Opinion
June 10, 1966. —
July 1, 1966.
ERROR to review a judgment and an order of the circuit court for Milwaukee county: JOHN L. COFFEY, Circuit Judge. Affirmed.
For the plaintiff in error there were briefs by Michael B. Laikin, attorney, and Laikin, Swietlik Peltin of counsel, all of Milwaukee, and oral argument by Michael B. Laikin.
For the defendant in error the cause was argued by Robert E. Sutton, assistant district attorney of Milwaukee county, with whom on the brief were Bronson C. La Follette, attorney general, and Hugh R. O'Connell, district attorney.
J. D. Williamson, the defendant, was convicted of first-degree murder after a trial to a jury and was sentenced to life imprisonment.
Prior to the arraignment, defendant's attorney advised the court that he had reason to believe that the defendant was insane or feebleminded and was therefore unable to stand trial. On motion of defense counsel and pursuant to secs. 957.13 and 957.27, Stats., the court appointed two psychiatrists, Dr. Michael Kasak and Dr. Harry Tabachnick, to examine the defendant as to his capacity to stand trial.
At the hearing on capacity to stand trial both the defendant and the state stipulated to the qualifications of the doctors as experts. Nevertheless, both physicians detailed their training in the fields of neurology and psychiatry.
Each doctor testified that after having examined the defendant it was his opinion that Mr. Williamson could distinguish between right and wrong, that he could appreciate the nature and quality of his conduct, that he was able to confer intelligently with his counsel, and that he was not feebleminded. While defense counsel cross-examined the medical witnesses regarding their medical examinations, he made no objections as to either such examinations or the medical testimony. The court found that the defendant was sane and capable of standing trial.
The trial court then appointed Dr. Tabachnick and Dr. Edward Schmidt to examine the defendant and observe him during the trial so as to render their opinions as to defendant's sanity at the time he committed the act.
Both Dr. Tabachnick and Dr. Schmidt testified that it was their opinion that the defendant was sane at the time of the alleged offense, that he was able to distinguish between right and wrong, that he appreciated the nature and quality of his acts and that he was able to confer intelligently with his counsel.
It was Dr. Tabachnick's opinion that Mr. Williamson was sane and always in touch with reality, notwithstanding his drinking, his violent and angry temperament, and his purportedly being in a dream world. Dr. Tabachnick stated that despite the peculiarities of the defendant, he was able to conform his behavior to the requirements of society. He said that Mr. Williamson tested reality with tyrannical behavior and that his crying on various occasions may have resulted from frustration associated with a given situation. It was his medical opinion that Mr. Williamson could have controlled his actions at all times if he had desired to and was not suffering from delusions or false beliefs.
Dr. Schmidt testified that Mr. Williamson's crying was due to the fact that he was grief stricken after the event, that he was in touch with reality during the times he gave statements to the police, that any loss of self-control by Mr. Williamson would not have been indicative of mental illness, and that the defendant was neither a schizophrenic nor a paranoid.
Defense counsel voiced no objections whatsoever as to the admissibility or probative value of the medical testimony, and neither defense counsel nor the state offered independent psychiatric testimony.
A motion for new trial was filed by the defendant's present counsel, which was denied. Writs of error to review the conviction and denial of the motion for new trial were issued, and the matters are now before this court on such writs of error.
The appellant complains that the record does not disclose the scientific reasoning which he contends is essential to support the conclusions of the psychiatrist witnesses. The medical experts expressed their views at the proceedings held before the trial, when they stated that Mr. Williamson was competent to stand trial; they also explained their positions at the trial itself, at which time the experts opined that Mr. Williamson was sane. On this appeal, the defendant challenges the adequacy of the doctors' findings at both proceedings.
The accused was represented by counsel at the trial, and no objection was voiced as to the qualifications of the medical witnesses or as to the manner in which their examinations were conducted. Indeed, their qualifications as experts were stipulated. The appointment of these medical experts was made at the instance of the defendant's counsel, after he asserted that he had reason to believe that the accused was not competent to stand trial. Defense counsel was afforded full opportunity to cross-examine the medical witnesses.
There is particularly applicable to the case at bar the observation of this court in Ferry v. State (1954), 266 Wis. 508, 510, 63 N.W.2d 741:
"Defendant's principal attack is made upon the court's alleged error in permitting the state's medical experts to testify in a manner so as to invade the province of the jury. The testimony was received without objection; no motion to strike it was made. In fact, some of it was elicited upon cross-examination of the experts by defense counsel. In that situation counsel may not complain. Lyon v. Grand Rapids, 121 Wis. 609, 99 N.W. 311; Wolf v. Evans, 211 Wis. 601, 247 N.W. 844."
We find no merit to the claim that there was any impropriety in connection with the medical examinations or the evidence which resulted therefrom. The evidence given by the medical witnesses was consistent with their conclusions; if defense counsel felt otherwise, it was his responsibility to object or to develop that theme either by cross-examination or independent evidence. The absence of any objection whatsoever is fatal to the defendant's present challenge. Collier v. State (1966), 30 Wis.2d 101, 104, 140 N.W.2d 252; Ferry v. State, supra; see also Kink v. Combs (1965), 28 Wis.2d 65, 72, 135 N.W.2d 789.
It is also urged that counsel for the defendant should have been present during the pretrial psychiatric examinations of the accused. On this appeal it is conceded that a request for counsel to be present was never made. In the absence of such a request on the part of counsel or in the absence of an objection to the holding of the examination in the absence of counsel, no error was committed. In Cullen v. State (1965), 26 Wis.2d 652, 657, 133 N.W.2d 284, we stated:
"We believe that, from a reading of the aforesaid section of the statutes [957.13] . . . it is apparent that the legislature intended to impose broad discretion upon the trial judge in determining mental capacity to stand trial. In Crocker v. State (1884), 60 Wis. 553, 557, 19 N.W. 435, it was held that `the method of making inquisition is left to the discretion of the court.'"
The appellant also seeks reversal because of his claim that the instructions to the jury were improper. The definition of insanity used by the trial court in the case at bar was substantially that which this court subsequently approved in State v. Esser (1962), 16 Wis.2d 567, 115 N.W.2d 505. See also State v. Kanzelberger (1965), 28 Wis.2d 652, 662, 137 N.W.2d 419, and Kwosek v. State (1960), 8 Wis.2d 640, 647, 648, 100 N.W.2d 339.
Particularly, the appellant maintains that the court erred in failing to present a separate instruction to the jury that the burden of proof as to sanity was upon the state. The trial court instructed the jury that the state has the burden of proof as to every element of the crime charged. The court followed the language of sec. 957.11 (2), Stats., in instructing the jury that there is a presumption of sanity unless the evidence creates in the minds of the jury a reasonable doubt as to the sanity of the accused.
Although no objection was made to these instructions and although no alternative instructions were proposed at the trial by the accused, it is now claimed that the instruction on the subject of insanity was "too remote" from the general instruction on burden of proof. We find no merit in this contention, even though we agree that if it had been requested a specific instruction could properly have been given to the effect that the burden of proof as to sanity is upon the prosecution.
Mr. Williamson further urges that the failure of the trial court to have submitted a verdict on manslaughter was a prejudicial error. When there is a reasonable basis to believe that the evidence will sustain a lesser included offense, it should be submitted by the trial court. Weston State (1965), 28 Wis.2d 136, 142, 143, 135 N.W.2d 820. This court has also held that even if the evidence would sustain a lesser included offense, it is not error in the absence of a request therefor by the defendant. Neuenfeldt v. State (1965), 29 Wis.2d 20, 31, 138 N.W.2d 252; State v. Scherr (1943), 243 Wis. 65, 69, 9 N.W.2d 117. No request was made by the defendant in the instant case.
Mr. Williamson shot his estranged wife several hours after he placed a loaded pistol in his pocket. Our review of all the facts in the instant case convinces us that this defendant was not entitled to a submission of a manslaughter verdict even if a request had been made. See Weston v. State, supra, at 144, 145; State v. Hoyt (1964), 21 Wis.2d 284, 298, 124 N.W.2d 47, 128 N.W.2d 645; Brook v. State (1963), 21 Wis.2d 32, 42, 43, 123 N.W.2d 535.
The various errors claimed by counsel on this appeal were not objected to at the trial by Mr. Williamson's trial attorney. The effort to raise the issues in the appellate court is impeded by the absence of more timely complaint. There is applicable the expression of the Georgia court in 1879:
"The point appears here in its virgin state, wearing all its maiden blushes, and is therefore out of place." Cleveland v. Chambliss (1879), 64 Ga. 352, 359.
Finally, it is urged that a new trial should be granted in the interests of justice under sec. 251.09, Stats. Our examination of the record in this case does not suggest that justice has miscarried.
By the Court. — Judgment and order affirmed.