State v. Burke

Wisconsin, STATE of Plaintiff-Appellant-Petitioner,

v. BURKE, IV, John J. Defendant-Respondent.

Supreme Court No. 88-0631-CR. Submitted on October briefs February 1989. Decided (Also reported 739.) in 451 N.W.2d BABLITCH, J., HEFFERNAN, C.J., and dissent part, part. concur in there a plaintiff-appellant-petitioner,

For the was O'Brien, J. attorney general, brief Daniel assistant Hanaway, Donald J. with whom on the brief was attor- ney general. (in defendant-respondent,

For the there was a brief Ralston, appeals) by Krista M. court of Madison. DAY, J. This is a review of the decision of the Burke, appeals court of in State v. 148 Wis. 2d (Ct. 1988), order of App. which affirmed the N.W.2d Frankel, Judge A. for the Circuit the Honorable Mark four counts County, which had dismissed Court for Dane charging defendant John J. of a five count information Burke, IV, person of a second-degree with sexual assault age age sixteen, over the of twelve and under the 940.225(2) contrary (e), to sec. 1987-88.1The Stats. issue 971.01(1), prosecutor may, pursuant whether a to is 1987-88, Stats. include an information pre- which there was no direct evidence liminary examination. August 18,1987.

Mr. Burke arrested on 4:51 At day, city police responded on that a.m. of Madison to complaint by age B.L.K., sexual assault female minor reported previous evening, thirteen. B.L.K. that the she and a friend arrived in on had Madison a bus from spent Milwaukee. B.L.K. and her friend evening together most of the sepa- Madison, in downtown but were man, B.L.K. then met a she rated. whom later identified Burke, as who offered to take to the her back bus station. stop Burke stated he first needed to his residence. there, While Burke took B.L.K. his to bedroom to listen protests, began music. B.L.K.'s to Over Burke to touch door, her. Burke then closed bedroom unscrewed the light lay bulb, bedroom and demanded that B.L.K. on refused, bed. When B.L.K. Burke hurt threatened to alleged pushed B.L.K. her. that Burke then her onto the partially attempted bed, himself, her disrobed perform B.L.K. force fellatio. B.L.K. refused. Burke forced B.L.K. to submit anal intercourse and then 940.225(2)(e), Stats., provides part:

1Section (2) Sexual assault .... SECOND DEGREE SEXUAL any following guilty ASSAULT. of is Whoever does of a Class C felony:. . . (e) person Has sexual or contact sexual with intercourse who is age years age years. over the of 12 and under the 16of 940.225(2)(e), Stats., repealed Note: by Section been has 1, legislature, July effective Act. 332. Effective 1,1989, July Against the offense is included in Ch. Crimes Children. See sec. 948.02, Stats., 1987-88. fifteen minutes after Approximately intercourse.

vaginal assaults, forcibly had alleged, again B.L.K. Burke those with her. vaginal intercourse and then intercourse anal B.L.K. transpired, what relating her account of After she identified Burke's residence where police took the as the assailant and he was arrested. Burke of complaint charged Burke four counts against The assault, contrary second-degree sexual 940.225(2)(e), alleged one and three each Stats. Counts and four each intercourse. Counts two an act of anal an act of intercourse. alleged vaginal September on A examination was held called but before 1987. After the case had been moved to dismiss all any testimony, the State taking object. Burke did not complaint. but one count granted court the motion. The circuit complaint alleged an act remaining The count pro- examination The of anal intercourse. probable cause sought to establish ceeded. State by Burke to the of statements made solely on the basis testi- investigating An officer police following his arrest. B.L.K.'s breasts and touching Burke admitted fied that her. Burke intercourse with attempting vaginal to have with B.L.K. On anal intercourse having further admitted court testimony, the circuit of the officer's the basis 970.03(7), to sec. pursuant over for trial bound Burke Stats. 1987-88.2 filed, subsequently which was

In the information committed five counts that Burke had alleged State assault, contrary to sec. second-degree sexual 970.03(7), Stats., provides: 1987-88 2Section (7) probable Preliminary finds If the court .... defendant, felony has been committed that a cause to believe for trial. the defendant over it shall bind 940.225(2)(e), Stats. The additional counts were originally identical to those alleged complaint. alleged Count one an act of anal intercourse. Count two alleged an act of vaginal alleged intercourse. Count three additional act alleged an of anal intercourse. Count four act of touching an breasts. Count an alleged B.L.K.'s five of touching penis act Burke his to B.L.K.'s mouth. two, three, Burke moved to dismiss counts four and five. The court granted circuit the motion on the basis those directly supported by counts were not the evidence examination, presented cir- which the required by 971.01(1), cuit court concluded was sec. Stats. appeals

The State moved the court of for leave appeal order, the circuit court's non-final pursuant (Rule) 809.50, sec. Stats. The 1987-88. court of appeals see (Rule) 808.03(2), granted petition, State's sec. 1987-88, Stats. and affirmed the circuit court's order. argued The State in the of appeals charg- court that the of ing through counts two five proper was under this Bailey State, v. court's decision 2d Wis. (1974). appeals concluded, N.W.2d 871 The court of however, Bailey explain "decisions following 971.01(1), Stats., requires the prosecutor an file containing information only charges based on evidence Burke, the preliminary hearing." 2d at 129. petitioned State this court for review which granted.3 The State asserts voluntarily it had dis-

missed the additional counts in complaint only to spare unnecessary B.L.K. the trauma recounting the sexual assaults at the preliminary examination. The

3Burke has no filed brief with this court. His counsel informed this court purposes letter that appeal, of this relying upon Burke was his appeals. brief court State through properly contends counts two five were pursuant 971.01(1), included the information to sec. Bailey Stats., because wholly those counts were "not unrelated" to the transactions or facts considered or tes- tified to at Burke's agree examination.4 We with the State and reverse.

Prosecutors in Wisconsin are afforded broad discre purposes tion for of determining bring whether charges against pro a defendant and initiate criminal State v. Hooper, 101 Wis. 2d ceedings. 305 (1981). N.W.2d A prosecutor's discretion is not bounds, however, may by without be limited Cannon, State ex rel. Kurkierewicz v. legislature. Wis. 368, 378-79, (1969). 2d 166 N.W.2d 255 971.01(1), Stats.,

Burke contends sec. prohibits the State charging through from counts two five in the infor- mation. Burke argues requires the statute that sufficient presented evidence must be at the preliminary examina- support probable finding sepa- tion to for each cause rate count the information. The of the addi- charging tional counts in the information was an abuse of discretion, asserts, prosecutorial Burke because there alternatively 4The if State contends that even this court 971.01(1), Stats., required evidentiary sup direct concluded sec. information, port charge appeals for each court of erred affirming four testi dismissal of counts two and because direct mony relating presented to those was at the counts appeals examination. The issue was unaddressed the court of by not because it concluded the State had waived the contention Burke, making argument 2d at to the circuit court. 971.01(1), Stats., permitted 127 n. 1. we conclude sec. Because irrespective charge of whether State to the additional counts concerning presented, we do direct the counts had been evidence question. this reach concerning no direct evidence those counts examination. Stats., 971.01(1), provides: Section Filing (1) information. The district attor- ney all shall examine facts and circumstances con- any touching nected with any the commission of crime if the defendant has and, 970.03(10), subject been bound over for trial to s. shall according file an information to the evidence on subscribing such examination his name thereto. At meaning issue is the language "according 971.01(1), to the evidence on such examination" sec. The interpretation question Stats. of a statute is a of law may which this court review without deference to the Sher, lower courts. State v. 1, 8, 2d 149 Wis. 437 N.W.2d (1989). 878 971.01(1), Stats., predecessors

Section and its have been by Early often considered this court. decisions primarily single-offense involved transactions a and held prosecutor was not bound charging information to complaint. See, e.g., same charged offense in State, Porath v. 527, 534, (1895); 90 Wis. 63 N.W. 1061 State, v. Thies 98, 105, (1922); Wis. 178 189 N.W. 539 State, Faull v. 66, 69-70, 178 (1922); Wis. 189 N.W. 274 State, v. Mark 377, 384, (1938). 280 N.W. 299 In two subsequent involving decisions multiple- Fish, State v. transactions, offense 431, 20 Wis. 2d Bailey, (1963), N.W.2d this court extended the early rule a proves manner which In controlling here. Fish, this prosecutor may court stated the informa- acts in addition to those advanced on pre- "allege tion liminary hearing long they so as wholly are not unrelated to the transactions or facts or considered testified to at Fish, preliminary." 20 Wis. 2d at 438 (emphasis Bailey, added). In this court stated: view, 970.03(10), In Stats., our prohibit does not prosecutor including information, from in the once over, a defendant has been bound in addition to those advanced at the hearing, long 'so they wholly as are not unrelated to the transactions or facts considered or testified to at preliminary.' This legislative view is consistent with the statement 970.03(1), in sec. preliminary hearing that a is held' purpose ... for the of determining proba- if there is felony ble cause to believe a has been committed the defendant.' Once it is determined that the defen- dant should be bound over for trial on at least one count, purpose has been satis- prosecutor may, discretion, fied and the in his allege permitted by such other offenses as the limitation stated above. case,

In assuming this even there was no evidence presented as to preliminary, them at the it is clear offenses, that the sex-related counts 3 and were 'wholly They unrelated' to the murder count. are involved, related in parties terms of witnesses involved, geographical proximity, time, physical evi- dence, motive and intent.

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

Fish Bailey hold that a multiple-offense case, transaction once the defendant has been bound over for trial on at least relating one count to the trans- action, prosecutor inmay the information charge additional counts Bailey wholly unrelated. further establishes that direct evidence relating to the additional counts need not presented have been at the

453 Bailey examination. over-ruled the dicta contrary to the Leicham, 565, State v. 41 (1877). Wis. 574-75 appeals The court of post concluded -Bailey deci State, sions of this court Whitaker v. 83 Wis. 2d (1978), State, v. 83 Wis. 2d N.W.2d Lofton (1978), 266 N.W.2d 576 and State v. Hooper, have explained 971.01(1), Stats., sec. requires each charge in the information directly supported must be presented evidence examination. Burke, 148 Wis. 2d at 129. disagree. Whitaker,

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

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

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

Hooper, 101 Wis. 2d at 539.

The "within the confines" language Hooper is not requiring to be construed as that each charge information must have direct support the evidence presented Rather, at examination. con- of produced sideration the confines of the evidence merely examination is necessary ingre- wholly dient of the not unrelated test. To determine charge wholly whether a is not unrelated to the transac- tions or facts or prelimi- considered testified nary requires prosecutor to first examine the actual evidence there. Within the prosecutor confines that evidence the must determine charge wholly whether is unrelated terms involved, involved, prox- parties geographical witnesses time, evidence, imity, physical motive and intent. Bailey conclusion, Contrary appeals' to the court of Bailey continues to be valid law. has been cited approved by appeals this court as well as the court of See, e.g., Hooper, on numerous occasions. 101 Wis. 2d at Smith, Wittke v. State ex rel. 535-36; 332, 80 Wis. 2d (1977); State v. Copening, 352, 259 N.W.2d 515 103 Wis. (Ct. State v. 1981); App. 2d 309 N.W.2d 850 Johnson, 237, 251-52, (Ct. 2d N.W.2d 824 1984). App.

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

The challenge prosecutor's charging to a discretion opportunity dispute the information is not a second probable whether cause exists to believe the defendant felony. Hooper, committed a 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 consid- ered or testified probable felony

"there is cause to believe has been added.) committed (Emphasis defendant." statute does not require the circuit court to state the specific felony committed, it believes the defendant nor only does it limit the circuit to considering court probably specific whether the defendant committed the Wittke, See felony charged complaint. 80 Wis. 2d probable found, at 352. Once cause has purpose been of the examination has been satisfied and further criminal are proceedings justified. Id. Pursuant 971.01(1), Stats., to sec. it then duty becomes the prosecutor to examine the transactions or facts consid- ered or testified to examination to determine the brought be the information. Hooper, See also 101 Wis. 2d at 537. may

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

We address whether the additional counts by alleged against the State in information Burke satisfy alleged vaginal test. Count two an act of alleged intercourse. Count three an act anal inter- alleged Count four act of B.L.K.'s touching course. an alleged five Burke touching breasts. Count an act of his penis to B.L.K.’s mouth. produced confines of the evidence at Burke's examination, upon based Burke's state- Burke B.L.K. police,

ments to the established that met Burke B.L.K. his downtown Madison. took resi- into his listen to music. Burke dence and bedroom to begem kissing. B.L.K. sat on the bed and Burke turned partially off. Burke B.L.K. light the bedroom disrobed Burke B.L.K.'s Burke then and himself. touched breasts. B.L.K., attempted to have intercourse with but vagineil her stomach and B.L.K. onto Burke turned she refused. act, B.L.K. During her. with intercourse had anal described emotionally B.L.K. was upset. crying and Burke and B.L.K. episode, the entire hysterical. After as cry. Evi- B.L.K. continued for the bus station. left age B.L.K. was thirteen at was also dence incident. time of the through counts two charging of We conclude proper exercise of was a in the information five beyond dispute that counts It is discretion. prosecutorial wholly unrelated to the trans- five were not through two pre- to at Burke's considered or testified actions or facts the additional counts Each of liminary examination. witnesses, parties, geo- contemplated the same plainly evidence, time, motive and proximity, physical graphical itself stated it was clear the intent. The circuit court wholly unrelated. additional counts were 970.03(10), Stats. Burke further contends 1987-88,5 alleging from counts two precludes the State had in the information because those counts and three circuit court at the been dismissed examination. Burke's contention. Section

We find no basis for 970.03(10), Stats., only multiple to com- applies count upon preliminary The which Burke's plaints. complaint alleged only single count of examination was conducted originally assault. The other counts included sexual Stats., 970.03(10), provides: 5Section Preliminary multiple complaints, .... In count examination any count for which it finds there is no court shall order dismissed probable arising any out of count ordered dismissed cause. The facts any pursuant shall not be the for a count in information filed to basis apply any ch. Section shall to dismissed count. 970.04 dismissed, the complaint had been on the motion State's prior objection, taking any and without testimony preliminary examination. By the Court —The appeals decision of the court of is reversed to the remanded circuit court cause proceedings for further not inconsistent with this opinion. ABRAHAMSON, (dissent-

SHIRLEY S. J. ing). This case rights person involves the of a after arrest and before trial. specific

The issue is whether 971.01(1), 1987-88, permits Stats. charge state person the preliminary after examination with a crime any supported evidence adduced preliminary.

The state four charged complaint. crimes At moved, examination the state without opposition, charges. dismiss three of state these in the conceded circuit court that it had evi- introduced of only dence at the examination one crime.1 hearing County Court, 1At a Dane Circuit the Honorable Frankel, Schwaemle, prose presiding, Judy Mark A. and Ms. cutor, following engaged exchange: in the correct, Schwaemle, I THE COURT: . . . Am Ms. defendant's statement relied on at the or any charges his confession makes no reference to of the other set forth the Information other than one act of anal intercourse with

the victim? (Assistant Attorney): MS. SCHWAEMLE District That's correct. THE COURT: And that there was no additional evidence adduced these other at the time of the examination?

MS. SCHWAEMLE: That's correct. 5, 1988, Hearing Transcript, February Motion at 15. also See information state filed the the preliminary the After crimes. with several the accused charging Support of State's court in the circuit Brief filed State's 9, 1988, Reconsider, February Motion attorney represent- the assistant district Schwaemle was Ms. examination, hearing on in the ing the the state at II counts to strike requesting the circuit court defendant's requesting V, hearing the state's motion in the on through and II to strike counts its decision court to reconsider the circuit through V. repeatedly the circuit clearly advised and Schwaemle

Ms. police presentations the that and written in both oral court police, to the the statement of the defendant's recitation officer's examination, I supported count at the sole evidence presented in not only; of other acts victim's statements that the basis of counts preliminary examination were evidence at V; presented at the evidence through II I; only the offenses supported count and examination an hour or two through "occurred within V counts’ll described asserts, I," not, appeal at the same brief on as the state's of count 13-14,15, 32:8, 47-48. I. Record count See time as Motion to Court on the state's Brief Circuit The State's attorney's 22:2, Reconsider, relates the assistant district Record alleged details at victim's "statement position follows: The as assault, conduct formed separate sexual which acts of least five through Information. These five of the counts two the basis for place acts, police reports, at the same occurred outlined as one, one, and involved or two of count within an hour as count participants." the same attorney general's office on state's brief filed concurring dissenting majority opinion, and

appeal, preliminary examina- opinion the evidence at the contend that contravenes supports II IV. This contention counts tion but only the evidence evidentiary attorney's description assistant district also the signed, the the Information that she counts II and IV of basis for attorney's representations circuit court of to the district assistant opinion upholds The majority charging the state's case, process concluding attorney this that a district counts, relying charging the evidence was she on those and the circuit court's conclusion.

Upon reading is, transcripts the entire record—that of preliminary hearing, hearing of the on the motion defendant's V, through to II hearing dismiss counts and of the on state's motion to reconsider the circuit court's decision to dismiss counts through II V and memoranda submitted to circuit court supports counsel—I conclude that the record the assistant attorney's district and the court's circuit conclusion that the evi- support dence adduced at the examination not does through counts II V. alleging

The information set forth counts five that defen- sexually person dant age had assaulted a over the of 12 and under age August (except of 16 III on which is count undated): anus) I. (penis

Count Sexual to intercourse (penis vagina) Count II. Sexual to intercourse (penis anus) Count III. Sexual intercourse to (touching breast) Count IV. Sexual contact mouth) (touching penis Count V. Sexual contact to I, count Regarding agree the state and the defendant that support evidence was adduced at the examination this count. II, count

Regarding appeal the state's brief on concedes support there was no evidence at the (in this count. The officer testified that defendant stated his confession) vaginal oral he statement of touched the victim's 939.22(36) just committing area before anal intercourse. Sec. penetration, requiring defines sexual intercourse as vulvar (34) touching sec. 939.22 defines sexual contact as the intentional parts person. appeal of on intimate another state's brief charge asks be II that the state allowedto amend count sexual Appendix contact rather than intercourse. See Brief and of Plain- tiff-Appellant, p. n. 2. No amendment is needed because the wholly "is any crime that person with may charge at the or facts considered to the transactions unrelated" II, attorney charged count assistant district record shows that the examination, testimony at the not on the basis about sexual intercourse "within an the victim's statement but on I, evidence not of the commission count hour or two" preliminary examination. V, appeal Regarding counts III and the state's brief on con- preliminary at the exami- cedes that no evidence was introduced nation on these counts. IV,

Regarding appeal correctly count the state's brief on asserts that the officer testified that the defendant said he fondled just committing the defendant's breasts before anal intercourse. attorney charged assistant The record shows that the district IV, testimony not on the basis of the at the count fondling, the examination about but on victim's statement that the defendant touched her "within an hour or two" of the com- I, mission of count evidence not at the police testifying examination. The officer at the (which upon the examination about defendant's statement arrest introduced) attorney, not assistant in con- and the district (attorney general's) appeal, apparently trast to the state's brief on touching vaginal defendant's the breasts and viewed the area as part single, uninterrupted charged of a anal intercourse in count I Eisch, 25, 31, 34, separate and not as offenses.State v. 2d (1980); Hirsch, 468, 474-75, State v. 291 N.W.2d 800 140Wis. 2d (Ct. (a 1987) App. ought 410 N.W.2d 638 defendant not to be charged, substantially tried or convicted offensesthat are alike they part episode). when are of the same attorney's repeated open The assistant district statements suggest court do and memoranda to circuit court Attorney ques- judge's the "Assistant District misunderstood the tion, simply or did not recall the facts of record—an understanda- lapse County given ble the workload of the Dane District Attor- office," (Bablitch, ney's page part, dissenting J. see concurring part). attorney The assistant district well under- stood her case and the of sexual intercourse and conduct examination, irrespective of direct whether evidence concerning produced prelim- the crime is inary examination. Majority at page 457. Thus the majority opinion protections abrogates legislature granted has expressly to defendants for more than one years hundred and overturns more than one hundred years of law. I case would affirm the decision the court of appeals order of the circuit court and there- fore dissent.

HH majority opinion's The interpretation of sec. 971.01(1) conflicts with words From statute. present 18752 until day, legislature has directed attorney the district to file "according an information "according prelimi- or to the evidence" facts" nary examination. statute, 971.01(1), governing Stats.

1987-88, provides: prosecuting against she was the defendant. The assistant district attorney signed upon the information. She knew the evidence relying signed which she was when she the information. The attorney explained spare district she to wanted the victim from testifying preliminary intentionally examination and intro- only I, thinking of duced evidence count evidence this justify charges in sufficient to additional the Information that wholly were not unrelated to the evidence at considered the preliminary. duty attorney inquire the of It shall be the district ... into and full examination of and make all facts circumstances connected any preliminary with examination . . . and to file an infor case setting according forth the mation the crime committed facts testimony such examination from written taken ascertained on thereon, charged complaint it be the same whether offense 190, or not. . .. Laws of on which the was had Ch. added). (emphasis attorney

The district shall examine all facts and any preliminary circumstances connected with exam- ination . . . and. . . an shall file information accord- ing to the evidence on such examination . . .. added.) (Emphasis 971.01(1)

Section riot does authorize the district attorney to file an information including charge which no evidence was adduced exam- If legislature ination. intended to state the rule as the opinion holds, majority it would have done so. It has not.

II. The majority opinion's interpretation of sec. 971.01(1) legislative policy contravenes the underlying Examining examination. the nature and purpose of examination the court con State, Theis v. 98, 103, 189 cluded N.W. 539 (1922), that object purpose or investigation prevent malicious, hasty,

is to improvident, and oppressive prosecutions, protect person charged open public from crime, accusations of to avoid both for public the defendant and the expense public trial, of a and to save the defendant from the anxiety humiliation and public involved in prosecution, and to discover whether or not there are grounds upon substantial prosecution which may be based.3

I conclude purposes that the of the preliminary are better achieved interpreting the statute as it is writ- 3Quoted approval Dunn, with State v. 121 Wis. 2d (1984). Note, 359 N.W.2d 151 See The Function the Pre liminary Hearing Procedure, in Federal Pretrial 83 Yale L.J. , (1974). 779-83 Requiring prelimination ten. a factual basis exam- charged helps ination for each crime in the information ensure that both the defendant and the state will be spared expense long costly Requiring of a trial. charged step factual basis for each crime is a crucial protecting hasty, improvi- all citizens from malicious, oppressive prosecutions. dent, or legislative policy requiring a factual basis for charge appears each only in the 970.03(1) 970.03(10)4

in sec. but also in secs. provisions 970.04,5Stats. 1987-88. While the latter two directly they express are not case, involved in this legislative policy every charge criminal should be based on facts adduced at the examination. 970.03(10)provides Section that the court shall dis- any multiple complaint miss count count if at the probable end of the no cause exists. The provides arising any section further that the facts out of count the court dismisses shall not be the basis for a any pursuant chapter count in information filed 970.03(10) provide Sections and 970.04 that if a district attorney charge wishes to the count that the court has attorney dismissed, the district must file another com- plaint if he has or discovers additional evidence. The 970.03(10), 1987-88, provides:

4Section Stats. multiple "In complaints, count any the court shall order dismissed count for probable which it finds there is no arising cause. The facts out of any count ordered dismissed shall not be the basis for a count any pursuant information filed to ch. 971. Section 970.04 shall apply any dismissed count." 970.04, 1987-88, provides:

5Section Stats. "If a examination has been had and the defendant discharged, has been attorney may the district complaint file another if he has or discovers additional evidence."

court a must conduct examination on the new charge.

I conclude the majority opinion's that holding does comport legislative policy with the underlying secs. 971.01(1), 970.03(10) 970.04, and Stats. 1987-88.

I—Í HHHH opinion's The majority interpretation of sec. 971.01(1) with over of years conflicts 100 case law inter- 971.01(1) preting applying and sec. and precursors. its The court powers first considered the and duties of the attorney filing district in an in information 1877. In Leicham, 565, (1877), v. 41 State Wis. 574-75 this court 971.01(1) interpreted a of permitting forerunner as attorney district to charge only in an information evidentiary those crimes with an factual or basis record of the examination.6 Since consistently 1877 this court has followed and applied the rule announced the Leicham case an unambiguous 1938, of line cases.7 As this court stated 1875,

6In Leicham the court recognized ch. Laws that of gave prosecutor's greater which to file latitude additional regardless ruling in the information the examin ing magistrate preliminary hearing, required in a nevertheless prosecutor charge only if could file a there was a factual testimony for the basis offense within the or on the record. "Manifestly, The court the statute . . . stated: under accused, attorney may against district exhibit an information trial, bring any him criminal offense which the testi- mony taken on the examination he has shows that committed." Leicham, supra, 41 atWis. State, e.g., also, 527, 534, Porath v. 7See 63 90 Wis. N.W. State, (1895); (1903); Secor v. 1061 95 118 Wis. N.W. 942 Dahlgren State, v. 141, 143, 157 (1916); Mark 163 Wis. N.W. 531 State, 377, 383-84, v. (1938); v. Whitaker 280 299 N.W. many times this been considered has "the statute what it that it means always been held court, it has State, 377, 383, 280 N.W. v. Wis. says." Mark set case, majority nor has (1938). not find a I could majority the rule the case, applied has any forth the statute applied have adopts. The cases opinion in evidentiary basis a factual or require in the included charge to be for a information. points to two opinion nevertheless majority

The does not the statute holding that support its cases to prosecutor permits says but rather what it mean factual or without a in an information charges include 431, 438,122 Fish, 2d State v. 20 Wis. evidentiary basis: State, 331, Bailey v. 2d (1963), 65 Wis. 381 N.W.2d opinion's (1974). majority I find 871 222 N.W.2d unpersuasive. opinions two on these reliance emphasis on lan- heavy opinion places majority The pertaining the law briefly Fish in that summarized guage as follows: in an information additional filing may allege acts information The state its hearing so on to those advanced addition wholly to transactions they unrelated long not as are preliminary. to at considered or testified or facts (1932). 377, 280 State, 299 N.W. 228 2d Mark v. Wis. Fish, supra, 2d at 20 Wis. single sen- that this suggests opinion majority

The prece- break with significant in Fish represents tence sentence, I that conclude Upon examination dent. holding. majority's support the Fish opinion does (1978); v. 368, 373, N.W.2d 575 State, 265 2d 83 Wis. Lofton (1978); State v. 472, 482, 576 State, 266 N.W.2d 83 Wis. 2d (1981); v. 517, 534, State 110 305 N.W.2d Hooper, 101 Wis. 2d 1987). (Ct. App. 81, 88, Michels, 414 N.W.2d 2dWis. Nothing opinion suggests the Fish the court interpretation 971.01(1). adopting a new of sec. Fish case cites the Mark case as the source of the sen- upon majority opinion tence which the If relies. sen- tence from Fish is read in the context of the language of decision, the Mark it is clear that the Fish case does not support majority's holding this case. The Mark court stated: many statute has been considered times

[The] court, always this and it has been held that it means says. clearly it what It authorizes the attor- district ney to an setting file information forth the crime according committed to the facts ascertained on such testimony examination and from the written taken thereon, charged whether it be the offense in the complaint on which the examination was had or not. State, In Porath v. 63 N.W.

statute was discussed. In that case [citation omitted] plea interposed a of abatement ground on the that preliminary the defendant had not had a exami- nation on a certain count of the information. The plea in abatement was overruled and full force and given effect to the statute. [Citations omitted.] From of clearly appears all these cases it that sec. 355.17, Stats., permits attorney the district file an containing charge information such as the facts adduced at the examination warrant. must, course, Such an upon information be based brought the facts out on the examina- improper tion. It attorney, would be a district against objection defendant, a an file infor- charging wholly mation a crime unrelated to the transactions or considered or to at the facts testified (Empha- examination. 228 Wis. 383-84. added.) sis

468' beginning Relying Porath, numerous cases with on prior concluded, had, that the Mark as all cases court containing attorney may file an information district only such as the facts adduced warrant. by omitting paraphrased Mark The Fish court requiring charge lengthy based on the be statements describing by changing Mark's statement and facts by prohibited improper charges to a case law that were describing proper charges could in Fish statement attorney. When information a district be filed an opinions compare language in their of the two we sought entirety, Mark and Fish to restate it is clear that meaning changing precedent test of the without its applied by the court. holding in further undercuts the Fish

The actual signifi- interpretation opinion's majority of the case's Fish, at the facts adduced In the court looked cance. wholly charge preliminary, was not not whether the prelimi- considered at the to the transactions unrelated applied nary. the Mark and Fish court thus The opinion majority sets rule, rule the Leicham not the upon Fish case, which the Mark case The Fish forth. opin- majority diametrically opposed to the relies, are interpretation holding statute. ion's opinion majority charac- relies on what it also Bailey "holding" State, 2d v. terizes as multiple- (1974), namely "in 222 N.W.2d been case, has once the defendant offense transaction relating to the one count trial on at least over for bound may prosecutor in the information transaction, Majority wholly charge unrelated." counts not additional page page 456. 453. See also at Bailey Contrary majority's assertion, the to the nqt clearly language dicta, adoption is Fish of the court's 469 Bailey, In holding the extensively case. the court examined the evidence presented at the hearing and held ample evidence "[t]here at the support finding probable as cause to each of the counts contained the Bailey, supra, information." See 65 Wis. 2d at 341-43. Bailey Furthermore, not, major- case does as the Leicham, asserts, overrule State v. ity opinion supra, 41 Bailey (1877), expressly Wis. 574-75 or sub silentio. Bailey Fish; Mark; Leicham: on Fish cites relies cites Porath, Mark cites and Porath cites Leicham. The Leicham case requiring attorneys district bring only charges based on the facts at prelimi- adduced Bailey nary is implicitly by affirmed case. in Bailey Fish misinterpreted dicta support- as ing the statement "charges in addition to those they advanced at the hearing long 'so as are wholly unrelated to the transactions or facts consid- " preliminary.' Bailey, ered or testified to supra, 65 Wis. 2d I explained above, Fish does not at As support this statement. Bailey Leicham (1877) (and

Thus from until there- after) this interpreted 971.01(1) court has as "mean- says": ing what it all charges filed the information supported be must facts or evidence at adduced preliminary examination.

Finally, majority opinion's attempt to under- post -Bailey mine decisions which consistently have the Leicham rule, reaffirmed 453-456, majority see is unpersuasive.

The majority opinion dismisses the analysis court's State, in Whitaker v. 368, 373, Wis. 2d 265 N.W.2d (1978), "cursory aas reference" statute. Whitaker, Majority In at 454. the court Mil- considered county prosecutors' waukee practice holding the arraignment immediately preliminary after examina- transcript preliminary and the exami- reading tion the arraignment amending and the informa- nation after the charges based on evidence adduced at the tion add the preliminary. implicitly practice, The court affirmed provides prosecut- the that the recognizing that "statute file based on evi- ing attorney shall an information the the examination." Whita- dence elicited at ker, 83 2d at 373. Wis. State, 2d 266 Again, v. 83 Wis. Lofton (the (1978), Beilfuss author of

N.W.2d Chief Justice 576 decision), court, Bailey Marks writing the cited the 971.01(1) as follows: "A district summarized sec. and containing attorney file an information permitted is the at the such as facts adduced must be based warrant. The information brought on the examina- upon the facts out 2d at 482. Lofton, supra, 83 Wis. tion." the court was opinion contends that majority The statute failed to consider the and misguided Lofton Bailey and its such as "in context of cases the broad lan- Majority at 454.1 conclude predecessors." cases, viewed other holdings of and the and guage Lofton rule, context, support the Leicham in narrow or broad opinion. majority forth not the rule set opinion's unsuccessful majority Despite Hooper, State away, it v. attempts explain interpreted Bai- (1981), correctly 305 N.W.2d 2d . . . "clearly establishing] ley, Mark Whitaker as prose- provides that [971.01, statute Stats.] information based on cuting attorney shall file an at examination." evidence elicited 101 Wis. 2d at Hooper, supra, 2d 535. See also Wis. the Leicham 536, 537, applied Hooper court pre- evidence introduced rule held "that liminary hearing provides a factual basis upon which the attorney may reasonably district have concluded that the crime degree of second murder was Id. committed." at 543.

This court steadfastly has adhered to the teachings of majority opinion Leicham. The an overrules extensive body of interpreting law an old If statute. the statute needs to is changed, legislature, be that a task of the this court.8 forth,

For the reasons set I would affirm the order of the circuit court and of appeals. the decision the court of Those courts properly 971.01(1), concluded that "sec. Stats., requires prosecutor the to file an information containing only charges based on evidence at preliminary Burke, the hearing." State v. 148 Wis. 2d 125, 129, (Ct. 1988). App. 434 N.W.2d 788 BABLITCH,

WILLIAM A. J. part, in (dissenting part). I concurring agree with the law and reasoning expressed in dissenting opinion that the counts con- tained the Information must be upon based evidence produced preliminary However, examination. only stand, dissent would allow one of the counts and I, provides 8Art. person sec. 8 that "no shall be held to process answer a criminal offense without due . . .." law State, The court held in Rowan v. (1872), 30 Wis. 129 that process require presentment words "due of law" do not a or grand jury; preliminary indictment examination consti Dunn, v. process State tutes due of law. This court noted 2d, 389, 394, (1984), Wis. although 359 N.W.2d 151 that this right court has said that to a examination is a statutory, constitutional, right, not a certain federal constitu rights might implicated tional be in the examination. Id. parties at n. 6. The any have not or raised briefed consti tutional issues. I I conclude that object. which

it is that conclusion to sup- is examination there evidence Accordingly, in the Information. three of the counts port opinion of the with majority I concur with the result reasoning, of the but not its respect to three counts the counts. respect with to two of join dissent dissent, only which would allow one stand, premise. pre- That faulty is based on a counts prelimi- at mise is the state introduced evidence that have reviewed the nary only examination one crime.11 only supported I is in the 1The insists count dissent supports district attor "the record the assistant record no adduced ney's conclusion that evidence and the circuit court's supports through II V." counts at Dissenting n. op. only sup- of The evidence record

The is incorrect. dissent examination, and porting the is from the bind-over II, I, supports and IV. counts the evidence of 20 transcript consists of the I, II, relating IV is testimony counts and pages. The to entire testimony relatively of Detective Robert It of the short. consists Department. is no Police There of the Madison M. Lombardo respect III testimony to and V. counts with DIRECT EXAMINATION: say happened after that? did he What

Q. her and then took off He he unbuttoned her blouse A. stated that to, underpants completely I pants took her down white off and remember, ankles, quite or other. I one knee or can't believe her on, up pushed he her and that kissed had he that he stated She a bra that, prior taken his to he had off felt her breasts and breasts and underpants. jeans blue and supports IV. Sexual Contact count note: the above [Author's (touching breast)] you any contact that he had Did to further sexual he describe Q. with [B.K.]? Yes, A. he did.

transcript It is examination. clear from transcript the state introduced of evidence (sexual three crimes: I involving penis count intercourse you happened? What did he tell Q. A. He stated that laid he down with her on bed his that he and attempt penis started to have to intercourse with her his and was against pubic no, vaginal immediately her or area but she said she it, getting pregnant

didn't want to do that she was afraid and getting AIDS. supports note: The above count II. [Author's Sexual intercourse (penis vagina)] say anything happened? Did he further Q. him,

A. He stated that when she made this statement he perform her anally. turned on her stomach and started to sex you, put penis When he said Q. that to did he mean that he his her anus? specifically A. I asked'him that. say you What

Q. did he when him asked that?

A. He said he did. you anything Did he describe

Q. else that occurred? having having A. He he stated that a hard time relations with her. you by having What do Q. mean relations with her? penis anally A. grabbed With his inside her and bottle soap put Palmolive dish that had been on floor it on her help penis

buttocks area anus area to lubricate his penetration. you anything Did he Q. describe to further that occurred between himself and [B.K.]? crying A. He stated that she started and doesn't —he recall if didn't not, stop she told him or to but that he did reach a climax and that himself, her, penis emotionally after he removed his from she was upset crying exactly why and a lot and he didn't know this was occurring. supports note: The above [Author's count I. Sexual intercourse (penis anus)] to (sexual anus), involving penis II intercourse count victim's (involving touching IV of the vagina, and count breasts). basis for its conclu- dissenting opinion, as the preliminary examina- produced facts

sion that the crime, to concession made only points one support tion held Attorney hearing at a by Assistant District following preliminary examination. the court before question that n. 1. There is no See dissenting op. at 459 However, accurately depicts the concession. the dissent in the record. support has no concession attorney "conceded" district The assistant preliminary exam- on at the statement relied defendant's any of the other no reference makes ination one act other than the Information set forth Either the simply not the fact. That is anal intercourse. judge's attorney misunderstood district assistant of record —an the facts simply not recall or did question, Dane the workload lapse given understandable event, the con- any In Attorney's office. county District not, are and and we the record support no cession has be, by it. bound should not and any contact between himself other sexual describe Did he Q. [B.K.]? any he had. that he stated more There wasn't

A. nothing you. I further. Thank have

Q. respect with Lombardo examination Detective The cross repetitive questions few short of a counts consisted to these I, II, IV. regarding counts I, but supports count position this record The dissent's testi- Either this IV, logically inconsistent. is II and not counts And a IV, supports none. I, II, or it mony supports counts response to attorney in district assistant made concession preside at the judge who did not question from a change that. cannot The record reflects that the detective to testified regarding admissions of the I, II, defendant counts and cursory IV. Each admission to testified was a statement produced the defendant. No additional evidence was regarding respect those counts. With V, III counts produced support there was not one iota of evidence Therefore, them. I I, II, would allow counts IV stand and dismiss III counts and V.

I am authorized to state that CHIEF JUSTICE joins opinion. NATHAN HEFFERNAN in this

Case Details

Case Name: State v. Burke

Court Name: Wisconsin Supreme Court

Date Published: Feb 26, 1990

Citation: 451 N.W.2d 739

Docket Number: 88-0631-CR

Court Abbreviation: Wis.