Sturdevant v. State, S

• Decision Date: 01 December 1970
• Docket Number: No. S,S
• Citation: 49 Wis.2d 142,44 A.L.R.3d 1196,181 N.W.2d 523
• Parties: , 44 A.L.R.3d 1196 Adam STURDEVANT, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 97.
• Court: Wisconsin Supreme Court

Page 523

181 N.W.2d 523

49 Wis.2d 142, 44 A.L.R.3d 1196

Adam STURDEVANT, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 97.

Supreme Court of Wisconsin.

Dec. 1, 1970.

The plaintiff in error (defendant) was convicted of criminal trespass to a dwelling in violation of sec. 943.14, Stats., and sentenced pursuant to sec. 939.62 (increased penalty for habitual criminality). A new trial was granted following the defendant's first conviction for this offense. After the defendant's conviction on the new trial, he was sentenced to imprisonment for one year in the Wisconsin state prison with credit for time served pursuant to the prior conviction for the same offense.

There are two writs of error: One to review the judgment entered as a result of the second trial of the defendant for this offense, and another to review an order denying a motion for another new trial.

Orville S. Luckenbach, Shawano, for plaintiff in error.

Robert W. Warren, Atty. Gen., William A. Platz, Asst. Atty. Gen., Madison, for defendant in error.

CONNOR T. HANSEN, Justice.

The defendant is alleged to have twice entered the home of one Donald Pecore forcibly and without his consent.

The issues raised on this appeal fall into two categories: (1) Disqualification of the trial judge, and (2) errors alleged to have occurred during the trial.

DISQUALIFICATION OF TRIAL JUDGE.

The issue is raised because the same judge presided over both trials.

Sec. 956.03, Stats., provides in part:

'956.03 Change of venue or judge. (1) Prejudice of judge; another judge called. If the presiding judge has acted as attorney for a defendant or for the state in the pending action, or if a defendant moves, in the manner provided in civil actions, for a change of venue on account of the prejudice of the judge, another judge shall be called in the manner provided in civil actions to try the action, except that in county courts containing 3 or more branches the case shall be referred to the clerk who shall in accordance with the rules of said court assign the case to another branch of that court for trial or other proceedings. * * * '(2) Second trial. If a jury fails to agree on a verdict or if a new trial is granted and if one defendant moves therefor within 20 days, a trial judge shall be called as provided in sub. (1).'

No affidavit of prejudice was filed in this case. Counsel for the defendant advised the defendant to file an affidavit of prejudice; however, he elected not to follow this advice and cannot now successfully argue reversible error.

Defendant contends that the trial judge was disqualified by interest from hearing the case because of his previous representation of the defendant, and because the complaining witness was well known to him and a beneficiary of an estate the court had handled. Sec. 256.19, Stats., disqualifies judges from hearing and determining actions in which they have acted as counsel for either of the parties except with the consent of the parties. This statute has been construed to mean judges are disqualified only where they have acted as counsel for a party in the matter to be heard or determined.

'* * * The manifest purpose of the statute was to secure to litigants and the public an impartial judicial tribunal, free from any bias or temptation or ground of suspicion. It disqualified the judge, however, only in case he had acted as attorney or counsel for either of the parties to the action or proceeding in the matter so to be heard or determined. * * *' State ex rel. Rowell v. Dick (1905), 125 Wis. 51, 58, 103 N.W. 229, 232.

In the rules promulgated by this court as part of the Judicial Code of Ethics, the disqualification of a judge who has previously acted as counsel for a party is similarly limited.

'* * *

'1. A judge shall not exercise his duties with respect to any matter in which a near relative by blood or marriage is a party, has an interest, or appears as a counsel. He shall not participate in any matter in which he has a significant financial interest or in which he previously acted as counsel.' Code of Judicial Ethics (1967), 36 Wis.2d 252, 259, Rule 1, 153 N.W.2d 873.

This court has recognized there may be other situations in which a judge should disqualify himself:

'Comment: * * * There will be many lesser situations in which the judge's own sense of propriety may indicate that he disqualify himself. There may also be even lesser situations in which the judge will determine that full disclosure to counsel is adequate.' Code of Judicial Ethics, Comment to Rule 1, 259, 153 N.W.2d 876, supra.

'* * * It will often happen that a judge, particularly where he resides in the same community with the parties, will have some awareness of the background of a dispute which comes into his court but his decision must always be based solely on the facts brought out before him during the course of the proceeding. Unless he is certain that he can put aside such information as may have come to him outside the record and such opinions as he may have formed thereon he must disqualify himself.' Ausman v. Ausman (1966), 31 Wis.2d 79, 86, 141 N.W.2d 869, 873.

When considering the issue of his disqualification, the trial judge made the following statement:

'For the record I will state that it is true that I have known the defendant for many years. Years ago I used to represent him in both his criminal and his divorce cases. Since I have been on the bench I have had him before me on various occasions. In certain instances he was found guilty; in others he was found not guilty. It is, also, true that I have known Donald Pecore for many years. While I never appeared for him as an attorney, I did handle an estate in which he was an heir. I personally know ninety per cent or more of the Menominee people. I know all of the officers who appear in court every day and testify, wherther they be county, city or state. I know a great share of the people who appear before me either as witnesses or defendants. If acquaintance with such witnesses or with such defendants prohibited me from handling a case, I could not in good grace sit in ninety per cent of the cases before me in this area. In many instances I know the defendant, I knew his father and his grandfather. This court is satisfied that sitting in these cases is in no way an impropriety, and if counsel feels that it is, then I feel that it is his duty to proceed in the Supreme Court and have that court make its determination.'

In this case, we do not consider the trial judge was disqualified from proceeding with the second trial.

ERROR DURING TRIAL.

During the cross-examination of the complaining witness, the following occurred:

'Q. Say, you have got a history of having epileptic fits?

'A. Yes, sir.

'(District Attorney): I object, it is irrelevant.

'Q. No, it isn't.

'(District Attorney): How is it relevant?

'Q. Have you ever been committed because of that?

'(District Attorney): Objection, irrelevant.

'THE COURT: Objection sustained.

'Q. Are you sure that you were in good shape that night so that you can remember all these things?

'A. Yes, sir.'

Witnesses may be questioned regarding their mental or physical condition where such matters have bearing on their...