Davis v. State

61 Wis. 2d 284 (1973)

212 N.W.2d 139

DAVIS, Plaintiff in error, v. STATE, Defendant in error.

No. State 26.

Supreme Court of Wisconsin.

Submitted October 31, 1973.

Decided November 27, 1973.

*286 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.

Submitted under sec. (Rule) 251.54 October 31, 1973.

HANLEY, J.

The sole issue presented on this review is whether or not the alleged improper prosecutorial *287 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.