Opinion
No. State 26.
Submitted under sec. (Rule) 251.54 October 31, 1973. —
Decided November 27, 1973.
ERROR to review a judgment and an appeal from orders of the circuit court for Milwaukee county: ROBERT W. LANDRY, Circuit Judge. Affirmed.
For the plaintiff in error the cause was submitted on the brief of Anthony K. Karpowitz, Legal Aid Society of Milwaukee.
For the defendant in error the cause was submitted on the brief of Robert W. Warren, attorney general, and Robert D. Martinson, assistant attorney general.
Plaintiff in error (hereinafter defendant) was tried before a jury and found guilty as a party to the crime of armed robbery in violation of sec. 943.32(1)(b) and (2) and sec. 939.05, Stats. Defendant was sentenced to an indeterminate term of not more than three years to the Wisconsin State Prison. A writ of error was issued to review the judgment of conviction. This case is also before the court on an appeal from the order of January 19, 1972, denying the defendant's motion for a new trial and from the order of April 13, 1972, denying the defendant's motion to vacate the order denying the defendant a new trial and to grant a new trial.
On September 25, 1971, a complaint was filed charging the defendant and two others as being parties to the crime of armed robbery. A preliminary hearing was held on October 4, 1971, and the defendants were bound over for trial. On October 14, 1971, arraignment was held and the defendant entered a plea of not guilty and demanded a jury trial. The defendant's motion to suppress an identification was filed on October 27, 1971, and the case was set for trial on December 16, 1971.
The defendant's court-appointed counsel requested the court for leave to file a notice of alibi on November 19, 1971. Although no such request would have been necessary under sec. 971.23(8) (a), Stats., leave was granted. On December 10, 1971, the notice of alibi was filed, although untimely. As a result of the late filing the court precluded the defendant from presentation of an alibi defense at trial.
The state presented but one witness — the victim, Mr. Katz — at trial. He identified the defendant as being one of the individuals who robbed his tavern on September 15, 1971. The defense called two witnesses, the defendant and Joseph William Henry, Jr. The defendant testified as follows:
" Q. Calling your attention to September 15, 1971, at approximately 11:20 p.m., were you, in fact, in the tavern called Cy's Place, located at 3064 North 27th Street?
" A. No, I wasn't."
The other defense witness testified that he, Mr. Henry, had also been charged with this crime and had entered a plea of guilty. He testified that he was involved in the armed robbery but that defendant Leon Davis was not involved. Mr. Henry, however, was surprisingly unable to identify the fourth individual involved in the armed robbery.
The basis for this appeal arose from an improper prosecutorial statement allegedly made during closing arguments. This argument was not recorded, and was later reconstructed by the trial court:
Under sec. 256.55(3), Stats., if counsel desired these arguments to be reported, a request to that effect must have been made. The failure to record these arguments does not, however, preclude us from determining the issue on appeal. State v. Tew (1972), 54 Wis.2d 361, 195 N.W.2d 615.
"The defendant filed an alibi, but under the statute, in construing the statute, this court denied him the right to introduce evidence on that subject on the grounds of being tardy. In the course of the trial testimony was received that Mr. Davis was not present at the scene of the incident. During the course of argument, which was not reported, the district attorney made a statement concerning the defendant's testimony on that score to the effect the defendant took the stand and said he wasn't there, where was he? Objection was made at that time."
A review of the record indicates that though defense counsel objected to the prosecutorial comment, he did not move for a mistrial.
"I made an objection when the reporter wasn't here during closing arguments to Mr. Podell commenting on the fact that the defendant took the stand and said he was not at the place and commenting where was he. I made an argument to the court. The court listened to argument by the defense attorney and the prosecutor, and we cited cases to the court and the court made a decision based upon our arguments and the law to allow that type of comment. I made that point for the record."
The sole issue presented on this review is whether or not the alleged improper prosecutorial comment constituted a denial of the defendant's right to due process of law and a fair trial and thus warrants a new trial.
This court has continually held that if counsel wishes to preserve for appeal an allegedly improper prosecutorial comment made during closing arguments to the jury, he must move for a mistrial upon those grounds. State v. McGee (1971), 52 Wis.2d 736, 190 N.W.2d 893; State v. Ruud (1969), 41 Wis.2d 720, 165 N.W.2d 153; Price v. State (1967), 37 Wis.2d 117, 154 N.W.2d 222, certiorari denied, 391 U.S. 908, 88 Sup. Ct. 1662, 20 L.Ed.2d 423; Kink v. Combs (1965), 28 Wis.2d 65, 135 N.W.2d 789. Failure to so move for a mistrial constitutes a waiver of that objection. If defense counsel had not intended to so waive his complaints there existed ample opportunity to make said motion on the record. The closing argument could have been made of record but it was not. Arguments of counsel made in chambers as to the propriety of the closing argument could and often should be made of record so as to preserve these contents for appeal. Here they were not. Defense counsel could have moved for mistrial after the court charged the jury. He did not do so.
We conclude that because of defense counsel's failure to move for a mistrial on the grounds of the alleged impropriety of the prosecutor's closing argument, he has waived those complaints.
By the Court. — Judgment and orders affirmed.