Swonger v. State
| Citation | 54 Wis.2d 468,195 N.W.2d 598 |
| Decision Date | 28 March 1972 |
| Docket Number | No. S,S |
| Parties | Larry SWONGER, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 36. |
| Court | United States State Supreme Court of Wisconsin |
On December 9, 1969, following a jury trial, plaintiff in error Larry Swonger (hereinafter the 'defendant') was convicted in the circuit court for Washburn county of three counts of burglary, being violations of sec. 943.10(1)(a), Stats. A presentence investigation was ordered, and on December 15, 1969, defendant was sentenced to indeterminate terms of five years' imprisonment on each count, said terms to be served concurrently.
This court, by order dated June 19, 1970, appointed Attorney John P. Santerre to represent defendant during postconviction proceedings. Attorney Santerre moved for a new trial, which motion was denied by the trial court by an order dated January 28, 1971. A writ of error to review the order denying a new trial was issued by this court on April 13, 1971.
John P. Santerre, Barron, for plaintiff in error.
Robert W. Warren, Atty. Gen., Madison, Paul H. Waggoner, Dist. Atty. of Washburn Co., Shell Lake, for defendant in error.
Three issues are presented for review by this court:
(1) Should the trial court have granted a new trial on the basis of newly-discovered evidence;
(2) Was it error to exclude alibi testimony when no notice of alibi was filed; and
(3) Was the representation given by defense counsel so inadequate as to amount to no representation at all?
Newly-Discovered Evidence.
To support his motion for a new trial, defendant presented to the trial court affidavits which allegedly show that someone else had committed the burglaries for which he was convicted. The affidavits were those of Sharon Cook and Twila Peterson. Sharon Cook stated that she had visited the scenes of the three burglaries and recognized them as being the same cottages which had been burglarized by herself, Miss Peterson and two men named Gayllenn Hanson and Jim Hudson, after the two girls had run away from home. She also stated that defendant was not involved in these burglaries in any way. The affidavit of Twila Peterson admitted that she was with Miss Cook on the date the burglaries were committed. However, she stated that she did not remember the burglary itself and attempted to explain such lack of recollection by revealing that she and Miss Cook were often under the influence of intoxicants during the time they were with the two men. Defendant contends that these affidavits reveal newlydiscovered evidence which entitles him to a new trial.
This court has frequently listed the criteria to be used in the evaluation of newly-discovered evidence. In State v. Herfel (1971), 49 Wis.2d 513, 521, 522, 182 N.W.2d 232, 237, it was stated:
'. . . The standard requirements for granting a new trial on the basis of newly discovered evidence are well established; they are: (1) The evidence must have come to the moving party's knowledge after a trial; (2) the moving party must not have been negligent in seeking to discover it; (3) the evidence must be material to the issue; (4) the testimony must not be merely cumulative to the testimony which was introduced at trial; and (5) it must be reasonably probable that a different result would be reached on a new trial. . . .'
If the newly-discovered evidence fails to pass any one of these five tests, it is not sufficient to warrant a new trial. Lock v. State (1966), 31 Wis.2d 110, 142 N.W.2d 183. Whether or not a new trial should be granted on the basis of newly-discovered evidence lies within the sound discretion of the trial court. Combs v. Peters (1964), 23 Wis.2d 629, 127 N.W.2d 750, 129 N.W.2d 174.
The trial court held that the affidavits failed to indicate that the evidence made it reasonably probable that a different result would be reached on a new trial. In a memorandum decision, the court noted that the affidavit of Miss Peterson 'practically destroys the value of the affidavit by Cherri Cook.' The court stated:
'. . . In view of the fact that Sharon Cook says that Twila Peterson was also along at the time said cabins were allegedly burglarized by Gayllenn Hanson and Jim Hudson instead of Larry Swonger, and in view of the fact that Twila Peterson says that she does not remember any such incident as related by Sharson Cook, and gives as a possible reason for her not remembering that she and Sharon Cook were often under the influence of intoxicants during the period that they were with Gayllenn Hanson and Jim Hudson, it does not seem to me that testimony of these runaway girls, by their own admission runaway girls at the time of the incident they relate, would have any substantial effect on a new trial.'
We think that the trial court's evaluation of the worth of these affidavits is correct. Moreover, the court took pains to reveal its impressions concerning the witnesses who testified at trial and the evidence revealed by them. The court believed that the evidence overwhelmingly supported the conviction and the record justifies that conclusion. Great weight was placed on the testimony of the state's primary witnesses who stated that they were defendant's accomplices during the burglaries. On the other hand, the court was convinced that the defendant had committed perjury in attempting to defend himself. It is therefore our conclusion that, in light of the dubious nature of the newly-discovered evidence as opposed to the great weight of evidence supporting the conviction, the trial court did not abuse its discretion in denying a new trial.
Alibi Testimony.
Defendant contends that the trial court should have permitted his parents to testify that he was at home on the night of the burglaries. The trial court sustained an objection to this testimony on the grounds that no notice of alibi had been given, as required by sec. 955.07, Stats.1967:
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