*1 Plaintiff-Respondent, Wisconsin, STATE v. Defendant-Appellant. LARSEN, Mark D. Appeals Court of April on 1987. Decided No. 86-1793-CR. Submitted briefs September 1987. 535.) (Also reported in 415 N.W.2d *3 For the defendant-appellant was cause sub- mitted on the briefs of Linda S. Balisle Stolper, Neider, S.C., Koritzinsky, Brewster & of Madison. For the plaintiff-respondent the cause was sub- Hanaway, Donald J. mitted on the brief attorney Moeller, M. Marguerite general, and attor- assistant ney general. Gartzke, P.J.,
Before Dykman and JJ. Sundby, SUNDBY, J. appeals Mark Larsen from an *4 order his to denying postconviction motion set aside his conviction for armed robbery, contrary to secs. 943.32(l)(b) (2), Stats., and two of and counts injury by regardless conduct of life dangerous with use 939.63(l)(a)2, to weapon, secs. 940.23 and contrary him to consecutive trial court sentenced Stats.1 years the three six, for and twelve terms of twelve requests our discretion- that we exercise He offenses. ary authority 752.35, Stats., and reverse his sec.
under justice give trial because him a new and conviction has miscarried. (1) justice miscarried because contends
Larsen subsequent pretrial photo in- and the identification unreli- him tainted and were court identification (2) testimony, identification able, the tainted without probable him cause to bind have been there would not (3) in trial, abused its discretion the trial court over for refusing the identities order the state disclose (4) informers, the state’s failure to disclose two process right him his due identities denied informers’ (5) exculpatory materials, and all to disclosure of summary provide him with a written state’s failure to required by as his oral statement to his cellmate 971.23(1), just Stats., him a fair and trial. sec. Finally, denied its claims that the trial court abused
Larsen sentences to run when it ordered his discretion consecutively. may our discre- conclude that we not exercise
We authority tionary 752.35, Stats., under sec. reversal does not convince us our review of the record because guilty should not have been found that Larsen given justice demands he be a new trial. We the trial court abused its conclude however failing explain why discretion it found that there probability that the state’s informers is no reasonable give testimony necessary to a fair determination could required guilt Larsen, of the issue of or innocence of as 905.10(3)(b), Stats. We therefore reverse sec. appeal judgment did not from the of conviction. 1Larsen *5 trial court’s order and direct the court to reconsider compel Larsen’s motion to the state to disclose the identities of the informers.
HH BACKGROUND OF THE CASE robbery Rocky This out case arises of a a Rococo during employees restaurant course which two severely developing By were beaten. information police informers, obtained from arrested four persons: Kelly Grasshold, Miess, Lisa Elizabeth Cirves preliminary hearing and Larsen. At the two employees partici- identify were not able to Larsen as pating robbery. alleged accomplices in the One of his identify However, could not him. he was identified accomplice, participant Cirves, another Elizabeth as a robbery in the and was bound for over trial. The trial compel court denied Larsen’s motion to the state to disclose the names of its informers.
During investigation the course of its the state took the statement of Larsen’s cellmate which includ- allegedly ed a narrative of conversations Larsen had prisoners discussing with him and other the crime and ways provide to establish an alibi. The did a state not copy response that statement to Larsen’s demand 971.23(1), pursuant for disclosure of material to sec. However, Stats. when Larsen filed his notice alibi January January provided 11,1985, on the state on including a witnesses, Larsen with list of alibi rebuttal copy Larsen’s cellmate and attached of his cell- mate’s statement.
We first consider Larsen’s claims that the trial denying court abused its discretion in his motion to compel the state to disclose informers’ identities and that the state’s failure to disclose their identities *6 of all right to disclosure process him his due
denied material. exculpatory
II. IDENTITIES OF INFORMERS’ DISCLOSURE under sec. privilege the state claimed Stats.,2 the identities of 905.10(1), to refuse to disclose about furnished information two informers who had officers. Larsen moved investigating to the the crime 905.10(3)(b),3 to under sec. trial for an order the court 905.10(1), Stats., provides: 2Section government thereof has or a state or subdivision The federal person identity privilege of a who has refuse to disclose the a assisting investigation relating in an to or furnished information possible to a law enforcement officer or of a violation of law conducting legislative an of a committee or its staff member investigation. 905.10(3)(b), Stats., provides: 3Section appears in the case or from other If it from the evidence give showing by party may be able to a that an informer guilt testimony necessary of the issue of or to a fair determination in in criminal case or of a material issue on the merits innocence a government or a state or a civil case to which the federal party, government thereof is a and the federal or subdivision privilege, judge the the shall state or subdivision thereof invokes give government an the federal or a state or subdivision thereof determining opportunity in facts relevant to show camera fact, can, supply testimony. The informer that whether the judge showing ordinarily in the form of affidavits but the will be may testimony be taken if he finds that the matter direct that satisfactorily upon judge If finds affidavit. cannot be resolved probability give there that the informer can is a reasonable government testimony, or a state or subdivi- and the federal identity, judge thereof elects not to disclose his on motion sion charges in a criminal case shall dismiss the of the defendant relate, judge testimony may and do so on his which the would cases, may justice motion. In civil he make an order own judge requires. to the shall be sealed Evidence submitted appellate preserved in the event to be made available to the court require the disclosure. The trial court conducted an in presented by review of the camera materials the state However, and denied his motion. the court not did explain it how reached its conclusion that Larsen’s
motion should be denied. reviewing following
In
the trial court’s conclusion
905.10(3)(b),Stats.,
an in camera review under sec.
we
determine whether the trial court
its
abused
discre-
Outlaw,
v.
231, 243-44,
tion. State
104 Wis. 2d
(Ct.
1981),
App.
N.W.2d
108 Wis. 2d
aff’d,
(1982).
Discretion is not with decision mak- Rather, ing. contemplates the term process a of reasoning. process depend This must upon facts reasonably are record or that by are derived inference from the and record a conclusion based logical on upon rationale founded proper legal A standards. decision which on its face demon- strates no any upon consideration of of the factors which the properly decision should'be based consti- tutes an abuse of as discretion a matter of law. [Citation omitted.]
Id.,
244,
The trial court stated its memorandum deci- "I sion: probability do not consider that there is a reasonable testimony of either informer appeal, anof and the contents not shall otherwise be revealed government, without consent of the federal state or subdivision parties permitted present thereof. All counsel be and shall to be at every stage proceedings except under this subdivision a showing party in camera at which no counsel or shall be permitted present. to be
419
give testimony necessary to a fair
would be able to
guilt or
innocence.” Section
determination
905.10(3),
requires
decisionmaking.
Stats.,
more than
trial court failed to show that its conclu-
Because the
reasoning process
based on
sion was reached
from those
of record or reasonable inferences
facts
facts,
its discretion when it denied
the court abused
Johnson,
472,
2d
Larsen’s motion. State v.
Wis.
(Ct.
1984).
App.
196,
480-81,
200-01
348 N.W.2d
We
appropriate
this is not an
case for us to
conclude
whether
there are
review the record
determine
support
trial
sufficient facts of record to
court’s
been exercised on the basis of
decision had discretion
remand,
420 privilege public policy. The is on based Stelloh v. (1963); Liban, 119, 125, 124 21 Wis. 2d 101, 104 N.W.2d (1957). States, Roviaro v. United 353 U.S. In McCray (1967), Illinois, v. 386 U.S. the Supreme explained Court that in it Roviaro had scope aspect defined the to be accorded to one of the evidentiary privilege. common law informer’s quite court stated: course, different, "This is a task which is responsibility adju from the of constitutional McCray dication.” at 309. While the Court indicated privilege closely the informer’s should be more preliminary on circumscribed ing, trial than at the hear unwilling impose the Court stated it has been any requiring absolute rule disclosure of an informer’s identity formulating evidentiary even in rules for federal criminal trials. Id. at 311. McCray, support
In
the Court found no
in the
right
process
fourteenth amendment’s
of due
or the
right
sixth amendment’s
of confrontation for the
proposition
requires
that the constitution
disclosure of
identity
preliminary hearings
an informer’s
in
where
upon
the arrest or search was made in reliance
facts
supplied by
Id.,
an informer.
Because appeal not him a trial or resentenc- does assure new ing, we review his further contentions determine discretionary our whether we should exercise reversal authority aside sentence. first or should set his We consider in this review Larsen’s contention that we justice his has should reverse conviction because miscarried.
III. REVERSAL DISCRETIONARY gives discretionary 752.35, Stats., us au- Section thority judgment appealed reverse the or order appears trial "if it from and order new from probable justice any record that it is has for ... firm reason miscarried.”4 It "has become a fixture 752.35, Stats., provides: 4Section appeal appeals, appears In an if it from the the court tried, controversy fully has not it record that the real been or that miscarried, probable justice any is has for reason the court from, may judgment appealed regardless or order reverse *10 " Wisconsin criminal law” that '[i]n order for this probabil- court to its exercise discretion and for such a ity to exist we would at least have to be convinced that guilty the should not have been and defendant found justice given demands that the defendant be added.)” (Emphasis Wyss, another trial.’ State v. Wis. (1985), quoting 681, 736, 745, 2d 370 N.W.2d 771 Lock State, 110, 118, v. 183, 31 Wis. 2d 142 N.W.2d 187 (1966). Wyss, In Wis. 2d at at N.W.2d supreme exercising the court held that we erred in our justice discretion to reverse in the interests of without determining degree probability to a substantial produced a new trial would a have different result. We therefore review Larsen’s contentions and the record may to determine whether we be convinced that guilty Larsen should not have been found and that probability there is a substantial that a new trial produce would a different result.
hH < IDENTIFICATION pretrial Larsen contends that identification techniques irreparably tainted the testi- identification procedure mony. The identification consisted single photograph one-person lineup. and a wit- preliminary hearing ness who identified Larsen at the put together operation. Cirves, was Elizabeth who proper objection appears whether the motion or in the record and may entry proper judgment direct the of the or remit the case to trial, entry proper judgment trial for court of the or for a new making pleadings direct the such and amendments in the and court, adoption procedure in that such not inconsistent with rules, necessary accomplish statutes or as are the ends of justice. although and, she assist her Larsen to recruited She sight by name, him knew she know his last did not she had met Larsen on which the occasions from photo lineup or need for a There was no him. recruited array partici- identify Larsen as a for her in order robbery. pant him and there with She was in the photo- being shown his him name before identified graph. pretrial was not tainted. identification Cirves’ Consequently, was free from identification her trial prejudice. *11 identified Lisa Grasshold Cirves and
At trial both years two known Larsen for had Larsen. Grasshold prior positively robbery. identified Larsen She to the robbery. co-participant in the as her upon arguments cases involv- are based Larsen’s ing has someone who identification of a victim’s against victim. These cases an offense committed application therefore us. We to the case before have no reject the identification of Larsen’s contention robbery participant was in the armed him as tainted. issue of the identification determination
Our disposes did that the trial court contention of Larsen’s probable him for trial. over cause bind not have
V. STATEMENTS LARSEN’S Larsen’s contention next consider We 971.23(1), Stats-., comply with sec. failure to state’s 971.23(1) just trial. Section fair and him a denied provides: permit demand, attorney shall the district
Upon trial time before a reasonable defendant within or any written copy photograph inspect and or alleged crime concerning the recorded statement posses- made the defendant which is within the sion, or custody Upon control of the state .... demand, attorney the district shall furnish the defendant with a summary written of all oral plans statements of defendant which he to use in the course of the trial. The names of witnesses to the written and oral statements which the state plans to use in the course of the trial shall also be furnished. possession prior
The state had for its some time to trial a written statement of Larsen’s cellmate recounting numerous statements Larsen made about concocting robbery an alibi defense to the armed charge. give copy The state did not Larsen a of this statement until a week before trial. The district explained attorney that he did not intend to use the cellmate’s statement until Larsen filed his notice of 971.23(1), Stats., alibi. We conclude that sec. require did not attorney permit the district Larsen to inspect copy photograph or the written statement possession of Larsen’s cellmate which inwas his or provide summary him with a written of Larsen’s oral *12 prior statements made to his cellmate the time the attorney district concluded he would introduce Lar- sen’s at statements the time of trial. There is no suggestion always that the state intended use the stratagem, but, cellmate’s statement as a waited until notify the last minute to of Larsen the of existence the statement and its intent to use it.
Our review the record and Larsen’s contentions not does convince us he not should have been convict- justice given ed and that demands that he be a new trial. We we conclude cannot exercise our discretion-
425 authority ary Stats., 752.35, under sec. reverse justice miscarried. Larsen’s conviction because HH > ABUSE OF SENTENCING DISCRETION the trial court abused its Larsen contends by sentencing him to an excessive sentence. discretion particular, court abused its In he contends the imposing served discretion in sentences to be consecu- single tively which lasted fifteen min- for a incident utes.
"Sentencing is to the of the trial left discretion determining appellate court, is limited to and review was whether there an abuse discretion.” State v. Harris, 612, 622, 350 N.W.2d 638 Wis. 2d (1984). strong public against policy There is a interfer- sentencing of the court ence with discretion trial presumption that trial and there is a reasonably. court acted determining Id. test for whether a punishment and is sentence constitutes cruel unusual unusual, "so and whether the sentence is excessive disproportionate committed, to the as to and so offense public judgment and violate the shock sentiment concerning right proper people what is reasonable State, 85 2d under the circumstances.” Steeno v. Wis. (1978). 663, 669, 396, 399 271 N.W.2d 623-24, Harris, at at In Wis. 2d N.W.2d court 639 may court summarized factors trial sentencing when a defendant: defend- consider history of record; ant’s criminal undesirable behavior patterns; personality, traits; and social character investigation; presentence vicious or results of a degree culpability; aggravated crime; nature of the *13 426 age, background trial; demeanor at educational and employment repentance coopera- record; remorse, and rights tiveness; for control; need close rehabilitative public; length pretrial the primary and detention. The gravity offense,
factors are the
of the
protection
offender,
character of the
and the need for
public.
of the
at
Id.
An abuse material factors on the record the court failed to state gave if it or too much influenced its decision which weight contravening in the face of other one factor Krueger, 327, 119 Wis. 2d State v. considerations. 1984). (Ct. App. 337-38, The 351 N.W.2d given weight of the factors which to be to each particularly is within the discre- influence its decision 744. trial court. Id. at 351 N.W.2d at tion of the gave great weight Here, trial court to the nature that was not an abuse of of the offense. We conclude witness testified that each its discretion. The medical in size holes their skulls that victim had silver-dollar being in a hammer resulted from struck the head with eight with sufficient force to between four and times pieces As indicated drive of the skull into their brains. court, the trial these cruel and senseless acts upon helpless persons disregard inflicted indicate a for weight justified life. The trial was in the human court sentencing gave it factor in Larsen. to this We court for conclude that the trial articulated the basis imposed the sentences and did not abuse its discretion. By the Court.—Order reversed and cause remand- proceedings opin- ed for further consistent with this ion. {concurring). majority
DYKMAN, J. The con- privilege cludes that because the informer’s contained 905.10(1), Stats., doctrine, sec. is a common law right identity Larsen has no constitutional to the join the informers. I do not in this conclusion. 905.10(1) implies majority prece- either that sec. takes dence over the fourteenth amendment to the United ignores argument States Constitution or it Larsen’s *15 notwithstanding 905.10(1), sec. he has a four- right teenth amendment to a new trial if the state provide exculpatory fails to him with material evi- possession. dence in its
Brady Maryland,
(1963),
83,
v.
373 U.S.
87
held
process,
may
that as
a matter
federal due
the state
suppress
not
material evidence
favorable
the ac-
upon
request
cused
his
for that evidence. United
(1985),
Bagley,
States v.
429 (10th Cir.) denied, Ct. 458-59 107 S. cert. (1986); guard report officer, United a coast States (11th 1986); Severdija, 1556, 1559 F.2d Cir. v. had been the state’s chief witness information that thought given immunity given immu he had been or (11th Cir.) nity, Kemp, 702, 719 cert. 809 F.2d Moore v. (1987). denied, 107 S. Ct. Brady exception rule to the is no
There 905.10(1),Stats., as sec. effect that a state statute such suppress permits from evidence obtained the state to I the trial court to consider an would direct informant. process due as amendment claim Larsen’s fourteenth 905.10(3)(b) his sec. claim. well as