State v. Williams

544 N.W.2d 406, 198 Wis. 2d 516, 1996 Wisc. LEXIS 11
Wisconsin Supreme Court·Decided February 1, 1996·No. 93-2444-CR·Published·Cited by 58 cases

Opinions

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 [522] 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 transaction-ally 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 and order denying post-conviction relief 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 transac-tionally 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-Har-ris in the face. The second and third counts, aggravated [523] battery and second-degree recklessly endangering safety, contrary to Wis. Stat. §§ 940.19(lm) 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 IH-i asserting [524] 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 prelimi-naryhearing. The court denied this motion finding that Count Ill-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 Ill-i). In a post-conviction motion, Williams renewed his challenge to the propriety of Count Ill-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 [525] 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).

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State v. Williams, 544 N.W.2d 406, 198 Wis. 2d 516, 1996 Wisc. LEXIS 11 (Wis. 1996).

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