proving that error was committed at his preliminary hearing.A defendant was entitled to a new "probable cause" hearing even though he already had an errorless "reasonable doubt" hearing in the form of the trial itself where guilt was established beyond a reasonable doubt.

Chapter 970, Stats., governing preliminary hearings, clearly does not provide for reversal of a conviction after an errorless trial for an error committed at the preliminary hearing.Nor will this court read such a remedy into the statutes.To vacate the judgment of conviction, dismiss the prosecution and require the state to start anew with a new complaint, a new preliminary hearing, and new trial would result in a substantial waste of judicial and prosecutorial resources.It would run "counter to a policy of conservation of time and resources to allow an entirely new trial."SeeState v. Koput, 142 Wis.2d 370, 399, 418 N.W.2d 804(1988).

The United States Seventh Circuit Court of Appeals, in United States v. Fountain, 840 F.2d 509, 514(7th Cir.)cert. denied, 488 U.S. 982, 109 S.Ct. 533, 102 L.Ed.2d 564(1988), in reference to a postconviction claim of evidentiary errors at a grand jury proceeding which errors were not repeated at trial, recently stated:

[I]t is impossible to imagine evidence sufficient to produce a conviction at trial that would not also produce an indictment.So it would be silly to reverse a conviction on the ground that the evidence before the grand jury was insufficient.

As another court has said, the remedy of ordering a new preliminary hearing at this stage would be an exercise in futility.SeeCommonwealth v. Murray, 348 Pa.Super. 439, 452, 502 A.2d 624, 630(1985).We agree.

If the remedy of remand for a deficient preliminary examination became the law, the state essentially could open and close its case with nothing more than a certified copy of the judgment of conviction.Seesec. 908.03(22), Stats.Alternatively, the state simply could recall the child witness to the stand.Assuming she were to testify consistently with her previous preliminary hearing and trial testimony, the defendant would again be bound over.If she were to testify inconsistently with her former testimony, she would be impeached with her former testimony.Section 908.01(4)(a).If she were to become unavailable to testify at the new preliminary hearing for some reason, the state could simply introduce the transcript of her trial testimony to support the bindover.Section 908.045(1), Stats. Moats, 156 Wis.2d at 91, 457 N.W.2d 299.In other words, the defendant cannot feasibly obtain appellate relief from a defective preliminary hearing after trial and valid conviction.⁶

Our holding reflects the rule that the "remedy should be appropriate to the violation."Waller v. Georgia, 467 U.S. 39, 50, 104 S.Ct. 2210, 2217, 81 L.Ed.2d 31(1984).To grant the defendant a new preliminary examination would be to give him an entirely disproportionate remedy.At most, the defendant might argue he is entitled to another preliminary hearing which would be open to the public.However, he already has had a jury trial open to the public, at which the victim testified.A new preliminary hearing under these circumstances would be a needless waste of time.A new preliminary examination would be futile and "a windfall for the defendant, and not in the public interest."Id.If the defendant wanted review of the preliminary hearing judge's exercise of discretion to obtain a new hearing, he should have sought immediate review in the court of appeals by interlocutory appeal.

For us to grant relief at this point also would ignore the interest of the young sexual assault victim who already has testified twice.As this court stated in Moats, 156 Wis.2d at 91, 457 N.W.2d 299:

This would...