Meyer v. State

Gordon, J.

The Absent Witnesses.

Mr. Meyer claims that an irregularity occurred when, of his four alibi witnesses who had been subpoenaed, three failed to appear. No evidence whatsoever is offered to show why such witnesses did not respond to their subpoenas. Mr. Meyer suggests that they may have been intimidated by the state, but there is not a shred of evidence in the record to support this contention.

The charge is further made that if the state in interviewing the alibi witnesses discovered evidence which was damaging to the state’s case, it was the state’s duty to produce such evidence. If there were any irregularity in connection with the failure of the subpoenaed witnesses to make their appearance, the error is not apparent on the record before this court. It is noted that compulsory process was available to Mr. Meyer under sec. 325.11, Stats., but he did not avail himself of this assistance.

Intimidation of Witnesses.

One of the alibi witnesses who was subpoenaed did in fact appear. A second alibi witness presented himself at the trial without the service of a subpoena upon him. After the testimony of the two alibi witnesses was received, the trial judge ordered each of them detained in custody, adding that he hoped “that the district attorney’s office will take the proper action.”

If the trial court were of the opinion that perjured testimony was given, the reference of the matter to the district attorney for a perjury charge was appropriate. The decision to hold such witnesses in custody was not made until after their original testimony and original cross-examination had been completed. The fact that each of such witnesses was thereafter called to the stand does not warrant the conclusion that his subsequent testimony was adduced with intimidation; this is especially true since in each case the later testimony was substantially the same as the original testimony.

It is to be noted that there was no jury in this case. Furthermore, the determination to hold the first alibi witness in custody was made at a time when the second alibi witness was not in the courtroom. We perceive no error in connection with the claim that the alibi witnesses were intimidated by the trial court.

The Lie-Detector Test.

After the trial court had found Mr. Meyer guilty, it offered him the opportunity to take a lie-detector test regarding his participation in the robbery. The court advised Mr. Meyer that if he failed to pass the lie-detector test, he would be sentenced to the maximum term of thirty years. On the other hand, if he passed the test, the court stated it would “take it into consideration.”

It is difficult to determine what the trial judge had in mind by engaging in this colloquy with the convicted man. Under no reasonable interpretation could the trial court’s offer to Mr. Meyer be construed to relate solely to sentencing. Whether or not Mr. Meyer participated in the robbery must of necessity relate to the question of guilt or innocence. By advising Mr. Meyer that he might improve his situation if he passed a lie-detector test which showed that he did not participate in the crime, the trial judge made ambiguous whether guilt had been established beyond a reasonable doubt.

We recognize that the trial judge may have had some completely extraneous purpose in suggesting the lie-detector test. It may in fact not have involved any uncertainty by the trial court as to guilt or innocence. Unfortunately, however, we cannot penetrate beyond the actual words used by the trial judge and the direct proposal made in open court to Mr. Meyer.

The procedure in which an accused, after being found guilty, is sentenced is not immune from scrutiny under the due-process clause. Williams v. New York (1949), 337 U. S. 241, 69 Sup. Ct. 1079, 93 L. Ed. 1337; Townsend v. Burke (1948), 334 U. S. 736, 68 Sup. Ct. 1252, 92 L. Ed. 1690.

The rule of State v. Bohner (1933), 210 Wis. 651, 246 N. W. 314, is still operative; nevertheless, in our opinion, the trial court’s proposal to the accused compromised its finding relative to reasonable doubt. The presence in the record of equivocation on this crucial finding compels us in the interests of justice to grant a new trial under sec. 251.09, Stats.

By the Court. — Judgment reversed, and cause remanded for a new trial.