Opinion
No. State 37.
Argued June 5, 1970. —
Decided June 26, 1970.
ERROR to review orders of the circuit court for Milwaukee county: HERBERT J. STEFFES, Circuit Judge. Affirmed.
For the plaintiff in error there were briefs and oral argument by James H. McDermott, state public defender.
For the defendant in error the cause was argued by Victor Manian, first assistant district attorney of Milwaukee county, with whom on the brief were Robert W. Warren, attorney general, and E. Michael McCann, district attorney.
Plaintiff in error, hereinafter called defendant, was on February 14, 1966, charged with the armed robbery and first-degree murder of one Sinclair Thompson, Jr., in Milwaukee on February 13, 1966. Tommie Lee Bowers was also charged with armed robbery of the deceased but Bowers was not charged with murder. On March 29, 1966, the defendant and his attorney, Alan Olshan, appeared for arraignment. At that time, by mutual stipulation between the state and the defendant, the charges against defendant were consolidated for trial. Thereafter, on April 11, 1966, the defendant, his attorney, Bowers and his attorney, Lester Knuese, appeared in court on the question of consolidating the defendant's trial on the armed robbery and murder charges with Bowers' trial on the armed robbery charge. At that time the following colloquy took place:
" Mr. Olshan: I would prefer to have a consolidated trial, your Honor.
" The Court: You mean Beverly on the two charges or Beverly and Bowers on the respective charges?
" Mr. Olshan: Beverly and Bowers on the respective charges."
Bowers' attorney expressed objection to the consolidation. The court then adjourned the question of consolidation to May 23, 1966. At this time the defendant was out on bail.
On May 23, 1966, Attorneys Olshan and Knuese appeared in court on behalf of their respective clients. The defendant was not present. The state at that time moved to consolidate the cases. Attorney Olshan stated that as far as the defendant was concerned, he had no objection to consolidation including the consolidation of the charge against Bowers with the charges against the defendant. The court again adjourned the question of consolidation to June 13, 1966, to give Bowers' attorney an opportunity to file affidavits in opposition to the motion to consolidate. Thereupon, the defendant's attorney asked (on the May 23d hearing):
" Mr. Olshan: Your Honor, is it necessary that I appear on this date?
" The Court: I don't believe so. Your position is clear. We can always formalize that on the morning of the trial. We will consolidate the two as far as Beverly is concerned, without objection by Beverly, is that correct?
" Mr. Olshan: Yes, your Honor.
" The Court: That is, the two cases involving Beverly and then we will wait to see what we do with Mr. Knuese's defendant at the proper time."
On June 13, 1966, Attorney Knuese and Bowers were present in court and withdrew any objection they .had to the consolidation of all of the cases against both defendants. The court then granted the motion to consolidate the cases. On July 11, 1966, all parties were present in court and the trial date was reset on the consolidated cases for November 28, 1966. Defendant did not at this time, either through his attorney or on his own, voice any objection to the proceedings previously had or to the consolidation of all the charges in both cases.
On November 29, 1966, all parties were present in court while the jury of twelve was impaneled. After further pretrial jury instructions, the court stated:
"We will recess this trial and reconvene here at 2:15 this afternoon.
"In the meantime each defendant is remanded into the custody of the sheriff."
Thereafter, on December 3, 1966, the defendant was found guilty on both charges, and was sentenced on the armed robbery conviction to an indeterminate term of imprisonment of not more than thirty years, and on the murder conviction to life imprisonment. After the usual postconviction motions which were denied, writs of error were issued by this court to review the orders denying these motions.
Although this is a case involving very serious crimes with lengthy penalties imposed, no issue as to the sufficiency of evidence to sustain the guilty verdict has been raised and it is, therefore, unnecessary to detail the essential facts surrounding the crimes. The defendant raises two issues. Neither has merit. They are:
1. Was the defendant denied the right to be present "at every stage of a criminal proceeding" where the state filed a motion to consolidate and the trial court ordered consolidation, all in the absence of the defendant?
2. Were the constitutional rights of the defendant violated when he was at the outset of the trial remanded to the custody of the sheriff?
Presence at all stages.
The defendant contends that the June 13, 1966, proceedings at which the cases were ordered consolidated and at which neither he nor his attorney were present violated his constitutional right to be present at all stages of the proceedings against him. The defendant cites several cases as authority for this argument. It is not to be disputed that a defendant does have a right under art. I, sec. 7, Wisconsin Constitution, and the sixth amendment of the United States Constitution to be present during his trial. This right to be present at the trial includes the right to be present at proceedings before trial at which important steps in a criminal prosecution are often taken. However, this, as other constitutional rights, can be waived. We find such a waiver here from the repeated requests, known and acquiesced in by the defendant, for consolidation of the trial of the two charges against him with the one against Bowers.
See French v. State (1893), 85 Wis. 400, 409, 55 N.W. 566; Williams v. State (1968), 40 Wis.2d 154, 161 N.W.2d 218, and cases cited therein.
See Williams v. State, supra, footnote 1; Ramer v. State (1968), 40 Wis.2d 79, 161 N.W.2d 209.
Furthermore, the court-ordered consolidation was clearly nonprejudicial and harmless beyond a reasonable doubt.
Chapman v. California (1967), 386 U.S. 18, 24, 87 Sup.Ct. 824, 17 L.Ed.2d 705. See also: Whitty v. State (1967), 34 Wis.2d 278, 149 N.W.2d 557; Harrington v. California (1969), 395 U.S. 250, 89 Sup. Ct. 1726, 23 L.Ed.2d 284.
Revocation of bail.
The second issue raised by the defendant on this review concerns the trial court, after the selection of the jury, remanding him to the custody of the sheriff in the presence of the jury when he had previously been free on bail.
Bail on the murder charge against defendant was originally set at $25,000 but it was subsequently reduced to $5,000. On March 29, 1966, defendant posted this bail in the form of a surety bond and was released. He was not required to post bail on the robbery charge. Thus, defendant was free on $5,000 bail from March 29, 1966, to the start of the trial on November 28, 1966. This is perfectly consistent with an accused's constitutional right to reasonable bail.
Wis. Const. art. I, sec. 8. See also: Whitty v. State, supra, footnote 3.
Defendant now argues that it was error for the trial court, after the impaneling of the jury, to revoke his bail and remand him to the custody of the sheriff. He is not arguing that the trial court had no power to remand him to custody during the trial, but rather he is arguing that sound discretion must be exercised by the trial court and this remand cannot be arbitrary.
In United States v. Bentvena the Second Circuit Court of Appeals discussed the trial court's authority to remand a defendant into custody during a trial. That court said:
(2d Cir. 1961), 288 F.2d 442.
". . . once the trial begins the right to bail is necessarily circumscribed by other pressing considerations. The public interest in efficient criminal prosecution becomes more pressing once a defendant goes to trial. The investment of public funds in a trial, the impanelling of a jury, and the gathering of witnesses demand that precautions be taken to ensure that the proceedings go forward and terminate with all possible dispatch consistent with due process. A defendant at large may more easily engage in subterfuges designed to delay the trial and ultimately force a mistrial, or may tamper with witnesses to undermine the proceedings against him. Thus, the dangers of releasing a defendant on bail during the course of a trial are substantially greater than those existing before trial. For these reasons, trial courts have often exercised the power to remand a defendant into custody during the trial in the exercise of sound discretion. . . ." (Citations omitted.)
Id. at page 444.
Recently the United States Supreme Court in Bitter v. United States, a case originating in the federal court for the Eastern district of Wisconsin, stated:
(1967), 389 U.S. 15, 88 Sup. Ct. 6, 19 L.Ed.2d 15.
"A trial judge indisputably has broad powers to ensure the orderly and expeditious progress of a trial. For this purpose, he has the power to revoke bail and to remit the defendant to custody. But this power must be exercised with circumspection. It may be invoked only when and to the extent justified by danger which the defendant's conduct presents or by danger of significant interference with the progress or order of the trial."
Id. at page 16.
The supreme court then reversed the defendant's conviction because his bail had been summarily revoked by the trial court when he returned thirty-seven minutes late after a trial recess.
It is better practice for the trial court when and if it revokes bail, to state reasons for so doing. By so stating, and showing factors justifying the revocation, subsequent charges of arbitrariness and abuse of discretion will be minimized. The Bitter Case does not, however, make such a statement by the trial judge a constitutional condition precedent to the revocation of bail. Revocation of bail with a remand to the sheriff's custody is still within the trial court's discretion. Defendant must show prejudice to his rights to establish an abuse of discretion. As was pointed out in another recent federal case, United States v. Allison, the supreme court in Bitters was actually dealing with a commitment order more in the nature of a contempt order imposing sanctions without compliance with procedural requirements when it reversed the conviction. The Allison court was of the opinion that in Bitters the court did not intend to abrogate the harmless-error rule where the commitment order was designed to facilitate the conduct of the trial.
(9th Cir. 1969), 414 F.2d 407.
Here the commitment order was apparently designed for that purpose. There is nothing alleged here which in any way indicates any prejudice flowing to the defendant because of this order. Defendant was not denied a right to a fair trial and there is no showing that defendant's incarceration materially impeded the conduct of his defense. He had been free on bail for at least eight months prior to the trial. In addition the claim that remanding defendant to custody prejudiced him in the eyes of the jury as a "dangerous man" is without foundation absent a showing that the jury was aware that he had previously been on bail. On oral argument, the assistant district attorney of Milwaukee county pointed out that it is customary in the Milwaukee county courts to remand defendants charged with serious crimes to the custody of the sheriff during the trial. This would indicate that in all probability the trial court, in doing this, did not think that defendant's rights were in any way prejudiced. It was customary to do this in serious cases so it was done here. Also, it should be noted that no objection was made by the defendant at the time of remand. In addition, the record is devoid of any attempt on defense counsel's part during the trial to seek the defendant's release. In these circumstances we must conclude that defendant was not prejudiced and cannot now claim to have been prejudiced. Nothing has been shown to indicate the trial court abused its discretion.
Id. at page 414.
By the Court. — Orders affirmed.