*1 By the Court. —The of the court of decision reversed; cause remanded to the circuit court enter judgment on the verdict based on its calculations damages opinion. in this accordance directions Wisconsin, Plaintiff-Respondent,
State Smith, Defendant-Appellant. Pervan Zeb
Supreme Court 82-377-CR, Argued July Nos. -891- CR. June 1983. Decided 82 1, 1983.
(Also reported 376.) in 335 N.W.2d *2 defendant-appellant by For there was a brief Levine, Terry Calvey Micaela H. E. Mitchell and & argument Mitchell, Milwaukee, Ms. S.C., and oral Levine. argued plaintiff-respondent
For the the cause was Wellman, Sally attorney general, L. assistant whom attorney Follette, on the brief Bronson La C. general. ABRAHAMSON, J. matter
SHIRLEY S. This petition bypass appeals. on before us court of appealed the court defendant being commitment order reason after found defect,1 denying post-con- an mental disease order 1981-82,2 relief, 974.02, viction Stats. order recommitting petition the defendant on defendants’ pursuant (2), reexamination to sec. 971.17 1981-82.3 The state, relying State, 449, on v. 97 Wis. 2d juris- (1980), N.W.2d 910 moved to dismiss grounds. by- petitioned dictional then pass appeals, 809.60, the court secs. 1981- supported petition. and the state defendant’s We granted petition bypass purpose for the limited reexamining this court’s decision *3 State, 449, (1980). 97 Wis. 2d 293 910 N.W.2d urge
Both the state and the defendant court to this Hoppenrath. reconsider Both state and the defend- the Hoppenrath’s ant holding wrong maintain that inso- far it a possible denies defendant review of occurring errors in phase the of a trifurcated trial pleads when the guilty defendant (thereby not contest- ing guilt) the guilty issue of by and not men- reason of tal disease or defect and the defendant from the final urges order of commitment. the While state us to holding Hoppenrath reconstrue our and it overrule only to the govern extent would facts case, goes of this the defendant further than urges state and this court to overrule the 1 County Court, Milwaukee Circuit Kessler, Frederick P. Circuit Judge. 2 postconvietion The relief was a motion for a new trial. Mil County waukee Court, Judge. Parrish, Circuit Clarence R. Circuit 3 County Court, Milwaukee Parrish, Circuit Clarence R. Circuit Judge. persuaded to entirely. overrule have been We
decision entirely. Hoppenratk relating jurisdictional which issue to the facts
The undisputed.4 presented to this court are battery first charged and with defendant was The plea a degree He entered murder. Prior or defect. of mental disease reason underlying fol facts as brief summarizes The defendant’s her May 1979, found dead in 5, Helen was Lows
lows: On or about Milwaukee, Street, Wisconsin. Hubbard home at North focusing investigation on evi this murder police started their battery yet complaint which Ms. stemming a unsolved dence April 15, 1979. On the basis evi made on or about Lows had police alleged battery, for arrested the defendant of this dence ap May 1979, 7, battery at his home on without warrant interrogation, confessed to proximately p.m. After battery Lows. murder of Helen both charged degree bat- first murder and defendant was preliminary conducted, tery, defendant was was examination May trial, 21, 1979, of not entered and on he bound over of mental disease or defect. and not reason 15, motions, on November The defendant filed numerous pre- 1979, hearing held. The defense was “Miranda/Goodchild” attempt de- sented medical evidence in an document January 1980, history 2, de- mental illness. On fendant had was fendant’s motion denied. “Miranda/Goodchild” began 11, jury 1980, On March and on defendant’s charged phase 21, 1980, March he found the crimes subsequent May 1980, one of his trifurcated trial. On Dyke Hospital, David Van defendant’s commitment to Central State degree murder, at- was arrested on six counts of first one count tempted degree robbery. murder, first and one count armed Van *4 Dyke charges. was tried convicted on all The defendant’s and operandi Dyke’s brief asserts that the modus crimes bore Van striking resemblance to the murder of Helen Lows which the guilty, people Dyke defendant had been found the Van killed prior him, had contact with that Helen Lows had contact with a prior description black male her to death who fit the David Van Dyke Dyke’s defendant, crimes, and not the and that all of Van Lows, well happened as the murder of Helen few within a blocks of each other. suppress the defendant moved to oral his state- ments and to the dismiss action because his arrest was illegal. The circuit court denied those motions.
Following phase trial, the first of the trifurcated jury charged. found the defendant of both crimes jury phases The defendant the waived as to and two phase trial, three. In two of the the circuit court found capacity that the appreciate defendant the lacked the wrongfulness of his or to conform acts his actions to phase three, law. In the circuit court found the defend- danger ant community to be a to the and him committed Department Services, the Health Social Cen- Hospital. tral State sought alleged
The defendant review of errors com- during guilt phase filing mitted of the trial motion for new trial. defendant contended that a grounds: granted following new trial should be on the (1) newly discovered evidence indicates someone else crimes; (2) committed the the circuit court erred denying suppress dismiss; his motions to (3) instructing circuit jury court erred in that a defense witness was incompetency; unavailable due (4) evi- dence disclosed; was not (5) justice the interests of require a new court, citing trial. The circuit this court’s decision in State 97 Wis. 2d N.W.2d (1980), denied ground motion it jurisdiction lacked relating to hear matters of the trial. The circuit court ordered the defendant upon petition recommitted the defendant’s for reexamination. appealed appeals to the court original denying commitment, order of the order
post-conviction relief, and the order of recommitment. The court of appeals. The consolidated these alleged issues raised on relate to errors in guilt phase of the trifurcated trial were raised which
502 This post-conviction relief. motion for the defendant’s granted direct review. court Hoppen- by summarizing begin our discussion We plead the defendant rath In decision. by defect reason of mental disease or and not suppress motion had to trial court denied his after the was found not After the defendant evidence.5 com and was ordered mental disease or defect reason of deny sought court’s the trial order mitted, he review of ing suppress. motion The court concluded his jurisdiction appellate court no an had suppression en denying motion for review an order underlying proceeding when tered in the criminal guilty by dis found not reason mental is defendant Hoppen- ordered committed. ease or defect and is apparently defend rath follows: The court reasoned challenge denying suppression of ant can not the order appeal of not evidence defect, a find such reason of mental disease or because equivalent and ing not conviction is finding; “aggrieved” by not such defendant is challenge denying suppres can not order order, appeal sion from the commitment of evidence on wholly separate the commitment order and because underlying proceeding independent from the criminal suppression arose which the order bring up order does not issues raised in commitment guilt separate proceeding. Hoppenrath, supra, 97 2d at Wis.
Although Hoppenrath guilty plea, in con- involved junction plea reason of mental court, defect, this as both state de- recognize, language did limit or reason- fendant its ing holding fact situation. Hop For a discussion the admission of see penrath State, supra, 2d at and n. 3. Wis. *6 applicable guilt the defendant to case in which contests by (pleads guilty guilty not not reason of both defect), mental disease or found and not by defect, reason of mental disease or committed. and is Hoppenrath govern Thus can be read the situation to presented in this case. agree
The state and the defendant that this court should, minimum, Hoppenrath at a limit it does so that apply not to defendants who have contested issue by who are not mental found reason of explains position disease or defect. The state in this its case as follows: position Hoppenrath is the State’s that “[I]t errone-
ously occurring alleged denies review of errors in the guilt phase of a trifurcated trial where the defendant has, acknowledges fact, guilt. in . . contested the issue of . state position, especially its that earlier at oral argument with its entirely in Hoppenrath, was not consistent position However, in an- the instant case. alysis proffered and careful reflection have lead us to conclude that we dissenting opinion Hoppenrath in the in ask modify approach must the court taken in Hoppenrath.” Memorandum, p. State’s 5. position The state’s in this case is consistent with the position immediately state took after the Hop- supported decision was announced when the state penrath’s motion to reconsider that decision. state’s support Hoppen- memorandum in reconsideration explained position rath its as follows: reluctantly “The state modify asks the Court its opinion. won certainly, We this case and at least at oral argument, proffered arguments entirely not inconsistent points with some which we now ask the Court to Yet, dissenting opinion rethink. and careful reflec- tion has led us to the conclusion that must ask the we modify Court to Reconsideration, 433-CR, opinion.” Response its Motion Hoppenrath, in State v. No. Case. 78- p. 1 at note bar, and the at both the state appeal in the case In the erred court assert aggrieved concluding is not that a defendant or defect mental disease reason of com- concluding criminal signifi- legal practical procedure has no mitment In contrast at 461. cance. Wis. com- Hoppenrath that the criminal the court’s view pro- commitment procedure from a civil mitment differs ceeding only commitment as the criminal insofar *7 guilt triggered by parties conclude that the petition, a the significant com- phase the the trial is trifurcated suggests “respectfully proceedings. state mitment The Gebarski, [769-73], v. that State 90 Wis. (1979), and civil concluded that criminal N.W.2d 672 quite legal in commitments are dissimilar effect.” State’s p. memorandum, The further asserts that “civil state proceedings and criminal are dissimilar commitment practical that the effect as well.” The contends state significant play the in both com- facts of crime role proceedings, mitment and recommitment and the state’s legal guilt explains practical brief the effect of the phase on follows: commitment and recommitment as “In most the trials it is safe assume that facts relitigated guilt phase the crime are not after the of the finding trial; rather, guilty effectively the constitutes predicate required presently in the for commitment as ‘dangerousness.’ institutionalization, need of tainly i.e., of Cer- expert the will witnesses on both sides allude crime, the facts of the but state will not reintroduce already guilt-phase the evidence If has introduced. error integrity fact-finding process affected of the it unfair finding to insulate re- from finding clearly view when that will the same influence trier of fact which is to decide if the defendant need of of the crime and institutionalization. The fact proof prior dangerousness matter, practical will, as a surely reexamination findings dangerousness also affect of continued proceedings. addition, finding “In that committed particular crime, though legally respon- even he is not illness, practical sible due to mental has to commitment as a effect on the length subject of time he is result against proceedings the criminal (4), him. 971.17 Section provides Stats., discharged that the defendant at must be period the end of the maximum been he could have for which imprisoned crime, for commitment unless civil proceedings under ch. 51 are If error was instituted. committed at which trifurcated trial of the involves, example, degree of the crime committed, impact directly on the de- error will People Pollard, period. Cf., fendant’s commitment Cal. (Cal. Rptr. App. 1981). insanity acquittee “The because is committed he responsible found have committed crime while following to mental due defect a criminal trial mentally presently and has ill been found to be insanity need of institutionalized ac- treatment. quittee civilly involuntarily is in persons from different class finding committed. The the defendant com- precedes mitted the which of not crime by reason of mental disease or defect has actual and practical effect on whether the defendant will be com- length mitted and influences the of commitment. independent commitment is not the criminal *8 legal practical (State’s in either a or a memo- sense.” randum, pp. 14,15,17,18. omitted.) *9 purposes might separately appeal trial for trifurcated problems. create various The state’s brief describes problems as follows: petition appeal “Neither for leave to a nonfinal order
pursuant
809.50, Stats.,
petition
to Rule
nor a
for a
supervisory
pursuant
Stats.,
writ
to
809.51,
Rule
is feasi-
jury
sitting
ble where a
as the
trier of
does
fact. What
during
jury
proceedings?
that
pendency
do
such
jury
dispersed
Or is the
to be
later em-
and another
paneled
jury
phase?
hear
if the
to
the commitment
.
. Even
.
problem,
interlocutory appellate
were not a
court
proceedings
delay
absurdity.
point
could
trial
to the
appeal
right,
In the
of an
a de-
absence
as a matter of
any
fendant
at
who
error has
committed
believes
been
point up
stage
petition
end of the second
could
every
appeals
interlocutory
court
the
adverse
matter of
after
relief
ruling. Moreover,
if
there is no review as
right,
a defendant who believes
federal
may try
pro-
constitutional error has
committed
been
corpus directly
ceed
federal court on habeas
claiming
of commitment,
an
of all
exhaustion
available state court remedies. The end result could be
permitted
this court has
itself and the court of
bypassed.
to be
It is not clear that
this result
p.
Memorandum,
intended.” State’s
adopt
suggested
parties’
Hop-
We
modification of
penrath. This modification is consonant with
statu-
law,
provisions
tory
trial, prior
for the trifurcated
case
appellate
policy
review,
statutes
rules of
and the
underlying
appellate
practice
Wisconsin
of avoid-
appeal
appel-
orders,
but not on
is eradicated under the new
Mueller,
late statutes
and rules. See
v.Wick
Wis. 2d
202-203,
(1982)
J., concurring).
Thus,
(Callow,
In of our of reexamination of and modification we now consider whether guilt appellate phase of result that review the of a trifur- applies cated barred still fact situation presented namely, it case, in the whether applies suppress to a defendant who a motion to loses evidence, pleading does not contest when by defect, or reason of mental disease found not defect, or reason mental and is disease committed. suggests salvage Hoppen- part that we can state appellate rath a new rationale to bar review denying suppression of the order when evidence conjunction pleads plea with a guilty by reason of mental The state defect. suggests guilty plea that such constitutes a waiver right denying suppression. of an obtain review order argues general state that the rule that a right denying waives to obtain of an review order suppression evidence, Foster State, 70 Wis. 2d 19, 20, (1975), applies Hoppen in the N.W.2d rath fact situation rather than Stats. 1981-82,9 statutory exception general to the waiver 971.31(10) provides rule. Sec. that a defendant can ob denying tain suppression review of order *11 admitting of evidence or statement, defendant’s notwith standing plea, guilty appeal judgment a on an a 971.31(10) ap conviction. The state reasons that sec. plies only appeal judgment to an from a of conviction plea guilty entered in a and not an for a to finding commitment order entered after a of not by reason of mental disease or defect. Since there is no judgment Hoppenrath of conviction in the fact situation judgment the court could enter a of conviction Hoppenrath, argues the 971.31(10) state sec. does apply to save the defendant from waiver. The state argument support made the same in its Hoppenrath’s Hoppenrath to motion reconsider the decision.
In reasoning this court did not the use proposes. Hoppenrath the state now did con- court clude that 971.31(10) applied “convictions,” sec. only to case, that there was no conviction in that and that the apply. underlying section did not But the for rationale Hoppenrath court’s conclusion that there con- was no viction finding rests on its that view had practical no effect on the defendant defend- because the ant could have been committed to institution under a 9 1981-82, provides: denying Sec. Stats. “An order suppress challenging a motion to evidence or motion the admissi a bility may upon appeal of a statement of a defendant be reviewed judgment notwithstanding of conviction the fact such upon plea guilty.” was entered any procedure in at event. 97 Wis. 2d
civil commitment recognizes error con- its this court now Since commitments are not sub- cluding that criminal and civil has an ad- stantially and that the same impact committed, who is verse interpretation supporting sec. rationale court’s longer (10) in is no valid. 971.31 972.13(1)10 interpreted 971.31(10) be could Secs. suggests, an inter but we believe that such as the state legislature’s pretation intent. We thwart would legis thwarting should the statute avoid construe Leicht, v. State ex rel. Jackson lature’s intent. 183-85, As the 178, (1939). dissent Wis. 285 N.W. justices pointed out, ing in the case legislative response 971.31(10) to this court’s was right holding review a waived State, suppress. Foster 70 Wis. denial of motion to 12, 20, (1975). N.W.2d 411 The reason encourage change pleas legislative only reduce the number of contested trials when the *12 was whether or not the denial of the contested issue suppress proper. motion See Judicial Council 971.31(10), p. sec. 42A Annot. Comment to Wis. Stats. Thus, (1971). that the 266 the dissenters concluded 971.31(10) proposed interpretation would of state’s sec. avoiding legislative policy of trials when contravene the legality only the contested issue is of the use of the state’s The dissenters also concluded evidence. interpretation 971.31(10) proposed in of see. would be prior 2d consistent with case law. Wis. at 469-72. 1981-82, provides 972.13(1), Sec. follows: Stats. Judgment. (1) judgment A of be en- conviction shall “972.13 guilty by upon finding jury, tered a verdict of a jury waived, in a or no the court cases where a or contest.” reject
For sug- these same reasons we now the state’s gested reinterpretation Hoppenrath suggested and its interpretation 971.31(10). of sec. conclude that We 971.31(10) word “conviction” in sec. includes a commit- finding on ment mental reason of dis- Accordingly ease or defect. we hold that a defendant who charged does not contest the commission of the acts guilty by and is found not reason of or mental disease has, pursuant defect appeal on order, rights a commitment the same review denying of an order suppress a motion to or a evidence challenging admissibility motion of a statement as appeals judgment defendant who of conviction. Hoppenrath adopt We overrule place in its reasoning expressed dissenting opinion in this in Hoppenrath.
By the denying Court. —Order of the circuit court mo- tion for a new vacated and motion for new trial remanded to the proceedings circuit court for consistent opinion; appeals this of the commitment re- commitment orders remanded to the court of jurisdiction pending retain proceed- outcome ings in the circuit court.
DAY,
(dissenting).
J.
I dissent. The Wisconsin
Legislature
years
change
State
has had three
the stat-
interpreted by
ute
State,
this court
rights
(1980),
Wis.
This court held that is not reason of mental defect of conviction and hence no *13 right of exists as to the of a trifur- cated trial. 456-457, at in Wis.
This Court pointed out: Stats., provides a addition, “In upon a verdict ‘judgment shall be entered conviction of by finding guilty court in guilty by jury, a of of waived, plea guilty or no jury or a
cases where is of defendant, Hoppenrath, was contest.’ adjudicated In this case guilty by mental reason to be of acquitted, effect, thus stands was, or in defect any of crime. unconvicted legislature “Furthermore, 972.13(2), Stats., in sec. entering a upon has seen fit judgment direct the courts ‘impose or conviction, the court shall either fined or and, if the is not withhold sentence imprisoned, . . confinement, sentencing a of not Rather than defendant placed probation. shall on be In not sentenced .’ this case the defendant was probation placed or because these fined only after are available to court alternatives finding finding are after a not available defect. of mental disease or reason defendant, in evidence in sentencing the the trial court compliance with the reviewed the statute finding as to the defendant was order make a whether suffering presently a mental disease defect and treatment, he was need institutionalized because danger Only others. after an affirmative to himself or to finding (Emphasis committed." was the defendant original.) 972.13(1) Section mandates the cited provisions only upon which a of conviction may They be entered. are: jury;
“1. when there is a verdict “2. when is a court there jury waived; where (if plea accepted by
“3. when there court); and (if
“4. accepted by when there is a of no contest court).” Hoppenrath, 2d at 97 Wis.
513 971.31(10)1 interpreted requiring This a Court as judgment appeal. conviction before there could be of judgment guilty by a not This court held that of reason judg of mental or defect not a “does constitute ment of conviction.” 97 Wis. at 460. us, right appeal In the case before of is a statu- tory right right. a constitutional The statute Smith general appeal relies on is the statute. “judgment
But there is no of since conviction” Smith right appeal. was found not and hence of no 223, Jakubowski, 220, court in This State v. 61 Wis. 2d (1973), 212 held: N.W.2d right statutory right and, “The review is a statutory provision effect, may
absent a appeal to that no be had. “. appellate jurisdiction only court has [T]his by statute, only allowed allows. to the extent the statute appealed If a case to this court does not come within allowing the terms of a appeal, such this statute jurisdiction court has anything no do other than dis- appeal, . Omernik, 220, miss the . .’ State v. 54 Wis. 2d (1972). 194 N.W.2d Id. at 223.” with Cited approval Hoppenrath, 2d at 97 Wis. legislature
If provide appeal wants to for an from of a trifurcated trial a cases where is found not of reason mental dis- defect, may ease it do so. But it hasn’t. The statute is clear and this court should follow it. right appeal by
There is no of a defendant from judgment acquittal following jury of “not guilty” though may replete even the trial have been grossest errors that would have demanded reversal (10) denying “971.31 . Motions before trial. . . An order mo suppress challenging admissibility tion to evidence or a motion may of a upon appeal statement of a defendant be reviewed notwithstanding judg conviction the fact that such upon guilty.” ment was entered guilty. one been finding and conviction
had the right only in this law State in criminal reason Smith judgment conviction. men- guilty” reason “not found He was convicted. *15 defect. tal appeals. the court
I affirm would WILLIAM that JUSTICES to state authorized I am dissenting join this J. CECI LOUIS G. CALLOW opinion. Preston, Petitioner, James
Amek bin-Rilla, R. a/k/a Waupun Warden, Insti R. Correctional Thomas Israel, Follette, Attorney tution, La Gen and Bronson C. eral, Respondents.
Supreme Court April 28, 1983. Decided No. Submitted 82-1337 - W. briefs July 1, 384.) (Also reported in 335 N.W.2d Notes persuaded by arguments. We are the state’s assert, agree, The state and the defendant also and we that the concluding court erred in the proceeding separate proceeding commitment is a from guilt the phase and that orders in entered the brought of the trial are not intermediate orders before appellate appeal the court for review on from the commit- ment order. Citing 971.175, (which sec. Stats. 1981-82 refers to trial),6 trifurcated trial rel. as continuous State ex 6 971.175, 1981-82, provides: See. Stats. 506 341 612, 219 N.W.2d Schubert, 2d 64 Wis. Kovach v. 769-73, 754, Gebarski, 90 Wis. (1974), State urge court parties this (1979), the 280 N.W.2d trifurcated that the modify hold order trial,” commitment that the “continuous one ap- litigation and is disposing the entire of final order 808.03(1), right 1981- sec. under pealable matter of as a brings order appeal the commitment that an of 82.7 rulings erroneous nonfinal court before the 809.10(4), guilt 1981- phase in under and orders treating phase of parties each note that 82.8 The couples Sequential proof. When a defendant “971.175 order 'by di- mental plea plea reason of of not not separation with a se- defect, the issues be or there shall sease quential jury proof continuous trial. before the same in a order of issue of de- be first then the issue shall heard responsibility. jury shall be informed fendant’s mental plea upon pleas taken and that a verdict will be on the of not before introduction of evidence apply to This section does not reason of mental or defect. jury.” cases tried before the without court 1981-82, 808.03(1), Sec. reads as follows: Stats. op Appeals appeals. (1) Appeals “808.03 to the court of Right. may judgment A a circuit court final or a final order of appealed right appeals unless oth- be as a matter to the court of expressly provided by judgment A order erwise or final law. final 806.06(1) (b) judgment is a or order entered accordance with s. 807.11(2) disposition or entries in traffic or a recorded docket regulation municipal prosecut- cases cases and ordinance violation litigation disposes ed court entire in circuit which of the matter or parties, in an action as to one or more of the whether rendered special proceeding.” 1981-82, provides: Sec. Stats. appeal final or “Matters Reviewable. An brings prior judgments, or- final order before the court all nonfinal rulings appellant to the re- ders and adverse and favorable spondent appealed previously proceeding made in the action upon.” and ruled formerly 817.34, The distinction made under sec. Stats. judgments, intermediate orders could be reviewed