161 Wis. 2d 600 - State v. Webb

SHIRLEY S. ABRAHAMSON, J.

¶1(dissenting). I would grant the motion to reconsider. I conclude that the opinion must be modified.

¶2I agree with the defendant that this court's opinion and decision conflict with Waller v. Georgia, 467 U.S. 39 (1984), and Arizona v. Fulminante, — U.S. —,111 S Ct 1246 (1991). The court's addition to the opinion on the motion to reconsider does not address the problem the defendant raises.

¶3 *603Wallerheld that the improper closure of a pre-trial suppression hearing violated the sixth amendment and that this error is not subject to a harmless error analysis or cured by a conviction after an error-free trial. The defendant's federal constitutional rights to a public hearing apply to a preliminary hearing. Stevens v. Manitowoc Cir. Ct., 141 Wis. 2d 239, 248-49, 414 N.W.2d 832 (1987). In Fulminantethe United States Supreme Court cited Walleras standing for the rule that the right to a public trial is not subject to the harmless error rule.

¶4For these reasons, I conclude that an improper closing of a preliminary hearing cannot constitute harmless federal constitutional error.1

¶5Because I conclude that the opinion of the court has denied the defendant his right of appeal guaranteed by art. I, sec. 21(1), of the Wisconsin Constitution,2 and his *604 sixth amendment constitutional rights, I would modify the opinion.

¶6I am authorized to state that Chief Justice Nathan S. Heffernan and Justice William A. Bablitch join this dissent.

¶7The majority opinion, State v. Webb, 160 Wis. 2d at 628, concluded that it "did not decide the question whether there was error at the preliminary hearing . . . because [it] hold[s] that a conviction resulting from a fair and errorless trial in effect cures any error at the preliminary hearing." The majority opinion further stated at 630, note 6, that its "holding is tantamount to a finding of harmless error . . .. Although we do not consider the issue directly, it is clear that any error at the preliminary hearing in the case at bar could be regarded as harmless error."

¶8"As a matter of Wisconsin constitutional law, the right to an appeal is absolute: Writs of error shall never be prohibited, and shall be issued by such courts as the legislature designates by law.' Wisconsin Const., art. I, sec. 21(1). Since the reorganization of the Wisconsin court system in 1977, the court so designated is the court of appeals which has initial appellate jurisdiction as set forth in Wis. Const., art VII, sec. 5(3). The legislature has specifically stated, 'A writ of error may be sought in the court of appeals.1 Section 808.02, Stats. Thus, the right of appeal to the court of appeals is constitutionally guaranteed in the State of *604Wisconsin." State v. Perry, 136 Wis. 2d 92, 98, 401 N.W.2d 748 (1987).