Thompson v. State, S
| Decision Date | 27 November 1973 |
| Docket Number | No. S,S |
| Citation | 61 Wis.2d 325,212 N.W.2d 109 |
| Parties | Claude A. THOMPSON, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 9. |
| Court | Wisconsin Supreme Court |
Howard B. Eisenberg, State Public Defender, Madison, for plaintiff in error.
Robert W. Warren, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., Madison, for defendant in error.
The defendant, Claude A. Thompson, was charged with attempted first degree murder in violation of sec. 940.01(1) and sec. 939.32(1), Stats. He was found guilty after a jury trial, and on November 21, 1972, he was sentenced to the Wisconsin State Prison for an indeterminate term of not more than fifteen years. Motions for a new trial and for a reduction of the sentence were denied by order entered January 2, 1973. This court has issued writs of error to review the judgment of conviction and the order denying the postjudgment motions.
The evidence shows that, on the evening of September 14, 1972, Thompson, following completion of his work, began a tour of the local bars, and by 9:30 p.m. he was under the influence of intoxicating liquors. He stopped at a residence in Lancaster, where he asked the lady of the house to call a local representative of Alcoholics Anonymous. She was unable to locate him, and shortly thereafter the defendant 'started groaning and rolling (on the ground) and saying he was going to commit suicide.' She called the police for assistance. A Lancaster police officer arrived shortly after the call, but at that time the defendant had left. He was located walking down the street approximately a block away. The police officer ordered him to stop. Thompson replied, 'Get out of my way you son-of-a-bitch or I will kill you.' The officer at that time saw no weapon in the hands of the defendant and, at gunpoint, ordered him back to the squad car, where an attempt was made to frisk him. At that time the defendant pulled a knife, and stating, 'This is for you, you son-of-a-bitch,' struck at the officer with the knife. The officer blocked the blow, but in the scuffle that ensued, the officer received a cut to one finger before he managed to put the handcuffs on the defendant.
On this appeal the defendant concedes that the testimony established at trial is sufficient to prove beyond a reasonable doubt that the defendant had committed the crime of attempted first degree murder. It is conceded, in addition, tht there was insufficient evidence to convince the jury that the defendant was so intoxicated as to be unable to form a criminal intent.
Two questions are posed on this appeal. It is alleged that, under all the facts and circumstances, it was an abuse of discretion for the district attorney to have charged this defendant with attempted first degree murder. It is also contended that the trial judge abused his discretion, under the circumstances, in imposing an excessive sentence.
Discretion of the prosecutor
The presentence investigation and the tenor of the briefs of both the defendant and of the state convincingly demonstrate that Thompson had been an alcoholic for a considerable period of time. Under the circumstance, it is argued that a proper disposition would have been the filing of a lesser charge or the diversion of the defendant to noncriminal channels for the treatment of his alcoholism. In State ex rel. Kurkierewicz v. Cannon (1969), 42 Wis.2d 368, 378, 166 N.W.2d 255, 260, we said:
The discretion of the prosecutor is discussed was a picture of the defendant behind the Standards for Criminal Justice Relating to the Prosecution Function, Standard 3.9. 1 This standard makes it abundantly clear that, although, as we pointed out in Kurkierewicz, a prosecutor is not obligated to bring all possible charges merely because there is arguable evidence to convict, it is an abuse of discretion to charge when the evidence is clearly insufficient to support a conviction. It is also an abuse of discretion for a prosecutor to bring charges on counts of doubtful merit for the purpose of coercing a defendant to plead guilty to a less serious offense.
We agree with these observations of the and for good cause consistent with the public interest decline to prosecute, notwithstanding that evidence exists which would support a conviction. Illustrative of the factors which the prosecutor may properly consider in exercising his discretion are:
The American Bar Association Code of Professional Responsibility, which has been adopted by this court (43 Wis.2d ix), sets forth the disciplinary rule:
'A public prosecutor or other government lawyer shall not institute or cause to be instituted criminal charges when he knows or it is obvious that the charges are not supported by probable cause.' DR 7--103(A), 43 Wis.2d lxii.
Under the facts of this case, where it is conceded by the defendant that the evidence was sufficient, not only to charge but to convict, the prosecutor did not abuse his discretion or violate the ethics of the legal profession by bringing a charge of attempted first degree murder. By so holding, we do not conclude, however, that the diversion of this defendant to a non-criminal mode of treatment might not have been a reasonable course to follow.
The American Bar Association Standard 3.8,...
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State v. Leonardis
...Cal.Rptr. at 26, 520 P.2d at 410)10 See also, United States v. Gillespie, 345 F.Supp. 1236 (W.D.Mo.1972). But see, Thompson v. State, 61 Wis.2d 325, 212 N.W.2d 109 (1973). III SCOPE OF While judicial review is consistent with applicable principles under the separation of powers doctrine, we......
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State v. Annala, 90-2162-CR
...to bring charges on counts of doubtful merit to coerce the defendant to plead guilty to a less serious offense. Thompson v. State, 61 Wis.2d 325, 328-30, 212 N.W.2d 109 (1973). Furthermore, we have stated that " 'the conscious exercise of some selectivity in enforcement is not in itself a f......
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In the Matter of A Privately Filed Criminal Complaint, 2004 WI 58 (WI 5/25/2004)
...attorney to prosecute all complaints that may be filed with him." Kurkierewicz, 42 Wis. 2d at 378; see also Thompson v. State, 61 Wis. 2d 325, 330, 212 N.W.2d 109 (1973). While the district attorney has the power and the to prosecute criminal offenders, "it is obvious that a great portion o......
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In the Matter of A Privately Filed Criminal Complaint, 2004 WI 58 (Wis. 5/25/2004)
...a district attorney to prosecute all complaints that may be filed with him." Kurkierewicz, 42 Wis. 2d at 378; see also Thompson v. State, 61 Wis. 2d 325, 330, 212 N.W.2d 109 (1973). While the district attorney has the power and the duty to prosecute criminal offenders, "it is obvious that a......