Whitty v. State

• Decision Date: 11 April 1967
• Citation: 34 Wis.2d 278,149 N.W.2d 557
• Parties: Thomas James WHITTY, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error (two cases).
• Court: Wisconsin Supreme Court

Page 557

149 N.W.2d 557

34 Wis.2d 278

Thomas James WHITTY, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error (two cases).

Supreme Court of Wisconsin.

April 11, 1967.

Rehearing Denied June 6, 1967.

Robert H. Friebert, State Public Defender, Madison, for plaintiff in error.

Bronson C. La Follette, Atty. Gen., William A. Platz, Asst. Atty. Gen., Madison, Hugh R. O'Connell, Dist. Atty., Milwaukee County, Milwaukee, for defendant in error.

HALLOWS, Justice.

A new trial is sought on the grounds Whitty's constitutional rights to reasonable bail, to due process and to equal protection of the laws were violated. According to the evidence, which the jury apparently believed, Whitty on May 22, 1965, approached a group of children playing in an alley near North Thirty-sixth and West Brown streets in the city of Milwaukee. He asked the complaining witness, a girl of 10 years, if she would help him find a black and white rabbit which he had lost--a nonexistent little rabbit which reappears in the case to raise one of the important questions to be decided. The little girl removed her roller skates and followed Whitty down the alley, through a yard and into the basement of a house in search of the rabbit. While in the basement Whitty took indecent liberties with the child. The owner of the house, Robert Lutz, became aware of a noise in his basement, investigated and found the little girl who warned him of Whitty's presence and asked for his help. Lutz discovered Whitty behind a furnace, scuffled with him and knocked him down several times, but Whitty escaped up the stairs by swinging a ballpen hammer at Lutz. Lutz' brother-in-law arrived as Whitty emerged from the rear door and gave chase with Lutz but Whitty escaped. Meantime the little girl ran to the nearby home of her aunt where her mother was visiting and reported the incident. A search was made and two days later Whitty was arrested.

While the record is not entirely clear, it sufficiently appears that at Whitty's first appearance before Milwaukee county Judge F. Ryan Duffy, J., bail was set at $10,000 and a preliminary examination scheduled for a later date. Whitty appeared with counsel on the appointed day and bail was reduced to $1,500 in return for his waiver of the preliminary examination. Whitty now contends he was forced to purchase his right to reasonable bail and was prejudiced by the loss of the advantages of a preliminary hearing.

Whether $10,000 or $1,500 was a reasonable bail, we need not decide. An accused has a constitutional right to reasonable bail and the amount thereof should be determined solely in reference to the purpose of bail, namely, to assure the appearance of the accused when it is his duty to appear to answer the criminal prosecution. Sec. 954.36, Stats. The fixing of bail should not be a matter of bartering or negotiating, or be conditioned upon the waiver of other rights. Nor should the denial of reasonable bail be used as a punishment or retaliation prior to conviction. Proper considerations in fixing a reasonable amount of bail which will assure the defendant's appearance for trial include the ability of the accused to give bail, the nature and gravity of the offense and the potential penalty the accused faces, the character and reputation of the accused, his health, the character and strength of the evidence, whether the accused is already under bond in other pending cases, and whether the accused has in the past forfeited bond or was a fugitive from justice at the time of arrest. Anno., Bail--Factors Fixing Amount, 72 A.L.R. 801; Stack v. Boyle (1951), 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3.

While we must condemn what was done in this case, it does not automatically follow that Whitty is entitled to a new trial. It is true Whitty was given the choice of reduced bail or preliminary examination and he waived his preliminary examination, but he argues this choice was inevitable because bailed defendants tend to fare better at trial than those who cannot make bail. In support of this proposition he cites Rankin, The Effect of Pretrial Detention, 39 N.Y.U. Law Review 631; Ares, Rankin & Sturz, The Manhattan Bail Project: An Interim Report on the Use of Pre-Trial Parole, 38 N.Y.U. Law Review 67, 90; Foote, The Coming Constitutional Crisis in Bail: II (1965), 113 U.Pa. Law Review 1125, 1148. While these studies are most interesting and it may be true the greater percentage of convictions is of those defendants who cannot make bail before trial, we are not prepared to accept the thesis that prejudice to a defendant on the issue of guilt or innocence flows from pretrial incarceration.

Regardless of the reason for his choice, Whitty does not argue that if he had had a preliminary examination he would have been discharged for lack of evidence. Rather he contends he was deprived of the by-products benefits of a preliminary examination. There is no doubt a preliminary examination may be of great help to a defendant. We have recognized its by-products in Tell v. Wolke (1963), 21 Wis.2d 613, 620, 124 N.W.2d 655 (preliminary may serve as 'adverse examination' from defendant's point of view); Sparkman v. State (1965), 27 Wis.2d 92, 100, 133 N.W.2d 776 (preliminary may help defense by permitting cross-examination of state witnesses and preserving testimony which would otherwise be lost); and State v. Camara (1965), 28 Wis.2d 365, 372-373, 137 N.W.2d 1 (preliminary examination serves as a discovery device for defendant). These incidental fringe benefits, however, are not the real purpose of a preliminary examination, which is intended '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.' Johns v. State (1961), 14 Wis.2d 119, 122, 109 N.W.2d 490, 492.

Whitty admits it is impossible in this case to show actual prejudice, but he argues that when a basic constitutional right is violated it is sufficient if a reasonable probability of prejudice exists, and relies on United States ex rel. Hetenyi v. Willkins (2d Cir. 1965), 348 F.2d 845, 864. Several years ago this court adopted the harmless-error rule for violations of constitutional rights in criminal cases. Pulaski v. State (1964), 24 Wis.2d 450, 456, 129 N.W.2d 204. In that case we stated not all violations of constitutional rights require reversal, relying on our 'substantial rights statute,' sec. 274.37, Stats., ¹ and on Fahy v. State of Connecticut (1963), 375 U.S. 85, 86, 84 S.Ct. 229, 234, 11 L.Ed.2d 171, 177, where it was said there must be a showing of reasonable possibility of prejudice arising out of an alleged error, except in those cases of constitutional rights so basic to a fair trial that their violations were conclusively presumed to be prejudicial or not harmless error.

The United States supreme court recently addressed itself to this problem in Chapman v. State of California (Feb. 20, 1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. In the Chapman Case the court pointed out that in cases involving coerced confessions, the denial of counsel at trial, the denial of counsel at a critical stage before trial, and impartial judge, or trial in a community exposed to highly adverse publicity concerning the alleged crime of the defendant, a showing of specific harm on the part of the accused is not required. But in these cases the errors go to, or directly affect, the fact-finding process of determining guilt or innocence. The Court acknowledges in Chapman the harmless-error rule might appropriately be applied to other constitutional violations on a case-to-case examination to evaluate the effect of the error upon the entire proceeding. It is not to be assumed that every constitutional error because it is a constitutional error automatically is prejudicial and the federal harmless-error rule must be applied by the states to violations of federal constitutional rights. This federal rule, to the extent it has emerged, in terms of possible-probable prejudice and substantial rights is in substance the harmless-error rule we adopted in Pulaski. In Chapman the rule is stated in terms of certitude: '(B)efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.' 386 U.S. 18, at 24, 87 S.Ct. at 828. In addition, the prosecution has the burden of showing a constitutional error was harmless beyond a reasonable doubt rather than the accused the burden of showing it was prejudicial.

While the denial of a preliminary hearing is not per se a breach of a constitutional right, State v. Strickland (1965), 27 Wis.2d 623, 135 N.W.2d 295, nevertheless in the context of this case Whitty's constitutional right to reasonable bail was violated. Such constitutional violation is subject to the harmless-error rule because it did not occur during trial of the issue of guilt or innocence and did not directly affect that issue. We believe the error was harmless beyond a reasonable doubt on the issue of Whitty's guilt or innocence.

Whitty further contends he is entitled to a new trial because of prejudicial error in the failure of the trial court sua sponte to instruct the jury to disregard certain foundation testimony of a witness. Two days after the incident in the basement Whitty was brought to the Milwaukee county safety building under an arrest invalid under the rule of State ex rel. White v. Simpson (1965), 28 Wis.2d 590, 137 N.W.2d 391, which requires a warrant to be issued by an independent and impartial magistrate. The mother of the molested child testified she and her daughter were sitting outside the vice squad office in the safety building when Whitty came off of the elevator and into their presence. The district attorney inquired, 'What did your daughter say when he stepped off of the elevator?' An objection was made to this question and...