PUBLISHED OPINION
Case No.: 95-0129-CR
† Petition
for review filed
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
LEPORLD L. MILLER,
Defendant-Appellant.
†
Submitted on Briefs: September 6, 1995
Oral Argument: ---
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: October 3, 1995
Opinion Filed: October
3, 1995
Source of APPEAL Appeal from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Milwaukee
(If
"Special", JUDGE: LEE E. WELLS
so indicate)
JUDGES: Sullivan, Fine and Schudson, JJ.
Concurred: ---
Dissented: ---
Appellant
ATTORNEYSFor the defendant-appellant the cause was submitted on
the briefs of Gerald P. Boyle, S.C., with Gerald P. Boyle, of
Milwaukee.
Respondent
ATTORNEYSFor the plaintiff-respondent the cause was submitted on
the briefs of James E. Doyle, attorney general, and Thomas J.
Balistreri, assistant attorney general.
|
COURT OF APPEALS DECISION DATED AND RELEASED October
3, 1995 |
NOTICE |
|
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-0129-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
LEPORLD
L. MILLER,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Milwaukee County: LEE E. WELLS, Judge. Affirmed.
Before
Sullivan, Fine and Schudson, JJ.
SCHUDSON,
J. Leporld L. Miller appeals from the
judgment of conviction for possession with intent to deliver controlled
substance—cocaine base, within 1000 feet of a school. He argues that because he absconded before the first witness was
called to testify, he was not “present at the beginning of the trial” under
§ 971.04(3), Stats., and,
therefore, that the conviction must be vacated. We reject his argument and conclude that because Miller was
present when the jury was sworn, and because jeopardy attaches when a jury is
sworn, § 972.07(2), Stats.,
Miller was “present at the beginning of his trial.” Therefore, we affirm.
On
June 16, 1993, a jury was selected and sworn for Miller's trial on the charge
of possession with intent to deliver controlled substance—cocaine base, within
1000 feet of a school. After the
prosecutor presented the State's opening statement and defense counsel stated
that he would reserve the defense opening statement until after the State's
case-in-chief, the trial court recessed the case until the next day. Miller was present for all the June 16
proceedings.
On
June 17, Miller did not return to court.
After waiting approximately one and one-half hours for his arrival, the
trial court[1] stated:
All right. I'm going to proceed with the trial. I'm satisfied we've waited long enough for
the defendant to show. I will instruct
the jury as carefully as I can they are not to draw any inferences from the
defendant's absence and we simply don't know exactly why he's not here. Let's bring the jury out.
The trial proceeded and was completed on June 18. Miller never returned during the duration of
the trial, and the trial court issued a bench warrant for his arrest. On May 11, 1994, Miller was returned to
court on the bench warrant and, subsequently, he was sentenced.
Miller
concedes that jeopardy attaches in a jury trial when the jury is sworn. Section 972.07(2), Stats.[2] He argues, however, that his trial proceeded
in violation of § 971.04(3), Stats.,
which, in relevant part, provides:
Defendant
to be present. (1) Except as
provided in sub[]. ... (3), the
defendant shall be present:
....
(b) At trial;
(3) If the
defendant is present at the beginning of the trial and thereafter, during
the progress of the trial or before the verdict of the jury has been returned
into court, voluntarily absents himself or herself from the presence of the
court without leave of the court, the trial or return of verdict of the jury in
the case shall not thereby be postponed or delayed, but the trial or submission
of said case to the jury for verdict and the return of verdict thereon, if
required, shall proceed in all respects as though the defendant were present in
court at all times.
(Emphasis added.)
Miller maintains that Wisconsin law “is silent on the question as to a
defendant absenting himself prior to the first witness being called but after
the swearing in of the jury.” The State
agrees that our decision in this case “will clarify the meaning of a term in
the rules of criminal procedure which has not been specifically defined in
previously reported decisions.”
Construction
of § 971.04(3), Stats.,
presents a question of law, subject to our de novo review. State v. Dwyer, 181 Wis.2d
826, 836, 512 N.W.2d 233, 236 (Ct. App. 1994).
Although § 971.04(3), Stats.,
does not define “the beginning of the trial,” we have held that “a jury trial
commences with the administration of the jury's oath.” State v. Gonzalez, 172 Wis.2d
576, 580, 493 N.W.2d 410, 412 (Ct. App. 1992); see also Dwyer,
181 Wis.2d at 836-837, 512 N.W.2d at 236.
Clearly, “the beginning of the trial” occurs when the trial “commences”
and, under Gonzalez, a trial commences “with the administration
of the jury's oath.” Gonzalez,
172 Wis.2d at 580, 493 N.W.2d at 412.
Thus, in a jury trial, “the beginning of the trial” occurs when jeopardy
attaches; i.e., “when the selection of the jury has been completed and the jury
sworn.” Section 972.07(2), Stats.; see also State v.
Gilmer, 202 Wis. 526, 528, 232 N.W. 876, 877 (1930) (“‘“Jeopardy” “is
the situation of a prisoner when a trial jury is impaneled and sworn to try his
case.”’”).
Thus,
we conclude that Miller was present “at the beginning of the trial” when the
jury was sworn. Jeopardy attached, and,
therefore, the trial court properly proceeded in completing Miller's jury trial
after he absconded.
By
the Court.—Judgment affirmed.