Opinion
No. State 197.
Argued May 8, 1975. —
Decided June 3, 1975.
ERROR to review a judgment of the circuit court for Milwaukee county: JOHN L. COFFEY, Circuit Judge. Affirmed.
For the plaintiff in error there was a brief by Patrick J. Devitt and Patricia M. Heim, both of the Legal Aid Society of Milwaukee, and oral argument by Ms. Heim.
For the defendant in error the cause was argued by Thomas J. Balistreri, assistant attorney general, with whom on the brief was Bronson C. La Follette, attorney general.
This case involves the conviction and sentence of the plaintiff in error, Henry Knecht, hereinafter defendant, for armed robbery in violation of secs. 943.32(1)(b) and (2) and 939.05(2)(b), Stats.
A jury trial was commenced on July 9, 1973. Jeffrey Sacharski testified that he was an employee of the Monarch Supply Company in Hales Corners, Wisconsin, and that he was robbed at gunpoint shortly before 9 p.m. on December 22, 1972, at the Monarch store. He gave the robber the cashbox. He stated that the robber wore a red and black plaid jacket, a stocking cap and sun glasses and had a full beard and moustache. Although Sacharski could not make a positive identification of the defendant, he did testify that the defendant's nose was the nose of the man who robbed him.
The defendant's brother then testified for the state. His testimony was that it was the defendant who robbed the Monarch store and that he was with the defendant at the time.
The defendant's defense was that he had left Milwaukee shortly after 4:30 p.m. on the day of the robbery and had arrived in Chippewa Falls, near his home, at about 11:15 p.m. The defendant and four other defense witnesses testified that the defendant was in the Workman's Bar in Chippewa Falls by 11:15 or 11:30 p.m. on Friday, December 22, 1972.
After the defense rested, the state presented four rebuttal witnesses. Before the state completed its rebuttal of the defendant's alibi defense, the defendant decided to change his plea to guilty.
On July 12, 1973, the defendant changed his plea to guilty and the court questioned the defendant to determine if the plea was voluntarily and knowingly made. The defendant was questioned by the district attorney as to whether the plea was influenced by the suicide of one of his alibi witnesses after that witness had testified. The court accepted the plea of guilty and the defense stipulated that there was sufficient evidence in the record to base the finding of guilty.
The court then addressed the defendant and said:
"Mr. Knecht, let me tell you that in trying this case, the stench and aroma and filth and foul odor of perjury has permeated the entire defense of your case, and for as long as you're alive, there will have to be some doubt in your mind, are you responsible for the death of an individual who committed suicide yesterday, who came up here to testify and lie at your request on your behalf, and you brought five other people in here to lie for you, and every one of them followed the pattern of lie that you set out while here in the Milwaukee County Jail. . . ."
Sentence was then imposed upon the defendant, the court stating:
"And at this time as the court passes sentence upon you, the court sentences you to an indeterminate term of not more than twenty years at the Wisconsin Prison at Waupun, Wisconsin, and directs the Milwaukee County District Attorney's office to investigate and to prosecute vigorously all people who were involved in this perjury. . . ."
The court then specified the facts it took into consideration in sentencing the defendant as ". . . the Defendant's past criminal record, the seriousness of this crime charged, and the entire conduct of this trial and his conduct during said trial."
The issue presented is whether the trial court abused its discretion by adding to the defendant's sentence an additional term for the crime of perjury and by considering an improper fact not of record?
The defendant contends that the trial court improperly added to the sentence an additional term for the crime of perjury and improperly considered the suicide of one of the alibi witnesses in sentencing him.
The question of the trial court's statements that perjury was committed by the defendant has been considered by this court previously. In Lange v. State (1972), 54 Wis.2d 569, 196 N.W.2d 680, the same trial judge made statements at sentencing about perjury. The court agreed that it would be impermissible to add to a defendant's sentence an additional term for the crime of perjury. However, this court said (p. 575):
". . . We have, however, frequently pointed out that the trial judge's appraisal of a defendant's attitude, including the evidence of his veracity at trial is highly relevant to the exercise of sentencing discretion."
In the instant case, it is obvious that the trial judge knew he could not add to a sentence an additional term for the crime of perjury. The court specified the factors it took into consideration in sentencing the defendant and made no reference to perjury. In addition, the trial court ordered the district attorney's office to investigate and prosecute all people who were involved in this perjury. The order applied to all people involved and the defendant perpetrator was definitely involved.
The defendant also argues that the court abused its discretion by considering the suicide of one of the alibi witnesses after he testified. There is nothing in the record to indicate that this was a factor considered in determining the length of the sentence. The trial court mentioned it prior to imposing sentence, but did not mention it in giving the factors considered in determining the length of sentence.
We conclude that the judgment of conviction and sentence should be affirmed.
By the Court. — Judgment affirmed.