*1 probable dence to establish cause to arrest the defendants possession marijuana with intent to deliver. Finally, again the defendants have that the contended dismissing complaints trial court’s order an appealable previously order. This court in orders held, July 18, 1978, dated that the trial court’s order dismiss- ing complaints final as to each defendant was a appealable pursuant 974.05(1) order (a), and thus sec. question appeal- Stats. view of the fact that ability already court’s order has been con- sidered, again appeal we need not reconsider the issue on (thus summarily it is dismissed.
By the appeals Court. —The decision of the court affirmed and cause remanded to the circuit court for proceedings opinion. consistent with this
Raymond error-Petitioner, Plaintiff D. Wisconsin,
State Defendant in error.
Supreme Court Argued April No. May 6, 78-034-CR. 1980. Decided (Also reported 554.) in 291 N.W.2d *3 error-petitioner cause was plaintiff in For the public argued deputy de- Brandt, Ronald L. state B. Eisen- Howard whom briefs were fender, with on the Cates, defender, Richard L. berg, public former state public state defender. argued by the cause
For the defendant error attorney general, with whom Mary Bowman, V. assistant on the Bronson La briefs was Follette, C. general. denying is a
COFFEY, J. This review a decision Raymond defendant’s, Pohl, post for motion convic- co-defendant, tion relief. The defendant and a Steven burglaries Rische, for were arrested of two resi- They city July 26, on dences Milwaukee 1974. charged party burglary, were with each two counts of contrary crime, 939.32, to secs. 943.10 and Stats. jointly1 Pohl and co-defendant Rische were tried jury. before trial,
Prior a motion filed Stats.,2 severance, pursuant on the to sec. 971.12(3), ground co-defendant, Rische, an extra- had made that the admitting partici- police judicial confession to the burglaries. (Pohl) pation implicating him Rische, co-defendant, disclosed that state police: actually made two statements to admitted 1. in which Rische a hand confession written burglaries; only his involvement in the implicated oral which Rische an confession accomplices.3 two other defendant and represented by a and co-defendant were each The defendant different defense counsel. Stats., 971.12(3), reads follows: Sec. . . . “Joinder of crimes of defendants. “(2) . . . prejudicial joinder. appears it If “(3) Relief FROM *4 joinder prejudiced by or of a crimes state defendant or the or such complaint, in a information indictment defendants separate may joinder together, trials the court order for trial provide other grant whatever counts, a severance defendants the court requires. advise justice shall relief The district of a co-defendant to use the statement if he intends to charged. There- implicates in the crime which another any grant upon, defendant. judge a as to such severance shall 3 Larry accomplices and Gaines Arthur The two other were against primary the de witnesses state’s Stelloh who were fendant.
The state also informed court that it intended to use court, granting these statements at trial. The rather than motion, portion the severance elected to instead excise implicating defendant, Pohl, of Rische’s oral statement police “not and directed the state instruct officer persons name of the that were with . . Rische . burglary as at the time of the on direct examination” excising recited in the oral confession. After the state- Pohl, implicating ment the court denied the defendant’s time, ex- for At the state also motion severance. implicating pressed Pohl intent to use the its burglaries in if the stand his own Rische took subject cross-examination: and thus be defense longer course, testifies, there is no “If Mr. Rische asking time, problem. I will be At that Bruten [sic] him about the confession.”4 defendant, against trial, the state’s evidence At Rische, primarily Pohl, co-defendant, consisted and the Larry Stelloh, and of Arthur Gaines of the Stelloh, burglaries.5 and co-participants in Gaines charges, agreed robbery awaiting sentencing separate on exchange against for the testify Rische Pohl and co-conspirators charge agreement not to them state’s four of burglaries. They testified that in these two 26, morning July on the house them met at Stelloh’s morning, burglaries. Later that the date car they in the defendant’s they around drove stated burglarize. ap- At unoccupied looking house for an Supreme problem to the United States Bruton refers term States, 391 U.S. Bruton United Court decision confession, proscribed a co-defendant’s the use of court where the opportunity to cross- no inculpating when there is the defendant unavailable to be cross- because the co-defendant examine examined. robbery originally been arrested Stelloh had Gaines guilt also by police being questioned their admitted while Rische, co-defendant, implicated the July 26, burglaries house
295 proximately p.m., some after delivery, time the mail they duplex noticed mail still the mailboxes of across defendant, Pohl, stopped from Mitchell Park. theAs the car, up Rische exited and walked to the front door and rang- answered, the no doorbell. When one testi- Stelloh that ob- fied Rische walked back to the mailboxes and people tained “the name of the lived in one the off the mail went to a houses that was there and we phone booth and called the house first. There was no they answer. Then went to we back.” When returned duplex parked defendant, Pohl, the car while Rische, proceeded door and Stelloh to break front Gaines gain entry. Upon apartments windows in each to entering apartments, proceeded to all four them6 gather apart- from the and the valuable items search property was loaded into defend- ments. The stolen defendant, Pohl, and then drove ant’s car. The Stelloh Pohl back to house. went with Rische Gaines Stelloh’s money “gave theme where the defendant home among split cash be the merchandise for [$225 brought back then me that we had and he them] Larry’s house.” attempt testi- an Stelloh’s discredit Gaines sought their
mony, to establish angry they were biased and that was get was trying Pohl that Stelloh at him. claimed back testifying prose- police for co-operating with the receiving lighter for hopes sentence cution convicted, had robbery but he been which had uncharged co- yet Pohl contended been sentenced. angry : Gaines, because at him conspirator, give title to Gaines defendant refused gave toit interested, rather but in which he was car ;7 girl friend former Gaines’ apartments while in both saw Pohl that he stated Stelloh apartments. only in one of the saw Pohl testified
Gaines car for to Gaines’ the title transferred initially car, paid actually for the girl she because friend mer
(2) the defendant had threatened to have Gaines against killed if he testified him.
The state in its case in chief introduced the confessions Gaines, against Stelloh and Rische as evidence the de- fendants. The confessions of Gaines and Stelloh were substantially testimony with consistent their at trial. given Gaines and Stelloh, immediately their statements arrests, participation after their admitted their in the burglaries implicated and defendants, also Pohl Detective Rische. Dobesch testified that Rische, follow- ing arrest, participation burg- his admitted his in the laries in detective, oral and written confessions. The pursuant direction, to the court’s from excluded his testi- mony any reference to Gaines Stelloh. The police that Rische to made was consistent prosecution’s with the of the other two wit- nesses, Gaines and Stelloh. defendant, Pohl, support defense,
The of his alibi working girl claimed that he was on his Linda friend’s, Thorson’s, burglaries July 26, car at the time of the on part burglary. and thus could not have taken addition, presented testimony the defendant from support three other witnesses his claim that he was working girl on his friend’s car at her house the time at burglaries. of the Susan Mahl testified that she saw the defendant, Pohl, during day burg- off and on of the babysitting girl laries while she was at Pohl’s friend’s house. being On cross-examination she admitted to girl friend of the defendant’s Lex, brother. Woodrow Pohl’s brother-in-law, stated that he was with Pohl the day burglaries morning from 10 o’clock in the till approximately p.m. helped the defendant work on loaning money original payment Gaines make the down on paying money the car later off the remainder of the on owed the car. Lastly, defendant, Monte, the car. Darric a friend helped stated that he Pohl work on the car between and o’clock in the afternoon. During- the alibi cross-examination the defendant’s witnesses, apparent- the state became of what aware ly “transcript” between described a conference attorney The and the alibi witnesses. record as to is unclear whether the defense secretary took notes of their con- *7 attorney objected transcript. on the The the defendant’s grounds transcripts, they complete (1) that: were merely the defendant but of his conversations with *8 any inquiry to make about his claimed loss of memory. jury Pohl, defendant,
The found both the co-defendant, guilty burg- Rische, each of two counts of lary. The court sentenced both con- defendants to two years secutive of or a total indeterminate terms seven years of 14 each. The for a new defendant, moved trial in for a the alternative reduction or modification Thereafter, of court sentence. The denied the motions. post relief, for the defendant filed a motion conviction grounds: pursuant 974.06, Stats., following on the to sec. improperly 1. that court denied his motion severance; for portions of the co-defend-
2. that those of introduction inculpating him a denial of his ant’s were confession right confrontation; constitutional ordering court erred in the defense 3. that the trial conference between the over “notes” counsel turn attorney defendant, and his alibi witnesses. his April 14, court, in an denied order entered The trial post for conviction relief and motion defendant’s ruled as follows: was denied “(1) contention Defendant’s effectively opportunity co-defendant his cross-examine presence on the wit- the co-defendant’s
was satisfied Green, pursuant 399 U.S. stand and ness California was offered de- (1970), effective cross-examination ; fendant properly “(2) for was motion severance Defendant’s 971.23(3), and the Court Stats., pursuant denied properly Sec. regard; and its discretion exercised de- permitted to cross-examine “(3) The State ‘transcript’ the conference upon the based fendant pursuant alibi witnesses with transcript Stats., that such 971.20(1), to sec. [sic] product’.” ‘work counsel’s defense did not constitute decision, af- unpublished appeals, an court of decision It is from order. court’s the trial firmed review. the court for petitioned the defendant has Issues appeals err court and the Did trial court
1. severance, grant motion refusing defendant’s 971.12(3), pursuant Stats.? to sec. right confrontation constitutional Was Pohl’s admitting portions ruling those by the court’s
violated co-de- implicating Pohl after confession Rische’s of the con- recollection claimed no (Rische) had fendant fession? *9 directing
3. Did the trial court err in the defendant prosecution turn transcript over to the a of the defense with counsel’s interview the defendant and the alibi wit- nesses, pursuant 971.24(1), to sec. Stats.?
Severance appeal defendant,
On contends that the trial appeals denying court and the court erred the de- pretrial fendant’s motion for severance based on the an- ticipated by co-defendant, introduction of a statement Rische, implicating burglaries, pursuant him in the 971.12(3), sec. The defendant Stats. contends that sec. (3), 971.12 mandates severance: prejudicial joinder. appears “(3) Relief If it from by that a prejudiced joinder defendant or the state is a complaint, of crimes or of indictment or in a defendants information by joinder together, such for trial the court may of grant separate order a counts, trials of severance provide justice defendants whatever relief other re- quires. district shall advise court to trial to use intends the statement if co-defend- implicates ant which another in the crime charged. Thereupon, grant judge shall severance supplied.) as (Emphasis such defendant.” case, granting requested In this than rather severance court, proper in furtherance of single (speedy trials, court administration wherever possible, necessitating repeated thus without witness appearances) portions of ordered those the co-defend- ant’s, implicating Rische, defendant, Pohl, burglaries In Cranmore v. be excised deleted. 1978) State, (Ct. App. Wis.2d appeals implicating court of held that deletion appropriate to a defendant is an form references adverse granting to that of of alternative relief severance: *10 argued “Defendants that have not this court statutory language requires of section severance this au- in all in which law enforcement defendants instances possess by implicat- thorities a statement a codefendant argu- ing an another not believe such defendant. We do legislative would be viable. The committee note ment indicates provide that the is intended to a mech- statute compliance As we have anism with Bruton. to insure by stated, may effectively compliance with Bruton be had by excising any implicating- reference codefendant instructing jury purpose which limited for to the done, the statement If this is the evidence admitted. longer ‘implicates and therefore another defendant’ no prohibition statute. The not of the does fall within legislative this indicates that statu- committee note also tory provision of trial Rules is taken from F.R. Cr. P. [Federal procedure utilized this Criminal Procedure]. statutory provision. that is authorized ap- Note-1974 “The Judicial Council Committee’s pended Stats., permits 901.06, introduction to which sec. only purposes limited for which is admissible evidence only 971.12(3) provides for party, states: ‘S. or as to one appropriate separate if a supplied.) other trials or severance relief (Emphasis implicates a codefendant.’ confession appropriate relief’ ‘other that the believe We implicating references referred is the deletion warranted procedure trial was at this utilized Id. 901.06, at 747-48. 971.12(3) Stats.” under secs. deletion agree appeals decision with the court of We option permissible to that “implicating references” is deci- Thus, trial court’s as a result severance. co-defendant’s, in the references sion to delete was confession, implicating it Rische, defendant’s, Pohl, deny the for trial court error co-defendant, However, after for motion severance. available Rische, witness stand taken the the state permitted cross-examination, trial court including confession, co-defendant’s introduce the trial, point At implicating Pohl. portion during the in camera conference, Pohl’s counsel had sev- options open eral to him: object
1. to portions to the reference the excised Rische; of the statements in cross-examination of 2. trials; move for a mistrial and severance objections, to make no allow the cross-examination to continue and even cross-examine the co-defendant him- self.
Facing options proceed, choice to how as it was responsibility the of defense counsel to choose between by options by motion, such formal silence and sub- sequent claim of error. 65,
In v. Combs, Kinks 28 789 Wis.2d 135 N.W.2d (1964) this court held that a defendant who fails to make a motion by for a prejudiced mistrial at the time he is an opposing right remarks, counsel’s has in effect waived his prejudice to claim at a later time: “If the prejudiced, defendant had been the fact that probative the plaintiffs’ evidence was not counsel’s remarks known plaintiffs’ to him at the close of case. By failing to move for a mistrial at time right prejudice waived his to assert later. Under analo- gous claiming preju- situations we held have that counsel by promptly dice make reason of counsel’s misconduct must proper objections court.” Id. at 72. Similarly, Lemberger Koehring 210, v. Co., 63 Wis.2d 225, 216 542 this court that: N.W.2d held simply provides that, “The rule when there [waiver] highly prejudicial occurs in the course trial a event likely materially which is affect outcome aggrieved trial, objection party then must raise his and move for mistrial. His to do when rea- failure so sonably constitutes a prejudicial have known occurrence should objection.” waiver of the Id. at
303 court in This rule waiver has been an followed 278, following Whitby 149 State, v. 34 cases: Wis.2d ; Hospital Mary’s (1967) Leibl v. St. N.W.2d 557 (1973); Milwaukee, 227, 715 203 Wis.2d N.W.2d Valiga 232, Co., v. 206 N.W.2d National Food 58 Wis.2d 21, (1973) Purtell, ; 230 N.W. Nimmer v. 69 Wis.2d (1975). 2d 258 argument expressed theory behind waiver supra, Combs, the defendant’s: Kinks was that v. only timely be con can “Failure to make a motion rely possibility of a favor strued as an election able 550, 555, was in on the Craig jury (1957), Wis. In Frion verdict. juror of a where the conduct question, we stated: “ open inter- to the obvious of action is ‘Such course with the
pretation preferred to continue that he move than rather with the outcome We and take his chances for mistrial thereby that counsel . . . consider juror, which possible of a misconduct waived waiver issue of ap- raising on this issue precludes from him ” peal.’ Id. at 72-73. failed counsel fact that defense view of the for sev- motion for a mistrial or renew object, move *12 of text the full introduced the state at the time erance including confession, those Rische, co-defendant’s, the defendant, Pohl, ef- portions implicating the appeal. right any prejudice on to assert fect waived strat- of elected, a matter counsel as case, trial the with chances take his the trial and egy, continue with of the court Therefore, hold jury we the verdict. order affirming the court’s appeals correct in post-conviction relief. denying the defendant Confrontation alleges that the introduction Next, the (implicat- Rische, confession co-defendant’s, oral of his ing burglaries) him in the into evidence violated his right against constitutional to cross-examine the witness grounds him8 on the that since Rische denied recol- making statement, lection of prevented the oral he was exercising right from his of cross-examination. Supreme The United States Court California Green, 149, 399 U.S. 90 S. Ct. 26 L. Ed.2d, (1979) that: held good “. . is . there reason conclude that the Con- admitting frontation ant’s by Clause is not violated a declar- long out-of-court statements, as as declarant the is testifying subject as a witness and to full and effective cross examination. by supported “This conclusion comparing pur- is the poses alleged dangers of confrontation with the in admit- ting an (1) out-of-court statement. in- Confrontation: give sures that the witness will his statements under impressing oath —thus with him the seriousness the guarding against by possibility matter and the the lie penalty perjury; (2) for forces the witness to sub- ‘greatest engine cross-examination, legal mit to invented for the ever discovery truth’; permits the decide the defendant’s fate to observe the jury that is making statement, demeanor of the witness in his thus aiding jury assessing credibility. is, course, “It true that the out-of-court statement may subject been have made under circumstances protections. pres- none of these But is declarant if testifying ent trial, at statement out-of-court practical purposes regains protec-
all lost most his, tions. or If the witness admits the is is there other evidence to show the statement is if reproduction his, danger faulty negligible jury it be that it two con- can has confident before flicting Thus, statements the same as far witness. pro The Sixth Amendment of the States Constitution United prosecutions, enjoy all vides that “In criminal the accused shall right against be ... confronted with witnesses him.” Art. I, requires sec. 7 of Wisconsin Constitution right “to have the meet the face to witnesses face.”
305 concerned, affirm, deny, must the witness now oath qualify prior the truth of the statement under the penalty perjury;. . . “Second, inability to cross-examine the at witness easily prior cannot be the time he made his shown to be of crucial significance long as the defend- at ant is of full and cross-examination assured effective (Emphasis supplied.) trial.” Id. the time of at 158-59. State, Virgil v. cites 84 Wis.2d The defendant support in claim that he was of his because the full effective cross-examination denied making any about recollection co-defendant denies State, Virgil prior However, v. the facts statement. distinguishable. co-participant supra, Virgil a are testify.” He re- murder was “called to the stand guilty sponded pled to murder and had been that he years further prison. refused sentenced to He contempt re- guilty and was found po- questions. Subsequently, a fusal to answer further recounted and he called to the stand lice detective was prior oral statement co-participant had made a him, im- all of them and two written statements court held plicating crime. This defendant’s Sixth there was violation as “there right in that case to confrontation Amendment Id. at opportunity for cross-examination.” was no distinguished the fact situation Furthermore, the court Lenarchick: the situation in that case from was no violation that there “In Lenarchick we held physi- the witness right where of confrontation cross-examination, object cally did not available and memory and loss of displayed a selective but rather carefully that counsel indicated circumstances where the avoided cross-examination potential- that were on issues ly harmful to the defendant. falls however, quite is, different case “The instant teachings Douglas Alabama, U.S. within the *14 306 (1965). accomplice, 415 In that case the defendant’s separately, a who had tried was called as witness been against privilege Id.
but invoked his self-incrimination.” at 187. Therefore, Virgil State, in view the fact that v. supra, of mem- the witness did not exhibit a loss selective ory any ques- completely but rather refused to answer except say to that tions on direct cross-examination sentenced, pled guilty was we to the crime and factually distinguish- Virgil supra, State, v. is hold that present court has held able from the case. While right meaningful that is to a a defendant entitled cross-examination,9 a that wit- we have refused to rule making inability is a ness’ to recall claimed “meaningful” cross-ex- denial of “full and effective” 425, Lenarchick, 247 In State v. 74 Wis.2d amination. the situa- (1976), faced with 80 this court was recol- the stand at trial denied tion where a witness on inculpating de- out-of-court statements lection defendant, Lenarchick, that claimed as fendant. memory,” was denied result of “lack of he sought the witness’ right to have and thus the witness confront that court held excluded. This the witness’ right of cross-examina- not denied his Lenarchick was professed respect witness to the matters the tion with following reasons: a lack of recall for the purported apparent is that “In the case it instant lapse memory favorable to the and was selective therefore, prudent counsel that obvious, It is defendant. effort in an witness] not Miles would to show that she ment cross-examine [the state- heard Lenarchick’s had in fact it fact recounted had in thing she defendant] [the allege then police. it another But to the counsel He opportunity to cross-examine. was denied the strategy but, a matter of trial opportunity, had that (1977); Nabber 575, Olson, 250 N.W.2d State v. 75 Wis.2d (1978). State, 266 N.W.2d 83 Wis.2d feld prudence, and possible a client failed to do so. But the fact mere cross-examination reveal may facts adverse ought implicate the confrontation clause. wholly specious. The claim of constitutional error is “A review of the record shows that failed counsel cross-examine the witness on Miles matters she did wisely pressing respect remember and avoided her in her lack of recollection of the admission his client. *15 inability The claim of to cross-examine is foun- without dation. We conclude that the claim of constitutional er- ror is Id. unfounded.” at 443-44. Recently, Vogel State, Wis.2d (Ct. App. 1979), appeals Le- the court of on relied case, narchick to arrive at a similar conclusion. co-participant robbery a provided police in a with a signed implicating in the crime. trial, co-participant signing At a confession admitted police any arrest, at the station after rec- his but denied giving claiming police, ollection of a statement to the he co-participant’s was too drunk at the time. The in-court testimony exculpatory appeal, was of On the defendant. argued the defendant that because the witness denied making police, recollection was of a statement to the meaningful “unavailable” for Id. at cross-examination. upholding appeals, 553. The court court’s co-participant’s into admission of the written statement against evidence the defendant stated: analysis applicable “The of Lenarchick control- ling the witness stand. His patory Lindsey in the instant case. was available and on stand, from the excul- reasonably complete was technique, detailed. chose mony. a matter of trial defense counsel As testi- not this to cross-examine the witness police primarily post-robbery in the “It was events remember, and here his which not even station he could apparently, as memory lapse was was not absolute but being He remembered Lenarchick, somewhat selective. station, ‘five, taken to the there were six officers running asking questions’ in and out me and that he signed piece paper, but denied recollection mak- ing the statement. opportunity had an to cross-ex- “Defendant’s regarding Lindsey prior statement but limited amine his inquiries questions particularly aimed at de- to four evening termining how much the witness had drunk the fully ques- robbery. Lindsey responded to each of the tion. incomplete “Lindsey’s lapse memory did opportunity not so affect to cross-examine as application of the a ‘critical make difference’ confrontation clause.” Id. at 555-56. dispositive find Lenarchick of the confronta- We case reading complete tion issue in this also. Based on case co-defendant’s, record, of the we conclude Rische, lapse memory selective was an exercise of making amnesia in case as he could remember ac- recount all his other the statement but was able to including day burglaries, fact that tions on the paycheck. he remem- picked up He testified that *16 he his 1975, being approximate- at on March bered arrested kitchen, “being ly p.m. into the and then forced leav- remember handcuffed, placed chair, in a but I don’t ing remember Rische stated that he did not the house.” had been because he of the arrest all the circumstances drugs taking The next drinking prior to his arrest. and city jail being to the thing taken he remembered was of his selec- Further evidence to court. and then later following testi- found in the can also be tive amnesia mony: arrest; just prior to his
1. had taken codeine that he girl friend from his codeine 2. the that he obtained pain; by and taking prescription for it who was allegedly made he confession when shown written handwriting?”, your police asked: “Is and to the that.” responded “I couldn’t swear he Rische’s on the stand was favorable to the de- par- fendant in that affirmed it his Pohl’s lack of burglaries ticipation in the and thus rebutted the testi- mony Stelloh, Gaines the state’s other two opportunity witnesses. The defendant had the to cross- defense, examine Rische about the his alibi whether burglaries participated in but strategy aas matter of trial declined to cross-examine question- strategically as to either matter. Pohl avoided ing memory co-defendant, Rische, about his lack implicating as to Pohl to the Rische’s statements police judgment. Obviously, as matter it of trial memory repeat the lack of defense beneficial to highlight implicating Pohl thus Rische’s confessions again. Conversely, jury if had affirmed Rische once making statement, defendant would have been precarious position when co- placed in than a more of the statement. Similar- recollection defendant denied making if the confirmed ly, co-defendant either state- making the truthfulness or denied ment but its denied credibility altogether, have would Rische’s damaged destroyed have further been that would This, might turn, cast further have case. defendant’s no upon was little or case. There doubt the defendant’s cross-examining gained Pohl’s benefit be of the state- co-defendant, Rische, the content about defendant, as a Therefore, it is evident ment. thoroughly cross- declined strategy, matter lightly tripped Rische, co-defendant, but examine the concerning his through of cross-examination field claim that Thus, the defendant’s we hold confession. cross- right confrontation and of effective was denied the merit. without examination is and Alibi *17 Transcript Between Defendant Conference Witnesses was error for that it
Lastly, contends copies of turn over to defense order the trial court to attorney, “transcripts” between the of interviews defense al the defendant and the alibi witnesses. The defendant leges “transcripts” in this case were involved by requirements 971.24(1), covered of sec. not Stats.10 “transcript” court
The trial found the confer- rep- and his alibi witnesses ence between the defendant appeals that this The court held resented statements. resolving finding fact, an issue determination is “a presented to fact to the trial court.” 971.24(1), phono- “written or Stats., refers to Sec. graphically statements recorded statements.” The attorney’s notes case consisted of either the defense secretary. counsel’s
311 goes only portions . . to statements or thereof con- cerning subject the matter of the witness’ signed by given orally the written witness or stenographically mechanically (Empha- transcribed.” 633, supplied.) Richards, 622, sis State 21 124 v. Wis.2d (1963). 684 N.W.2d language Richards, supra, there is v. While State stenographically may that oral statements transcribed be required produced, be it this court’s view is that this language to oral that have been re- refers statements must corded verbatim. It is our belief that there be reliability (includ- some indicia of the of the statement ing accuracy, completeness authenticity) its as a ordering statement, requirement production of the the pursuant 971.24(1), the to sec. Stats. We hold finding appeals’ trial court’s court of affirmation the transcript re- constituted a written or of fact that the law, was, as a matter of error. corded statement 810 State, 249 N.W.2d 371, In Hart v. 75 Wis.2d (1977), held that: this court not at trial should overturn “Errors committed might probably appears result it
conviction unless
have been more favorable to
the error not occurred. Woodhull
complaining had
party
202,
State,
v.
43 Wis.2d
v.
also: State
(1969).” Id. at 394. See
conviction unless party complaining more favorable to have been State, Hart 75 Wis.2d v. error not occurred.’ (1977). v. Wis.2d State, Wold 249 N.W.2d involving im- (1973), a case 344, 356, 204 N.W.2d evidence, the court stated: properly admitted “ ‘The harmless error harm test of whether some but, rather, resulted, appellate has in its court whether independent determination can conclude there is evidence, sufficient other than and uninfluenced evidence, which inadmissible would convict the defend- beyond ant Harrington reasonable doubt. See Cali- *19 (1969), 250, Sup. 1726, Ed. 395 U.S. Ct. 23 L. 89 fornia 2d probabilities.’ based This test is on reasonable “Other formulations of error test would the harmless require reviewing courts the to set aside verdict judgment jury that not the unless sure error did influence slight only Kelly State, had but effect. 3, con- Wis.2d 317 n. curring opinion at 321.” Id. at 308. “transcript” In this case trial court that the ordered the (Pohl), his at- of the between conference the defendant torney to the alibi turned over the witnesses be prepare prosecution. to The state used the statements witnesses, to of but due for cross-examination the alibi the fact that there were no material inconsistencies statements, they their variations between impeachment of were of no the for use avail to state Thus, even were not the alibi witnesses. the statements by purposes in prosecution impeachment used statements we find use Therefore, this case. thorough A review prejudicial trial was Pohl. at to over- existed an there of the record establishes whelming evidence, quantum as to the defendant’s burglaries, participation convict the defendant addition, no evi- beyond doubt. there is reasonable Therefore, jury. we influenced dence the error error, was harmless in case hold the error judg- trial and the to a new not entitled defendant is burglary is affirmed. on two counts of ment of conviction appeals is court of By decision of the the Court. —The affirmed. (dissenting). The ABRAHAMSON, J. S.
SHIRLEY provide as 971.12(3), Stats., sec. two sentences last follows: attorney “The prior district shall advise the court
trial if he intends to use the statement of a codefendant implicates which charged. another the crime grant Thereupon, judge any shall a severance as such defendant.” two 971.12(3) The last sentences sec. manda- are tory. required district is to advise the court to trial if he to use the statement intends implicates a codefendent which another defendant charged. attorney, crime When advised the district grant judge required a severance as to such defendant. portion
If trial court before excises codefendant’s statement remove the matter which im- plicates falling the defendant order to avoid within 971.12(3), Stats., the last two sentences sec. the trial if court must continue with excision it is to continue with the trial. notes had his take during in his office. The de- versations the conference “transcript” fense counsel conversations moved, typed up prosecution use at for his trial. pursuant Stats., 971.24(1), copy sec. obtain
Notes
notes they at- witnesses, his and also were and the alibi torney product. the ruled that work The trial court witnesses represented defense “transcript” statements of the state product and thus rather than work 971.24(1). There- pursuant to sec. them, entitled “transcript” fore, turned over the the court ordered available had them prosecution. The state thereafter the them, use, in fit to use the cross-examination if it saw for the alibi witnesses. Pohl and co-defendant, Rische, the stand also took friend, girl claiming that was with his he own defense burglaries. day He denied of the Schroeder, on the Toni making written confes- oral and the recollection not even recall police. He could stated the sions police’s surrounding or the his arrest circumstances the drinking alco- he had been interrogation of him because smoking marijuana taking drugs (codeine) and hol, prosecution cross-examination, the On his arrest. other three the names about questioned Rische confession implicated in his oral were who individuals (previously court). excised point, At that interrupted court the state’s cross-examination and held an in concerning camera previously conference ex- testimony. cised The state contended that the excised material was now co-defendant, admissible because the Rische, had taken the stand and was thus available for cross-examination police about his statement to the im- plicating permitted Pohl. The court the state to cross- portion examine Rische about of the confession that had during been earlier excised. At no time objection conference did the defendant’s counsel raise an ruling, mistrial, request for a move court continue the excision of the reference in con- implicating fession the defendant or renew his motion for Moreover, severance of the trial. Pohl’s counsel objected neither nor consented to further cross-examina- co-defendant, Rische, tion of portions as to those previously Following Rische’s statements excised. conference, the state continued its cross-examination of concerning naming Pohl, Rische his confession Gaines participants burglaries. and Stelloh as The state recalled Detective read Dobesch who the entire confes- (including portions sion originally of Rische those ex- cised) implicating burglaries. briefly Pohl’s counsel turn cross-examined Rische decided, strategy purposes, about the confession but
notes the defense the shorthand secretary’s attorney’s notes in this We believe meaning and intent of not within the case are included accuracy complete- authenticity, this statute as they the sec- further were not attested to ness and attorney. retary purpose of the statute or the aof provide opposing counsel with statements witness’ test whether the witness in order to clearly and accurate. The statute is consistent and in- require production of inaccurate intended not ad- which would complete statements of witness finding process. The Comment or serve the fact vance 971.24(1), Council, (1969), states to sec. of the Judicial existing case of the “is a restatement this statute 622, 124 Richards, 21 Wis.2d in State law right court held . .” In Richards this 684 . the authorities: of a witness to inspect prior statements 971.24(1), Stats., as follows: reads Sec. before witnesses. At “971.24 Statement phonographi- testifies, written the defendant other than witness given any, witness, shall be cally if of the statements recorded cause, jury. the court party For the other the absence prior to trial. may production statements of such order the “(2) . .” .