State v. Williams

• Citation: 544 N.W.2d 406,198 Wis.2d 516
• Decision Date: 01 February 1996
• Docket Number: No. 93-2444-CR,93-2444-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. John T. WILLIAMS, Defendant-Appellant.
• Court: United States State Supreme Court of Wisconsin

Page 406

544 N.W.2d 406

198 Wis.2d 516

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. John T. WILLIAMS, Defendant-Appellant.

No. 93-2444-CR.

Supreme Court of Wisconsin.

Submitted on Briefs Oct. 6, 1995.

Decided Feb. 1, 1996.

Appeal from Circuit Court, Dane County, Robert De Chambeau, Judge.

REVIEW of a decision of the Court of Appeals. Reversed.

For the plaintiff-respondent-petitioner the cause was submitted on the briefs of Maureen McGlynn Flanagan, Assistant Attorney General and James E. Doyle, Attorney General.

For the defendant-appellant there was a brief by Gregory J. Meeker and Relles, Meeker & Borns, Madison.

GESKE, Justice.

This is a review of the decision of the court of appeals in State v. [John] Williams, 190 Wis.2d 1, 527 N.W.2d 338 (Ct.App.1994), which reversed the judgment of conviction entered by Dane County Circuit Court Judge Robert A. DeChambeau against defendant John T. Williams on one count of first-degree recklessly endangering safety, Wis.Stat. § 941.30(1) (1989-1990). The primary issue as presented by the parties is whether, when bind over is denied at preliminary hearing on one of two related felony counts in a multiple count complaint, the district attorney may include in the subsequent information the same charge that was dismissed or its greater-included offense. We hold that any charge may be included in an information as long as it is transactionally related to a count on which bind over was ordered. Further, we will not reach the second issue raised because defense counsel did not make an offer of proof concerning the alleged erroneous evidentiary ruling. We reverse the court of appeals and affirm the judgment of conviction and order denying post conviction relief entered by the circuit court.

The circuit court correctly concluded that the district attorney had the authority to include the charge of first-degree reckless injury in the information because it was not wholly unrelated to the charge of aggravated battery on which Williams was bound over. Further, we conclude that when two or more transactionally related counts are charged, in that the counts "arose from a common nucleus of facts," State v. Richer, 174 Wis.2d 231, 246, 496 N.W.2d 66 (1993), and probable cause is found that a felony was committed in relation to one count, then bind over is required on all transactionally related counts.

FACTS

On November 11, 1991, a criminal complaint containing three counts was filed against Williams. The first count alleged that Williams had committed aggravated battery, in an incident that occurred on November 4, 1991, when he struck Seri K. Storlid-Harris in the face. The second and third counts, aggravated battery and second-degree recklessly endangering safety, contrary to Wis.Stat. §§ 940.19(1m) and 941.30(2), respectively, related to a separate event that occurred on November 5, 1991, at a different location in which Williams struck George Buie in the face with a large rock.

Court Commissioner Todd E. Meurer conducted a preliminary hearing in this case on December 18, 1991. The court found that ample evidence had been presented to support a finding of probable cause that Williams committed a felony in relation to the attack on Storlid-Harris and therefore bind over was ordered on Count I. Buie testified at the preliminary hearing as to the circumstances surrounding the confrontation between Williams and himself and as to the extent of his injuries. The court concluded that the State had met its burden on Count II and bound Williams over on that count but declined to bind over on Count III based on "problems" it had with the testimony given by Buie.

The information filed on December 23, 1991, contained the original Counts I and II and a new Count III, based on the incident involving Buie, charging Williams with first-degree reckless injury contrary to Wis.Stat. § 940.23(1). The court granted Williams' motion to sever Count I from the other two counts. ¹ Additionally, Williams moved to dismiss Count III-i asserting that Wis.Stat. § 970.03(10) ² bars the inclusion in an information of any new count arising from the same facts as a count specifically dismissed at the preliminary hearing. The court denied this motion finding that Count III-i was properly included because it was reasonably related to the evidence adduced at the preliminary hearing regarding Count II (aggravated battery of Buie) on which the commissioner had ordered bind over.

The case was tried to a jury and while Williams was acquitted of aggravated battery (Count II), he was found guilty of first-degree recklessly endangering safety which the court had submitted to the jury as a lesser-included offense of first-degree reckless injury (Count III-i). In a post-conviction motion, Williams renewed his challenge to the propriety of Count III-i and the circuit court again denied his motion on the basis that the charge of first-degree reckless injury was not improper because it was "not wholly unrelated" to Count II.

The court of appeals reversed the conviction and order denying post-conviction relief on the basis that § 970.03(10) unambiguously requires that "[a]ny new charge that arises out of facts relied upon to dismiss a count may not be included in an Information...." [John] Williams, 190 Wis.2d at 7, 527 N.W.2d 338. This court subsequently accepted the State's petition for review on the issue of the proper interpretation of subsection (10). We also agreed to address Williams' claim that the circuit court's restriction of cross-examination during trial constituted reversible error.

Issue 1

Resolution of this case requires us to interpret Wis.Stat. § 970.03(10) which reads:

In multiple count complaints, the court shall order dismissed any count for which it finds there is no probable cause. The facts arising out of any count ordered dismissed shall not be the basis for a count in any information filed pursuant to ch. 971. Section 970.04 shall apply to any dismissed count.

We begin this analysis by reiterating a point that has been made in several of our previous cases; there is no constitutional right to a preliminary examination, it is purely a statutory creation. See State ex rel. Funmaker v. Klamm, 106 Wis.2d 624, 633, 317 N.W.2d 458 (1982); State ex rel. Klinkiewicz v. Duffy, 35 Wis.2d 369, 373, 151 N.W.2d 63 (1967).

Statutory interpretation presents a question of law which this court reviews without deference to the decisions of the courts below. Richer, 174 Wis.2d at 238-9, 496 N.W.2d 66. If the plain language of a statute is unambiguous a court must give it effect and can look no further. See In Interest of J.A.L., 162 Wis.2d 940, 962, 471 N.W.2d 493 (1991). However, as the Supreme Court has noted, "plain meaning, like beauty, is sometimes in the eye of the beholder." Florida Power & Light Co. v. Lorion, 470 U.S. 729, 737, 105 S.Ct. 1598, 1603, 84 L.Ed.2d 643 (1985). If ambiguity is found, a court should examine the scope, history, context, subject matter, and object of the statute in order to divine legislative intent. State v. Waalen, 130 Wis.2d 18, 24, 386 N.W.2d 47 (1986). Ambiguity occurs when reasonably well-informed persons can understand a statute in more than one way. State v. Moore, 167 Wis.2d 491, 496, 481 N.W.2d 633 (1992).

We conclude that § 970.03(10) is ambiguous. The circuit court and the State understood subsection (10) to bar reissuance only of the identical charge dismissed at a preliminary hearing. The court of appeals agreed with Williams that the State cannot rely on the facts surrounding a dismissed count as the basis for any new count in a subsequent information. We find the statute susceptible to yet a third interpretation of the second sentence which results in an unworkable anomaly. If the broad transactional interpretation advanced by the defendant and court of appeals were applied literally to the language of the statute, one would be faced with the absurd result that the dismissed count is controlling, such that a count for which bind over was determined proper could not be included in an information if it arose from the same facts as a count that was dismissed. ³ For example, if this interpretation were applied to Williams' case, even though the examining judge ⁴ found probable cause as to Count II, neither count could appear in the information because Count III-c was dismissed and both counts arose from the same facts.

The primary goal of statutory construction is to ascertain and give effect to legislative intent. State v. Olson, 175 Wis.2d 628, 633, 498 N.W.2d 661 (1993). Subsections of a statute must be interpreted in a manner consistent with the purpose of the statute as a whole. See State v. Swatek, 178 Wis.2d 1, 6-7, 502 N.W.2d 909 (Ct.App.1993). "A statute should be construed to give effect to its leading idea, and the entire statute should be brought into harmony with the statute's purpose." State v. Clausen, 105 Wis.2d 231, 244, 313 N.W.2d 819 (1982).

Chapter 970 expressly defines the purpose of preliminary hearings: "[a] preliminary examination is a hearing before a court for the purpose of determining if there is probable cause to believe a felony has been committed by the defendant." § 970.03(1). This court has often stated that the primary purpose of preliminary examination is "to protect the accused from hasty, improvident, or malicious prosecution and to discover whether there is a substantial basis for bringing the prosecution and further denying the accused his right to liberty." Bailey v. State, 65 Wis.2d 331, 344, 222 N.W.2d 871 (1974) (quoting Whitty v. State, 34 Wis.2d 278, 287, 149 N.W.2d 557 (1967), cert. denied in Whitty v. Wisconsin, 390 U.S. 959, 88 S.Ct. 1056, 19 L.Ed.2d 1155 (1968), quoting Johns v. State, 14 Wis.2d 119, 122, 109 N.W.2d 490 (1961)). We have also held that upon determination that bind over is warranted on at least one count, that purpose has been served. Bailey, 65 Wis.2d at 341, 222 N.W.2d...