Davis v. State

Wisconsin Supreme Court

Davis v. State

212 N.W.2d 139, 61 Wis. 2d 284, 1973 Wisc. LEXIS 1263

CourtWisconsin Supreme Court

DecidedNovember 27, 1973

DocketState 26

StatusPublished

Cited by8 cases

This text of 212 N.W.2d 139 (Davis v. State) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Davis v. State, 212 N.W.2d 139, 61 Wis. 2d 284, 1973 Wisc. LEXIS 1263 (Wis. 1973).

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Opinion

Hanley, J.

The sole issue presented on this review is whether or not the alleged improper prosecutorial *287 comment constituted a denial of the defendant’s right to due process of law and a fair trial and thus warrants a new trial.

This court has continually held that if counsel wishes to preserve for appeal an allegedly improper prosecu-torial comment made during closing arguments to the jury, he must move for a mistrial upon those grounds. State v. McGee (1971), 52 Wis. 2d 736, 190 N. W. 2d 893; State v. Ruud (1969), 41 Wis. 2d 720, 165 N. W, 2d 153; Price v. State (1967), 37 Wis. 2d 117, 154 N. W. 2d 222, certiorari denied, 391 U. S. 908, 88 Sup. Ct. 1662, 20 L. Ed. 2d 423; Kink v. Combs (1965), 28 Wis. 2d 65, 135 N. W. 2d 789. Failure to so move for a mistrial constitutes a waiver of that objection. If defense counsel had not intended to so waive his complaints there existed ample opportunity to make said motion on the record. The closing argument could have been made of record but it was not. Arguments of counsel made in chambers as to the propriety of the closing argument could and often should be made of record so as to preserve these contents for appeal. Here they were not. Defense counsel could have moved for mistrial after the court charged the jury. He did not do so.

We conclude that because of defense counsel’s failure to move for a mistrial on the grounds of the alleged impropriety of the prosecutor’s closing argument, he has waived those complaints.

By the Court. — Judgment and orders affirmed.

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Hanley, J.

The sole issue presented on this review is whether or not the alleged improper prosecutorial *287 comment constituted a denial of the defendant’s right to due process of law and a fair trial and thus warrants a new trial.

This court has continually held that if counsel wishes to preserve for appeal an allegedly improper prosecu-torial comment made during closing arguments to the jury, he must move for a mistrial upon those grounds. State v. McGee (1971), 52 Wis. 2d 736, 190 N. W. 2d 893; State v. Ruud (1969), 41 Wis. 2d 720, 165 N. W, 2d 153; Price v. State (1967), 37 Wis. 2d 117, 154 N. W. 2d 222, certiorari denied, 391 U. S. 908, 88 Sup. Ct. 1662, 20 L. Ed. 2d 423; Kink v. Combs (1965), 28 Wis. 2d 65, 135 N. W. 2d 789. Failure to so move for a mistrial constitutes a waiver of that objection. If defense counsel had not intended to so waive his complaints there existed ample opportunity to make said motion on the record. The closing argument could have been made of record but it was not. Arguments of counsel made in chambers as to the propriety of the closing argument could and often should be made of record so as to preserve these contents for appeal. Here they were not. Defense counsel could have moved for mistrial after the court charged the jury. He did not do so.

We conclude that because of defense counsel’s failure to move for a mistrial on the grounds of the alleged impropriety of the prosecutor’s closing argument, he has waived those complaints.

By the Court. — Judgment and orders affirmed.

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Bluebook (online)

212 N.W.2d 139, 61 Wis. 2d 284, 1973 Wisc. LEXIS 1263, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-state-wis-1973.

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