State v. Burke

451 N.W.2d 739, 153 Wis. 2d 445, 1990 Wisc. LEXIS 92

• Court: Wisconsin Supreme Court
• Decided: February 26, 1990
• Docket: 88-0631-CR
• Status: Published

Opinions

DAY, J.

This is a review of the decision of the court of appeals in State v. Burke, 148 Wis. 2d 125, 434 N.W.2d 788 (Ct. App. 1988), which affirmed the order of the Honorable Mark A. Frankel, Judge for the Circuit Court for Dane County, which had dismissed four counts of a five count information charging defendant John J. Burke, IV, with second-degree sexual assault of a person over the age of twelve and under the age of sixteen, contrary to sec. 940.225(2) (e), Stats. 1987-88.¹ The issue is whether a prosecutor may, pursuant to sec. 971.01(1), Stats. 1987-88, include in an information charges for which there was no direct evidence presented at the preliminary examination.

Mr. Burke was arrested on August 18,1987. At 4:51 a.m. on that day, the city of Madison police responded to a sexual assault complaint by B.L.K., a female minor age thirteen. B.L.K. reported that the previous evening, she and a friend had arrived in Madison on a bus from Milwaukee. B.L.K. and her friend spent most of the evening together in downtown Madison, but were separated. B.L.K. then met a man, whom she later identified as Burke, who offered to take her back to the bus station. Burke stated he first needed to stop at his residence. While there, Burke took B.L.K. to his bedroom to listen to music. Over B.L.K.'s protests, Burke began to touch her. Burke then closed the bedroom door, unscrewed the bedroom light bulb, and demanded that B.L.K. lay on the bed. When B.L.K. refused, Burke threatened to hurt her. B.L.K. alleged that Burke then pushed her onto the bed, partially disrobed her and himself, and attempted to force B.L.K. to perform fellatio. B.L.K. refused. Burke forced B.L.K. to submit to anal intercourse and then vaginal intercourse. Approximately fifteen minutes after those assaults, B.L.K. alleged, Burke again forcibly had anal intercourse and then vaginal intercourse with her. After relating her account of what transpired, B.L.K. took the police to Burke's residence where she identified Burke as the assailant and he was arrested.

The complaint against Burke charged four counts of second-degree sexual assault, contrary to sec. 940.225(2)(e), Stats. Counts one and three each alleged an act of anal intercourse. Counts two and four each alleged an act of vaginal intercourse.

A preliminary examination was held on September 15, 1987. After the case had been called but before the taking of any testimony, the State moved to dismiss all but one count of the complaint. Burke did not object. The circuit court granted the motion.

The remaining count in the complaint alleged an act of anal intercourse. The preliminary examination proceeded. The State sought to establish probable cause solely on the basis of statements made by Burke to the police following his arrest. An investigating officer testified that Burke admitted touching B.L.K.'s breasts and attempting to have vaginal intercourse with her. Burke further admitted having anal intercourse with B.L.K. On the basis of the officer's testimony, the circuit court bound Burke over for trial pursuant to sec. 970.03(7), Stats. 1987-88.²

In the information which was subsequently filed, the State alleged that Burke had committed five counts of second-degree sexual assault, contrary to sec. 940.225(2)(e), Stats. The additional counts were not identical to those originally alleged in the complaint. Count one alleged an act of anal intercourse. Count two alleged an act of vaginal intercourse. Count three alleged an additional act of anal intercourse. Count four alleged an act of touching B.L.K.'s breasts. Count five alleged an act of Burke touching his penis to B.L.K.'s mouth. Burke moved to dismiss counts two, three, four and five. The circuit court granted the motion on the basis those counts were not directly supported by the evidence presented at the preliminary examination, which the circuit court concluded was required by sec. 971.01(1), Stats.

The State moved the court of appeals for leave to appeal the circuit court's non-final order, pursuant to sec. (Rule) 809.50, Stats. 1987-88. The court of appeals granted the State's petition, see sec. (Rule) 808.03(2), Stats. 1987-88, and affirmed the circuit court's order. The State argued in the court of appeals that the charging of counts two through five was proper under this court's decision in Bailey v. State, 65 Wis. 2d 331, 222 N.W.2d 871 (1974). The court of appeals concluded, however, that "decisions following Bailey explain that sec. 971.01(1), Stats., requires the prosecutor to file an information containing only charges based on evidence presented at the preliminary hearing." Burke, 148 Wis. 2d at 129.

The State petitioned this court for review which was granted.³ The State asserts it had voluntarily dismissed the additional counts in the complaint only to spare B.L.K. the unnecessary trauma of recounting the sexual assaults at the preliminary examination. The State contends counts two through five were properly included in the information pursuant to sec. 971.01(1), Stats., and Bailey because those counts were "not wholly unrelated" to the transactions or facts considered or testified to at Burke's preliminary examination.⁴ We agree with the State and reverse.

Prosecutors in Wisconsin are afforded broad discretion for purposes of determining whether to bring charges against a defendant and initiate criminal proceedings. State v. Hooper, 101 Wis. 2d 517, 532, 305 N.W.2d 110 (1981). A prosecutor's discretion is not without bounds, however, and may be limited by the legislature. State ex rel. Kurkierewicz v. Cannon, 42 Wis. 2d 368, 378-79, 166 N.W.2d 255 (1969).

Burke contends sec. 971.01(1), Stats., prohibits the State from charging counts two through five in the information. Burke argues the statute requires that sufficient evidence must be presented at the preliminary examination to support a probable cause finding for each separate count in the information. The charging of the additional counts in the information was an abuse of prosecutorial discretion, Burke asserts, because there was no direct evidence concerning those counts presented at the preliminary examination.

Section 971.01(1), Stats., provides:

Filing of the information. (1) The district attorney shall examine all facts and circumstances connected with any preliminary examination touching the commission of any crime if the defendant has been bound over for trial and, subject to s. 970.03(10), shall file an information according to the evidence on such examination subscribing his name thereto.

At issue is the meaning of the language "according to the evidence on such examination" in sec. 971.01(1), Stats. The interpretation of a statute is a question of law which this court may review without deference to the lower courts. State v. Sher, 149 Wis. 2d 1, 8, 437 N.W.2d 878 (1989).

Section 971.01(1), Stats., and its predecessors have often been considered by this court. Early decisions involved primarily single-offense transactions and held a prosecutor was not bound in the information to charging the same offense charged in the complaint. See, e.g., Porath v. State, 90 Wis. 527, 534, 63 N.W. 1061 (1895); Thies v. State, 178 Wis. 98, 105, 189 N.W. 539 (1922); Faull v. State, 178 Wis. 66, 69-70, 189 N.W. 274 (1922); Mark v. State, 228 Wis. 377, 384, 280 N.W. 299 (1938).

In two subsequent decisions involving multiple-offense transactions, State v. Fish, 20 Wis. 2d 431, 122 N.W.2d 381 (1963), and Bailey, this court extended the early rule in a manner which proves controlling here. In Fish, this court stated a prosecutor may in the information "allege acts in addition to those advanced on preliminary hearing so long as they are not wholly unrelated to the transactions or facts considered or testified to at the preliminary." Fish, 20 Wis. 2d at 438 (emphasis added). In Bailey, this court stated:

In our view, sec. 970.03(10), Stats., does not prohibit a prosecutor from including in the information, once a defendant has been bound over, charges in addition to those advanced at the preliminary hearing, 'so long as they are not wholly unrelated to the transactions or facts considered or testified to at the preliminary.' This view is consistent with the legislative statement in sec. 970.03(1), that a preliminary hearing is held' ... for the purpose of determining if there is probable cause to believe a felony has been committed by the defendant.' Once it is determined that the defendant should be bound over for trial on at least one count, the purpose of the preliminary has been satisfied and the prosecutor may, in his discretion, allege such other offenses as permitted by the limitation stated above.

In this case, even assuming there was no evidence presented as to them at the preliminary, it is clear that the sex-related offenses, counts 2, 3 and 4, were not 'wholly unrelated' to the murder count. They are related in terms of parties involved, witnesses involved, geographical proximity, time, physical evidence, motive and intent.

Bailey, 65 Wis. 2d at 341 (citations omitted; emphasis added).

Fish and Bailey hold 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. Bailey further establishes that direct evidence relating to the additional counts need not have been presented at the preliminary examination. Bailey over-ruled the dicta to the contrary in State v. Leicham, 41 Wis. 565, 574-75 (1877).

The court of appeals concluded the post -Bailey decisions of this court in Whitaker v. State, 83 Wis. 2d 368, 265 N.W.2d 575 (1978), Lofton v. State, 83 Wis. 2d 472, 266 N.W.2d 576 (1978), and State v. Hooper, have explained that sec. 971.01(1), Stats., requires each charge in the information must be directly supported by the evidence presented at the preliminary examination. Burke, 148 Wis. 2d at 129.

We disagree. In Whitaker, this court stated sec. 971.01(1), Stats., "provides that the prosecuting attorney shall file an information based on the evidence elicited at the preliminary examination." Whitaker, 83 Wis. 2d at 373. The focus of this court's attention in Whitaker, however, was upon whether sec. 971.29, Stats., permitted amendment of an information after arraignment but prior to trial. For purposes of determining the breadth of a prosecutor's discretion pursuant to sec. 971.01(1) this court's cursory reference to that statute must be considered in the broader context of cases such as Bailey and its predecessors which directly addressed the issue.

In Lofton, as well as Hooper, the charge in the information was the same as that alleged in the complaint. The defendant challenged the information on the basis the charge was not supported by the evidence presented at the preliminary examination. This court stated sec. 971.01(1), Stats., permits a prosecutor "to file an information containing such charges as the facts adduced at the preliminary examination warrant. The information must be based upon the facts brought out on the preliminary examination." Lofton, 83 Wis. 2d at 482. This court's statement must again, however, be considered in the broader context of cases such as Bailey and its predecessors. It was for that purpose reference was made to Mark. See Lofton, 83 Wis. 2d at 482 n. 2. In Mark, this court stated "[i]t would be improper for a district attorney, against the objection of a defendant, to file an information charging a crime wholly unrelated to the transactions or facts considered or testified to at the preliminary examination." Mark, 228 Wis. at 384.

In Hooper, this court stated:

[I]n ascertaining whether the prosecutor abused his discretion, this court must look to the record of the preliminary examination to determine if the charge recited in the information was within the confines of and not wholly unrelated to the facts and circumstances testified to at that hearing. If the evidence adduced at the preliminary hearing supports the district attorney's charging decision, then it follows that the charges recited in the information are within the confines of and not wholly unrelated to the testimony elicited at that examination.

Hooper, 101 Wis. 2d at 539.

The "within the confines" language in Hooper is not to be construed as requiring that each charge in the information must have direct support in the evidence presented at the preliminary examination. Rather, consideration of the confines of the evidence produced at the preliminary examination is merely a necessary ingredient of the not wholly unrelated test. To determine whether a charge is not wholly unrelated to the transactions or facts considered or testified to at the preliminary examination requires the prosecutor to first examine the actual evidence presented there. Within the confines of that evidence the prosecutor must determine whether the charge is wholly unrelated in terms of the parties involved, witnesses involved, geographical proximity, time, physical evidence, motive and intent.

Contrary to the court of appeals' conclusion, Bailey continues to be valid law. Bailey has been cited and approved of by this court as well as the court of appeals on numerous occasions. See, e.g., Hooper, 101 Wis. 2d at 535-36; Wittke v. State ex rel. Smith, 80 Wis. 2d 332, 352, 259 N.W.2d 515 (1977); State v. Copening, 103 Wis. 2d 564, 580, 309 N.W.2d 850 (Ct. App. 1981); State v. Johnson, 121 Wis. 2d 237, 251-52, 358 N.W.2d 824 (Ct. App. 1984).

Bailey holds there is no requirement in sec. 971.01(1), Stats., that there must be direct evidence, much less sufficient evidence to support a probable cause finding, presented at the preliminary examination for each charge in the information. If the legislature had intended a probable cause finding for each count in an information, sec. 971.01(1) would expressly make that requirement, or sec. 970.03(7), Stats., would require the circuit court to state the specific felony it believed the defendant probably committed and provide only that felony could be charged in the information.

The challenge to a prosecutor's charging discretion in the information is not a second opportunity to dispute whether probable cause exists to believe the defendant committed a felony. Hooper, 101 Wis. 2d at 537. Section 970.03(1), Stats., requires the circuit court to determine whether on the basis of the transactions or facts considered or testified to at the preliminary examination "there is probable cause to believe a felony has been committed by the defendant." (Emphasis added.) The statute does not require the circuit court to state the specific felony it believes the defendant committed, nor does it limit the circuit court to considering only whether the defendant probably committed the specific felony charged in the complaint. See Wittke, 80 Wis. 2d . Once probable cause has been found, the purpose of the preliminary examination has been satisfied and further criminal proceedings are justified. Id. Pursuant to sec. 971.01(1), Stats., it then becomes the duty of the prosecutor to examine the transactions or facts considered or testified to at the preliminary examination to determine the charges to be brought in the information. See also Hooper, 101 Wis. 2d at 537.

We conclude a prosecutor may bring additional charges in the information so long as the charges are not wholly unrelated to the transactions or facts considered or testified to at the preliminary examination, irrespective of whether direct evidence concerning the charges had been produced at the preliminary examination. The charges must be "related in terms of parties involved, witnesses involved, geographical proximity, time, physical evidence, motive and intent." Bailey, 65 Wis. 2d at 341.

We next address whether the additional counts alleged by the State in the information against Burke satisfy that test. Count two alleged an act of vaginal intercourse. Count three alleged an act of anal intercourse. Count four alleged an act of touching B.L.K.'s breasts. Count five alleged an act of Burke touching his penis to B.L.K.’s mouth.

The confines of the evidence produced at Burke's preliminary examination, based upon Burke's statements to the police, established that Burke met B.L.K. in downtown Madison. Burke took B.L.K. to his residence and into his bedroom to listen to music. Burke and B.L.K. sat on the bed and begem kissing. Burke turned the bedroom light off. Burke partially disrobed B.L.K. and himself. Burke touched B.L.K.'s breasts. Burke then attempted to have vagineil intercourse with B.L.K., but she refused. Burke turned B.L.K. onto her stomach and had anal intercourse with her. During the act, B.L.K. was crying and emotionally upset. B.L.K. was described as hysterical. After the entire episode, Burke and B.L.K. left for the bus station. B.L.K. continued to cry. Evidence was also presented that B.L.K. was age thirteen at the time of the incident.

We conclude the charging of counts two through five in the information was a proper exercise of prosecutorial discretion. It is beyond dispute that counts two through five were not wholly unrelated to the transactions or facts considered or testified to at Burke's preliminary examination. Each of the additional counts plainly contemplated the same parties, witnesses, geographical proximity, time, physical evidence, motive and intent. The circuit court itself stated it was clear the additional counts were not wholly unrelated.

Burke further contends sec. 970.03(10), Stats. 1987-88,⁵ precludes the State from alleging counts two and three in the information because those counts had been dismissed by the circuit court at the preliminary examination.

We find no basis for Burke's contention. Section 970.03(10), Stats., applies only to multiple count complaints. The complaint upon which Burke's preliminary examination was conducted alleged only a single count of sexual assault. The other counts originally included in the complaint had been dismissed, on the State's motion and without objection, prior to taking of any testimony at the preliminary examination.

By the Court — The decision of the court of appeals is reversed and the cause remanded to the circuit court for further proceedings not inconsistent with this opinion.

1 Section 940.225(2)(e), Stats., provides in part:

Sexual assault .... (2) SECOND DEGREE SEXUAL ASSAULT. Whoever does any of the following is guilty of a Class C felony:. . .

(e) Has sexual contact or sexual intercourse with a person who is over the age of 12 years and under the age of 16 years.

Note: Section 940.225(2)(e), Stats., has been repealed by the legislature, effective July 1, 1989. 1987 Wis. Act. 332. Effective July 1,1989, the offense is included in Ch. 948, Crimes Against Children. See sec. 948.02, Stats., 1987-88.

2 Section 970.03(7), Stats., 1987-88 provides:

Preliminary examination .... (7) If the court finds probable cause to believe that a felony has been committed by the defendant, it shall bind the defendant over for trial.

3 Burke has filed no brief with this court. His counsel informed this court by letter that for purposes of this appeal, Burke was relying upon his brief in the court of appeals.

4 The State alternatively contends that even if this court concluded sec. 971.01(1), Stats., required direct evidentiary support for each charge in the information, the court of appeals erred in affirming dismissal of counts two and four because direct testimony relating to those counts was presented at the preliminary examination. The issue was unaddressed by the court of appeals because it concluded the State had waived the contention by not making the argument to the circuit court. Burke, 148 Wis. 2d at 127 n. 1. Because we conclude sec. 971.01(1), Stats., permitted the State to charge the additional counts irrespective of whether direct evidence concerning the counts had been presented, we do not reach this question.

5 Section 970.03(10), Stats., provides:

Preliminary examination .... 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.