*1 Respondent Cross-Appellant, Mendoza, Cross-Respondent. Appellant and Argued June 1977. Decided October No. 75-806-CR. 1977. reported (Also 260.) 2d 258 N. W. *7 appellant For cross-respondent there were by Stephen Glynn, M. briefs James M. Shellow and Shel- argument Shellow, by Stephen low & Glynn and oral M. M. Shellow, James all of Milwaukee. respondent For cross-appellant the cause argued by E. Michael McCann, attorney district for Mil- *8 county, waukee with whom on the brief were Bronson Follette, attorney general, LaC. William L. Gansner and Becker, attorneys general. David J. assistant DAY, 11, J. 1974, November Ray James Mendoza, guilty defendant, jury was found of two counts degree shooting of first murder1 in the deaths two of police Although Milwaukee charged officers. the crimes 940.01, Sec. Stats. place Milwaukee, county city place in the of took county Sparta city in Monroe of trial moved to of sponte November sua of the trial court. on order terms consecutive 12,1974 two Mendoza was sentenced judgment imprisonment. appeals from He life motions denying post-conviction conviction and orders 3,1975. entered November and a new the conviction cannot stand conclude
We opinion deals with Accordingly, trial must had. are or which which lead to that conclusion those issues us again likely Because suf- the new trial. to be raised case, ficiency in this the recita- not at issue evidence is similarly tion of facts is limited.2 disposition which deem crucial to the This issues we appeal of this are as follows: moving
I. Did trial err in the trial from court county, committed, Milwaukee where crime was timely county objection of the defend- Monroe over ant? refusing
II. Did the court err in to instruct manslaughter: causing jury (a) on death of another un- necessarily self-defense, (b) in the exercise of self-de- manslaughter-heat fense, (c) passion. following bearing also consider the
We issues as conduct of a new trial: testimony
III. Was entitled to rebut polygraph examiner, admissibility of a opin- of whose stipulated had to, testimony ion defendant with the polygraph expert? another refusing Did
IV. the court err in to admit evidence consisting expert opinion, of an and to instruct statutory presumption, on a the deceased officers were intoxicated ? 2 See, Lenarchick, State v. 74 Wis.2d 247 N.W.2d *9 off-duty shooting two has admitted to death
Defendant police officers, Riley and Thomas Robert Milwaukee July early 10, 1974 in Milwau- Matulis, in the hours friends, killings two kee. to the defendant and Prior drinking Hernandez, at Jesus Fiscal and Arnaldo were that he tavern 13th Defendant admitted Street. South drinking marijuana smoking had been beer and since July nearby At a tavern officers afternoon 9. Riley younger and Matulis met with Matulis’ brother friends, Reichel, his three James and James Gerald group and Jerome This then moved Krolikowski Sobczak. down street another tavern was two which doors away from where the defendant and friends were. companions
When defendant and his exited the they a.m., tavern at about 2:00 encountered two unidenti- standing directly fied men who were across the street. proximity These men were not connected with nor in close to the group. slain officers or their One the two glass object unidentified men hurled a at defendant’s group. Jesus Fiscal testified he then threw a beer bottle back the street across two men. The defendant then pulled twenty-two out a caliber said, and “I’ll revolver guys” discharged scare those and a bullet into the air. At the time Riley incident Matulis officers and were one-half about block down the street on the same side of the street as defendant. The officers were in casual unarmed, dress as were their friends. hearing
After gunshot, the two officers and James approached Matulis the defendant why him asked he had shot in the pointed gun air. Defendant at them and then companions he and his crossed the street and quickly proceeded north. The two officers and James Matulis followed them across the Meanwhile, street. Krolikowski, Reichel Sobczak, the officers’ other friends, paralleled their movements north on the other side of the street. point At some James Matulis re- *10 keeping joining the three who were street crossed the their distance. testified,
Defendant walking north, walk- and then we were “I continued as ing, around walking sideways, and I turned I was kind of me, grab going to and he was one of them seemed like right my pushed hand and I where I hit him him and with my gun. (A)s him to I . I did that I told had . — stay back I off.” or would blow his head Riley Then, pursuing Matulis as and officers Riley’s passed car, Riley entered his automobile Riley glove compartment. his removed revolver from the rejoined men Thomas on the sidewalk. two Matulis The police Defendant then identified themselves as officers. turned, placed weapon pants, he in his testified his ran. struggle shooting then which led to the deaths Evidence at
ensued. trial raised at least three theories struggle place. of how the took struggle put
Defendant’s version of the forward trial, is as follows: grabbed him, of the officers
One turned him around hitting and started him. Defendant threw his revolver ground them, “they to the and told didn’t have hit they me, already.” had me The officers continued parked They hit him between two cars at the curb. hitting him something were “with hard” and defendant protest. using continued The defendant denied force against during struggle. the officers one knee With ground on the he held his protect hands over head blows, himself from the he testified. grabbed kneeling,
While one of the hands striking against him and held it car, hood of the he As he ducked he gun. said. noticed the hand held a He grabbed gun. Then, (T)hey hitting again They were still me. hit me something they with hard. I them to hit told didn’t have more, telling they me no again. me I hit as was them ground, I rose the hand that I had towards pointed coming from,
I it punches towards where the were one, I shot I turned and I shot towards the back of me again.” The shots were about second and a half or two apart. seconds Defendant further he shot the testified they beating officers stop because He would him. did not away, said, because, They run he “I couldn’t. *11 hitting They were me. were over me.” being by Defendant’s claim he was beaten the two partially by officers was corroborated state’s witness Reichel, James prior who had been with the officers to struggle. thought going testified, they He “I were up .. . beat they the tall Mexican. It ... seemed you him, know, against had However, two one.” shootings time of the actual Reichel could not see the position actual of the three men. Krolikowski,
Gerald another witness, state’s testified persons eng'aged fight three in the were the two slain officers and one of the Mexican-Americans.
The state’s factual theories the case were sub- stantially different from story. the defendant’s Two versions of presented: the-events were theory The first was that aggressor the defendant was the and he killed attempting the officers escape. Defendant had bran- gun dished a earlier and had police. threatened the A observing witness nearby from a house testified that during the melee say she heard someone four times in a — Spanish accent, going “I’m your to blow brains out gun.” with this theory Another state alternatively presented to the fight began was that between two Mexican- (including defendant) Americans and officers, one of the whereupon the shot; officer was the second officer was on theory coming was based This to his aid. shot doing men who testified state witnesses testimony defendant styles beatings similar to those had hair beating men were two Fiscal. witnesses said and Several a car. against pushed up the hood a third who was home, observing Pachowicz, Bystander from Donald he the man pinned hood the man to the was testified that Riley. sidewalk, Pacho- officer later found on the slain again, hit him say, him “hit wicz also heard someone again,” and then heard two shots.
Autopsies These on the officers. were conducted slain weight by alcohol Matulis showed had .14% weight The by urine. and alcohol blood .23% prior in the indicated sometime alcohol level urine Riley death, level .17 alcohol blood % .18%. weight blood, in the had alcohol .21% .13% weight in the urine. alcohol urine in the alcohol prior to death the blood alcohol indicated that sometime level was .16% .17%. Additionally, had a cut on Matulis recent horizontal right long scrapes forehead inch one-half Riley autopsy hand left knee. The revealed knees. medicаl examination of skinned areas on both A following shootings revealed laceration long region perital head, in the left two centimeters *12 deep. and three millimeters
Among the various items of the evidence removed at clump forcibly hair was of which was said to be scene only hair the removed. This was with hair consistent hair, the defendant. Other “fallen of said to have natur- ally” only consistent with hair of was the officer Matulis.
I. Venue. September On one month before commence- sponte court sua trial, ment of ordered place city of trial moved from Milwaukee, of Milwau- County city County.
kee Sparta, to the in Monroe Con- ceding place trial, that “the a matter which under is peculiarly the constitution is that of the defendant” trial court will, found “that the defendant drastic absent aggravated in action what the court considers be an situation, right be denied the to a fair trial.” Counsel for immediately objected ruling the defendant that the came surprise as a to the defendant. The record is silent toas any position taken the state at that time. changing
At the time of order place of trial objected grounds, defendant’s counsel on a number of including change the financial burden impose such would family relatives; defendant’s the absence aof establishing prejudicial record publicity; the fact there finding, coverage no was Sparta news was less pervasive Milwaukee; than it inwas the fact that ruling complete surprise came defendant; as to the opinion and the publicity, defense counsel that though extensive, prejudicial. was not later,
Two permission, weeks with the defendant filed objections written on the additional grounds, alia, inter sponte that the sua order 971.22, violation of sec. Stats., and that “the order right denies defendant being vicinage tried in the guaranteed of the offense as in the Wisconsin and U. S. constitutions.”
The order was based finding on the trial court’s prejudicial extensive and pre-trial publicity. excerpt An finding of the court’s is as follows: “The court that, (a) considers the nature and char- acter of the information community disseminated in this through the news group media and activity raises probability reasonable the defendant cannot here and in future, the near a consequence, be assured a trial; (b) fair pretrial publicity intensity in its fatally breadth has affected the source far so as the defendant concerned; (c) relatively brief *13 alleged com- period elapsed the time which has since of alleged before which remains and mission offenses the effect and pervasiveness the accentuates _ tim- standpoint of pretrial information, from the the ing both contributed specificity; (d) has not the State and charged publicity; (e) the defendant is pretrial and the offenses murders, two the with not one but in most serious criminal code.” finding personal contacts its The court based on its repeatedly stating community, it had with the been community the facts questioned by in the citizens poll: informal involved. The court took an also disclosing identity, court, its “In addition the without com- has munity places residents of made extensive contacts with public shopping centers, restaurants, other community reaction an effort to determine pretrial far information thus disclosed.” during Approximately later, eleven consideration months granted verdict, after the court state’s motions pre-trial to add to the evidence of motion record publicity. copies of radio This evidence consisted transcripts newspaper articles. news television Change A. Power The To Court Venue. Of question presented fundamental is whether initiative, authority, had order trial court its own on place changed timely objection of trial over hold made. whose behalf order was We authority did under the trial court not have such in this facts case. possible au-
A consideration of the sources court change thority place of venue under circumstances present such as were in this case must include con- stitution, statutes, interpretation this court’s of those
laws, power appropri- the inhеrent It is and court. begin ate to with the and the constitution statutes. Const, I, provides: art. Wisconsin sec. “Rights prose Accused. In all criminal Section 7. Of by enjoy right cutions the accused shall to be heard counsel; himself and demand the nature and cause against him; the accusation face; to meet witnesses face compulsory process compel to have the attendance behalf; prosecution by in his and in witnesses indict information, public by speedy ment or partial to a an im jury county or district wherein offense county committed, shall have been which or district shall previously by been (Emphasis have ascertained law.”3 added.) Stats, (1), reads,
See. 971.19 “Criminal county shall in actions be tried where committed, except the crime provided.” was as otherwise Stats, finally, 971.22,
And sec. is as follows: Change (1) “971.22 Place Trial. The defend- Of Of may change ant place move for a of trial on the trial cannot be had in the of the ground impartial that an 3 Const, I, art. sec. does not restrict venue. Rather, re it jury picked. the locale stricts from which can be In Wheeler 52, (1869), speculated Wis. the court Wisconsin’s provision copied part constitutional Const, at least in from U. S. accused, amendment insures an which right speedy public to a trial, by “. . . the impartial an jury of the State and district wherein crime shall have been committed, previously district which shall have been ascertained by law.” This amendment was construed as a modified form of the right “jury common vicinage” to be law tried of the in Wil Florida, liams v. (1970). “Vicinage” 399 U.S. 92-96 means neighborhood “vicinage jury” neigh of the means Ibid. n. similarly borhood. 35. The Wisconsin Constitution in right, venue, jury picked sures a not to county but to a from district wherein crime shall have been committed. Refer opinion ence in qualification to “venue” made with this in mind.
1S9 county. arraignment, but The motion be made at shall may it be made thereafter for cause. writing “(2) supported The motion in shall be showing evidentiary affidavit which state shall facts attorney prejudice alleged. nature of the The district may file counter affidavits. “(3) If court therе exists determines county a pending prejudice where the action is such had, fair trial cannot be shall order that the trial be any county held impartial had. where an trial can be *15 Only change may granted one be under this subsection. judge change The place who orders the in the of trial preside Preliminary shall prior at the trial. matters may trial county be conducted in either at the discretion judge of the court. The shall determine where defendant, if custody, he inis shall held and where kept.” record shall be language
The literal provisions of these is clear with respect who, bring provisions, may under these a mo- change tion place Const., I, of trial. sec. 7 art. Stats, states, enjoy. “the accused 971.19, shall . .”. See. provides except provided, “(c)riminal as otherwise county actions shall be tried in the where the crime was committed,” states, “(t)he 971.22, sec. defendant may change move a place for of trial.”
This
interpreted
court has
this constitutional
section
predecessors
and the
of these
a
statutes
number of times.
precedent
The
language
is clear that the literal
of these
accurately
sections
subject: Only
states the law on the
right
defendant can waive his
to venue where
crime
was committed.
In Oborn
State,
v.
143
126
Wis.
(1910)
right
N.W. 737
the court held that
to be
tried
belongs
where the crime is committed
to the de-
any
Thus,
providing
fendant.
change
statute
for a
harmony
right:
venue must be in
with that
provision
“The constitution makes no
change
for a
any
in
case,
venue
a criminal
change
so
such
must be
referable to some statute
harmony
which is in
with
140
guaranteed
right may
right,
such
be waived.
unless
Statutes,
State,
French v.
93
Consistent case (1869) Wheeler v. in which venue was Wis. changed attorney on the motion of the district made stating upon impartial his affidavit his belief that “an county, by could be had in that of its reason being having county, notorious, a small and the case been having occasioned much excitement.” 24 Wis. change authorizing 52. This court held that the statute *16 of prosecutor, venue on the motion of the over the ob- jection accused, of the was unconstitutional and void. may change apply
A defendant for a of venue thereby right waive his under constitution. authority change venue has been held to be strictly statutory. In 325, French v. State, 93 67 Wis. (1896) 706 said, N.W. the court right change “The depends to a entirely upon of venue guaranteed by It statute. is not I, 7, by Art. sec. any provision other of the right constitution. As the only by statute, change exists virtue a of venue only upon can be had 93 the terms the prescribes.” statute 335. Wis. at
141 575, 568, 14 718 Accord, v. N.W. Baker 56 Wis. 396, 400, N.W. (1883); Hanley State, 125 104 v. Wis. Backus, Carpenter v. 165 Wis. ex rel. State (1905) ; 57 179, 182, 161 759 N.W. Stats, only de- Conceding 971.22, authorizes sec. argues change that never- venue, the state fendants Dean, v. light of State the statute must be read theless (1975). The critical 513, 227 712 67 N.W.2d Wis.2d language page 526: at is found 67 of case Wis.2d is that the defendant “The first issue raised change its of venue on ordered a trial court should have though no publicity motion of media even own because change by defense coun- a of venue was made motion for any sel, court act on circumstances postpone trial. This motion made nor was many recognized that a court should has trial times aggravated motion when confronted with its own jury’s appears that a dis- from which it passionate ful because of doubt- evaluation of the evidence is rendered surrounding pressure publicity of v. 481, case. State (1967), 469, 33 Wis.2d Alfonsi 550; State v. Kramer (1969), 20, 30, N.W.2d Wis.2d 919.” N.W.2d In neither Dean on it relied did nor the cases which change oppose State the defendant In venue. Kramer, supra, change the defendant moved for venue. Alfonsi, supra, In Dean and State v. defendant’s change appeal counsel did not so move but venue was advocated the defendant. Alfonsi, 480, said,
In it change attorneys request “The defendant’s did not venue, they nor did seek a trial. continuance Although may two be said the defense thus waived safeguards, of the available we note that under proper a trial court circumstances has an affirmative right duty steps protect take of a defendant to a Sheppard v. Maxwell (1966), fair trial. In 384 U.S. . the court . . said: “ requires process that the ‘Due accused receive a trial *17 jury impartial free from outside influences. an Given communications, the pervasiveness of modern effacing difficulty prejudicial publicity minds from strong measures jurors, trial courts must take against weighed to ensure that the never balance is (Emphasis added.) accused.’ appears dispassionate of the it that evaluation “When pressure of evidence is rendered doubtful because of the publicity, Sheppard sponte. act sm In the trial court must page Case, the court observed: “ that ‘. . . likelihood where there a reasonable is trial, prejudicial prior prevent fair news to trial will a abates, judge continue the until the threat should case county permeated or transfer publicity.’ it to another with so ” things Of the three Wisconsin cases these can be said: change venue; protest In none did the a Const, did I, none the court consider art. sec. 7 or already holding only cases that cited the defendant can right; waive his constitutional none did court changed place conclude that the court should have hold, of trial on its own motion. These did not cases moreover, disregard that the court could the demand jury county the defendant to a from or district where they. the crime committed. did hold that What is passive spectator the trial court is not a in the effort to insure fair trial. Dean, Kramer, Sheppard
Because were Alfonsi right all concerned trial, with the defendant’s to a fair important right note to a county or district where the crime was committed is also right component See, fair trial. United Johnson, States 323 U.S. defendant,
In the instant case competent aided counsel,4 consciously determined he wished to be express opinion competency We no where of counsel is at issue, or exist, where other unusual danger circumstances such as
143 in- This consideration jury Milwaukee. a in tried environ- jurors the same from to have the desire cluded pool a from place chosen took in crime ment which the community; the effect a having a Mexican-American who on a defendant have far home would trial from family and support might enjoy of the moral otherwise during and investigate the trial friends; ability to witnesses; conve- and secure rebuttal to locate from office, being to his both in close nience of counsel App. (Br. 63- logistical point of view. and financial a 64). play part in the considera- do a
Because these factors strategic choice, made trial, the of a tion of fairness must guaranteed by the constitution respected. right to be tried position that It is the state’s right predicated on is where the crime is committed jury jury. impartial is unobtain- impartial If an to.an guarantee place able, reasons, then of state is unavailable. right grounded policy
But the venue is because particu- own, unwise, think it of its we considerations larly light precedent, to con- of the aforementioned rights right contingent upon Both another. strue one right a fair trial. And the ultimate to seek insure rights mutually cases, exclusive. most are not ways right impartial jury may be vindicated in an right compelled relinquishment than the other court where the crime was committed. As this venue in McKissick v. N.W.2d said (1971) : guarantee “The constitutional fair trial an before however, synonymous impartial not, is with a personnel defendant, or court witnesses or other bizarre or proper circumstances would interfere unusual with the ad- justice. ministration of change Change only of venue one method venue. guaranteeing trial; fair others are voir dire continuance.” change
Certainly, objected if the defendant to a venue, complain would he he not be heard later to change venue, entitled because he would *19 opportunity. State, 48 have waived such Dolan v. Cf. long 696, 703, (1970). 180 623 N.W.2d But so knowingly intelligently, his choice is made it should be his.5 jurisdictions question
Other
are divided on the
before
the court.
supporting
We have read the cases
both
position
state’s6 and the defendant’s7
from
but derive
California,
Faretta
(1974)
v.
That right pursuant waiver to defendant’s was com- county the crime district where from or moving place of trial court erred mitted. The objection defendant. We Sparta over thе Wheeler, proceedings are void. held there hold supra, 24 at 59. Wis. Changed. By Procedure Which Venue Was
B. suggested during proceeding it been At no time has (a) safety personnel, or others of court witnesses change (b) defendant’s in the a factor of venue knowingly and desire to remain in Milwaukee was not intelligently us are not before made. These situations express opinion and we no on them. *20 change to the is addressed venue for
A motion
made
But
decision
of the court.9
sound discretion
in
facts
inquiry
and examination
reasonable
without
face,
is,
an
of discretion.
on its
abuse
the record
8
by
Mast, supra,
state, held that
relied on
We note
only
benefit;
change
for its own
obtain
venue
the state could
change
specifically
for
for
not move
such
held the state could
objection.
benefit,
427 P.2d
over the defendant’s
the defendant’s
at 918-919.
supra,
state,
Miller,
been criticized be-
relied on
has
also
consider this court’s
decision and because
cause it did not
Wheeler
accepted,
than
state was
rather
discussed
“the contention of the
Nelson, supra.
In re
.
.”.
9
1, 26,
(1977);
State,
Turner v.
76 Wis.2d
146 McCleary 277-278, State, 263,
In v. 49 182 Wis.2d (1971) exer- 512 N.W.2d this court discussed what cise of discretion means. place, “In the first that discre- there must be evidence synonymous tion was in fact Discretion is exercised. decision-making. contemplates Rather,
with the term process reasoning. process depend must This reasonably that are derived are record or facts record a conclusion based inference from logical legal upon proper on a rationale stan- founded pointed (1968), dards. we out State 39 As v. Hutnik ‘. . 754, 764, Wis.2d should be N.W.2d . there evidence in the record in fact that discretion exer- cised and the basis of that exercise of discretion should ” be set forth.’ judge . . Unless there is evidence that trial has inquiry undertaken a reasonable and examination of the decision, facts as the basis of his will his decision be disregarded by this court. Such a on its decision face shows an abuse (Emphasis supplied.) of discretion.” When change the defendant himself for a moves venue, required he is proper to make a record from which ultimately the trial court and can this court make a decision or Thus, exercise review. the decision tois elicted, based on “the properly evidence considered.” Kramer, supra, State v. 30; Wis.2d at State, v. Ruff supra, 65 required 720. “evidence, What is allegations.” not mere Garcia v. 73 Wis.2d 190, 242 N.W.2d 919
In this case the
findings
regard-
court based its
ing prejudicial publicity
personal
on its own
contact with
community
and its own
poll,
informal
“without dis-
closing
identity
its
shopping
...
centers, restaurants
places
public
and other
. . . .”
In
Moore
Russell, Supp.
F.
(E.D.
Tenn.
*21
1968),
corpus
a habeas
proceeding, the court found de-
deprived
fendant was
process
due
of law when the state
change of venue
judge
for
motions
trial
denied
court
corpus
hearing.
the habeas
At
a
and
without
severance
was
it
judge testified
trial court
proceeding the state
pre-trial
judgment
that
the amount
his “considered
change of venue.”
a
to warrant
publicity
insufficient
judge
opinion
the trial
in its
wrote
The federal court
own
evidence his
use as
not authorized to
“. . . was
might
Moore’s
. . . Mr.
be
conceptions
the facts
of what
entirely
moment
at that
depended
trial
for a fair
chances
judge,
by the trial
of discretion
on the sound exercise
exercising
not
he was
option, but in
an
“His was
principles
disregard
permitted
and settled
solid
petitioner
protection of the
for the
law established
law
including
principle of
similarly situated,
others
findings
founded
judicial
be
and conclusions
legal
evidence ...
judicial power
contradis-
judge
as
no
“The trial
has
tinguished
power
His discretion
of the law.
from the
discerning the
legal
exercised
discretion
is
proper
consequent
prescribed
law with
course
person
duty
His will as
to follow
course.
v.
Osborn
done,
rather
the will
law.
but
to be
738,
(1824), 9
the United
Wheat.
Bank of
States
738,
consistent with this court’s on a question, independently assess- to examine the record in ing Turner whether trial court its abused discretion. supra, supra, v. State, State, Jones v. 27; 76 Wis.2d 66 at 109. principles presume
But these this a record court has rely on. This month of the eleven court’s examination record, revelatory preju- addition to late even if dice, prejudice could not reveal have whether such could mitigated by costly been means less to the defendant a than trial far Thus, from his home. a continuance or accomplished extensive voir dire could well have purpose. trial court’s
Among the this factors court will in consider review- ing a trial court’s question discretion on venue are difficulty selecting amount of encountered jury, jurors the extent to which were familiar with publicity and the challenges, defendant’s utilization peremptory cause, both and for available him on voir Jones v. dire. 105, 109, 66 Wis.2d 228 N.W.2d These factors cannot be considered this court because court attempted never to em- panel jury county. in Milwaukee II. INSTRUCTIONS ON MANSLAUGHTER AND
SELF-DEFENSE. was instructed on the elements of first and second-degree requested murder. Defendant instructions self-defense,10 manslaughter: causing death of an unnecessarily other in the exercise of self-defense,11 manslaughter: passion.12 heat of The trial court court, upon analysis that “the ruled of the evidence in 01 (1) ; 939.48 Wis. Sec. J I — Criminal 805. 940.05(2), Stats., See. Wis. J I —Criminal 1140. (1), 940.05 J Sec. Wis. I—Criminal 1130. is an issue.” case, that self-defense does not consider corresponding requested instructions None of these given jury. were verdicts evidence there existed It defendant’s contention ground acquittal *23 for a reasonable the record establish second-degree charges murder and on the of first alternatively, con- finding or, complete of self-defense manslaughter. for viction Force. Manslaughter Use
A. Of —Unreasonable court the trial majority concludes A of this court refusing jury the elements on in to instruct erred unnecessarily causing manslaughter; another death of ample evidence There is in the exercise self-defense. jury find defendant could in the record from which first-degree it also But is guilty murder. on two counts of which, record, if there evidence in the clear acquittal jury it, on those lead to chose to believe could manslaughter. charges guilty verdicts provided privilege 939.- is sec. self-defense 48(1), Stats: (1) A And “939.48 Others. Self-Defense Defense Of intentionally
person
privileged
use
is
to threaten or
against
purpose
preventing or
for the
force
terminating
another
reasonably
un-
an
what he
believes
be
person.
person
interference with his
such other
lawful
intentionally
only
may
threat
use
such force or
The actor
necessary
reasonably
prevent
he
is
thereof as
believes
intentionally
may
terminate the interference. He
or
use force which is intended
great
likely
or
to cause death or
bodily
reasonably
harm
he
unless
believes
necessary
prevent
is
imminent
or
force
death
such
great bodily harm to himself.”
section was summarized
Thomas v.
53
This
483,
(1972),
ful intereference with his such other may only reasonably he but is use such force he believes necessary. likely Before force which death to cause is great bodily reasonably used, harm can be one must necessary prevent believe such force is imminent great bodily death or harm to 487. himself.” Wis.2d assessing In defendant’s reasonableness apply objective belief the must an standard of intelligent “ordinary posi prudent person ... ‘in the existing tion of the defendant under the circumstances ” allеged at the time of the offense.’ State Kanzel berger, (1965), 28 Wis.2d 137 N.W.2d cert. den. Jonovic, 867. U.S. Maichle v. 69 Wis.2d 622, 627, 230 N.W.2d specially provides
The law
where,
for the situation
objective
under
“prudent
person” standard,
*24
deadly
found that
force used in the
exercise of
privilege
self-defense
was unreasonable. This
been
has
referred to as
imperfect
self-defense,
the doctrine of
State,
Ross v.
160, 166,
61 Wis.2d
The putting standard for “imperfect self-defense” jury doctrine before the recently discussed in State v. Johnnies, 76 578, 583, 251 (1977): N.W.2d 807 justify “To degree submission a lesser of homi- jury cide to the there must be ground a reasonable
151 charge and greater acquittal on for the evidence State, v. charge. McAllister on the lesser for conviction (1976). 253, 511 246, 246 N.W.2d 74 Wis.2d man instruction “Therefore, of an the submission only some if under proper slaughter reasonable been would have establish view, was sufficient the evidence believing use her the deceased shot the defendant self-defense, her necessary but of force was belief was Bed the circumstances. under unreasonable 658 357, 364, N.W.2d 222 v. 65 Wis.2d ford (1974).”13 by a “rea- meant is what The court has also discussed ground” in the evidence. sonable n Bergenthal, Wis.2d 47 v. in State court stated “As the U.S. denied, 402 (1970), cert. 675, 178 N.W.2d 972. “ The rule key rule is “reasonable.” word in the ‘The all suggest inclusion automatic some near not does options to as additional offenses included lesser but view,” different, jury. Only but reasonable if “under a guilt of the lower sufficient establish the evidence is par- degree to some doubt as and also leave reasonable higher degree but included in the element ticular the the lower, the lesser crime also be submitted should multiple purpose jury. verdicts . . . The different, reasonable under but either for where situatiоns cover grounds con- are there of the evidence views viction greater The lesser the lesser offense. or of unless degree not to be submitted to verdict is grounds for conviction of reasonable there exists ” greater.’ Briggs acquittal on offense and lesser 333-334, N.W.2d State, 76 Wis.2d viewed, in the record so must evidence reveal exercising privilege of self-defense intended person necessity finding in the a reason As for evidence *25 acquittal greater charge ground on the for and conviction able also, State, 66, 60, lesser, see Flores v. 76 Wis.2d 260 on the State, 174, (1977); 186, Garcia 73 242 720 v. Wis.2d N.W.2d Day State, (1976) ; 756, 759, v. 66 Wis.2d 201 N.W.2d N.W.2d 919 (1972). 42
152 against another use force or to use force threaten to Johnnies, supra, State v. purpose for the of self-defense. State, supra, at 584. Thomas Wis.2d Wis.2d 488. the support
In of instruct the trial court’s refusal “imperfect man- the crime of self-defense” argues slaughter, the that “a reasonable view state totality testimony the of the trial demonstrates” aggressor initially the continued was during resisting struggle, role lawful arrest attempting escape. But may, neither court nor this court under law, “totality” look to the evidence, do, determining state invites us to in- whether struction require warranted. To do so would weigh court accepting version of one evidence — facts, rejecting another —and province thus invade the jury. State, Flores v. 69, 76 Wis.2d Cf. (1977). N.W.2d 720 holding in Bergenthal, supra, that an instruction
Our may only be submitted supported by “different, if but reasonable view” of the evidence was attacked as process violative of in Ross v. due 61 N.W.2d 827 alleged infirmity rule was that this reasonable required view formulation province court to invade jury. But ar- gument was found without merit judge because the will weigh the evidence, only but determine whether evidence existed record, in the favorably viewed to the defendant, to warrant the instruction. tests, “Under these the evidence is to be viewed in light the most favorable ‘reasonably will admit of standpoint from the of the accused.’ This test does not weighing call for a the evidence judge. the trial merely obliged He is to examine the evidеnce to deter-
mine proposed whether instruction is upon based *26 returned whether, were conjecture if a verdict mere and obliged to offense, be would he on the lesser included offense, included the it lesser set aside. To instruct on at trial evidentiary only revealed speaking factors the elements, the evi- question of included not relevant be must dence appreciable; included offense lesser favorably most and as considered must defendant, unreasonable. The the inclusion of the instruction jury basically question whether is reasonably giving return full credence could evidence guilt offense.” lesser included a verdict of 172-173. 174, 186, State, 242 N.W.2d Accord, Garcia v. 73 Wis.2d by law before question us, as it was Thus before “totality evidence” court, the trial not what the rather, construction but whether reasonable reveals theory “viewed support defendant's the evidence will ‘reasonably light admit in will most favorable ” standpoint of Ross from the the accused.’ supra. then affirmatively, question If this is answered court, jury, it is not for the trial court or for version to determine whether to believe defendant’s events. continually by
Defendant that he was testified beaten gun officers; dropped re- the two he had his grabbed peatedly stop; asked them to that he had gun being beating and inten- which was used tionally stop as shot them to what he characterized their testimony part This assault. was corroborated thought who testified he two officers state’s witness going against up . were beat “the tall . . two Mexican one.” This evidence could be construed showing that defendant was the victim of an unlawful person by with interference another. arrest, privilege an
Defendant
no
interfere with
had
may
there
require
which
force. But
itself
a lawful use of
*27
are
force is
police
circumstances where
officer’s use of
may
guilty
unlawful. An
be
bat
officer
of assault and
tery
unnecessary
if
acts
he uses
and
force or
excessive
wantonly
maliciously. Anderson,
and
4
Wharton’s Crim
Procedure,
1621, p. 292; see,
inal Law and
McClus
sec.
key
350,
(1970)
Steinhorst,
v.
45
148
173
N.W.2d
(a
battery);
also, see,
Ziedonis,
civil
v.
368
Clark
F.
(E.D.
1973),
Supp.
(1975).
aff’d
Wis.
Even were assumed that the defendant initiated aggression pointed when he his revolver at the offi- cers, possible, it believed, was if the so that the de- regained privilege fendant his self-defense down dropped gun street when he repeatedly his and told they they that stop officers had him and that should beating’ indicating submitting him thereby that he was to In arrest.14 Banks v. 51 Wis.2d (1971) quoted N.W.2d Miller, court Criminal (Hornbook Law Series) (g) amplify sec. 67 to this principle: “As previously has been stated, self-defense is not plea available in as excuse or justification, to one who aggressor was himself difficulty in the which re- death, injury. sulted ing If, or however, bring- other after difficulty, person on the withdraws, good such a faith, adversary and shows his that he does not desire conflict,
to. continue the adversary but thereupon his pursues him and becomes aggressor, he has the same 14 “939.48 And (2) Others. Self-defense ... Defense Prov Of privilege ocation affects the of self-defense as follows: . . . “(b) privilege provocation lost may regained if the good actor in faith fight withdraws gives from the adequate ” notice thereof to his assailant. . . originally pro- right if he had not to himself defend , gives his difficulty. he . If withdraws voked . has believing he ground that adversary withdrawn, that for reasonable him required of It is not it is sufficient. his actually known he, hazards, make all such antagonist as would withdrawn; his acts are if that he has circum- notify man under reasonable that is all stances of the withdrawal required, adversary blind passion If him. cowardice showing intention his him the actions of the accused accused, charged against the withdraw, cannot be right by his with- deprive him the secured so as eyes party has his ‘If the assailed drawal defend life. must see, to hear he he if he has ears to see must right eyes his or deaden hear. He has no to close ears.’ . . strong arguments such While the state advances prior con- with defendant’s withdrawal inconsistent *28 jury. argument duct, properly to the this is an addressed See, State, Ruiz v. 249 277 75 N.W.2d Wis.2d (1977). invoking previously noted, privilege
As an actor reasonably may only he of self-defense use such force Ross necessary prevent is believes the interference. kto State, v. at Wis.2d 166. majority
A this no court holds that there exists jury which evidence from believe defendant’s could deadly entitling reasonable, to use of force him was complete However, an instruction on self-defense. majority also holds that under one reasonable view evidence, jury could that conclude defendant’s that belief he could act in self-defense was reasonable. jury defendant was entitled to have the thus con- theory “imperfect self-defense,” sider is which manslaughter. embodied in the crime of Failure to so jury instruct was prejudice error “for which Stortecky, (was) the defendant State v. undeniable.” 362, 369, 77 Wis. N.W.2d 721 B. Self-Defense. 939.48, Stats.,
Under
entitled
sec.
defendant was
deadly
only
reasonably
use
force
if he
believed
such
great
necessary
prevent
force was
or
imminent death
bodily
distinguishing
harm. The
between man
factor
slaughter
complete
in this case is
self-defense
deadly
reasonableness
belief
force
defendant’s
necessary.
likely
Before force which is
death
cause
great bodily
reasonably
used,
harm can be
one must
necessary
prevent
believe
such
force
imminent
great bodily
death or
harm to himself. Thomas v.
supra,
question
A including this court writer and Justices Heffernan and Abrahamson would therefore hold that complete issue of self-defense also should gone jury. have Applying to the objective test of rea- sonableness, prudent could find person that a position of the defendant under the circumstances existing at the time could believe that the pum- constant melling about large the head men, two one of whom something used hard, created possibility the imminent great bodily of death or harm to himself. This is *29 suggest accurately this test states what in fact happened; only that this is one version which a jury could believe. 1 3 question is not actually whether such force was neces sary. State, Schmidt 516, v. 519, 124 Wis. 102 (1905) ; N.W.2d 1071 State,
Miller 57, v. 76, 139 Wis. 119 (1909). N.W. 850
157 Manslaughter Passion. C. Of —Heat instruc- refused an requested Defendant also 940.05(1), Stats: manslaughter in as defined sec. tion on being human another the death of causes “Whoever may im- following be any circumstances under years: prisoned not than 10 more of heat in the “(1) intent to kill and while Without passion.” 284, 290-291, 128 N.W.2d Hoyt, v. 21 In State Wis.2d rehearing explained 645, (1964) passion” was “heat of as follows: “ passion” heat ‘That will “the of which constitute murder will otherwise reduce what would be which
manslaughter disturbance, caused such mental “is ordinarily reasonable, adequate provocation, as would suspend or of overcome and dominate exercise so judgment ordinary of mind for an man as to render his being reason; him the time incapable deaf to the of make voice forming executing intent that distinct de to take human life murder the first essential gree; him, uncontrollably, im and to from cause act disturbing from pelling force cause rather than cruelty any real of heart or recklessness wickedness Stortecky disposition.” (1956), v. State 273 Wis. 372, provocation, (2d) that, 77 N.W. 721. It has been “the said law, in order must be to instantly, sufficient as, naturally produce in the minds such highest degree of persons, ordinarily constituted, exasperation, rage, anger, resentment, sudden or terror.” Eng. Ency. (2d ed.), p. 177, Am. quoted 21 & Law (1906), v. 146, 159, in Johnson 55.’ State 129 Wis. 108 N.W. ”16 16 see, Hayzes State, 189, 196-197, Also v. 64 Wis.2d 218 N.W.2d (1974); State, Ameen 182-183, 51 Wis.2d 186 N.W.2d (1971); Lucynski, 232, 234-235, State v. 48 179 N.W.2d (1970); 715, 728-730, Zebrowski v. 50 Wis.2d N.W.2d 545
158 82, 42-48,
In Brook v. 21 123 N.W.2d Wis.2d (1963), 535 explained respect the court that with provocation, subjective applied one of “the test is not the whether produce it was in defendant sufficient said passion to cause to kill intent do so. him without objective provocation Rather it is the one of whether persons would have of mind ordi- caused such state narily constituted.”
We find no error in the court’s refusal instruct jury on manslaughter-heat passion. elements Limited are, to the record as we find we no evidence act defendant’s was other than a calcu- deliberate and response lated allegedly to the in which he situation found himself.
III. POLYGRAPH EVIDENCE.
A. 12, 1974, On October a little more than six months after this court’s decision in Stanislawski, State v. 62 216 (1974), parties N.W.2d 8 stipulated the defendant would submit a polygraph exam- 17 ination. 17 stipulation provided: The “(a) said examinee polygraph shall submit to a test and said test shall be administered Robert L. Anderson or Theo- Welch, Expert Polygraphists, dore G. State of Wisconsin Crime Laboratory Bureau, University Avenue, Madison, Wisconsin; any “(b) At any guilty trial had plea herein or proceedings respect thereto, graphs with resulting from said test and the opinion concerning examiner’s thereon the areas covered questions only attached hereto shall be admissible at said trial guilty plea on behalf of either the said examinee or the state subject holding to the Stanislawski, State v. 62 Wis.2d (1974) N.W.2d and the rules evidence as set forth in *31 by ex- polygraph examined After was the defendant a conducted trial court the aminer L. Anderson Robert polygraph hearing admissibility of the on the pre-trial stipulation. accepted evidence, conclusion and trial, it at examiner, related opinion as he of the that untruthful. was was a explicitly whether determine did not StanislawsM of an ex- stipulates admission defendant who call his own opinion is entitled nevertheless aminer’s opinion. court expert that Defendant asserts to rebut Ander- denying opportunity to rebut him the erred experts. with his own son’s evidence Brisentine, prove A. offered to that Robert Defendant Army Criminal polygraph examiner” for the “senior though Investigation testify Command, that ex- would 600 or 700 he had conducted aminer Anderson testified Army, had in fact in the he polygraph examinations three were inac- examinations, of which conducted curately scored. prove test
Defendant also offered to that some scoring system questions improper, that used were method, by polygraph not was an established Anderson results, properly interpreted that other ex- deception. perts, indicate did not testimony After the close of all but conference before prove pre- that on instructions defendant offered to night telephone a one one-half vious hour conversa- place Brisentine and took tion between Anderson acknowledged which Anderson he had scored the test only improperly data and that the conclusion that could respect drawn from the was that charts with to four questions, crime issue the results were inconclusive Chapter inclusive; except Wisconsin Statutes 901 to if opinion polygraphist’s graphs is that said said as to said examinee opinion opinion or no as to deception, are inconclusive then said party.” not of either shall be admissible behalf given. opinion deception no The fifth crime could be deception.” question issue was found to be “border line attorney The district this offer “somewhat asserted overstated the matter” recommended but nevertheless by instructing “justice best would be served” they polygraph should consider the evidence.18 The motion was denied. are not here
We concerned with the merits given polygraph actually examination as it interpreted. method Rather, which test data was we question believe be under what circumstances party may challenge polygraph evidence, the admission party already stipulated which has to. *32 withdrawing then-existing
In prohibition the on the use polygraph of Wisconsin, evidence in this court in Stanis- holding Imvski was to careful that note its did not mean polygraph evidence would thereafter have “uncondi admissibility.” tioned 62 at Wis.2d 741. were Conditions established that the insure examination was under voluntarily, taken that properly the test was adminis qualified tered a expert and that the results were not used aas substitute for establishing evidence the charged.19 elements of the crime It primarily is the responsibility of the trial court to insure that complied these conditions are with. Stanis- held, ImusJci 18 anAt in-chambers attorney conference the district related a conference call Brisentine, between Anderson and himself: expressed “. . . Mr. possibility Anderson wrong the that he was say, . . . wrong,’ he didn’t ‘I’m say, he going didn’t ‘I’m my testimony,’ recant he possibility there’s said of that and expressed retesting a desire to do Sunday, some on . . . That was enough (the for me polygraph to decide evidence should ex be cluded.)” 19 62 742-743; Wis.2d at Accord, State ex Harris rel.
Schmidt,
668, 681-682,
Wis.2d
This also jury. controlling presented to the which are the issues admissibility particular ex- stipulating In parties stipulating at least opinion, are aminer’s qualifications But because of the examiner. the basic given, it cannot stipulation is made before test is foreclosing inquiry an into manner construed as sufficiency given which test particular upon conclusion is based. We data which logical proper place to make these believe admissibility. hearing challenges is at the challenge opinion appropriate time to hearing. admissibility purpose This will serve informing preventing at the court and same time *33 being jury from distracted detours collateral into validity proof evidence, on scientific the fundamental parties already accepted. of which both have evidence, presented Once with this trial court has admitting option rejecting the evidence or If it. Questions. Preliminary (8) Hearing Jury. . “901.04 . Of Hearings admissibility on the in confessions shall all cases hearing jury. Hearings conducted out of on he other preliminary shall he matters so conducted when the interests justice require.” admitted,
the evidence the trial court must continue is preventing to from exercise its discretion the trial becoming collateral while at the issues, same derailed allowing leeway jury time “to sufficient to allow the weight what determine corroborative and effect such (examiner’s) given.” testimony Stanislawski, should be at 748. parties mutually it
Because themselves who agree by stipulation put polygraph to evidence be- fore the emphasize court the first instance, we the trial upheld court’s control of at trial evidence bewill clearly it unless is found to be an abuse of discretion. majority A of this court holds that the trial did court refusing abuse its discretion in to allow defendant’s experts testify jury. majority before the addi- tionally refusing holds court did not reopen err in evidence before retired deliberate but proof after the Finally, was closed. court holds expert may testify defendant’s witnesses before the trial judge at admissibility hearing new preceding new hearing but that such if, need not prior be held hearing, to such the state mutually and the defendant stipulation withdraw the polygraph admission of the evidence.
B. minority A court, including this writer and Justices Heffernan and Abrahamson depart would from majority opinion insofar holds the trial court did not its abuse discretion and would hold the trial court did refusing abuse its discretion in to allow expert to call impeach witnesses opin- the examiner’s ion and refusing further erred in to reopen the evidence the proof after was closed.
163 evidence polygraph approved use Stanislawski in reli- comparable be largely found to because form in the admitted ability types of evidence to other general aAs at expert opinion. 738-740. 62 Wis.2d through conflicting may evidence rule, party offer expert well party’s is experts if the other other even weight testi- one of then qualified. The becomes issue of fact. witnesses, trier mony credibility for the Soc., Employes’ 56 Transport B. Mut. v. Milbauer though And 860, 867, 203 N.W.2d conclusions, of the stipulated admission examiner’s to the expert opinions of one party who submits conflicting offering thereby evidence from barred Allis- Light experts. Cedarburg & W. part of other (1967), Chalmers, N.W.2d 33 Wis.2d 661. reh. den. 149 N.W.2d expert general application to testi- principles of
These complaint mony applicable here. stаte’s should be may experts testimony may lead to a battle of that such every present problem is in area be true. But this discerning expert testimony and the best solution is may its jury. judgment The trial court exercise testimony or vigorously prevent cumulative discretion jury digressions. may, addition, A court excuse any prerogative take time and reassert its evidence polygraph exclude evi- and exercise its discretion to where, entirely. here, extrinsic But the offer of dence goes the heart of of whether evidence the issue properly examination was administered and the data minority properly hold interpreted, a of this court would given proponent of such evidence must some latitude.
Before the retired to deliberate but after proof prove had closed defendant offered to that Mr. scoring. Anderson admitted error At the same hearing made, at which this offer was the district at- *35 disregard
torney jury poly- the moved to instruct the to graph evidence. minority
A of this would hold failure court further these, reopen to the evidence under circumstances such (the where proponent even the district of the evidence attorney) reliability, preju- lost has confidence its was dicial error. appeal argues, reopening
On alia, the state inter give likely polygraph testimony the was it undue to weight eyes jury. in the But trial court has testimony already heavily satisfied In us felt. denying attorney’s request the district instruct disregard jury polygraph testimony the trial court said, “(A) large segment pie concerns evidence solely issue, itself my with the so as in much so view
to the by any be inextricable instruction court to from jury disregard testimony polygraph such on the instrument.”
Considering admittedly prominent poly- role of the graph testimony jury fact yet had not begun its deliberations, trial court should have allowed expert (who defendant’s present court) was then testify.
IV. EVIDENCE OF OFFICERS’ INTOXICATION.
We find rulings no error in restricting the trial court’s testimony pathologist of defendant’s regarding her opinion on the behavioral effects of alcohol or in its jury refusal to instruct on thе elements of sec. 885.- 235, Stats.
Defendant proof made no offer respect with to the pathologist’s opinion when the court ruled on the ob- jection testimony. to her Consequently, we could not prejudicial. evidence exclusion of hold even an erroneous 1, Bailey, n. 196 N.W.2d v. 54 Wis.2d State 21, 24, 205 N.W.2d Hoffman, (1972); v. State N.W. Deja 492, 168 ; (1973) 43 Wis.2d 2d 856 statutory refused to instruct
The court presumption 885.235, of sec. Stats.21 statutory question whether this not reach the
We do intoxication of presumption applicable show the theory part of defendant’s self-defense. victim as *36 considering note that sec. question, we Without corroborating requires physical 885.235(1) (c) evidence statutory presumption. supplement of intoxication the evidence of actual find no corroborative Because we such record, in hold the trial court’s rul- intoxication the we ing statutory presumption the would have confused the jury entirely proper. and misled was issues the Judgment By the and orders reversed and Court. — remanded for a new trial. cause (1) any Chemical Tests For Intoxication. In action “885.285 prove person proceeding a in which it is material that was driving operating or of an intoxicant when under the influence handling firearm, vehicle, the evidence of a motor or while person’s question in blood the time in of alcohol such amount analysis sample breath, blood chemical of of his as shown of he was under or urine is admissible on issue whether sample if of an intoxicant such taken within influence was analysis proved. chemical shall after the event to be Such hours testimony any expert requiring given effect as without follows as to effect: its analysis “(c) that there was The fact shows person’s 0.1% prima weight facie
'or of alcohol blood more intoxicant, an but under the influence of evidence that he was corroborating physical thereof, not, be suf- without evidence shall being upon person guilty under the to find the ficient which influence of intoxicants.” (dissenting).
ROBERT Two Milwau- W. HANSEN they police kee killed when officers are dead—both gunman fleeing threаtened cornered a who had earlier he to blow their with revolver heads off the loaded leveled at them.
Both from the law officers were slain with bullets pistol officers, of one of which defendant had during struggle wrested from the officer which fol- pursuit attempted apprehension lowed the gunman. killer, Ray Mendoza,
Their James was guilty by first-degree found on two counts Stats.) (sec. 940.01, murder one count for in- —on killing Riley tentional of Police Officer Robert and on killing count for second the intentional of Police Officer Thomas Matulis. appeal following: (1)
On defendant claims the That police he entitled to kill the two in the officers exer- privilege self-defense; cise (2) that the trial transferring court erred the case for trial to another county impartial an jury; (3) to assure permitting court erred in not defense counsel to impeach polygraph the results of a test to which defend- stipulated given 'by ant had polygraph examiner — *37 designated by defendant. Each claim of trial court separately error will be discussed.
I. SELF-DEFENSE?
Up point, happened to a what here the follows scenario of the traditional depicting western movie the lawless- days. ness of frontier In those movies town the marshal proceeded investigate often to gunfire. the sounds (In the us, case before off-duty police two pro- officers duty ceeded—as was their investigate a shot —to fired.) was In the the gun-toting films source of the meekly disorder never surrendered to the sheriff or mar- why gun, de- the (Here, he fired his asked shal. when gun threat- pointed and at the officers fendant the law off.) ened to blow their heads film, it out with
On if not then and there shoot he did gun scene, marshal, pistol-toter the the the would flee revolver (Here defendant, keeping in hand. the his arrest.) began officers, flight at to avoid leveled such involved, version, despite In the celluloid the risk always pursuit. (In the sheriff marshal off in set police here, case followed two unarmed officers get escaping gunman, stopping one officer car to revolver.) his service In the sheriff would movies fleeing gunman warning and fire shot order the admittedly stop (Here surrender. two officers — policemen believed the defendant be —ordered they stop, defendant did but not shoot defendant stop.) did not
At might the movies, an ex- while there earlier change gunshots, punches the chase ended with struggle thrown in a hand-to-hand between marshal fleeing gunman. caught (Here and the the two officers up with parked the defendant cars, between two ensuing struggle. there was an The defendant testified he was struck the officers while he disarmed was himself.) and after he rearmed point At similarity happened between what in the western happened movies and what here ends. justice always In the prevailed gunman films when the sought escape who overpowered was and arrested. prevailed. Justice had In us, gun- the case before prevailed killing man and after police officers, two flight. free resume his Defendant claims he was en- police titled to shoot the two officers the exercise of privilege (sec. of self-defense 939.48(1), Stats.). grounds privilege As for this contends officers continued to hit him both after he had dis- during pistol carded his ensuing struggle between *38 gun acquired parked and after he two cars (JJ. court one of the officers. Three Justices agree ABRAHAMSON) HEFFERNAN, DAY and acquit circum- this defendant under these could right of the and could find exercise stances lawful 939.48(1), Justice self-defense under Stats. sec. One having (C.J. BEILFUSS) acquittal finds for acted manslaughter causing appropriate, self-defense not but — the death of another of the unreasonable exercise privilege (sec. Stats.) optional 940.05, of self-defense an jury might writer, (the verdict a return. Three Justices HANSEN) and JJ. HANLEY T. and CONNOR would privilege hold the under of self-defense not statute following applicable here for the three reasons: 1. There no interference,” toas here as the “unlawful requires (sec. statute person 989.4.8(1), Stats.), with the arresting When defendant officers. pointed defendant earlier police his loaded revolver at the off, they officers and threatened to their blow heads had probable felony cause him to arrest for the crime of en- dangering safety by regardless conduct See, of life. sec. Stats.; 941.30, v. Kuta, State 68 Wis.2d 648, 229 580 (1975), holding N.W.2d this court there “endangered safety police by point- officers ing gun a loaded at them.” present case,
In the began when the defendant escape gun pointed with his loaded officers, lawfully officers were pursue entitled to to disarm and arrest the defendant. When the officers ordered defend- stop ant they and surrender, lawfully were entitled (They so to do. identified police officers, themselves as and the defendant testified he believed police them to be officers.) When the defendant did stop but rather flight, continued his lawfully officers were entitled force, use deadly even force under these circum- stances, prevent escape danger- armed and
169 fugitive. See, Arrest, Jur.2d, at 771- Am. sec. ous 773. gunman threatened
When the armed had earlier who flee, pursuing their to officers could lives continued flight They prevent escape. did not have shot to his For, so, do and both are dead for their forbearance. later, moments after the defendant rearmed him- had gun testified, officers, self with the of one of the he I pointed punches it towards where the were com- ing from, one, I I me shot turned it towards the back again.” they they and I punched shot Because when defendant, could have shot this are dead. two officers shouted, officers,” police the officer “Stop, When we’re right me,” the defendant testified that “he was behind grabbed my and “I turned I around and .22 caliber and put my pants.” then, it between It I to was “as started run,” testified, grabbed the defendant “one them me and turned me around. . . . I to turned around [A]s they hitting Confronting face them started me.” a still dangerous armed and antagonist, still who had minutes gun earlier threatened blow their off heads with the he had in waistbelt, still his the two officers were law- fully entitled to knock the defendant out so that hand his could not travel get the few to his inches waistbelt gun. and use his then, only then, loaded It was ac- cording to testimony, they the defendant’s own that “as hitting got my were out, me I away.” .22 and I threw it When, according testimony, to his the defendant get reached in gun during his waistbelt scuffle, the officer with the certainly service revolver could have —if reaching he observed the defendant —shot prevent traveling gun. defendant’s hand to his required officer was not to wait and ascertain the use weapon which the retrieved put. was to If did reaching officers not observe the discarding and the gun, they were, on the information known to facing them, still dangerous an armed and antagonist. discarded, they weapon if that a had been Even knew they had no reason to assume desper- completely is, That then and thus disarmed. carrying guns gun not van- ado and knife —did two —or general passing ish frontier. The with the the western held, police action, highest court test of our nation’s has reasonably in circum- is whether the officer “acted such By Terry Ohio, stances.” U.S. *40 test, circumstances, under these the conduct of the two police here, pursuit armed officers from their of an gunman attempted capture him to their without of shoot- ing him, was, entirely law, as a of matter reasonable. point fact, they pursued grappling
In of the course of shooting with the defendant instead at him was less of lethal and more considerate of the life of the defendant deadly they than the force could this have When used. stop defendant refused when so ordered to do and get when he reached for his waistbelt his loaded pistol, officer, range, pulled then at close could have trigger police on his revolver. He would have been lawfully entitled toso do. he did
But not shoot. Prom start to finish the arrest- ing engaged continuing officers here were single- in a purpose endeavor to using arrest this defendant without gun their to shoot him. Given single-purpose this en- gunman deavor —to arrest who had threatened their court lives—the trial was entitled pursuit to find that goal by of this these officers could not be held to con- stitute “the unlawful interference person”— with his which required defendаnt was to have a reasonable basis to believe existed there before could be a creation or right “intentionally restoration of a against use force in another” the exercise of self-defense in this state. (Sec. 939.48(1), Stats.) any
2. Under view the in evidence this record, this defendant, ever he it, had early lost if and never re- against gained privilege acting self-defense this court arresting these The three Justices officers. ABRAHAMSON) who (JJ. HEFFERNAN, DAY having acted acquittal on the basis would affirm an lost deny defendant self-defense do not right pointed loaded his to act in when he self-defense police threatened at officers and revolver two privilege is did off. That he lose such blow their heads privilege, court has held that clear. Our self-defense re- available, example, for to an armed robber with intended victim in hand when an volver who shot being See, prevent from killed. himself shoots back 713, 724, N.W.2d Ruff acquittal (JJ. affirm an The three who would Justices HEFFERNAN, ABRAHAMSON) DAY and and one (C.J. BEILFUSS) only “imperfect Justice who would see jury option (under self-defense” an sec. available 940.05, Stats., Manslaughter), here do hold that possible regained privilege “. . . that his dropped he self-defense down the street when gun repeatedly they told the him officers had *41 they beating indicating stop and that him should that submitting thereby he was to arrest.” majority provides to the refers statute which privilege that by the provoca- self-defense “. . . lost regained may good tion if the actor faith with- fight gives adequate draws from the and notice thereof (Sec. to 939.48(2) his assailant. . . .” (b), Stats.) The majority regained privilege not the any does see lost pursuing time when the defendant the officers, fled point they at the even time when cornered him be- parked and, according tween two cars testimony, his hitting began striking him object. with a hard they Instead, regaining see such accomplished during the the scuffle between officers they defendant after jcaught up majority to him. The finds precise the regaining privilege, accepting
moment the de- the fendant’s testimony, reached be when defendant waistbelt, got gun ground in his tossed on because I didn’t want them to a catch me with gun my person.” on
Earlier complete we have dealt with the absence discarding evidence that either officer observed object by of an that defendant or should known have gun being the loaded was discarded could have known was, discard, rendered com- pletely easily unarmed. The discard could as have been decoy disarming. as a manslaughter Self-defense and by unnecessary force in the exercise of self-defense are defenses, affirmative establishing with burden of right privilege upon See, the defendant. sec. — 972.11, also, Stats. See Patterson v. York, New U.S. —, 97 S. Ct. 53 L. 281 (1977). Ed.2d
If gun the mid-scuffle discard of a can be held to abe “good faith” withdrawal, can it be held here to have been accompanied by “adequate notice” of withdrawal arresting requires? officers which the statute (Sec. 939.48(2) (b), Stats.) To term the claimed discard of a weapon “good as a faith” fight,” withdrawal “from the puts as the it, statute majority required separate each second of gunman the chase of the armed police separate into a occurrence, each moment to be considered in isolation from what went before. struggling moment
One these officers are with an dangerous fugitive. they armed and The next moment hitting no-longer-dangerous are disarmed and adver- sary. Reality segmentable. is not thus Events here are single string, no one beads moment to be taken string nothing preceded as if from it. At a risk apparent, their lives that was and with a loss of their consequent, lives two law officers here set *42 just fugitive had dangerous who after an and out armed their gun to blow pointed and threatened at them his fugitive be- police off. The officers cornered heads prevent parked cars, him and hit and struck tween two getting using gun. middle of In the and his the de- grappled struggle, had with after the officers gun and fendant, for his the defendant said he reached . it. discarded knew no evidence that officers observed
With gun ground, that a to the and no assur- had been tossed only weapon, the ma- ance that this defendant’s jority accepts the in time extracts this moment argument that, precise moment dur- defendant’s this ing “good scuffle, the defendant had in faith” with- struggle given “adequate notice” drawn from the and had doing majority of his ac- so officers. What change cepts as a no of status of defendant was moment-long interruption escaping— than a more of his flight which he resumed as soon he two as shot the law officers. best, mid-struggle
At if the did officers observe they weapon, discard of a had but to consider seconds adversary longer and decide if their was no armed dangerous. They widowing- had risked their wives and by orphaning grappling their children with an armed dangerous fugitive using gun instead of to subdue They required him. were not increase risk concluding discarding that the object anof or the state- danger. ments made the defendant ended their The discarding gun easily could as abe ruse a re- assurance. writer, joined by colleagues JJ. HANLEY and HANSEN, T. “good
CONNOE would find no here faith” withdrawal, holding instead that the two officers were any point not at in time in these required circumstances to view or treat this defendant dangerous as other than a
antagonist by had established who threats acts escape Addi- for himself. he intended harm to them and for tionally, no or we would find for basis dis- majority a find that mid-scuffle of this court to gun given “adequate defendant notice” card of a had this “good police faith” so to the his withdrawal officers of both him, later, and kill entitle seconds shoot See, in officers and claim have done self-defense. so 939.48(1) (b), sec. Stats. 3. At two the time shot and killed defendant
police knowing officers, such, them to he no reasonable believing his basis existed he was in imminent for great danger bodily death or harm. The self-defense engaged provides person that a statute “unlawful con- provoking duct” an attack “is not entitled claim against privilege except of self-defense such attack” causing when the type attack which a him ensues is of reasonably danger “to believe that he inis imminent great bodily deаth (Sec. (2) Stats.) harm.” (a), 939.48 finding In jury ques- this record there is no basis for tion as to whether this defendant, when he pulled twice trigger, believing acted self-defense or acted “. . . necessary that his act was in self-defense but his belief was unreasonable under Day circumstances.” 756, 760, 55 Wis.2d 42 (1972). N.W.2d
Earlier, after the officers had cornered the defendant parked cars, two between the defendant he testified that “felt my going the hands over head blows, with I grabbed one against hand and I held it De- hood.” fendant also stated that he gun, saw a presumably being nightstick, used as in the hand one of the officers “got gun and that away he person.” from this With policeman’s service revolver in possession, testified that “pointed he it towards where punches coming from, were one, I shot I turned towards the back of again.” me and I shot Defendant also testified that after he wrested the revolver from got say, he officer, of them police “I heard one gun.” believed, the testimony is have, if defendant’s
So we fugitive punching at police are where officers situation person with they gun, and the with a know rearmed is intentionally shooting, first gun responding *44 turning coming then punches from” and “where the were again. shooting and exchanging punches one for
Can
of bullets
such
struggle
provoked the
be
“unlawful conduct”
whose
self-defense,
justified
privilege
an
as
exercise of the
majority
two
an
exercise? The
cites
albeit
unreasonable
battery
proposition that a
for the
Wisconsin civil
cases
may
police
battery if he
officer
liable
assault and
for
unnecessary
“uses
and excessive force.”
See, McCluskey
Steinhorst,
350,
v.
45 Wis.2d
173 N.W.
Wirsing
(1970),
Krzeminski,
2d 148
61 Wis.2d
513, 524,
(1973).
That is true but such rule police pursuing gunman officers both an armed who confronting has threatened their lives and a rearmed dangerous subject only of lawful Not is the arrest. person” gunman “interference with the of the armed unlawful, here not but a once armed and then rearmed gunman in cannot kill self-defense shoot and law punch seeking officer who place throws in such gunman under arrest. provoker
Punches thrown at the an attack dо not response warrant a bullets, punches with for such do not create a reasonable basis for fear of imminent death or great bodily harm. aWhere reached across counter and hit a storekeeper wrench, with a our court struck, held the blow law, a matter of did- not con- an great stitute assault bodily with intent to do harm. Bronston, State v. 627, 633, 7 Wis.2d 97 504, N.W.2d commenting N.W.2d 468 In on the Bronston Case, recently this court relatively stated: minor “[T]he not in Bronston were
injuries the victim sustained enumer category kind as the in the same or same death, high injuries probability ated which created 'impairment of permanent disfigurement, or the loss or Barge v. See, La organ bodily an function.” reversing (1972), 74 Wis.2d N.W.2d saying Bronston particular, the above but another disagreement with the conclu conclusion: “There no the court reached Bronston.” sion Bronston, “relatively injuries” In minor consisted scalp, requiring of a two-inch laceration of the four similarly us, sutures to close. In the case before “relatively injuries” single minor consisted of a two- head, millimeter cut on medi- which defendant’s own being “very cal superficial.” witness described as While “very superficial” “relatively there were minor” injuries cases, in both one the wrench- does need holding involved Bronston to find no this de- basis for having fendant bodily great acted to avoid death or harm punches when he coming shot “where were from.” *45 testimony At no in any time his did defendant state in directly fashion, or indirectly, that he believed he inwas danger great bodily of death or harm. The forbearance shooting of the in they officers not him when had the gun (which eventually he them) wrested from re- was assuring on that score. With power balance of in his hands he had great no reason to fear bodily death or harm. Here when he himself, rearmed the defendant shot and killed twice, twice great to avoid death bodily or harm but to his escape continue and avoid arrest. why
When asked away he did not run cornered, when defendant answered, “I couldn’t.” When asked what he right did after he officers, shot the defendant answered, running “I started north.” (Incidentally, taking gun him.) with continuing defendant’s purpose was to flee arrest and the purpose sole of the officers was to prevent escape. such Accordingly, there is in this record basis testimony reasonable —including defendant’s —no jury upon could conclude which necessary to firing act gun an was twice believed his required harm, bodily as prevent death his or serious mitigate justify legally or by the self-defense statute (b), 989.48(2) (Sec. killing officers. two Stats.) inter- given, (1) no unlawful three reasons
For the privilege regaining by (2) officers, no ference (3) no reasonable defendant, by and of self-defense bodily great having or of death acted fear for his basis for (and in itself sufficient harm with each reason by and affirmance), writer, joined JJ. HANLEY HANSEN, affirm the trial court’s T. would CONNOR in- jury, optional to submit verdicts refusal grounds relating acquittal of self-de- structions manslaughter by an un- 939.48, Stats.) (sec. fense Stats.). 940.05, (see. reasonable exercise of self-defense OF II. CHANGE VENUE?
Additionally, he denied con- defendant claims rights by statutory the trial court’s order stitutional changing place Sparta trial from Milwaukee county. twofold: Monroe The constitutional reference is I, Constitution, (1) of the re- To art. sec. 7 Wisconsin “by quiring impartial trial of criminal defendants an county jury of the or district wherein offense shall committed; county which have been or district shall have law,” previously (2) to amend. been ascertained guaranteeing of the VI United States Constitution de- “by impartial fendant an State committed, the crime district wherein shall have been previously district have which shall been ascertained *46 law.” provisions give
Defendant contends these him an ab- right by jury county to trial solute of the or district in charged alleged the which offense with which he is by an a fair trial But what if have been committed. county impartial jury or district be had in cannot If situa- such be the in which was committed ? the crime change or of venue tion, if for defendant moves county district, change place or trial to another 261.04, granted by court. motion must the trial Sec. be Stats. request
But no such or what if the defendant makes finding court, trial that a fair motion? Can the after by jury county or impartial in the trial cannot be had committed, district the crime transfer sua where sponte county place of trial or to another district by impartial jury where a fair trial can had? be In such case crunch Either the choice is twofold. by jury impartial pre- mandate for fair trial must vail, requirement county or the for trial in the or district given priority. where the crime was committed must be Obviously, give way mandate one must to the other. only that, alternative would fair be hold where a county cannot had in or district in which committed, anywhere crime was no trial can be held requests unless defendant transfer Not case. many requests such motions would be made de- consequence fendants if making request of not proceedings. was dismissal of the determining In priorities situation, in this one ought primary start purpose with the nature of protection nearly constitutional identical federal provisions state constitutional involved. We see goal sought right as the to a fair trial impartial an jury in county or district where the crime was com- go beyond mitted. To to hold there is an absolute right and unlimited of a defendant county to trial in the or district where the crime was regardless committed — of fairness of the trial or impartiality of the —makes no sense all.
179 jury no impartial is by an trial than An unfair other the fairness between trial at all. crunch is Where the yield to to trial, locality is not fairness and the right is the locality. held: court As one state has “[I]t county in which impartial jury in the trial of an pre alleged is to have been committed offense is right trial in the to a rather than absolute served Patterson, original.] v. county.” [Emphasis State 309, 40, 165 (1946). P.2d 313 Ariz. 64 right a defendant put “The of it: Or as the same court alleged county crime is by jury in a trial where to pos- upon the committed is conditioned to have been county. jury’ sibility impartial in that empaneling ‘an of Superior 225, P.2d Court, v. 102 Ariz. .” Mast . . right (1967). 917, 918 The conclusion follows contingent particular county district to trial in a or finding jury to upon possibility impartial an of county fair trial in conduct a such district. holding state man
Thus the federal and cоnstitutional primarily fair trial an to an assurance of a date be county impartial possible in the be held where —to require committed —the or district where the crime was ment of a for more than shift fairness becomes “strategic choice” It bar. becomes change duty an of the trial affirmative court order place had of trial where a fair trial be cannot county vicinage. or district of this court has held: As court act trial should on its motion when own “[A] ag-gravated with confronted circumstances from which jury’s dispassionate appears that a evaluation of pressure evidence is rendered doubtful because of the surrounding publicity Dean, case.” State v. 67 Wis. 513, 526, 2d 227 M.W.2d 712 change
As this court earlier held
venue
a fair
may
assure
trial:
some cases the court
“[I]n
sponte.”
required
act
sua
McKissick v.
49 Wis.
court
(1971). Earlier our
2d
N.W.2d
proper
held
circumstances
has
that: “[U]nder
duty
steps
protect the
court has an
to take
affirmative
Alfonsi,
right
trial.” State
to a
a defendant
fair
*48
469,
(1967), quoting
480,
33 Wis.2d
In the trial case before the matters he detail set forth the had considered before ordering change county. to The a of venue another of was to be “a standard measurement stated reasonable right pretrial publicity prejudiced likelihood has the of the defendant to fair trial.” As frame of refer- ence, judge the the trial listed factors the con- court including sidered, pub- “the character of nature and the licity involved; degree or information the to which the publicity permeated jury sources; has the area of the is, intensity coverage information; the and of that timing specificity publicity.” and of judge
The trial further detailed matters such as publicity from the time of the offense in the local news necessity media, preliminary hearing to move to larger quarters to accommodate spectators, repeti- and coverage testimоny extra-judicial tive of and statements of news witnesses media. He concluded that there of community “a in the of Milwaukee climate
existed probability Re- prejudice rule.” under the reasonable granting jecting inadequate as such alternatives as dire, sequestration adjournment, further and use voir changing the jury, of the the trial found that court by place required an trial to insure fair impartial jury. judge While final check the trial —made
visiting places community assembly to determine com- munity pretrial publicity faulted, reaction to be—can was here no than more an effort if the to determine passage prejudice of time had abated climate or prejudgment, and, at indicated, the least did order as his findings, thoughtful care and careful considera- gave resolving tion he to the matter of doubts as whether a fair trial could be conducted in Milwaukee county. The exercise of place discretion of trial thoughtful, prudent was thus proper.
III. POLYGRAPH EVIDENCE?
Finally, argues the trial court erred in not permitting defense counsel to call to the witness stand expert impeach testimony witnesses poly- of the graph who, by stipulation examiner parties, of the deception conducted a response test as to defendant’s questions. answers to certain With of such results testing adverse client, interests defense sought counsel qualifications to contest the agreed- impeach examiner and to testing the results of the procedure and the followed. majority of this ground court no finds for reversal
in the trial court’s refusal permit, beyond cross- examination, impeachment the testimony the of the polygraph examiner to which parties the had earlier stipulated. parties prosecution The and defense —had — stipulated that the results of the polygraph testing by the “sub be admissible designated polygraph would examiner ject holding [62 Stanislawski the in State judge followed (1974)]” The 730, 216 N.W.2d to be procedure, and Stanislawski-Tprescribed the holding of following in that the limits set faulted for stipulation exactly court, provided the for this as parties here. us, it was Actually, in the case before ad- initially for through filed a motion who counsel examination, as- polygraph results of the mission undergo “willing to serting in that he was such motion Labora- polygraph Crime examination Wisconsin Polygraph Ex- Anderson, tory by L. Chief Mr. Robert In that aminer.” motion defendant demanded polygraph to be conducted examination results trial whether Mr. be admitted at time of Anderson However, Stanislawsld not. since state consented or stipulation admissibility by both requires an advance as to properly prosecution de- defendant, the trial court nied such motion. hearing de-
At time of the motion the Anderson, Mr. subse- fendant identified Robert who quently given, administered the test as “the most here outstanding polygraph examiner in the midwest.” After admissibility the denial of motion of a defendant’s for given by Anderson, to be Mr. test defendant and prosecution stipulation polygraph entered into a that a given would to defendant Fol- test Mr. Anderson. lowing stipulation, approved the trial court testing subject and, to the Stanislawsld, conditions of admitted the test results into evidence. stipulation parties polygraph to the test subject and who was conduct it was to Stanislawsld, polygraph which allows admission of evidence under following “(1) only impeachment conditions: limited for corroboration, question on the of credibility; (2) *51 prosecutor stipulation and defense
where there is taking counsel, party involved, to the and consent of the results; (3) admissibility of the test and the of its retaining right reject with the trial court to proffered testimony if not the examiner convinced qualified proper is and that the conducted test was under conditions.” Id. at 741. judge
If the trial examiner is not convinced qualified proper condi- the test was conducted under tions, may accept polygraph the trial court refuse to right Id. opposing party evidence. at 742. of the by cross-examine the examiner is limited StanislawsM “(a) qualifications training; (b) the examiner’s administered; the conditions under which the test was (c) possibilities of and for limitations error in technique polygraphiс interrogation; (d) court, any discretion the trial other deemed matters pertinent inquiry.” to the Id. at 743. us,
In the sought go case before defense counsel beyond such testimony cross-examination to introduce the expert of other impeach witnesses to polygraph examiner —earlier stipulated to him —and such ex- opinion. aminer’s goes beyond That the dictates of StanislawsM which only set forth preconditions admissibility, for but the limit and extent of efforts to impeach testimony of the polygraph examiner. The offering of testimony through additional experts, other impeachment either for or corroboration, was not in- cluded parameters within the of StanislawsM. finding
While no reason for procedure reversal in the followed the trial court case, pursuant StanislawsM, majority of this interprets court Stanis- permit lawsM to a mid-trial review of the matter of admissibility polygraph testimony. authority Such review the matter of admissibility makes stipulation parties one, noneonditional not retractable when- to one adverse out to be turn test ever results *52 stipulation. the joining parties other of the or the admissibility ruling sub- to Instead, as it the court makes any time before by court at sequently the trial reviewable evidence. into admitted polygraph results are the test hearing the before at a review is to be Such court solely the to jury, to be limited court, not and is the be clear admissibility. limited, it question So should of polygraph after, the before, held not it be that must testing the of stand or outcome examiner takes the agrees jury. that presented The writer to the is ruling ad- provision court of its for reconsideration the missibility to implements, does do violence but not “notwithstanding stipulation that rule StanislawsM subject admissibility to of test results is judge court, i.e., if not trial is of the discretion qualified test that the examiner convinced is may to proper he conducted under conditions refuse accept such evidence.” Id. 742. (JJ. HEFFERNAN, DAY
Three Justices of this court ABRAHAMSON) go permit de- to would further disadvantaged fendant, a polygraph of results stipulated, expert examiner to which he earlier to “call (cid:127) impeach opinion.” witnesses to the examiner’s This presenting polygraph testimony would make the of identi- types expert testimony, cal with other of such as psychiatrists of called testify state and defense to guilty by insanity” This, “not reason of three trials. concede, Justices would lead experts.” to of “battle That possible is description the kindest parade of the psychiatrists of state and defense box, to the witness whistling each the tune of the side which calls them to the cynic stand. One need not abe to observe that it seems pays the side that calls fiddler the tune. We need and do not here debate what such of experts” “battle contributes to a “search for the truth” in criminal cases. sug- puzzling
But what about the three Justices’ is gestion is that it is made as an addendum to Stcmis- procedure, appears lawslci to a sub- in fact when testimony polygraphy stitute it. If for is to be admitted general pursuant application expert “principles of testimony,” suggest, the three then is the Justices what purpose upon Stanislawski advance insistence stipulation parties prior approval court admissibility Certainly, polygraphy such test results? “principles general application expert testimony” any requirement stipulation do not include advance for parties and advance concurrence of the trial court as admissibility expert testimony. of such equally puzzling attorney What is to have the district stipulated admissibility here —who polygraph to the *53 joined naming test results and in the examiner to conduct testing argue appeal such polygraphy on this testi- — mony ought permitted state, not be in this even where parties stipulate admissibility to its and the trial any court If attorney concurs. district in this state is not reliability convinced of polygraph testing, and similiarly qualifications convinced of the of the ex- aminer testing, named to do the there will be and can be polygraph no test results admitted in criminal in cases county his attorney. while he is district All he has dо is to stipulate being given refuse to to the test and results of the test admitted. If he locked, wants the door he can lock it. puzzling
What is further tois have the defense counsel suggesting concur in that polygraph test results, even requested when by the stipulated defendant and parties, ought not be admissible in this state. This is the same attorney defense petitioned who the court polygraphic that a examination of his client be conducted and who named the examiner who was to conduct the test. There would have been no polygraph testing in this sought specifically had not if case test polygraph testing. been no could have There also counsel the defendant admitted if results here testing and joined stipulation for in both had not prosecutor and admissibility Both of the test results. could be the door before defendant had to unlock us, the district opened. Thus, both in the case before stipulated that attorney counsel and defendant given by polygraph examiner with a named test be holding “subject to the result of such test be admitted tó in this action party v. State Stanislawski.” Neither exactly doing complain about the trial court has reason to parties stipulated the do. what both court writer, joined by B. and CON- JJ. HANLEY LEO HANSEN, T. affirm the conviction NOR would defendant, Ray Mendoza, of first- two counts James on killing degree murder, (1) The to wit: intentional Riley; (2) intentional Robert Police Officer killing We would hold of Police Officer Thomas Matulis. applicable; (2) the (1) self-defense was not here (3) place properly moved, of trial was the court rul- ings evidence, pursuant polygraph as to State entirely Stanislawski, proper. were HANSEN, (dissenting). I T. J. with CONNOR concur Mr. the dissent of Justice ROBERT HANSEN to W. I extent that affirmed. am these convictions should be change agreement opinion with his issues of *54 manslaughter, venue and refusal to submit a verdict of unreasonable use force. eases, judge
In a number we held that trial have a sponte judicial sua must exercise to the his discretion by impartial end that a a receives trial an jury. Now have a proposition we cаse that for the stands judge diligent overly a that if in the exercise grounds responsibility it is for reversible error. 188 holding majority of the particular is the
Of concern manslaughter, un- verdict of refusal to submit a 939.48 error. Sec. force, reasonable is reversible use Stats., provides part: . . He (1), self-defense “. [the may intentionally is intended use force which actor] likely great bodily he to cause death or harm unless reasonably necessary pre- believes that force is such great bodily vent imminent death or harm himself.” us, In the case before the .defendant received a two- millimeter-Iong head, on cut described his own “very superficial,” medical he witness as while was engaged during attempted with the two their officers Bronston, In arrest. State v. 627, 7 Wis.2d 97 N.W.2d (1959),1 storekeeper 468 a N.W.2d woman was during struck the head with a rachet a wrench rob bery. a scalp received two inch She laceration of the required close, a result the blow which four sutures to hospitalized was hours, pain a few and had residual period following for of time the incident. We reversed finding “great conviction the woman did not sustain bodily meaning harm” within the (14), 939.22 sec. Stats.
Under the case, facts of I the instant cannot reach conclusion that manslaughter the failure to submit verdict was error. The officers knew the defendant had weapon discharged which he area, in a residential he had threatened to They kill them. were in immediate pursuit to make a arrest. lawful, When the officers finally cornered him between cars, some he still protested armed. He claims have the treatment he received making while the were officers arrest. testimony fact is that of his own witness, medical superficial he received but cut on the head. While the endeavoring officers were the arrest, make the de- dropped weapon fendant ground to the and ultimately Barge La See: N.W.2d 794 *55 forbear- Riley. of the It was because disarmed Officer being disarmed, that the de- officer, prior the to ance of shooting one both, kill them was able to shoot fendant once, the other thеm twice. for justification case, I no of this see Under the facts manslaughter verdict. a submission upon case majority also looks of the court this The enlarge polygraph of evidence opportunity the rule an to 780, 216 Stanislawski, in set forth State understanding my Briefly stated, it is N.W.2d a majority provide for Stanislawski to extends presence jury, the admis- hearing, outside the hearing sibility This of the examination. of the results right among things call to other is include other challenge ex- polygraph examiners to the results of joint an their amination administered examiner of they stipulated opinion had could selection whose party attempt If into can be admitted evidence. original consequences stipulation, avoid the of his when calling unfavorable, subsequent results are me, expert witnesses, it seems to otherwise work- nullity. The rule of able Stanislawski reduced binding stipulation is, effect, reduced to otherwise stipulation. conditional minority enlarge of the court would the Stanis- by permitting attempted
lawski rule further still impeachment examiner, by stipulated of the selected agreement, place open procedure If take court. followed, practical to be were effect Stanis- stipulation really parties lawski would be that had stipulated polygraph evidence was admissible at trial. respectfully
I would that the submit instant case complications presents, opportunity afford an adoption examine wisdom of the of the Stanislawski place. argument, in the oral rule first At counsel for the *56 urged seriously state and the defendant both this court withdrawing This consider the rule of Stanislawski. agree appears ques- writer would rule be of evidentiary judicial tionable value. The interest of ad- ministration could best if be served we were to hold the results of such examination were not admissible evi- dence. Respondent, Mundy, Director
State ex Dalton, rel. Departments County, Institutions and of Milwaukee another, Appellants. September 75-631. No. Submitted on briefs 6, 1977. October 4, Decided 1977. (Also reported 877.) W. 2d 257 N. notes in the above (cid:127) quoted object cases defendant did to the not change place county. in of trial to That another is cor- rect, but that fact neither dilutes nor waters down given judges mandate trial court in this to sua state sponte make certain that impartial a trial with fair an county can be held in the in which the crime was committed. subject Had this court intended to the affirmative duty placed on trial to assure courts fairness trial of proceedings to defendant, assent it could and would ringing have said so. The words of the Dean decision that “a trial court should act on its own motion when by aggravated confronted (67 circumstances” Wis.2d 526) as to of county fairness trial in the of the crime now have exception added the “unless the defendant objects.” That “strategic makes matter of choice” of what, up defendant to now, was a constitutional im- perative to assure the fairness of the opting trial. In right for the aof upon to insist a less-than- fair trial before less-than-impartial jury, majority points change out that a place of venue or of trial is only “one method guaranteeing of a fair trial; others voir are dire and Citing continuance.” McKissick v. State, N.W.2d It that, is true in addition changing place of trial, possibility there is the of continuance pub- until prospective on dire exclusion voir licity or the abates The “affirmative prejudiced. jurors are in who effect fairness upon where duty” placed trial courts alternatives requires consideration involved judicial discretion —de- exercise and —in sound choose. termining appropriate alternative case, in the instant did the trial court This is what trial date waiting before the until one month after defense alternatives. While available decide between the objections when registered order numerous counsel hearing evidentiary on request issued, an no earlier for in Mil- held a fair trial could be matter of whether county by defendant, we would made waukee so meaningful any opportunity to heard of a find denial criminal issue. Both defense the venue state has state that a trial court are on notice cases duty fairness affirmative to remove doubts as county in the of the crime. a trial held commission