Wold v. State

• Decision Date: 27 February 1973
• Docket Number: No. S,S
• Parties: William WOLD, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 99.
• Court: Wisconsin Supreme Court

Page 482

204 N.W.2d 482

57 Wis.2d 344

William WOLD, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 99.

Supreme Court of Wisconsin.

Feb. 27, 1973.

James A. Drill, New Richmond, for plaintiff in error.

Robert W. Warren, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., Madison, for defendant in error.

HALLOWS, Chief Justice.

The child testified that Wold took her walking with a little boy and a dog in a field behind a trailer court where she lived and committed acts which would constitute taking indecent liberties. The fact she was molested was substantiated by circumstantial evidence. A construction worker testified he saw Wold walking with a boy and a dog in the vicinity and at the time involved. The clothing of the child, her report to her mother as to what had happened, and the doctor's examination all proved the child was molested. The child identified Wold by his residence in the trailer court as the person who took indecent liberties with her.

Wold first contends the evidence presented at the preliminary hearing was insufficient to establish probable cause without the child's testimony, which was admitted through error. We do not reach the merits of this argument because Wold neither moved for a dismissal nor sought any other remedy prior to pleading not guilty to the information. Failure to advance the contention of lack of probable cause constitutes a waiver of the objection. Logically and in the interest of orderly procedure of the criminal process, there is no purpose in going to trial if there is no probable cause; ¹ this reasoning is the basis of statutory regulations of analogous situations. Under sec. 955.18(1), Stats.1967 (now sec. 971.02(1)), an information in a felony case is not to be filed until the defendant has had a preliminary examination, with some exceptions not relevant here. Upon good cause the court may remand for a preliminary hearing if a motion is made pursuant to sec. 955.09, Stats.1967. ² One of the good causes stated in the section is the denial by the defendant that probable cause exists to hold him for trial when the preliminary examination has been waived. However, to raise the objection, sec. 955.09(2) requires a defense or an objection which is capable of determination without the trial of the general issue to be raised before the trial by motion. Similarly, an objection to the sufficiency of a preliminary examination should be made by motion at least prior to pleading to the information. Furthermore, this objection is similar to defects in a preliminary examination which have been held waived if not raised prior to the plea to the information. See Godard v. State (1972), 55 Wis.2d 189, 197 N.W.2d 811; Crummel v. State (1970), 46 Wis.2d 348, 174 N.W.2d 517; Flowers v. State (1969), 43 Wis.2d 352, 168 N.W.2d 843; Logan v. State (1969), 43 Wis.2d 128, 168 N.W.2d 171.

Wold contends that prior to the trial he moved for discovery of the state's evidence and the district attorney volunteered to provide all crime laboratory reports. Although the motion and order granting discovery do not appear in the record, the fact the district attorney volunteered to provide the reports is admitted. The reports which were given to the defendant showed no incriminating evidence, but at the trial an analyst with the state crime laboratory testified she had found a seminal stain on Wold's underwear. After cross-examining this witness, defense counsel moved to strike her testimony on the ground no reference to this matter appeared in the reports submitted. The motion was denied and Wold claims this is error. The state argues Wold waived any right to challenge this testimony by cross-examining the witness. We believe Wold was entitled to cross-examine the analyst to determine why the matter was not in the laboratory reports given him, and such examination did not amount to a waiver of his right to challenge this evidence by a motion to strike.

The issue presented does not involve a wilful suppression of evidence by the prosecution because the district attorney was unaware of the crime laboratory test which was made subsequent to those upon which the reports he gave to the defendant were based. Apparently the district attorney relied on the reports given the defendant and did not know of the discovery of the stain on the underwear until the analyst testified as to its existence.

Prior to the recent criminal code revision, this court had repeatedly rejected judicial adoption of a discovery rule in criminal law. State v. Watkins (1968), 40 Wis.2d 398, 162 N.W.2d 48; Ramer v. State (1968), 40 Wis.2d 79, 161 N.W.2d 209; State v. Miller (1967), 35 Wis.2d 454, 151 N.W.2d 157; State ex rel. Byrne v. Circuit Court (1962), 16 Wis.2d 197, 114 N.W.2d 114; State v. Herman (1935), 219 Wis. 267, 262 N.W. 718; Santry v. State (1886), 67 Wis. 65, 30 N.W. 226. Although, prior to the new criminal code, there was no 'clear legal right' to discovery so that mandamus would lie for failure to order production, the question of whether a discovery motion would be granted was a matter of discretion with the trial court. See State ex rel. Johnson v. County Court (1968), 41 Wis.2d 188, 163 N.W.2d 6; See also Woodhull v. State (1969), 43 Wis.2d 202, 168 N.W.2d 281; State v. Miller, supra, 35 Wis.2d at p. 478, 151 N.W.2d 157. The new criminal code, which was not in effect at the time of the trial in this case, grants a limited discovery to the defendant as a matter of right and creates a duty of continual disclosure. Sec. 971.23, Stats.

The question presented is whether evidence allegedly unknown to the state prior to trial and not disclosed to the defense pursuant to an agreement to disclose or an order of discovery should be excluded. We think the court should have excluded the testimony. In the preparation of the case, the district attorney should have discovered if later tests were made and if so, then, in keeping with his promise to disclose, the tests should have been given to the defendant. Under the American Bar Association Project on Standards for Criminal Justice, Standards Relating to the Prosecution Function and the Defense Function, Approved Draft, p. 100, sec. 3.11(c), ^2a the prosecutor may not avoid pursuit of any evidence. The Commentary at p. 102 makes clear it is the prosecutor's duty to acquire all relevant evidence. The duty rests upon the prosecution to obtain all evidence in the possession of investigative agencies of the state. See American Bar Association Project on Standards for Criminal Justice, Standards Relating to Discovery and Procedure Before Trial, Approved Draft, p. 14, sec. 2.1(d) ^2b and p. 78, sec. 2.2(c). ^2c The test of whether evidence should be disclosed is not whether in fact the prosecutor knows of its existence but, rather, whether by the exercise of due diligence he should have discovered it. ^2d Here, the prosecutor by his own statement assumed a duty to disclose scientific reports. His duty is to seek to know of the existence of such reports which he should disclose to the defense especially when scientific reports were requested.

If sec. 971.23(7), Stats., ³ were applicable, the failure of adequate preparation for trial should not constitute 'good cause . . . shown for failure to comply' when it misleads the defense. If there is to be pretrial discovery, broad or limited, in criminal cases, defense counsel should be able to rely upon evidence as disclosed by the state; otherwise, the purpose of discovery is frustrated and more injustice is done than if no discovery were allowed. Recognizing the strong need to avoid surprise of the defense in the area of scientific evidence, the drafters of the ABA standards stated:

'The need for full and fair disclosure is especially apparent with respect to scientific proof and the testimony of experts. This sort of evidence is practically impossible for the adversary to test or rebut at trial without an advance opportunity to examine it closely . . .' American Bar Association Project on Standards for Criminal Justice, Standards Relating to Discovery and Procedure Before Trial, Approved Draft, Commentary at p. 66.

Perhaps not all evidence which should be disclosed to the defendant need be excluded. The harm may be slight and avoided by a short adjournment to allow the defendant to investigate or acquire rebutting evidence. The penalty for breach of disclosure should fit the nature of the proffered evidence and remove any harmful effect on the defendant.

In the instant case, the prosecutor could have discovered the later test through a conference with his witnesses, and the evidence was of such a nature it should not have been admitted. However, this holding does not necessarily require a reversal, as will be discussed later.

At trial, the state crime laboratory analyst also testified that seminal stains were found on a handkerchief taken from the pocket of trousers seized by the police from a clothes hamper in Wold's home on the day following the alleged assault. It was admitted Wold was not wearing the trousers at the time of the crime. Nothing in the record indicates he used the handkerchief on the critical date, although the child testified Wold used a 'white hankie' to wipe her. Wold contends it was error to admit the handkerchief into evidence because no foundation was laid. He claims the admission of the trousers in evidence did not include the handkerchief which was in them at the time of seizure.

Generally, in the admission of articles associated with an offense, some connection or link between the article, the defendant, and the crime must be established. In Zdiarstek v. State (1972), 53 Wis.2d 420, 192 N.W.2d 833, a handgun and jacket admitted into evidence closely resembled those used in the crime. In Howland v. State (1971), 51 Wis.2d 162, 186 N.W.2d 319, the court stated that positive identification of the proffered objects is not essential to admission but also noted that if the...