Opinion
No. State 99.
Argued January 8, 1971. —
Decided February 2, 1971.
ERROR to review a judgment and an order of the circuit court for Milwaukee county: HARVEY L. NEELEN, Circuit Judge. Affirmed.
For the plaintiff in error there was a brief by Boren, Schmidt Fleming and Morton J. Schmidt, all of Cudahy, and oral argument by Morton J. Schmidt.
For the defendant in error the cause was argued by Victor Manian, first assistant district attorney of Milwaukee county, with whom on the brief were Robert W. Warren, attorney general, and E. Michael McCann, district attorney.
Alnut Alvin Nicholas, the plaintiff in error (hereinafter the "defendant"), was tried by the court without a jury and found guilty of two counts of being a party to the crimes of forgery and uttering and one count of attempted forgery.
Miss Cornelia Anderson testified that on November 14, 1967, the defendant called her on the telephone and asked if she wanted to make some "fast money." She agreed, and later in the day the defendant appeared at her house and produced some checks stolen from the L. Mericle Electric Company, Inc. The defendant also produced a purse and wallet containing a Gimbel-Schuster charge plate issued to Miss Golene V. Lock. Additional identification material in the name of Golene Lock was also in the purse. The defendant explained the forgery scheme and then coached Miss Anderson as she practiced forging the signature of Miss Golene Lock. They then proceeded to the Gimbel store at the Capitol Court shopping center with two other men who were never identified. The other two men remained in the car in the parking lot, and the defendant and Miss Anderson entered the store. When they reached the cashier's office, Miss Anderson endorsed two checks in the presence of the cashier. After they left, the cashier noticed that Miss Anderson had incorrectly spelled the payee's first name ( i.e., Golen, instead of Golene). The cashier checked a list of stolen check numbers. She discovered that the checks were listed as stolen from the L. Mericle Electric Company, Inc. All other Gimbel stores were immediately alerted to be on the lookout for anyone attempting to cash checks with the Golene Lock charge plate. Meanwhile, the defendant and Miss Anderson arrived at the Gimbel's Mayfair shopping center store. The cashier at this store recognized the name on the charge plate; and after Miss Anderson endorsed the checks, the cashier asked Miss Anderson and the defendant to wait while she located the manager whose okay on the checks would be necessary. Actually the cashier stepped into an adjacent office and called the police.
In addition to the above testimony by Miss Anderson, both of the Gimbel's store cashiers also testified. Each identified the defendant as the man who stood next to Miss Anderson when the forging and uttering occurred.
When the defendant took the stand, he admitted his presence on the occasions in question but he denied any knowledge of the fact that Miss Anderson was forging checks. The trial court judge did not believe the defendant and found him guilty as charged and sentenced him to three concurrent terms, each to be of not more than five years' duration.
The defendant appeals from the judgment and from the order denying a new trial.
Defendant seeks a new trial on the ground of alleged prejudicial errors committed by the trial court. These alleged errors consist of the following:
(1) The court committed prejudicial error in permitting the trial of the two codefendants, alleged to be conspirators, to remain consolidated where one defendant changes a plea from not guilty to guilty and becomes a witness for the prosecution; and
(2) The defendant was deprived of a constitutional right when the trial court failed sua sponte to ask the defendant before imposing sentence whether he had anything to say why sentence should not be imposed.
Was consolidation unduly prejudicial?
Originally both the defendant and Miss Anderson were charged and these charges were consolidated for trial. The defendant and Miss Anderson pleaded not guilty and waived a jury trial. Just before the trial began, however, Miss Anderson changed her plea from not guilty to guilty. She then testified to the facts described above.
The defendant argues that he should have had a separate trial because the testimony of his codefendant was so prejudicial. This argument is without merit, first, because the defendant made no motion for severance before or at any time during the trial. Secondly, there was no "other trial" from which the defendant's trial could be severed. Once Miss Anderson pleaded guilty, she was no longer "on trial," and the defendant was being tried alone. Thirdly, the general purpose of the rule allowing severance is to prevent the jury from becoming confused as to what evidence is applicable to which defendant. When the case is tried to the court alone, without a jury, the danger of undue confusion is not present. There may be cases where severance is appropriate, even though the judge alone is the trier of fact, but this is certainly not one.
In State v. Cathey (1966), 32 Wis.2d 79, 90, 145 N.W.2d 100, this court reaffirmed the well-established rule that:
". . . on trial to the court the judge is presumed to know what testimony is competent and will disregard extraneous matter." Gauthier v. State (1965), 28 Wis.2d 412, 421, 137 N.W.2d 101, and Birmingham v. State (1938), 228 Wis. 448, 453, 279 N.W. 15.
Constitutional right to allocution prior to imposition of sentence.
Counsel for the defendant contends that defendant was deprived of a constitutional right when the trial court failed sua sponte to ask defendant before imposing sentence whether he had anything to say why sentence should not be imposed.
The right which counsel contends his client was deprived of was known at the common law as the right of allocution. At early English common law criminal defendants were generally not permitted to be represented by counsel, and such defendants were not competent witnesses. Consequently they were not allowed to give testimony. As a result, no one was allowed to speak in the defendant's behalf until the trial was over, at which time the judge would ask the defendant if he had any reason why sentence should not be imposed. This stage of the common-law trial was the only point at which the defendant had an opportunity to assert a defense or some kind of mitigating evidence. Therefore, the right of allocution was not a mere formality; it was thought to be a right, and its omission usually required reversal. This right was codified by sec. 972.14, Stats., which provides:
"Before pronouncing sentence, the court shall inquire of the defendant why sentence should not be pronounced upon him and accord the district attorney, defense counsel and defendant an opportunity to make a statement with respect to any matter relevant to sentence."
In Boehm v. State (1926), 190 Wis. 609, 209 N.W. 730, decided when the right of allocution was considered a common-law right, this court held that failure to propound the question to the defendant did not constitute prejudicial or reversible error.
In Hill v. United States (1962), 368 U.S. 424, 82 Sup. Ct. 468, 7 L.Ed.2d 417, the court, in construing the same requirement under Rule 32 (a) of the Federal Rules of Criminal Procedure, held that failure of a trial court to ask a defendant, represented by counsel, whether he has anything to say before sentence is imposed is an error which is neither jurisdictional nor constitutional.
We conclude that the failure to propound the question referred to does not constitute reversible error. However, we direct the trial courts to comply with the statutory direction contained in sec. 972.14, Stats., which became effective as of July 1, 1970.
By the Court. — Judgment and order affirmed.