Dumer v. State

Citations: 219 N.W.2d 592; 64 Wis. 2d 590; 1974 Wisc. LEXIS 1376Docket: State 49

Court: Wisconsin Supreme Court; July 3, 1974; Wisconsin; State Supreme Court

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Dumer, the plaintiff in error, challenged the jurisdiction of the Circuit Court branch 18 for Milwaukee County, asserting it lacked subject-matter jurisdiction over his criminal case, rendering the judgment void. The trial was presided over by Circuit Judge Christ T. Seraphim, while Dumer was initially arraigned in branch 12, the criminal division, before Judge John L. Coffey, where he entered a plea of not guilty. Dumer expressed a desire for a jury trial and preferred an October 1972 date. Due to scheduling conflicts, Judge Coffey indicated the possibility of transferring the case to another judge, which occurred after Dumer requested an earlier trial, leading to the eventual transfer to Judge Seraphim. 

The case involved a detailed account of an alleged incident where Dumer followed the complainant and physically assaulted her, resulting in rape. The complainant, a 26-year-old university student, described being attacked and threatened by Dumer. Following the assault, she sought help and reported the crime to the police, who noted her visible injuries. Dumer admitted to some details but claimed the sexual encounter was consensual. The court found that the evidence supported the conclusion that the complainant's ability to resist was overcome by force, contrary to Dumer's assertion of consent.

Judge Coffey ordered the transfer of a case to Judge Christ T. Seraphim for trial, with the transfer occurring under Chapter 46, Laws of 1971, sec. 251.182, and with Judge Seraphim's consent. A jury trial is scheduled for November 24, 1972, at 8:30 a.m. in Branch 18, which is designated as a civil branch of the circuit court. At the time of the transfer, Judge Seraphim was appointed to manage the congested calendars of branches 11, 12, and 17, which are specified as criminal court branches in Milwaukee County under sec. 252.015 (2). 

Dumer contends that civil circuit courts in Milwaukee County lack criminal jurisdiction due to prohibitions in secs. 252.015 (2) and 252.02. However, this argument hinges on the exclusivity of the criminal branch designations, which the court interprets as administrative rather than jurisdictional. Sec. 252.015 (2) merely designates branches 11, 12, and 17 for criminal cases without limiting the jurisdiction of civil branches.

Sec. 252.02, while ambiguous regarding the assignment of cases to criminal branches, does not restrict the criminal jurisdiction of civil branches. It allows for the clerk to assign and reassign cases based on disqualification or vacancies but does not impose jurisdictional limits on civil branches. The statute's requirement for judicial approval of assignments does not confer jurisdiction but is meant to ensure that civil branch judges retain control over their court’s proceedings. 

The administration of Milwaukee County's courts is governed by statutory provisions, supreme court rules, and local rules, with specific guidelines for the reassignment of criminal cases. The local rules provide for a structured reassignment process, which is largely controlled by sec. 252.017, particularly in family court matters.

A mistake was identified regarding the family court's authority in this case, with Dumer contending that circuit judges' procedures were disregarded, leading to the improper classification of branch 18 as a criminal court. It was determined that Judge Coffey lacked the authority to transfer the case to Judge Seraphim for civil branch 18. However, Judge Coffey could transfer cases to judges assigned to criminal branches during periods of court congestion, as Judge Seraphim was assigned by the chief justice. Reassignments to civil branches should follow a lottery system managed by the chief judge, but this does not apply to criminal branch reassignments. Dumer's claim of erroneous judgment due to improper jurisdiction was examined; it was noted that the case was appropriately assigned under statutory provisions to Judge Seraphim in criminal branches. The claim lacked merit as the assignment was valid under the rules.

Additionally, Dumer argued that the prosecution suppressed exculpatory evidence, violating his due process rights. This claim followed a post-trial request for a new trial based on newly discovered evidence, which involved a subpoenaed witness. The court dismissed the argument, stating the evidence was not newly discovered since the prosecution's witnesses were available for Dumer's counsel to contact. Dumer's motion was criticized for being unsubstantiated, lacking a written format or affidavits, and not requesting an evidentiary hearing.

In State v. Herfel, the court outlined five key criteria for granting a new trial based on newly discovered evidence: (1) the evidence must have been discovered post-trial; (2) the moving party must have acted diligently in seeking the evidence; (3) the evidence must be material to the case; (4) the evidence cannot be merely cumulative to what was presented at trial; and (5) there must be a reasonable probability that the new evidence would alter the trial's outcome. The obligations of the defendant when filing a motion for a new trial include the need to present specific allegations that substantiate the request, rather than general assertions. If additional evidence is required to support the motion, it must be provided through affidavits or oral testimony.

The court criticized the trial counsel's preparation, noting that potential witness testimony could have been discovered prior to trial, and that defense counsel failed to adequately question prosecution witnesses. The court emphasized that the diligent pursuit of evidence is essential and that a defendant cannot rely on newly discovered evidence as a fallback for inadequate trial preparation. Furthermore, the court stated that the prosecution is not required to call every potential witness, and there was no indication that the prosecution was aware of any exculpatory testimony. The defendant, Dumer, did not request such evidence or a list of witnesses from the prosecution prior to trial. The principles established in Brady v. Maryland and Giles v. Maryland were referenced, reinforcing that the prosecution must not suppress favorable evidence or allow false evidence to go uncorrected, as such actions violate due process rights.

In Britton v. State, the court declined to extend the prosecution's constitutional obligation to disclose all evidence beneficial to the defense. In Goetsch v. State, it was determined that the prosecution's failure to provide certain tests to the defendant was not erroneous without a specific request, as the state is not constitutionally bound to produce unrequested documents. State v. Chacon reinforced that the state is not required to conduct discovery for the defense. In State v. Cole, the court found no Brady violation regarding undisclosed exculpatory evidence since the defendant had not requested it, and the evidence was not exclusively in the state's possession. Simos v. State and Mikulovsky v. State emphasized the necessity of a defense request for exculpatory evidence to claim a due process violation. Nelson v. State acknowledged that while the state's obligation to disclose exculpatory evidence is not exhaustive, there is a precedent for disclosing material evidence affecting a witness's credibility. However, it reiterated that a defense request is essential to assert suppression claims. Consequently, Dumer could not argue prosecutorial suppression of exculpatory evidence due to his lack of request.

Regarding the sufficiency of evidence for Dumer's rape conviction, the court defined rape as an act committed by force against a person's will, which can be accomplished by overcoming the victim’s utmost resistance. The concept of "utmost resistance" is relative, varying based on the victim's characteristics, as established in precedents such as State v. Schmear and State v. Waters, and further clarified in McLain v. State.

In State v. Schmear, the court clarifies that the legal standard for determining whether a woman's will to resist has been overcome does not require physical resistance if such resistance would be futile. The court emphasizes that a woman's fear of imminent physical violence, such as threats of death or serious bodily harm, can render her incapable of resisting. This fear must be substantial enough to incapacitate her will to resist, but the court also acknowledges that the assessment of this fear is subjective, varying from individual to individual. The decision to submit under threat does not equate to legal consent, as a coerced choice cannot be considered a voluntary one.

In the case at hand, the complainant's attempts to seek help and the physical violence she endured, including being struck and threatened, resulted in a reasonable fear that her will to resist was overcome. The court found it implausible for a young woman to voluntarily consent to intercourse under such threatening circumstances, thus affirming that the evidence supported the verdict. Dumer's argument about the need for an objective test was rejected, reinforcing the subjective nature of assessing the complainant's state of mind. Additionally, the state's position on the non-appealability of Dumer's oral motion for a new trial was noted.

Section 270.70 of the Wisconsin Statutes states that filing a judgment or order with the clerk in circuit or county court constitutes the entry of that judgment or order. Section 274.10 allows for the review of certain orders by the supreme court upon appeal, as defined in section 274.33, which outlines appealable orders. An order is described in section 270.53 (2) as any written direction from a court or judge not included in a judgment. Although an oral order was made, it was not entered in a manner suitable for appeal. The court, referencing State ex rel. Hildebrand v. Kegu (1973) and Alsmeyer v. Norden (1961), established that an oral order must be documented in writing to confer appellate jurisdiction and comply with entry requirements. Merely having the order in the transcript does not satisfy the entry requirement of section 270.53 (2). In this case, no written order denying a new trial existed. While previous cases allowed for a conviction entry in the judgment roll to be considered an 'entry,' this does not apply to motions for a new trial. Therefore, the writ of error from the alleged order is dismissed, affirming the judgment. 

Additional notes clarify that the chief justice or a designated justice may assign judges temporarily to ensure judicial business is managed effectively, and that circuit courts possess broad original and appellate jurisdiction as outlined in Article VII, Section 8 of the Wisconsin Constitution.

Each branch of the circuit court has the same powers and jurisdiction as those with a single judge, and they can be identified by their number or the presiding judge's name. In the 2nd circuit, branches 11, 12, and 17 are designated specifically as criminal court branches. Judges in circuits with multiple branches can distribute work and assign cases among them, with the exception that in the 2nd circuit, certain criminal cases—including appeals from criminal convictions, ordinances, and traffic violations—must be assigned to these criminal branches. Reassignments can occur only due to disqualification, illness, vacations, or branch congestion. The judges of the 2nd circuit criminal branches are responsible for workload distribution, and all assignments by the clerk require their approval. A grand jury can only be summoned for the Milwaukee County circuit court if ordered in writing by a judge of the criminal court branches.

Additionally, the Wisconsin Supreme Court exercises its superintending power to ensure uniformity in judge assignments statewide, as outlined in the 1971 amendments. Assignments of judges to temporary roles are made by the chief justice, with specific provisions for counties with a chairman of the county board of judges, allowing for temporary assignments of judges to cover absences or relieve case congestion for up to seven consecutive days. If no active judges are available, the matter can be escalated to the administrative director of courts for the appointment of a substitute judge. In counties without a chairman, an active judge can appoint another active judge to fill in during their absence, also for a maximum of seven consecutive days.

An appointing judge must issue an order for substitution and send a copy to the administrative director of courts. If a judge will be absent for over seven consecutive days or needs a temporary appointment of less than seven days, they must notify the administrative director in advance. In cases of disqualification—due to substitution requests, mandatory disqualifications, or self-disqualifications—the county clerk must notify the administrative director, who will then arrange for another judge to preside, with assignments done by lot in circuits or county courts with three or more judges, under a system approved by the chief justice.

In Milwaukee County, separate tab systems will be maintained for each court division, including criminal, civil, and family court divisions, with specific criteria for judges included in each system based on their assignment duration. The probate and children's divisions will not have tab systems; assignments will be made directly by the chief justice, who will be notified as needed.

Judges appointed under these rules will have full authority to serve, and the terms "chief justice" and "chairman of the county board of judges" encompass designated justices and the administrative director when acting as authorized agents. The administrative director will provide forms for judge assignments to all trial judges.

Rules for the assignment of judges are distinct from case transfers within court branches or between judges in their respective branches. Such transfers may occur for reasons including trial consolidation, case merging, assignment to judges with similar cases, reducing congestion, balancing judges' caseloads, or for convenience. These rules will be reviewed after six months.

The Milwaukee Code of Ordinances outlines the procedures for the transfer or reassignment of criminal court cases, governed by Wis. Stats. § 252.017. If a case is reassigned for reasons other than an affidavit of prejudice or case consolidation, the Chief Judge will reassign it by lot, following the original assignment process unless otherwise specified by law. If a judge is disqualified or if cases are consolidated, the Chief Judge will assign a case from the calendar of the judge taking over.

In the event of a judge's temporary absence, their cases may be heard by another judge as requested by the absent judge or the Chief Judge, with criminal cases continuing to be governed by Wis. Stats. § 252.017.

The document references pertinent legal precedents regarding pretrial discovery and the distinction between disclosure and discovery. It emphasizes the defense's right to access evidence necessary for case preparation versus the prosecution's duty to provide exculpatory evidence. Additionally, it defines circumstances under which sexual intercourse is considered non-consensual, leading to potential imprisonment.