State v. Wedgeworth

Decision Date03 March 1981
Docket NumberNo. 79-563-CR,79-563-CR
Citation100 Wis.2d 514,302 N.W.2d 810
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Lafornia WEDGEWORTH, Defendant-Appellant-Petitioner.
CourtWisconsin Supreme Court

William M. Coffey, Milwaukee, argued, for defendant-appellant-petitioner; Dennis P. Coffey and Coffey & Coffey, Milwaukee, on brief.

David J. Becker, Asst. Atty. Gen., argued for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., and Dorothy H. Dey, Asst. Atty. Gen., on brief.

CALLOW, Justice.

Lafornia Wedgeworth (defendant) was convicted of one count of possession of a controlled substance, heroin, with intent to deliver, contrary to secs. 161.14(3)(k) and 161.41(1m)(a), Stats., and one count of possession of a controlled substance, marijuana, contrary to secs. 161.14(4)(k) and 161.41(3), in the circuit court for Milwaukee County, Hon. Marvin C. Holz presiding. On the first count he was sentenced to ten years in prison as a habitual offender pursuant to sec. 939.62, and on the second count to one year, both sentences to be served concurrently. The court of appeals affirmed the conviction.

On the day scheduled for the trial of this matter, the defendant's attorney, Dennis Coffey, moved the court for a continuance, stating as grounds that the defendant's primary attorney, William Coffey, was ill and hospitalized, and that the defendant would prefer to be represented by the other attorney. The court denied the motion and the matter proceeded to trial. One of the grounds raised on this review is that the denial of the continuance was an abuse of discretion.

At trial considerable evidence was admitted which had been gathered in a search of the defendant's residence on February 23, 1978, by city of Milwaukee police pursuant to a search warrant. The warrant was issued to search the premises located at 4221 North 24th Place, Milwaukee, for heroin and other drug paraphernalia. Among the items seized were quantities of heroin, lactose, marijuana, a coffee mill, razor blades, an Ohaus scale, a pouch containing $5,500 in currency, items of the defendant's clothing, a box of the defendant's personal papers, and three weapons a .38 caliber pistol, a Luger pistol, and a 16-gauge shotgun. Detective Thomas McKale testified without objection from the defense as to the identification and discovery of the Luger and the shotgun in a closet in one of the bedrooms. Following that testimony Detective McKale was asked by the prosecutor:

"Q Now, in your capacity as a detective with the Vice Squad for almost ten years, do you have an opinion as to the presence of these this shotgun and this pistol in the house in conjunction with the other materials and other property that you found there?"

Following an objection, later placed upon the record as based upon lack of foundation, materiality, and relevancy, the detective answered:

"A Yes. Well, on numerous occasions when executing search warrants for people involved in the distribution of controlled substances we have encountered guns and gunfire."

The defendant claims it was error to admit the evidence of the presence of weapons at the premises.

Another detective, Ronald Kuehn, testified to a conversation he had with the defendant at the police station several days after the search. The admissibility of the defendant's statements were the subject of a Goodchild 1 hearing at which Kuehn testified that on February 28, 1978, he had a ten- to fifteen-minute conversation with the defendant during which the defendant was advised of his constitutional rights and then asked some questions about his employment and educational background. The defendant answered these questions. Detective Kuehn stated, "then I asked him where he lived, at which time he stated 4220, then he stopped and stated he was not to answer this question on advice of his attorney." The defendant objected to the admissibility of this testimony by Detective Kuehn on the ground that the defendant's partial statement of his address was involuntary and did not constitute a knowing waiver of his Miranda-Goodchild rights. The trial court ruled that the partial statement of the defendant made to Detective Kuehn was made voluntarily and was admissible but precluded any testimony relating to the defendant's refusal to answer on the advice of his attorney. Thus at trial Detective Kuehn testified, "I asked him his home address at which time he stated 4220, and stopped." The defendant argues that it was error to admit this testimony.

Certain personal papers and belongings of the defendant, many of which contained the defendant's name and address or otherwise linked him to the premises, were also admitted at trial to which the defendant objected as beyond the scope of the search warrant and illegally seized. The trial court overruled the objection, and the defendant now contends that the admission of these items was error.

In the trial the defendant did not testify, but the defense intended to use the testimony of Janice Hill, the defendant's girl friend, who at the time of the search also lived at 4221 North 24th Place. In an offer of proof made outside the presence of the jury, Hill testified on direct examination that during the month of February, 1978, she was a heroin addict and that she had heroin on the premises for her personal use. On cross-examination by the prosecutor, Hill was asked whether on the date of the search she had any heroin or marijuana on the premises. Hill exercised her right under the fifth amendment and declined to answer. That same response was given each time the prosecution asked any question which attempted to establish whether the particular drugs found on the premises during the search belonged to Hill. Hill did testify, however, that certain other drug paraphernalia found on the premises was hers rather than the defendant's. The trial court excluded Hill's testimony in its entirety, and the defendant claims exclusion of Hill's testimony was error.

On this review, as before the court of appeals, the defendant raises five issues:

I. Whether it was error to deny the defendant's motion for continuance II. Whether it was error to admit Detective Kuehn's testimony concerning the defendant's statements made at the station;

III. Whether it was error to admit into evidence the weapons found on the premises;

IV. Whether it was error to admit into evidence the personal papers and records of the defendant;

V. Whether it was error to prevent the testimony of Janice Hill.

I. CONTINUANCE

The record suggests that the matter of a continuance was brought to the trial court's attention sometime during the week prior to the day the trial was scheduled to begin. However, the motion was not formally presented to the court until the morning of the day set for trial. In denying the continuance, the trial court indicated it was too late to schedule another trial and that he was reluctant to "waste a trial date." The defendant argues that the court's denial of the motion for continuance was an abuse of discretion because it denied the defendant his right to representation by counsel of his choosing and also because the decision was based exclusively upon expediency and failed to take into consideration other relevant factors.

The decision to grant or deny a continuance is a matter within the discretion of the trial court. State v. Wollman, 86 Wis.2d 459, 468, 273 N.W.2d 225 (1979); Phifer v. State, 64 Wis.2d 24, 30, 218 N.W.2d 354 (1974). However, the denial of a continuance may raise questions relative to a defendant's sixth amendment right to counsel and fourteenth amendment right to due process of law. In Wollman we stated:

"In determining whether a court has abused its discretion by the denial of a continuance, a single inquiry is to be made. This inquiry requires the balancing of the defendant's constitutional right to adequate representation by counsel against the public interest in the prompt and efficient administration of justice. As in all reviews of alleged abuse of trial court discretion, this balancing must be done in light of all the circumstances that appear of record. Phifer, supra at 31 (218 N.W.2d 354); Ungar, supra (376 U.S.) at 575 (84 S.Ct. 841, 11 L.Ed.2d 921); Avery v. Alabama, 308 U.S. 444, 446 (60 S.Ct. 321, 322, 84 L.Ed. 377) (1940); United States ex rel. Williams v. Twomey, 510 F.2d 634, 640 (7th Cir. 1975); United States v. Miller, 508 F.2d 544, 452 (sic) (7th Cir. 1974); United States v. Knight, 443 F.2d 174 (6th Cir. 1971)." 86 Wis.2d at 468, 273 N.W.2d 225.

The application of this balancing of interests involves the use of six factors previously adopted by this court:

"1. The length of the delay requested;

"2. Whether the 'lead' counsel has associates prepared to try the case in his absence;

"3. Whether other continuances had been requested and received by the defendant;

"4. The convenience or inconvenience to the parties, witnesses and the court;

"5. Whether the delay seems to be for legitimate reasons; or whether its purpose is dilatory;

"6. Other relevant factors."

Phifer v. State, supra 64 Wis.2d at 31, 218 N.W.2d 354, citing Giacalone v. Lucas, 445 F.2d 1238, 1240 (6th Cir. 1971).

In this case the length of the delay sought was from November 27, 1978, until January 2, 1979, or about five weeks. We, like the court of appeals, do not feel this is an unreasonable request, particularly in view of the reason for which it was sought the illness and hospitalization of the defendant's "lead" counsel, William Coffey. From the record before us we have no reason to suspect that the continuance was sought as a dilatory tactic or for an illegitimate purpose, nor does it appear that the defendant had sought any previous continuances. Although the defendant's motion indicates that he desired to be represented by William Coffey, Dennis Coffey appeared as defense counsel at both the preliminary examination and the arraignment. Moreover, the...

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