State v. Groppi

164 N.W.2d 266, 41 Wis. 2d 312, 34 A.L.R. 3d 787, 1969 Wisc. LEXIS 1017

• Court: Wisconsin Supreme Court
• Decided: February 4, 1969
• Docket: State 38
• Status: Published

Opinions

Hanley, J.

The defendant presents the following issues on this appeal:

1. Is sec. 956.03 (3), Stats., unconstitutional either on its face or as applied in this case ?

2. May a trial court quash a subpoena which has been properly issued and served upon a witness the defendant desired to call in his defense ?

Unconstitutionality of Sec. 956.03 (3), Stats.

Appellant claims the change of venue statute is unconstitutional on several different grounds: First, that the statute, on its face, is a violation of due process as guaranteed by the Wisconsin and federal constitutions; second, that the face of the statute violates the equal protection clause of the federal constitution. And, finally, it is contended that the statute was unconstitutionally applied in this case. In all cases, the reason for the alleged unconstitutionality is the same, i.e., that the change of venue based on community prejudice is limited to felony cases.

We think that there is a sufficient difference between a felony and a misdemeanor to warrant the distinction.

“. . . In most cases the place of imprisonment is different; the statute of limitations is twice as long for a felony as a misdemeanor; one charged with a felony is entitled to a preliminary hearing; the stigma of a felony is greater; and under the repeater statute, more severe penalties are authorized for felonies than for misdemeanors. . . .” State ex rel. Gaynon v. Krueger (1966), 31 Wis. 2d 609, 620, 143 N. W. 2d 437.

Moreover, it would be extremely unusual for a community as a whole to prejudge the guilt of any person charged with a misdemeanor. Ordinarily community prejudice arises when a particularly horrendous crime has been perpetrated. These are the only crimes that receive widespread and prolonged attention from the news media. But the general public just does not become incensed at the commission of a misdemeanor.

The court also takes judicial notice of the vast number of misdemeanors that are prosecuted as opposed to felonies. As a matter of necessity, the prosecution of misdemeanors has been simplified as much as possible by the legislature. This is not because the legislature is not concerned with justice, but because society demands that efficiency in the administration of justice be given consideration along with absolute fairness.

This court faced a decision similar to the one in this case in deciding whether an indigent accused of a misdemeanor was entitled to the assistance of a court-appointed attorney in his defense. At that time the court stated:

“A basic concern of this court must be to strive for greater fairness in the administration of criminal justice. This contemplates protection of the innocent from wrongful conviction, and a concern for the poor as well as for the affluent. A correlative consideration, nevertheless, must be to protect society from burdens that, if intolerable, might impair the administration of justice. Achieving the proper equilibrium between these important considerations inherently requires that standards be established, thus presenting a situation in which it is difficult to achieve an ideal result.” State ex rel. Plutshack v. H&SS Department (1968), 37 Wis. 2d 713, 720, 155 N. W. 2d 549, 157 N. W. 2d 567.

The court decided in the Plutshack Case that counsel should be provided for all indigent defendants who were charged with a crime which was punishable by a maximum sentence of more than six months’ imprisonment. This was determined to be a reasonable cutoff point.

It is also important to recognize that in deciding the Plutshack Case, the court was not faced with a statute which specifically denied the appointment of counsel to indigents charged with misdemeanors. On the contrary, the applicable statute, sec. 957.26, Stats.,² had recently been amended ³ so that counsel could be provided in misdemeanor cases. Thus the court was free to adopt the six-month cutoff.

However, in this case, the applicable statute specifies that a change of venue based on community prejudice shall only be permitted in felony cases. Were we free to adopt our own cutoff point, we would establish it at over six months, as we did in reference to the appointment of counsel. However, we are not willing to say that the cutoff point established by the legislature is necessarily arbitrary and capricious.

The court is aware that two other jurisdictions have considered whether a change of venue based on community prejudice can be limited to felony cases.⁴ Both decided it could not be without violating the due process clause of the fourteenth amendment to the federal constitution. Those cases are not precedent for this court and their reasoning does not compel us to reach the same conclusion.⁵

The United States Supreme Court held in Rideau v. Louisiana (1963), 373 U. S. 723, 83 Sup. Ct. 1417, 10 L. Ed. 2d 663, that a denial of a change of venue, under the circumstances of that case,⁶ amounted to a denial of due process. That case is distinguishable on two grounds. First, it involved a felony, as does every other case in the area of change of venue which has been dealt with by the supreme court. Second, the defendant put into the record his proof of community prejudice which was at least likely to influence the jury. No record of community prejudice was ever made in this case.

Appellant contends that because his motion for change of venue was denied, he had no opportunity to make a record of the community prejudice. This is simply not true. Both the federal and state constitutions guarantee to every accused the right to a fair and impartial trial.⁷ A verdict from a prejudiced jury is void ⁸ whether or not a change of venue or a continuance was requested.⁹ On motions after verdict or on a petition for habeas corpus, a person convicted of either a misdemeanor or a felony can offer proof that he was denied his constitutional right of a fair and impartial trial.¹⁰

The right to a fair and impartial trial is not synonymous with a change of venue. The only connection between a change of venue and a fair and impartial trial is that the former is one method of insuring the latter. Other methods of insuring a fair trial are voir dire proceedings and continuance.¹¹

The defendant here was not denied due process when his change of venue was denied because of the applicable statute. Should a rare case arise where community prejudice threatens to influence the verdict in a misdemeanor case, the defendant can rely on the antiseptic measures of continuance and voir dire proceedings. In the event that these measures are still not sufficient to provide an impartial jury, the verdict can be set aside after trial based on the denial of a fair and impartial trial.

If the defendant in the present case feels that he was denied a fair and impartial trial (no such claim has been made to this court), the issue can be raised and evidence can be presented on a motion for a new trial based on a denial of a fair and impartial trial.¹²

Quashing a Subpoena.

Defendant also contends that it is unconstitutional to deny to a defendant in a criminal action the right to subpoena any witness even if the witness’ testimony is admittedly irrelevant.

The sixth amendment to the United States Constitution and art. I, sec. 7, of the Wisconsin Constitution guarantee to a defendant in a criminal case the right “to have compulsory process” to obtain witnesses in his behalf. This right is now incorporated in the due process clause of the fourteenth amendment to the federal constitution and applies equally to the several states.¹³ It is also worthy of note that there has been no attempt to limit this right to persons charged with a felony.¹⁴

In this case, the defendant subpoenaed the mayor of Milwaukee. After the subpoena issued, an assistant city attorney, representing the mayor, moved for an order to show cause why the subpoena should not be quashed. The day before the trial a hearing was held on that order. The attorney for the city argued that the mayor had no personal knowledge of any facts which would be material to the resisting arrest charge against Father Groppi. Counsel for the defendant contended that they hoped to establish by the mayor’s testimony either that the proclamation was unconstitutional on its face or that it was unconstitutionally issued. The judge took the motion to quash under consideration until the next day.

The following morning, the defendant withdrew a motion to dismiss the charge based on the unconstitutionality of the proclamation because that issue was pending in the federal court and could best be determined there. The trial court then quashed the subpoena because the issue of the unconstitutionality of the proclamation had been withdrawn. The defendant insisted at that point, and during the trial, that he had a constitutional right to call the mayor.

The defendant has explained in his brief on this appeal why the testimony of the mayor was relevant to this case:

“. . . had the defendant been able to demonstrate by the testimony of Mayor Maier that the ordinance under which he was initially arrested was illegally promulgated either because of the procedures used or because it was unconstitutional or because it was applied unconstitutionally there can be no question but that the appellant could have legitimately challenged his arrest as illegal and unauthorized. . . .”

We first determine that a defendant does not have an unqualified right to subpoena witnesses. This right is no more absolute than any of the other rights guaranteed by the constitution.

It is readily apparent that a defendant suffers no constitutional deprivation when he is limited to subpoenaing witnesses who can offer relevant and material evidence on his behalf. The proposition is so apparent on its face that it is difficult to find legal citation to support it. However, at least one English case has considered this precise issue. In King v. Baines (1909), 1 K. B. 258, the defendants, who were demonstrating for women’s suffrage, were arrested for breach of the peace and unlawful assembly. They subpoenaed Prime Minister Herbert Henry Asquith and Home Secretary Herbert John Gladstone to testify at their trial. The subpoenas were subsequently set aside upon proof that neither subpoenaed party could give any relevant testimony at the trial. The setting aside of the subpoenas was upheld on appeal.

We think a subpoena is properly quashed when a party is unable to give relevant evidence.

We also decide that the testimony which the defendant sought from Mayor Maier was immaterial to the resisting arrest charge. It is not necessary to decide whether that testimony would have been relevant if the constitutionality of the proclamation was in issue. That issue was specifically withdrawn from this case.

In the absence of some showing by the defendant that the witness was necessary for his defense, the quashing of the subpoena is not a violation of a defendant’s right to compulsory process.

We conclude that sec. 956.03 (3), Stats., is constitutional and that the trial court’s judgment of conviction and order of sentence were proper.

By the Court. — Judgment and order affirmed.

2 “957.26 Counsel for indigent defendants charged with felony; advice by court. (1) A person charged with a crime shall, at his initial appearance before a court or magistrate, be advised of his right to counsel and, that in any case where required by the United States or Wisconsin constitution, counsel, unless waived, will he appointed to represent him at county expense if he is financially unable to employ counsel.”

3 Ch. 519, Laws of 1965, amended sec. 957.26 (1). Previously that section provided for the appointment of counsel only when a defendant was charged with a felony.

4 Pamplin v. Mason (5th Cir. 1966), 364 Fed. 2d 1; State ex rel. Ricco v. Biggs (1953), 198 Or. 413, 255 Pac. 2d 1055.

5 The United States Supreme Court recently considered whether a state could constitutionally deny a jury trial to persons accused of a misdemeanor. Duncan v. Louisiana (1968), 391 U. S. 145, 88 Sup. Ct. 1444, 20 L. Ed. 2d 491.

The court held that every person had a fundamental right to a jury trial even in state prosecutions if he was charged with a “serious” crime, whereas no such right existed if a person was charged with a “petty” offense. The court refused to draw a distinct line between a petty offense and a serious offense, but the majority did state that any crime punishable by two years’ imprisonment, or more, was a serious crime. The court further indicated that, under federal law, a crime involving a maximum sentence of six months, or less, was a petty offense. No opinion was expressed as to the classification of those crimes which involved a maximum sentence of more than six months but less than two years.

In Wisconsin, no misdemeanor is punishable by more than one year of imprisonment.

6 The circumstances in Rideau, supra, were extreme. A twenty-minute film and sound track of the defendant’s being “interviewed” by the sheriff was shown over television on three separate occasions. During the course of the interview, the defendant admitted robbery, kidnapping and murder. The supreme court decided, without examining the transcript of the voir dire, that due process required a trial before a jury drawn from a community of people who had not seen and heard the televised “interview.”

7 Art. I, sec. 7, Wisconsin Constitution:

“In all criminal prosecutions the accused shall enjoy the right ... to a speedy public trial by an impartial jury . . . .”

Sixth amendment, United States Constitution:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . .”

8 “Petitioner’s detention and sentence of death pursuant to the void judgment is in violation of the Constitution of the United States and he is therefore entitled to be freed therefrom. . . .” (Emphasis supplied.) Irvin v. Dowd (1961), 366 U. S. 717, 728, 81 Sup. Ct. 1639, 6 L. Ed. 2d 761.

9 This seems to be the only logical conclusion following the decision in Sheppard v. Maxwell (1966), 384 U. S. 333, 86 Sup. Ct. 1607, 16 L. Ed. 2d 600. The verdict of the jury was set aside based on prejudice even though no motion for a change of venue or continuance was made.

10 The express holding of Irvin v. Dowd, supra, seems to be that a statute which denies a change of venue is not unconstitutional, either on its face or in its application, so long as the statute is not relied upon to deny a person his right to a fair and impartial trial.

11 “The remedies in publicity cases are change of venue, continuance, and careful selection of a jury.” State v. Woodington (1966), 31 Wis. 2d 151, 166, 142 N. W. 2d 810, 143 N. W. 2d 753.

12 Sec. 958.06 (1), Stats., provides:

“Within one year after the trial and on motion of the defendant the court may grant a new trial . . . (Emphasis supplied.)

The trial in this case ended on February 9, 1968. Some motions after verdict were presented on February 12, 1968, and denied. It does not appear that the presentation of those motions would foreclose the presentation of a motion for a new trial based on an entirely different ground.

13 Washington v. Texas (1967), 388 U. S. 14, 87 Sup. Ct. 1920, 18 L. Ed. 2d 1019.

14 Sec. 955.04, Stats., provides:

“Any defendant shall have compulsory process to compel the attendance of witnesses in his behalf.”