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NOTICE This opinion is
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The final version will appear in the bound volume of the official
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No. 93-2444-CR
STATE OF WISCONSIN
: IN SUPREME COURT
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State of Wisconsin, Plaintiff-Respondent-Petitioner, v. John T. Williams, Defendant-Appellant. |
FILED FEB. 1,
1996 Marilyn L. Graves Clerk of Supreme Court Madison, WI |
REVIEW
of a decision of the Court of Appeals. Reversed.
JANINE P. GESKE, J. This is a review of the decision of the
court of appeals in State v. [John] Williams, 190 Wis. 2d 1, 527 N.W.2d
338 (Ct. App. 1994), which reversed the judgment of conviction entered by Dane
County Circuit Court Judge Robert A. DeChambeau against defendant John T.
Williams on one count of first‑degree recklessly endangering safety, Wis.
Stat. § 941.30(1) (1989-1990). The
primary issue as presented by the parties is whether, when bind over is denied
at preliminary hearing on one of two related felony counts in a multiple count
complaint, the district attorney may include in the subsequent information the
same charge that was dismissed or its greater-included offense. We hold that any charge may be included in
an information as long as it is transactionally related to a count on which
bind over was ordered. Further, we will
not reach the second issue raised
because defense counsel did not make an offer of proof concerning the
alleged erroneous evidentiary ruling.
We reverse the court of appeals and affirm the judgment of conviction
entered by the circuit court.
The circuit court correctly
concluded that the district attorney had the authority to include the charge of
first-degree reckless injury in the information because it was not wholly
unrelated to the charge of aggravated battery on which Williams was bound over. Further, we conclude that when two or more
transactionally related counts are charged, in that the counts "arose from
a common nucleus of facts," State v. Richer, 174 Wis. 2d 231,
246, 496 N.W.2d 66 (1993), and probable cause is found that a felony was
committed in relation to one count, then bind over is required on all
transactionally related counts.
FACTS
On November 11, 1991, a
criminal complaint containing three counts was filed against Williams. The first count alleged that Williams had
committed aggravated battery, in an incident that occurred on November 4,
1991, when he struck Seri K. Storlid-Harris in the face. The second and third counts, aggravated
battery and second-degree recklessly endangering safety, contrary to Wis. Stat.
§§ 940.19(1m) and 941.30(2), respectively, related to a separate event that
occurred on November 5, 1991, at a different location in which Williams struck
George Buie in the face with a large rock.
Court Commissioner Todd E.
Meurer conducted a preliminary hearing in this case on December 18, 1991. The court found that ample evidence had been
presented to support a finding of probable cause that Williams committed a
felony in relation to the attack on Storlid-Harris and therefore bind over was
ordered on Count I. Buie testified at
the preliminary hearing as to the circumstances surrounding the confrontation
between Williams and himself and as to the extent of his injuries. The court concluded that the State had met
its burden on Count II and bound Williams over on that count but declined to
bind over on Count III based on "problems" it had with the testimony
given by Buie.
The information filed on
December 23, 1991, contained the original Counts I and II and a new Count III,
based on the incident involving Buie, charging Williams with first‑degree
reckless injury contrary to Wis. Stat. § 940.23(1). The court granted Williams' motion to sever Count I from the
other two counts.[1] Additionally, Williams moved to dismiss Count
III-i asserting that Wis. Stat. § 970.03(10)[2]
bars the inclusion in an information of any new count arising from the same
facts as a count specifically dismissed at the preliminary hearing. The court denied this motion finding that
Count III-i was properly included because it was reasonably related to the
evidence adduced at the preliminary hearing regarding Count II (aggravated
battery of Buie) on which the commissioner had ordered bind over.
The case was tried to a jury
and while Williams was acquitted of aggravated battery (Count II), he was found
guilty of first‑degree recklessly endangering safety which the court had
submitted to the jury as a lesser-included offense of first-degree reckless
injury (Count III-i). In a
post-conviction motion, Williams renewed his challenge to the propriety of
Count III-i and the circuit court again denied his motion on the basis that the
charge of first-degree reckless injury was not improper because it was
"not wholly unrelated" to Count II.
The court of appeals reversed
the conviction and order denying post-conviction relief on the basis that §
970.03(10) unambiguously requires that "[a]ny new charge that arises out
of facts relied upon to dismiss a count may not be included in an
Information . . . ."
[John] Williams, 190 Wis. 2d at 7. This court subsequently accepted the State's petition for review
on the issue of the proper interpretation of subsection (10). We also agreed to address Williams' claim
that the circuit court's restriction of cross-examination during trial
constituted reversible error.
Issue
1
Resolution of this case
requires us to interpret Wis. Stat. § 970.03(10) which reads:
In
multiple count complaints, the court shall order dismissed any count for which
it finds there is no probable cause. The facts arising out of any count ordered
dismissed shall not be the basis for a count in any information filed pursuant
to ch. 971. Section 970.04 shall apply to any dismissed count.
We begin this analysis by reiterating a point that has been made in
several of our previous cases; there is no constitutional right to a
preliminary examination, it is purely a statutory creation. See State ex rel. Funmaker v.
Klamm, 106 Wis. 2d 624, 633, 317 N.W.2d 458 (1982); State ex rel.
Klinkiewicz v. Duffy, 35 Wis. 2d 369, 373, 151 N.W.2d 63 (1967).
Statutory interpretation
presents a question of law which this court reviews without deference to the
decisions of the courts below. Richer,
174 Wis. 2d at 238-9. If the plain
language of a statute is unambiguous a court must give it effect and can look
no further. See In Interest
of J.A.L., 162 Wis. 2d 940, 962, 471 N.W.2d 493 (1991). However, as the Supreme Court has noted,
"plain meaning, like beauty, is sometimes in the eye of the
beholder." Florida Power &
Light Co. v. Lorion, 470 U.S. 729, 737 (1985). If ambiguity is found, a court should examine the scope, history,
context, subject matter, and object of the statute in order to divine
legislative intent. State v. Waalen,
130 Wis. 2d 18, 24, 386 N.W.2d 47 (1986).
Ambiguity occurs when reasonably well-informed persons can understand a
statute in more than one way. State
v. Moore, 167 Wis. 2d 491, 496, 481 N.W.2d 633 (1992).
We conclude that
§ 970.03(10) is ambiguous. The
circuit court and the State understood subsection (10) to bar reissuance only
of the identical charge dismissed at a preliminary hearing. The court of appeals agreed with Williams
that the State cannot rely on the facts surrounding a dismissed count as the
basis for any new count in a subsequent information. We find the statute susceptible to yet a third interpretation of
the second sentence which results in an unworkable anomaly. If the broad transactional interpretation
advanced by the defendant and court of appeals were applied literally to the
language of the statute, one would be faced with the absurd result that the
dismissed count is controlling, such that a count for which bind over was determined
proper could not be included in an information if it arose from the same facts
as a count that was dismissed.[3] For example, if this interpretation were
applied to Williams' case, even though the examining judge[4]
found probable cause as to Count II, neither count could appear in the
information because Count III-c was dismissed and both counts arose from the
same facts.
The primary goal of statutory
construction is to ascertain and give effect to legislative intent. State v. Olson, 175 Wis. 2d 628, 633,
498 N.W.2d 661 (1993). Subsections of a
statute must be interpreted in a manner consistent with the purpose of the
statute as a whole. See State
v. Swatek, 178 Wis. 2d 1, 6-7, 502 N.W.2d 909 (Ct. App. 1993). "A statute should be construed to give
effect to its leading idea, and the entire statute should be brought into
harmony with the statute's purpose."
State v. Clausen, 105 Wis. 2d 231, 244, 313 N.W.2d 819
(1982).
Chapter 970 expressly defines the purpose of preliminary
hearings: "[a] preliminary examination is a hearing before a court for the
purpose of determining if there is probable cause to believe a felony has been
committed by the defendant."
§ 970.03(1). This court has
often stated that the primary purpose of preliminary examination is "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." Bailey v. State, 65 Wis. 2d 331, 344,
222 N.W.2d 871 (1974) (quoting Whitty v. State, 34 Wis. 2d 278, 287, 149
N.W.2d 557 (1967), cert. denied in Whitty v. Wisconsin, 390 U.S.
959 (1968), quoting Johns v. State, 14 Wis. 2d 119, 122, 109 N.W.2d 490
(1961)). We have also held that upon
determination that bind over is warranted on at least one count, that
purpose has been served. Bailey,
65 Wis. 2d at 341. Here, the purpose of
the preliminary hearing was satisfied upon the commissioner's finding of
probable cause to believe that Williams had committed a felony in connection
with the attack on Buie.
Our holding today comports
with long-standing precedent that recognizes the prosecutor's authority, once a
defendant is bound over, to include additional charges in the information
"so long as they are not wholly unrelated to the transactions or facts
considered or testified to at the preliminary." Bailey, 65 Wis. 2d at 341 (quoting State v. Fish,
20 Wis. 2d 431, 438, 122 N.W.2d 381 (1963)); See also State v.
Burke, 153 Wis. 2d 445, 457, 451 N.W.2d 739 (1990); Richer, 174 Wis.
2d at 253. In Bailey, the
defendant was bound over following a preliminary hearing on one count of
first-degree murder. The subsequent
information contained an additional three counts (indecent behavior with a
child, enticement of a child for immoral purposes and attempted enticement of a
child for immoral purposes). The
defendant challenged the court's jurisdiction to try him on the additional
counts based on the assertion that no evidence was introduced at the
preliminary hearing to support the sex-related charges. This court found that, even assuming no
evidence had been presented at the preliminary hearing on the sex-related
offenses, they were clearly "not wholly unrelated" to the murder and
that, in fact, ample evidence had been presented as to the additional
counts. Bailey, 65 Wis. 2d
at 343, 341. We held that Bailey was
properly tried on all four counts.
The authority of the district
attorney to include additional transactionally related counts in an information
was further strengthened in Burke, in which this court pointed to prior
cases, including Bailey, that held "that in a multiple-offense
transaction case, once the defendant has been bound over for trial on at least
one count relating to the transaction, the prosecutor may in the information
charge additional counts not wholly unrelated." Burke, at 453.
Burke was originally charged in a multi-count complaint but prior to
preliminary hearing the State moved to dismiss all but one count of
second-degree sexual assault. We
concluded that inclusion in the ensuing information of four additional counts
of sexual assault, on which no direct evidence had been received, was
permissible because they were not wholly unrelated to the transactions or facts
testified to at preliminary. Id.
at 457.
In Richer, we noted
that our decisions expanding the authority of the district attorney to include
any counts that exhibit such a "transactional nexus" were
"indicative of this court's continuing efforts to further the underlying
legislative and constitutional goals of the preliminary hearing while also
affording prosecutors increasing flexibility in their charging
decisions." Richer, 174
Wis. 2d at 246. Richer was charged with
one count of delivery of a controlled substance involving an incident alleged
to have occurred on November 21, 1990.
Testimony at the preliminary hearing was limited to that incident and
resulted in a finding of probable cause sufficient for bind over. The information subsequently filed by the
State included an additional count charging delivery of a controlled substance
on November 30, 1990. Id. at
237.
In concluding that the second
count could not properly be added to the information, we discussed the stated
objectives of preliminary examinations reiterated above and noted that the
"proceeding must also be adequate to fulfill the defendant's
constitutional right to know the nature and cause of the charges against which
he must defend." Richer,
174 Wis. 2d at 242. The
"state must assume the burden of establishing the transactional link
between the charges before including additional counts in the information not
otherwise supported by independent fact finding at the preliminary
hearing . . . ."
Id. at 249. Because there
was no basis within the confines of the evidence presented at the preliminary
hearing to support the second count or to link it to the first, we concluded
that the count alleging delivery on November 30, 1990, was properly dismissed.[5] Id. at 236-37.
In the case before us now,
the purposes of a preliminary hearing and the protections it must provide have
been well-served by the inclusion in the information of the count of
first-degree reckless injury. There was
sufficient evidence presented to establish probable cause that a felony had
been committed by Williams in the context of the attack on Buie to justify
restricting Williams' liberty and proceeding with a prosecution against
him. Williams was put on notice and had
ample opportunity to prepare his defense to charges stemming from that
incident.
We previously addressed the
sparse commentary on the legislative history surrounding the creation of
subsection (10) in Bailey.
There, as here, we rejected the defendant's contention that the language
of subsection (10) limits the prosecutor's authority to charge additional,
related counts in an information following bind over. Bailey, 65 Wis. 2d at 340. Bailey's argument was based on the following Judicial Council
explanatory note:
Sub. (10) is a new provision requiring a finding
of probable cause as to each count in a multiple count complaint. If such a finding is not made as to any
count, it shall be dismissed. This
reverses the rule in Hobbins v. State, 214 Wis. 496, 253 N.W. 570
[1934].
§ 63, ch. 255, Laws of 1969, at 637. In Bailey, we explained that the statutory language in
subsection (10) and the comment "are directed at the holding of the [Hobbins']
court which permitted the trial court to assume jurisdiction over and try
counts which had been included in the criminal complaint but were specifically
dismissed by the presiding magistrate at the preliminary hearing." Id. at 341 (citing Hobbins,
214 Wis. at 508-510).
A review of Hobbins
indicates that our holding today does not conflict with the above language in Bailey. The original complaint filed against Mr.
Hobbins, a bank president, contained 35 counts but he was bound over on only 16
of these. On appeal, Hobbins argued
that he was improperly convicted on Counts I and II because they were among
those that had been dismissed at the preliminary examination. Hobbins, 214 Wis. at 508. The court noted that the manner in which the
appeal was presented generated confusion but still found that, even though it
appeared that the dismissed and recharged counts stemmed from incidents
occurring on separate dates than those for which bind over was determined
proper, the magistrate's opinion placed no restrictions on the district
attorney in the filing of the ensuing information. Id. at 509-510. We
conclude that the "rule of Hobbins" that is reversed by
subsection (10) is that which allowed the court to "resurrect" counts
that were transactionally unrelated to any for which probable cause had been
found sufficient to justify bind over.
In a multi-count complaint, a
transactionally distinct count (i.e. one which is not transactionally related
to any others in the complaint) that is found lacking in probable cause and
therefore dismissed may not be recharged nor may any charges arising from that
same incident be included in a subsequent information even if other
transactionally distinct counts do pass the muster of preliminary examination
resulting in a valid bind over. This
rule is completely consistent with existing practice and precedent involving
single count complaints. In fact, this
is the only reading of subsection (10) that does not produce "questionable
results" and make the law look "silly," as does the court of
appeals' interpretation by its own acknowledgment. [John] Williams, 190 Wis. 2d at 10; State v. [Scott]
Williams, 186 Wis. 2d 506, 513, 520 N.W.2d 920 (Ct. App. 1994).[6]
A statute should be construed
so as to avoid absurd results. State
v. Peete, 185 Wis. 2d 4, 17, 517 N.W.2d 149 (1994). Further, there must be a strong showing of
legislative intent before we will construe a statute in a manner that would
create an anomaly in criminal procedure.
See State v. White, 97 Wis. 2d 193, 198, 295 N.W.2d
346 (1980). The court of appeals in
this case concluded that subsection (10) was unambiguously susceptible to only
one reasonable interpretation, i.e. that the prosecutor was barred from relying
"on the facts presented at the preliminary hearing with regard to the
dismissed charge to form the basis of a new charge in an
Information." [John] Williams,
190 Wis. 2d at 7. In concluding that
Count III-i therefore could not be added to the information it rejected the
cases relied upon by the State that articulated the rule that district
attorneys may include any not wholly unrelated count in an information (Bailey,
65 Wis. 2d at 341; Burke, 153 Wis. 2d at 457; Richer, 174 Wis. 2d
at 253) because these cases had all been heard in preliminary examination as
single count complaints. The court of
appeals thus determined that although "it might not be sound law to
distinguish between single- and multiple-count complaints," the statute
demanded the two be treated differently.
[John] Williams, 190 Wis. 2d at 10. On this point we agree with the court of appeals. It is not sound law to make such a
distinction thereby creating an anomalous procedure and, in this opinion, we
hope to make it clear that single and multiple count complaints are to receive
the same procedural treatment.
The defendant, circuit court,
court of appeals and the State all framed the essential inquiry as one of
whether the district attorney had the discretion to include Count III-i in the
information. In reaching their disparate
conclusions, all of them focussed on the second sentence of subsection
(10)--"The facts arising out of any count ordered dismissed shall not be
the basis for a count in any information filed pursuant to ch. 971." We conclude that the question posed here
requires this court to back up one step in the analysis--the real issue is
whether Count III-c was properly dismissed at the preliminary hearing pursuant
to the first sentence of subsection (10)--"In multiple count complaints,
the court shall order dismissed any count for which it finds there is no
probable cause."
"The true meaning of a
single section of a statute . . . , however precise its language, cannot
be ascertained if it be considered apart from related sections . . .
." Commissioner of Internal
Revenue v. Engle, 464 U.S. 206, 223 (1984). Further, this court may insert words into a statute that are
necessary or reasonably inferable. State
v. Gould, 56 Wis. 2d 808, 812, 202 N.W.2d 903 (1973).[7] After applying the rules of statutory
construction discussed within this opinion, we conclude that clarity
necessitates that the following language from subsection (7) ("to believe
a felony has been committed by the defendant") must be added to the end of
the first sentence of subsection (10).
The first sentence of the statute should now be read as, "In
multiple count complaints, the court shall order dismissed any count for which
it finds there is not probable cause to believe a felony has been committed
by the defendant." Further,
this inserted language is to be interpreted in multiple count complaints
exactly as it has been in single count complaints.
We suggest the following
procedure be employed at preliminary examinations on multi-count complaints and
illustrate it using the present case as an example:
(1)
The examining judge shall examine the counts in the criminal complaint and the
factual bases stated therein to determine which counts are transactionally
related in that they arose from a common nucleus of facts or, in other words,
which counts are "related in terms of parties involved, witnesses
involved, geographical proximity, time, physical evidence, motive and
intent," Bailey v. State, 65 Wis. 2d 331, 341, 222 N.W.2d 871
(1974);
Here,
Count I stood alone as the only count related to the attack on Storlid-Harris
while Counts II and III-c were clearly transactionally related because they
involved the same participants and witnesses, occurred at the same time and place,
relied on the same physical evidence and allegedly arose from the same motive;
(2)
In a review of transactionally related counts, after presentation of all of the
evidence at the preliminary hearing, if the examining judge finds there is
probable cause to believe that a felony was committed, there is necessarily
probable cause as to all counts that are transactionally related and the
defendant shall be bound over on all those counts;
The
court found that there was probable cause that Williams had committed a felony
in relation to the attack on Buie when it bound Williams over on Count II. Therefore, the court should have also bound
Williams over on the transactionally related Count III-c as well.
(3)
Conversely, if no probable cause is found that a felony was committed in
conjunction with review of counts that are transactionally related, the
examining judge shall dismiss all those counts and the district attorney may
not include in the information those counts or any additional counts arising
from that common nucleus of facts.
Again,
Williams' case provides a clear example--if the examining judge had determined
that there was no probable cause to support the count involving the attack on
Storlid-Harris he would have been compelled to dismiss it and the district
attorney would have been barred from including any counts stemming from that
incident in a subsequent information.
We have previously stated
that the proper role of a judge at preliminary examination is to determine if
there is a plausible account that the defendant committed a felony. And further, that "[t]he court cannot
delve into the credibility of a witness."
State v. Dunn, 121 Wis. 2d 389, 397-98, 359 N.W.2d 151
(1984). The examining judge in this
case went beyond what is expected and what is proper in a preliminary
examination when he dismissed Count III‑c because he had
"problems" with Buie's testimony.
The court obviously found Buie's testimony plausible enough to believe
probable cause existed that Williams had committed a felony in connection with
the encounter between the two men because it bound him over on Count II. The inquiry--and commentary--should have
ended there.
In summary, when counts are
transactionally related, the purpose of the preliminary is served once it has
been established that there is probable cause to believe the defendant has
committed a felony. Each of the
particular felonies charged need not be proved. It is not necessary and, in fact, is inadvisable for the court to
opine as to exactly what felony was probably committed.[8] Counts arising from a common nucleus of
facts will necessarily either be supported by probable cause sufficient to
justify bind over on all or will all be dismissed. The evidence adduced at preliminary hearing concerning any dismissed
count that is not transactionally related to a count for which bind over
was deemed proper may not form the basis for any count in the ensuing
information.[9] We reiterate, however, that the State may
include any count in an information as long as it is transactionally related to
a count on which the defendant is bound over.
The challenged language in subsection (10) merely restricts the district
attorney from bringing charges in an information based on dismissed counts that
are transactionally distinct from any counts for which bind over was deemed
appropriate.
Issue 2
Williams
argues that the court committed prejudicial error during trial by restricting
cross-examination of the victim/witness Buie as to prior inconsistent
statements made to the defendant's private investigator. The court sustained the State's objection to
this line of questioning because it found that Williams' failure to turn over
the relevant notes constituted a violation of discovery under Wis. Stat. §
971.24.
Rulings excluding evidence
may not be found erroneous unless "the substance of the evidence was made
known to the judge by offer or was apparent from the context within which
questions were asked." Wis. Stat.
§ 901.03(1)(b). "When a claim of
error is based upon the erroneous exclusion of evidence, 'an offer of proof
must be made in the trial court as a condition precedent to the review of any
alleged error.'" State v.
Hoffman, 106 Wis. 2d 185, 217-18, 316 N.W.2d 143 (Ct. App. 1982)
(quoting McClelland v. State, 84 Wis. 2d 145, 153, 267 N.W.2d 843
(1978)). Williams made no offer of
proof as to the contents of these notes and the record otherwise contains no
indication of the nature of the inconsistent statements that Williams claims
Buie made to the private investigator.
Thus, we will not reach the merits of this claim of error.
We therefore reverse the
court of appeals and affirm the judgment and order entered by the circuit
court.
By the Court.—The decision of the court of appeals is reversed.
WILLIAM A. BABLITCH, J. (concurring). The
majority in the trilogy of cases decided today, State v. John T. Williams
(93-2444); State v. Terry Akins (94-1872); and State v. Scott E.
Williams (93-2517), puts forth a highly commendable effort to reconcile the
nearly irreconcilable. In these
efforts, the majority is forced to wrestle with the language of two specific
statutes which on their face seem to contradict their conclusions.
Wisconsin Stat. § 971.01(1)
states in relevant part: "The district attorney shall examine all facts
and circumstances connected with any preliminary examination . . . and . . .
shall file an information according to the evidence on such examination
. . . ." (Emphasis
added.) In Scott E. Williams,
absolutely no evidence was introduced regarding whether these drug offenses
occurred within 1000 feet of a school yet the majority allows those four counts
to stand.
Wisconsin Stat. § 970.03(10),
involving multiple count complaints, provides in relevant part: "The facts arising out of any count
ordered dismissed shall not be the basis for a count in any information
. . . ." In John T. Williams,
the facts arising out of the count dismissed at the preliminary are the exact
same facts which are the basis for count three of the information. The majority's interpretation changes a
proscription of authority ("shall not") into a grant of authority. It is undisputed that the facts arising out
of count three in the complaint which was dismissed are the basis for count
three in the information. In Akins,
a challenge to equal protection is avoided only by utilizing the same
interpretation.
Consistency in the
interpretation of these statutes, and other statutes such as Wis. Stat. §
970.04, is achieved in a far less tortuous manner by simply requiring a factual
basis in the preliminary examination for each crime charged in the
information. This was the course urged
on the court in the dissent filed by Justice Abrahamson in State v. Burke,
153 W. 2d 445, 451 N.W.2d 739 (1990), in which I joined. The reasons expressed in that dissent are as
valid today as they were then. Burke
is the underpinning of each of these cases.
Without Burke, each would fall.
Given the choice, I would overrule Burke. However, the majority refuses to do so. Thus, Burke remains the law
today. Because it is the law, I concur.
I write only to express a deep concern. I fear we have not heard the end of the problems that have
consistently come before this court since Burke. For example, this trilogy of cases and its
progeny will allow the State to charge a defendant with second-degree
recklessly endangering safety, put in evidence at the preliminary to show
probable cause as to that charge, and then charge the defendant in the
information with sexual assault, kidnapping, and attempted murder. These cases will allow this type of charging
as long as the additional charges are transactionally related to a count on
which the defendant was bound over. Any
criminal justice system so utterly replete with plea bargaining (as is ours)
that allows this type of charging to occur is clearly subject to abuse. Extraordinary power has been placed in the
hands of the district attorney with these decisions. In the present day atmosphere where plea bargaining is the rule
rather than the exception, the state holds all the levers; the defendant can be
coerced into a plea beyond the bounds of fairness.
That this is true is due in
no small part to another facet of these cases:
judicial review of the state's final charging decision has for all
intents and purposes been abolished.
The only judicial review is confined to the question of whether the
additional charges are wholly unrelated in terms of the parties involved,
witnesses involved, geographical proximity, time, physical evidence, motive and
intent. Burke, 153 Wis.2d at
457. There is no judicial review as to
whether any evidence even exists to believe the defendant is guilty of the
additional crimes charged.
As a former district
attorney, this writer can attest to the power that rests with the decision to
charge. No one can deny it. But it can
be abused, intentionally or unintentionally.
The State should not resent judicial review of its charging decisions,
it should welcome it. It serves as a
check on human fallibilities, on the pressures of an overcrowded calendar, on
the pressures emanating from outside forces.
It may be inconvenient, but checks and balances are frequently
inconvenient, particularly on the person or the institution being checked and
balanced.
Unquestionably, the system
now set in place by these cases is efficient.
But efficiency should never yield to basic notions of fairness. Efficiency is hardly the only sought after
objective in a democratic society.
I am authorized to state that
Justices Shirley S. Abrahamson and Ann Walsh Bradley join in this concurrence.
SUPREME
COURT OF WISCONSIN
Case No.: 93-2444-CR
Complete Title
of Case: State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
John T. Williams,
Defendant-Appellant.
________________________________________
ON REVIEW OF A
DECISION OF THE COURT OF APPEALS
Reported at: 190 Wis. 2d 1, 527 N.W.2d 338
(Ct.
App. 1994)
PUBLISHED
Opinion Filed: February
1, 1996
Submitted on Briefs: October
6, 1995
Oral Argument:
Source of APPEAL
COURT: Circuit
COUNTY: Dane
JUDGE: ROBERT DE CHAMBEAU
JUSTICES:
Concurred: BABLITCH, J., concurs (opinion filed)
ABRAHAMSON and BRADLEY, J.J., joins
Dissented:
Not Participating:
ATTORNEYS: For
the plaintiff-respondent-petitioner the cause was submitted on the briefs of Maureen
McGlynn Flanagan, assistant attorney general and James E. Doyle,
attorney general.
For the
defendant-appellant there was a brief by Gregory J. Meeker and Relles,
Meeker & Borns, Madison.
[1] The resolution of Count I is not relevant to the issues raised in this appeal and because it was severed it will not be discussed further. For clarity's sake, however, the charges resulting from Buie's injuries will be referred to throughout this opinion as Counts II, III-c (the count of second-degree recklessly endangering safety originally included in the criminal complaint), and III-i (the count contained in the information of first-degree reckless injury).
[2] Section
970.03(10) provides:
In multiple count complaints, the court shall order dismissed any count for which it finds there is no probable cause. The facts arising out of any count ordered dismissed shall not be the basis for a count in any information filed pursuant to ch. 971. Section 970.04 shall apply to any dismissed count.
[3] The court of appeals apparently attempted to avoid this anomaly by adding the word "new" to the statute it found unambiguous.
[4] We recognize that, pursuant to Wis. Stat. §§ 967.09 and 757.69(1)(b), a full-time court commissioner may also preside over a preliminary hearing, as was the case in this instance.
[5] As the test we enunciate today should make clear, the evidence supporting a count charged in the information must be transactionally related to a count on which there has been a valid bind over.
[6] The court of appeals in State v. [Scott] Williams, 186 Wis. 2d 506, 507, 520 N.W.2d 920 (Ct. App. 1994), interpreted subsection (10) to require a finding of probable cause as to "the particular" felony charged. In the companion opinion released today, State v. [Scott] Williams, No. 93‑2517-CR (S. Ct. Feb. 1, 1996), we reverse the court of appeals and conclude that the State "need only establish probable cause that a felony occurred as to one count in a set of transactionally related counts for a valid bind over on that set." [Scott] Williams, op. at 1.
[7] In State v. Gould, 56 Wis. 2d 808, 812, 202 N.W. 2d 903 (1973), this court found ambiguity and conflict in the language of the then-existing version of the aggravated battery statute ("Whoever intentionally causes great bodily harm to another by an act done with intent to cause bodily harm to that person or another . . . ." Wis. Stat. § 940.22 (1971-1972)). To resolve the situation, this court held that, "the word 'great' should be inserted before the second 'bodily harm' therein as reasonably inferable and to avoid conflicting provisions and an absurd result." Gould, 56 Wis. 2d at 812.
[8] We stress that the purpose of preliminary examinations is not served by placing restrictions on the district attorney's "quasi-judicial" role in determining what charges are ultimately appropriate. We stand by our previous observation that "the prosecuting attorney is not limited to the opinion of the preliminary hearing judge as to the crime or crimes to be charged in the information." State v. Hooper, 101 Wis. 2d 517, 536, 305 N.W.2d 110 (1981).