*1 in error. Virgil, error, Defendant State, Plaintiff April Argued June 1978. 1978. Decided No. 76-244-CR. 852.) reported (Also in 267 N.W.2d *4 argued plaintiff For the in error the cause was Greenberg, public defender, Melvin F. assistant state Eisenberg, with whom on the Howard B. briefs was state public defender.
For the defendant in error there was a brief Bron- son Follette, attorney general, C. La and John M. Schmo- lesky, attorney general, argument by assistant and oral Pamela Magee-Heilprin, attorney general. assistant
HEFFERNAN, jury trial, defendant, J. After a Virgil, September 17, on guilty Morris was found second-degree murder, party crime, to a in violation of sec. 939.05, Stats.; 940.02 and robbery, sec. party to a crime, in violation 943.32(1) (a) 939.05; sec. and sec. burglary-battery, party crime, to a in violation of 943.10(1) (a) (2) (d) sec. and sec. 939.05. On these respective charges, Virgil twenty-four was sentenced to years, months; years, five nine months; five and sixteen years, months, two all consecutively. sentences to run Subsequently, the defendant moved the court to set aside conviction, trial, order a modify new the sen- tence. These motions were denied an order of the *5 12, have been May of error 1976. Writs circuit court on of the the and denial cоnviction to review the issued post-conviction motions. Lind- murder of Elfrieda of the
The consisted crimes burglary her woman, the ner, eighty-two-year-old an robbery her, upon and home, battery the committed taking property. purpose of her for the force testimony was respect the crime principal in to Guyton, participant given a who was David time 16, 1974. At that occurred on December events years he Guyton old. Because crime, was fifteen charged an age he not be with which could at was immunity attorney crime, him offered the district adult exchange cooperation prosecu- with state’s for his defendants, in an adult were tried other who tion of granted Guyton by Immunity the court. to court. evening that, Guyton on December testified company and of Clarence Eiland he was in Virgil vicinity and of 29th Street defendant Morris City Capitol of Milwaukee. He testified Drive money. get they they how could that talked about some they entry attempt an that would into It was decided occupied, determined, it El- as was later residence agreed Guyton walk frieda Lindner. It was that was to and, upstairs porch opened, when the door he signal Virgil stamp and Eiland would twice as Guyton that, him when in the break-in. testified assist got upstairs, Elfrieda Lindner if he he asked she wished buy any “No,” replied, and at cards. Christmas She signalled two, point, Guyton the other and all three way apartment. of them forced their into grabbed Guyton that he Elfrieda testified Lindner her and all three them mouth, held his hand over struck Guyton pulled floor. her she was testified victim, that the defendant on defend- sat get something ant told Eiland to so her hands could be tied. *6 tied, After her making were noise, hands she was still so Guyton Virgil and the defendant continued to hit her. The victim noise; continued to point, make and at that according Guyton, Virgil get something told Eiland to gag the heavy towel, woman. Eiland returned with a Guyton and gagged it, testified that he her with that at lying the time she down, face and that he her lifted head, slipped it, the cloth over and knotted it at the back of her head. He testified that he did not look to see whether completely victim’s nose and mouth were Subsequent covered. testimony, however, showed that tightly towel was bound over her face and mouth. persons All through three of the then went the house looking for going on, valuables. While search wаs the defendant and Eiland noted that quit the victim had moaning, they Guyton thought informed they that Guyton she was dead. her, eyes looked at saw that her open, thought were but just stated that he she was in a state of All through shock. three of them then went purpose house for the wiping fingerprints off they might that Subsequently, they left. split have they which premises. found on the $12 Elfrieda corpse Lindner’s day was discovered the next by a friend who became worried about her when his daily telephone call to her was not police answered. The immediately were arrival, they called. On their found tightly the towel so knotted over Elfrieda face Lindner’s and mouth that it pull was difficult to police it The down. officer badly observed that her face was bruised. When she was rolled onto side, her a brown mucous substance came out of her mouth and nose. autopsy
An performed by Joseph Kuzma, Dr. medical county. examiner for Milwaukee He testified that Elfrieda elderly lady Lindner was an and that he had been informed that eighty-two years she was old. eight He observed bruises and five abrasions on her body, revealed an area and an internal examination which he said blоod on the brain fresh surface by con- blow to the head. he was caused severe While might injury have caused death cluded that the brain well death, later, death it that was not the actual cause gag gag. by the He said was caused suffocation entering lungs prevented the ex- air from aspiration of fluids into clusion of air resulted lungs. He that the fluid observed the victim’s testified covering vomitus, of her mouth and nose was gag expulsion, prevented and mouth its nose lungs. windpipe into and the that this fluid ran down first raised defendant is the contention issue support that the a conviction evidence was insufficient *7 second-degree Second-degree murder. murder is de- 940.02, Stats., fined in sec. as follows: Second-degree “940.02 murder. Whoever causes imminently being by death of human conduct another dangerous evincing depraved mind, re- to another and gardless life, imprisoned than of not human be less years.” 5 nor more than 25 second-degree of There are three crime elements murder: dangerous imminently “(1) the accused’s conduct was another, (2)
to
the accused’s conduct was of such a
depraved mind,, regardless
character that
life,
to
it
evinсed
of
(3)
conduct, imminently dangerous
the accused’s
evincing
depraved
regardless
mind,
another and
of
State,
life,
Turner v.
caused the death of the
victim.”
76
1, 10,
(1977).
250
Wis.2d
N.W.2d 706
State,
v.
Seidler
456,
In
recent case of
64 Wis.2d
(1974),
Most of the analogous set forth in cases Seidler are on the facts the seminal Hogan, case of where the striking of edge sharp victim’s face with the of an *8 axe was considered to be imminently evidence conduct inherently dangerous to the life of another. cases,
One however, upon which was relied in State, Seidler was v. Kasieta 62 Wis.2d 215 N.W.2d 412 (1974), where we found a conviction of second- degree by murder sustained the evidence where the de- fendant, knowing that Hodgkins his wife suffered from disease, nevertheless beat her with his fists. Seidler, State
Subsequent decided the case to we supra. Therein, Turner, held the crime of second- we evidence, degree it was proved the where murder twenty-four-year-old defendant, that the a established nine-year-old male, forcibly sodomy сommitted with height weighing girl, four feet five inches pounds. to case, In that the death cause of was found asphyxiation secondary cardio-pulmonary arrest oc- to primary the casioned from shock which resulted sodomy forced on a small child. substantially find
We these two similar cases Turner evidence in the In and in instant case. case the Kasieta case, implicitly the defendant or ex- plicitly physical aware of the attributes or deficiencies imminently victim which would make the conduct dangerous threatening victim, particular and life though likely even such conduct have been produce healthy person. death in a adult find the We same situation true in instant case. testimony Guyton that cloth showed he tied a tightly person
towel over the nose and mouth of a that he characterized “old.” The as medical examiner testified gag prevented expira- itself the inhalation and nothing Guyton tion air. there While show defendant, party crime, and the as intended to elderly lady, cause death of this what fact was done dangerous causing any was as death form of as other asphyxiation. mechanical or manual the time of While death was no doubt accelerated of old debilities imminently dangerous age, the conduct defendant co-participants might, and his in the crime if the medical testimony believed, to be examiner’s have caused death Nevertheless, implicit victim. intent to cause strengthened by perpetrators death is the fact that *9 176 aged dealing we they victim. As with
knew that were v. said in Turner State: physical characteris- found the relative court has “This and assailant to be factors which tics of the victim determining immi- conduct is
be nently dangerous.” (at 13) in whether considered question considered is whether An additional have, in product depraved mind. of a We conduct was Wagner State, v. 76 Wis.2d recent case approval (1977), reaffirmed our N.W.2d 331 evincing depraved mind set forth definition of conduct Criminal, II, 1110, in Part which states: Wis. JI — depravity . of mind referred to second degree demonstrated an utter lack of concern for causing death murder exists when conduct and life safety justi- there is no of another for which conduct ” fication or . .’ excuse. . Wagner, quoted approval previous In we with state- respect term, “depraved ments in to the naturе following mind.” Pertinent are to this case state- originating 404, 410, v. Weso, ments in State 60 Wis.2d Wagner (1973), repeated State, N.W.2d supra, at 45-6: “ depraved having ‘A mind is one an inherent deficien-
cy or moral sense and rectitude. it Otherwise would not prompt imminently danger- an act which in its nature is safety ous to another. The element of the disre- gard for life likewise for a calls state mind which has regard being. no for the moral or social duties a human “ depraved ‘A mind must be indifferent to the life of negative.attitude others. Such is not found the mind of normal, person. a recognition reasonable The desire to live right others desire to live and have a life is innate in the person. negli- mind of a normal Mere gence alone sufficient. . . . *10 “ high depraved, mind, ‘To constitute a than a more degree negligence of or recklessness must exist. only disregard safety mind not must of another hut the regard he depraved devoid the life ... A of another life, sense, appreciation mind a lacks moral is un- judgment. depraved reasonable and lacks A mind has general intent the the to do acts and the consciousness possible specif- nature of acts and but lacks result ” ic intеnt to do the . . harm. .’ Guyton, Eiland,
That the defendant, conduct of and the Virgil, depraved evinced a mind is shown the testi- mony Guyton. Guyton testified after Elfrieda brought Lindner was floor attack combined assailants, Virgil Guyton of all three held her During period, down and tied her hands behind her. Guyton making said, moaning Elfrieda Lindner was that, noise, He noises. stated she whenever made a he Virgil and the defendant would hit her. It was de- Virgil get gag fendant who instructed Eiland to moaning. During Guyton period, silence her this entire stated, elderly hit he continued to woman. Virgil
Counsel for the defendant on cross-examination asked: “Q you trying inj Were her ? ure really time, you “A I didn’t care at the know. “Q “A I didn’t you you do mean What didn’t care ? injured I care whether her or not. “Q you trying you or Were weren’t ? Well, guess “A up, trying she wouldn’t shut Iso I was injure, keep making her from noises.” gagged, Guyton,
After the victim Eiland, was and the Virgil ransacking defendant apartment commenced looking for valuables. Defense counsel asked: “Q making she still Was noise at time ? you “A moaning, She still know. “Q long go you And on, how did this know ? No, got “A Let me see. I ain’t no—I don’t know really long what you time —how know —was moan- she— ing. paying her, just We weren’t no attention to that.” Guyton expressly testimony acknow-
Moreover, before ledged that, Elfrieda Lindner he last saw when gag completely leaving apartment, the towel or and mouth. covered her nose clearly testimony demonstrative evidences conduct
This Guyton he did not care depraved mind. stated of a trying to injured that he he her whether making paid no keep He injure her from noises. her to moan after continued to to her when she attention He was gag placed her and mouth. over nose had been safety entirely of Elfrieda to the life or indifferent only general conduct create situa- did his Lindner. Not *11 dangerous imminently Lind- to the life of Elfrieda tion consciously attempted ner, but, addition, he gag by by placing the to the head and her blows silence more than reckless her mouth and nose. This was over admittedly negligent It conduct which or conduct. safety disregarded Lindner and de- of Elfrieda regard for her life. void of evidenced, time, complete at that a lack of The conduct appreciation of the life another. moral sense Wagner and Weso language quoted is from The above appropriate of the instant facts case:
“ general depraved ‘A mind has intent to do acts pos- and the consciousness of the nature sible result acts and ” specific but intent to harm.’ lacks do the Wagner, at 46. co-participants defendant and in the his crime con- prone tinued to beat defenseless victim and in- tentionally placed heavy gag mouth, over her nose and high probability by asphyx- which created the that death Wagner iation would follow. Unlike situation State, although acting danger- the defendant, where in a fashion, attempted impact to avoid the ous with the vic- tim, participants including crime, here the the de- fendant, callously ignored Elfrieda after Lindner’s moans gagged. she was including participants,
Each of the the defendant Vir- gil, engaged depraved evinced a mind conduct which regardless appro- of life. The adduced at trial were facts second-degree priate charge murder, to the and the evidence on was sufficient sustain a conviction that charge. urged Guyton’s testimony
Error is on also because di- examination, implicating rect for the as witness state Virgil, the defendant was allowed fortified to be sub- stantially reading prior into the record statements. It prior statements, given was asserted that his to the police, testimony. were with in-court inconsistent his carefully prior have examined those We statements and compared testimony them his at trial with when he was questioned on prosecutor. direct We conclude that ap- were minor It inconsistencies and irrelevant. reading parent Guyton from had record been carefully prosecution coached to elicit the state- given ment from him that po- his statement first testimony. lice was inconsistent with his trial It equally setting stage apparent alleged for this inconsistency bringing purpose was devised for the *12 Guyton the statement once but three times. Moreover, given police the out-of-court the statement admittedly statement, on March a consistent yet permitted and to it numerous references were course the evidence. provide
The statutes prior under circumstances which of a statements witness be admitted into evidence. (4) (a) (1), Stats., provides: 908.01 Sec. “(4) Hearsay. Statements Which Are Not A state- hearsay ment is not if: “ (a) by Prior statement witness. The declarant testi- hearing
fies at the trial subject cross-ex- concerning statement, and the statement amination is: testimony. "1. Inconsistent with his ...” the introduction of the out-of-court While we consider symptomatic overly prosecution, of an statement zealous cannot, circumstances, we denominate it as under the by prejudicial objection error. It was admitted without and, although re defense counsel effect was to its Guyton testimony reemphasize implicating state and defendant, cumulative and added evidence was nothing Certainly, however, to the an case. ob state’s jection appropriately the de could have been made Lenarchick, fense counsel. As we indicated in State v. 425, 436, (1976), an Wis.2d where N.W.2d objection is made to an on the out-of-court statement grounds that it is not indeed and therefore inconsistent obligation hearsay, judge it is the to examine the out-of-court statement to determine whether relevant apparent inconsistencies are which in would make the necessary testimony troduction of otherwise cumulative credibility test or the recollection of the witness. case, аbove, In prosecutor the instant as stated Guyton given elicited the statement from that he had police. hearsay rules, inconsistent statement however, are not to be circumvented such a self-serv- ing parties. statement elicited one It remains duty opposing counsel to test statement to determine there is inconsistency, indeed relevant obligation judge it is the appro- the trial make priate ruling perception on the basis of his of the state- objection ment However, after an objection is made. no raised, and we decline in the circumstances to de- receipt nominate the of this evidence as error. gratuitous improper Additional evidence was ad- objection mitted without when an assistant district at- *13 Guyton testify had torney that David to was called hearing Morris preliminary in the case of at the testified Virgil partici- Virgil one of the had that was and stated evidence, Lindner. pants in murder of Elfrieda This purpose again, improper. It the recount- had for its was ing Guyton in in another form still assertion Virgil. Guyton present respect culpability of was to the effect, at- and in and had testified to the sаme no court credibility. Any any upon made his tack at time was showing testimony by the to his in-court effort bolster inappropriate, and such prior was consistent statements subject testimony and not was inadmissible hearsay exceptions rule. attorney permitted also was assistant district same bargain Guyton testify plea respect in to a made with why offered the state such to state reasons attorney bargain. that, be- The assistant district stated years Guyton at the time of the fifteen old cause was subject crime, to transfer to an adult court he was that, prosecuted prosecution and he to be as a were eigh- only custody juvenile, he could held until his circumstances, birthday. the assistant teenth Under those attorney explained appropriate it district exchange testimony grant immunity him for his participants prosecution of the other would facilitate the in the crime. testimony of conclude that the assistant dis-
We
Guyton’s
bargain
attorney
respect
plea
trict
grant
immunity
improper
his
should have
objection
.
appropriate
been excluded had
been made.
rely
language
appeal,
parties
On this
both
on the
(5th
Thaggard,
1973),
United
States
“Quite obviously, testimony line this of had no business in the trial. Neither should have been allowed side drag on, however, say: it in.”1 The court went Attorney prose “What the United did about the States conspirators case, cution of other defendants or in this it, solely discretion, and his motives was within his certainly insofar or other as these defendants con were cerned, 167, Cox, Cir., 1965, United 342 F.2d States v. cert. denied 381 14 L. Ed.2d U.S. S. Ct. Nevertheless, testimony 700. of the United States Attorney merely prosecuting his for not stated reasons county the toward the bar. nothing visit to his It sheriff. contained no remarks directed guilt or innocence of the at the defendants Indeed, personally DeMent could Mr. have known that, Thaggard’s except about that he knew of admittedly place office which took before alleged began. nothing criminal activities There in justify this skirmish which would a reversal.” although that, testimony We are satisfied this was objectionable and could have been excluded had there timely been counsel, action it dеfense did not so rights affect the substantial of the defendant as to plain amount to error under the (sec. Evidence Rules of 901.03(4), Stats.). nevertheless, respect We to the quotation, express disquietude above our that the state portion brief omitted quotation its from ThaggarcL that, which opinion demonstrated in the of the United Appeals, type of States Court this of testi- mony was brought inadmissible. The state’s omission was to our attention the brief of the Public Defender. To the extent Appeals’ that the pronouncement Court of propriety on the type of omitted, of evidence was we quotation by consider the use the state as being misleading to the court.
Additionally, predicated error on the fact Eiland, Clarence co-participant murder, portion Thaggnrd This from was omitted the state’s brief. testify respect disposition called to the stand to charges against response questions him. In prosecutor, pleaded guilty he asked whether he charge murdering Lindner, Elfrieda he whether plea, was sentenced as a result of that and the term of imposed. responded pleaded he sentence He guilty, thirty-four and that term he was sentenced to a years. by Eiland,
Prior to these statements Eiland stated *15 any questions respect he that refused to in answer to the night that event occurred on the of December 1974. answer, Eiland, of request Because his refusal the at attorney, guilty contempt of district was found of and thirty days finding imprisonment. sentenced to After contempt purge and after the witness refused to him- contempt answering, self of the then the district at- torney, presence jury in open court, of the in asked questions respect guilty plea, sentence, to the circumstances, testimony and its term. Under the this improper and, objected to, was had it been it would no appropriately doubt have excluded the trial been judge. guilty
The introduction of a plea co-defendant’s only permissible proper when its use is limited to a evi- dentiary purpose, impeachment such as the of trial testi- mony credibility. or to reflect on the witness’ United King, States v. (5th 1974). 505 F.2d Cir. While appropriate such evidence would have been to attack the credibility aof witness who had testified or was in the testifying, completely course of it inappropriate was case, for, prior the instаnt prosecutor’s eliciting to the answers, already these the witness had stated that he Although purpose introducing would not talk. patently objection improper, evidence was no was made testimony to the limiting no and instruction its eviden- tiary requested by value was the defense counsel. More- the stand
over, that conduct on Eiland’s record shows that uncooperative. The record shows and was bizarre testimony smirking during of the he the course In addition waving spectators in the courtroom. at appears negligible, it reasonable prejudice fact that the matter, counsel, as a tactical that defense to conclude significance emphasize determined not have testimony guilty posing an plea or his limited Eiland’s jury. objection presence express of the one to de- the error is not areWe satisfied 901.08(4) plain error sec. nominated as under rights in that Rules of Evidence no substantial defendant were affected. pleaded he had the fact that
After Eiland recounted guilty participation in mur- for his and was sentenced then further der of Elfrieda Lindner and refused testimony, called to the stand. Detеctive Halvorson detailing gave him a He Eiland statement testified recounted what the murder Elfrieda Lindner. He February oral on Eiland told him in an statement taken 27,1975, from and two written statements elicited Eiland linking had effect of at other times. These statements Virgil actually finding taking with the crime *16 money premises In from of Elfrieda Lindner. each of the and in written statements the oral statement by Halvorson, Virgil as recounted Detective was named being present participating events December 16,1974.
In explicably, per- out-of-court these utterances were objection. equally mitted to come in It in- without is explicable state, having produced convincing Virgil’s guilt by Guyton’s testimony evidence of direct at trial, jeopardize prosecution by introducing would its evi- questionable admissibility which, dence of in addi- tion, gov- violated precept fundamental constitutional erning a fair trial.
It is clear that Eiland’s to the out-of-court-statements police only hearsay, purpose were be to for their could prove Virgil’s the truth of the matters asserted therein — complicity in the crime.
Nevertheless, hearsay competent evidence and objected addition, be admissible unless In to. an out-of- though court statement, hearsay, may even be admissible recognized if hearsay it fits exception within to the rule. inquiry must, however,
Still another level delved be hearsay, exception into where admissible as an to the hearsay rule, arguably violates confrontation clauses of the United States and Wisconsin Constitutions. Evidence,
We are satisfied that under the if Rules of only question hearsay implicated, were Eiland’s out-of-court ap- statements would It admissible. parent given that the police statements Eiland contrary were they to his in that interest tended make subject him liability to criminal at the time the statement or such, declaration was made. As the statements were admissible under sec. 908.045 Rules of Evidence. provides: That rule Hearsay exceptions; “908.045 declarant unavailable. following are not hearsay excluded rule if
the declarant is unavailable as a witness: “(4) Against Statement Interest. A statement which making at the contrary was clarant’s time of its so far to the de- pecuniary proprietary or interest, so far or subject tended to the declarant to civil or lia- criminal bility or to render invalid a claim the declarant against or another to make object the declarant an hatred, ridicule, disgrace, that a person reasonable position declarant’s would not have made the state-
186 A state- it be true. person to the believed
ment unless liability tending to expose the declarant ment _criminal admissible exculpate the accused and offered to corroborated.” unless of the the
The
clause of
Constitution
confrontation
parallel provision of the Constitu-
the
United States and
may
cir-
require, in some
of the
of
tion
State Wisconsin
although
cumstances, however, that
be excluded
evidence
hearsay
Amendment
rule is satisfied.
Sixth
Constitution,
applicable
made
the United States
(1965), requires
Texas,
states
Pointer v.
380 U.S.
en-
prosecutions,
“In all
accused shall
that:
criminal
right
witnesses
joy the
be
with the
confronted
...
against
I,
Art.
Consti-
. .”
sec.
Wisconsin
him..
language
import,
that a defend-
tution contains
similar
right
face.”
has the
“to meet
face to
ant
the witnesses
requirements
This court reviewed the
state
Lenarchick,
federal confrontation
in State
clauses
(1976). That
ease established
Wis.2d
N.W.2d
hearsay
exсeptions
that the
rule and
are not necessari
its
congruent
ly
with
strictures of
confrontation
unobjection
a
clause
statement
sense
hearsay
exception to
able under an
and still be
rule
constitutionally impermissible
under
confrontation
recognized
that, although
It
clause.
therein
the con
equivalent
frontation clause —and its
under the Wisconsin
strong
process
Constitution —has
overtones
due
diligence
securing
the sense that the state
due
must use
“availability
witnesses,” yet
cornerstone
right
merely
of confrontation is not
the state has
produced
eyeball-to-eyeball
presentment
witness
defendant,
right
but
that the
rather
confronta
only
tion is satisfied in
sense
where a
constitutional
meaningful
actually
cross-examination of
who
witness
possible.
uttered the assertions is
said in
We
Lenarchiek:
right
meaningful
to a
re-
cross-examination
“[T]he
major
mains
criterion of constitutional confrontation.
*18
impossible, however,
It
difficult
or
to
that
it is
assert
qua
light
non,
the sine
of the statements of the United
satisfy
Supreme
dying
States
Court
that
declarations
requirement.
that
“Yet, Wigmore,
as
who
confrontation
conceived of the
merely
clause as
a
of
codification
the common-law hear
say rule, said,
purpose
'The main and
con
essential
opponent
of
opportunity
frontation
tois
secure
for
Wigmore,
150;
supra,
cross-examination.’
p.
sec.
of
also,
Rev., supra, p.
see
N.Y.U.L.
656.
“It
therefore,
would appear,
of
constitutional
doubtful
propriety
availability
presence
to conclude that mere
witness,
of
satisfy
due-process
a
which
re-
would
quirement
being
satisfy
of
available,
purpose
would
behind the
rule,
confrontation
if in fact
the witness
could not be cross-examined.
incongruousness
“Despite
permitting
dying
satisfying
clause,
declarations as
the confrontation
opportunity
for
cross-examination that has
mean-
some
ing
fact-finding process
Where,
necessary.
a witness has clothed himself with the cloak of
example,
amendment,
the fifth
Supreme
the United States
Court
denied,
meaningful
has held
that
confrontation is
[cit-
ing Douglas Alabama,
v.
(1965)].”
within
Douglas
Alabama,
the only ac- tended to show [the enforcement officers] confession, of them complice] made the cross-examination genuineness could not cross-ex- as to its amination statement substitute the accomplice] the truth of to test [the (at 420) itself.” Substantially type was the same of cross-examination attempted of De- here. All that cross-examination present tective could that he was Halvorson show was but, gave statement; time each Eiland cross- as way revealed, examination Detective Halvorson had no truth, knowing telling lying whether Eiland police and no amount cross-examination of the officer veracity could out-of-court have tested the of Eiland’s statements. urging Douglas inapplicability state in Douglas
points objected out that defendant to testimony, in the while instant case the defendant did not. argues distinguished It that the also is to be case because Douglas question-and-an- the statement was read in a form, police swer whilе instant case the officer’s testimony primarily a narrative account of what Eiland said in the out-of-court That statements. latter objection, think, we has no substance if the whatsoever implicated confrontation clause otherwise because there opportunity was no The form in for cross-examination. which the out-of-court and uncross-examined declara- tions are submitted is irrelevant.
Again, inexplica- however, we are confronted with object clearly ble failure of defense counsel in- testimony. objection admissible appropriate Had an been judge made, given opportu- trial have been would nity testimony, to exclude which, admission of we con- clude, plain constituted error and mandates reversal. objection
The lack counsel, accordingly, defense goes not to whether there awas violation of the de- rights fendant’s constitutional of confrontation but may, whether itself, this court on review from the record conclude that plain there was error which affected rights substantial of the defendant and which warrants reversal. ' 901.03, Stats., provisions Sec. contains the of the Eules relating objections Evidence and the review of *20 errors in made the admission or exclusion of evidence. " following portions The pertinent of that rule are appeal: Eulings “901.03 (1) on evidence. Effect of Errone- may ruling ous predicated Error upon not be a Euling..
which admits or evidence excludes is unless substantial right party affected; of the “(a) Objection. ruling admitting In case the is one evidence, timely objection or appears motion to strike record, stating specific ground the was not objection, if the ground specific apparent context; from the or (( “ (4) Nothing Plain Error. precludes in this rule tak- ing plain affecting notice of rights errors substantial al- though they brought were not to the attention of the judge.”2 2 The rule “plain” focuses on whether error is whether rights.” it affects such, “substantial As the rule serves differ purpose justice” ent than the “interest of rule contained in sec.
190 901.03(4), rule, plain-error forth sec. as set
The substantially plain-error rule Stats., identical is The Fed- Evidence. Rules of (d) 103 of the Federal Rule Advisory Rule Federal eral Committee Note wording plain-error rule that the Evidence states in Rule plain-error principle out set is derived from the Ac- Criminal Procedure. 52(b) of the Federal Rules of analogous provi- cordingly, federal case law under the defining plain- highly scope of the relevant sions is Rules Evidence. error rule under Wisconsin Procedure3 Criminal Rule 52 of the Federal Rules of suggested only plain-error explicit what is makes (4), plain That contained in 901.03 Stats.: rule as sec. distinguished depend- error from error harmless is to be rights ing are affected. or not on whether substantial ipso plain way, on its face is Put another error facto determined, plain in- prejudicial; error no and once is necessary respect prejudicial quiry in whether it is permissible. or 52 is fact from the structure Rule
Less obvious ground plain error that there a middle between and harmless error. prejudice defendant “An error that did not though error,’ disregarded, even
deemed ‘harmless plain-error im 251.09, 251.09, rule does Stats. Unlike see. justice plicate miscarriage probable different issues such as See, Pappas Inc., Agency, Nelsen result on retrial. v. Jack O. A. 363, (1978). served 260 721 values Wis.2d N.W.2d plain-error akin rule are much more to those served 817.37, Stats., which rules of evidence. sec. antedates nеw Claybrooks See, State, 84-5, Wis.2d N.W.2d (1971). 3 “Rule *21 Harmless Error Plain Error 52. “(a) Any error, irregularity defect, Error. or Harmless vari- rights disregarded. ance which does not affect substantial shall “(b) affecting Plain Error. Plain errors or defects substantial they rights may although brought he noticed were not attention of the court.” objection timely If been was made. the error have objection prejudicial, made, it is ‘reversible Finally 52(b) ‘plain contemplates error/ Rule class of error that a trial re- so fundamental new or other error/ granted though lief must be even the action was not ob- jected (footnotes omitted) Wright, to at the time.” Procedure, (1969). Federal Practice sec. 851 Defining scope plain error been difficult for has Wright the federal courts. has described Professor following problem in the terms: gloss put “Courts have endeavored to on the rule defining they the kind of for which error can reverse 52(b). ‘plain Rule under it Thus is said that error’ ‘error obvious and means both or ‘serious substantial/ ‘seriously prejudicial and manifest or or errors/ error/ ‘grave seriously rights errors which affect substantial Perhaps attempts ‘plain the accused.’ these define harm, they dо error’ but it doubtful whether are help. perception of much is that sounder when an appellate court should take notice of error not raised particular case, below must be made on the facts of the there no and the are ‘hard and fast classification in either application principle descriptive or the of a use give impression title.’ Indeed the cases the distinct ‘plain concept appellate error’ impossible find courts define, they they save that it (foot- know when see it.” omitted) Wright, supra, *22 participants Guyton, of the other one from David alleged on impeached state crime, who was given statements inconsistent ground had that he question additionally subject be- credibility was whose immunity in ex- granted complete had he been cause Virgil. against do testify agreement We change for his have been insuffi- would that such evidence not conclude alone, cannot be but it it viewed to convict were cient testimony of beyond a reasonable doubt said contrary put Eiland, into evidence which and United States salutary provisions of the Wisconsin jury’s impelling play pаrt did not Constitutions, verdict. obtained
Moreover, conviction was the defendant’s rights under the through confrontation a violation his viola- This Constitutions. Wisconsin United States rights serious, is so the defendant’s constitutional tion of properly ad- of the other evidence in the context viewed case, that the admission in this that we conclude mitted plain error, requiring a re- of the evidence constitutes of the conviction. versal system justice our
The needs of our also bolster A trial con- view the conviction must be reversed. in violation of the defendant’s confrontation ducted rights jus- concepts a trial that flouts fundamental system. tice basic to our Where a defendant is convicted way integrity in a with the inconsistent fairness judicial proceedings, then the invoke courts should plain-error public repu- protect rule in order to their own Vaughan, (2d tation. United F.2d States 1971). Cir.
Accordingly, although appropriate objection clearly although have been should made counsel and defense objection undoubtedly such would have been sustained judge, trial the error of a nature denominated as rights “plain,” it affected substantial of thе de- because pro- permitted fendant and because the error trial to necessary ceed in violation of fundamental condition *23 meaningful trial. fair The defendant was denied Eiland cross-examination. The evidence of was sub- hearsay pre- in mitted form under circumstances which testing veracity cluded counsel from ac- defense its and curacy. Cross-examination, by Wigmore, called “the greatest legal engine discovery ever invented (5 Wigmore, Evidence, truth” p. 32), sec. absolutely precluded. alleged,
Other errors were also com- but view of the pelling plain above, nature of the error and discussed unlikely alleged errors, because it is that if other they be, likely upon retrial, error are to recur we do address them. conclusion, again
In we state what must be obvious opinion: from point this From neither the view of prosecution good or defense was this trial a model of procedure. appear trial It would that the evidence properly admissible would have been to sufficient convict prosecutor the defendant. Yet the to to chose sail close evidentiary the wind and еrrors, to induce one numerous which, clause, the violation of the confrontation re- quires a requires had, reversal and that a new trial be necessary when new trial would not have been had prosecution been carried with out zeal and reasonable discretion. can Nor we exonerate defense He counsel. persistently object to patently failed to inadmissible evi- dence, and lapses justifica- most of these incapable are grounds strategic tion on the appropri- Had waiver.4 apparent prosecutorial It in this ease that went excess unsatisfactory representation toy hand-in-hand with trial defense application plain-error The particularly counsel. of the doctrine is appropriate context, prosecutor prevent in order taking advantage. from aspect plain-error unfair This objections judge timely the trial made, ate and been given opportunity rec- to correct the would have been infringement upon the defendant’s ord and to avoid rights. constitutional
By Judgment and reversed orders Court. — trial. cause remanded for a nеw agree BEILFUSS, (concurring). J. I C. this case primarily should be reversed a new trial ordered be- degree poorly tried, cause it was so defendant did a fair not receive trial as that rule is generally concepts understood under our constitutional Rights as embodied in the Bill of in the United States Constitution and our Wisconsin Constitution. evi- light dence in the case viewed most favorable the verdict sufficient the conviction, sustain but *24 by many trial errors, was so infected trial so counsel some insubstantial, substantial that a some trial new should be ordered. agree
I further that this not a is conviction that should 251.09, Stats., reversed under sec. of interest justice probable bring because it is not a retrial will different result. recognized Practice, para. rule is in 8B Moore’s Federal 52.02[2] (2d 1977): ed. plain “The recognizes mitigate error doctrine the need to in criminal rigid application cases the harsh of effects of the ad-
versary whereby trial, attorney’s method of binds conduct his Particularly mitigation client. required is fact, such in if is as generally competence assumed, of counsel in criminal cases does meet the Indirectly, plain standards other areas. error salutary prosecution’s doctrine has a effect on the conduct intelligent of the prosecutor trial. If the guard against wishes to possibility error, of rely incompe- reversible he cannot on the inexperience tence adversary of but, his contrary, on the must protect often intervene to the defendant from the mistakes counsel.” agree majority’s I also plain reliance on the error 901.03(1) (4), Stats.,1 rule embodied in sec. appropriate. language point However I do out that the application permissible statute its makes or dis cretionary. sparingly This statute should be used only in this, cases such as where a basic constitutional right has not been extended to the accused. HANSEN, majority
CONNOE T. (dissenting). J. The that, although timely objection made, concludes no testimony regarding admission of Clarence Eiland’s out- “plain of-court respectfully statements was error.” I dis- sent. general may rule this state is that error not be
predicated upon the admission of evidence unless sub right stantial party timely is affected and a ob jection appears 901.03(1) (a), record. Sec. Stats.1 recognizes 901.03(4) exceptiоn Sec. rule and this provides: Nothing “PLAIN precludes EEEOE. rule tak-
ing plain affecting notice rights errors substantial although they brought were not attention of judge.” Rulings (1) ruling. “901.03 on evidence. erroneous Effect of predicated Error upon ruling not be admits or ex which right party evidence cludes unless a affected; substantial “(4) Nothing Plain precludes taking Error. in this rule notice plain affecting rights although errors they substantial were not brought judge.” to the attention of the *25 901.03(1), Stats., provides part: Sec. (1) «... EFFECT may OF ERRONEOUS RULING. Error predicated upon ruling not be a which admits or evi- excludes dence right party affected; unless substantial of is and Objection. “(a) ruling In case admitting is one evidence, timely objection appears or record, motion to strike stating of specific ground objection, specific ground of if appar- was not context; from ent . . 196 s. 251.- with exception is “consistent “plain error”
This at Note, 59 Wis.2d 09,”2 Judicial Council Committee of this R14, preserve the discretion “to intended justice even questions in the interest review court to preserved at though they properly raised and not were 16, 706 1, 250 N.W.2d State, Turner v. 76 trial.” Wis.2d alter, not “plain does (1977). error” statute Thus discretionary power to merely court’s preserves, this but justice. in the interest of trial or order a new reverse governed by well-estab power The exercise its discre court to exercise principles. For this lished must justice, this court tionary powers in the interest not have been that the defendant should be convinced 596, 612, 223 guilty, State, 65 McAdoo v. Wis.2d found 744, ; Hungerford, 54 v. Wis.2d (1974) 521 State N.W.2d 751, appear it that (1972), and must 196 647 N.W.2d acquittal. v. Lind probably State new trial will result 699; Heidel 769, v. sey, 759, 193 53 N.W.2d State Wis.2d 360, (1971); see: bach, 182 350, Wis.2d N.W.2d State, Roehl 253 N.W.2d 77 Wis.2d (1977). majority inquiry under that the focus concludes “plain exception from that under error” is different 251.09, Stats., justice”
the “interest of standard of sec. implicate “plain and that error” not standard “does 'provides: Stats., 261.09, Sec. Discretionary any proceeding . “. . reversal. In action or brought supreme by appeal error, court or writ of if it shall appear controversy record, to that from the the real court fully tried, probable justice has not been or that it is has for supreme miscarried, reason court in its discretion judgment appealed regardless from, reverse the or order question proper exceptions motions, objections, appear whether not, may also, reversal, in the record or case of direct entry proper judgment or remit the case to the trial court trial, making for a new direct such amendments pleadings adoption procedure court, and the of such in that governing legal inconsistent with the procedure, statutes shall as necessary accomplish justice.” be deemed the ends of
197 miscarriage justice re- probable or different issues 2.) p. 20, fn. (Slip opinion on at This is sult retrial.” contrary State, supra. we in Turner v. to what said majority—
Further, proposed the standard rights” of whether an error “affected the has substantial forth in the defendant —is the standard set sec. same 817.37, Claybrooks State, In v. 50 Wis.2d 183 Stats.3 (1971), majority, this court N.W.2d 139 cited applied rights” to the review this standard “substantial alleged jury of two in a trial errors court’s instructions. met court held that with re- This gard this standard was not, error “did in this the first because error case, miscarriage justice.” Claybrooks result in v. similarly State, supra, at 85. The error held second appear insufficient it reversal because did not committed, might “had such error not been the verdict probably Claybrooks State, v. have been different.” supra, at 86. Casualty
Similarly, Economy v. & Christensen Fire setting Co., 50, 63, 252 (1977), 77 81 after Wis.2d N.W.2d 817.37, rights” language forth the “substantial of sec. Stats., appropriate this court stated that the standard of whether, committed, review if the error had not been might probably the result “£. . . have been more favor ” “ party complaining’ probably able to the or ‘would have ” different,’ quoting Purtell, been Nimmer v. 69 Wis.2d 817.37, Stats., provides: Sec. Judgments; application aside; trial; “. . . to reverse or new set judgment reversible errors. No shall be or reversed aside set or granted any criminal, new trial proceeding, action or civil or ground jury, improper on misdirection of or the admis- evidence, pleading sion of or for error as to matter of or opinion procedure, applica- unless the court to which the made, tion is after an pro- examination of the entire action or appear ceeding, complained it shall error of has affected rights party seeking substantial to reverse or set judgment, aside the to secure new trial.” Although section been renumbered, has form its has not changed been its in 1909, enactment since Laws of ch. 192. State, (1975) ; Green 21, 38, See: 39, N.W.2d *27 Staples (1977); v. 631, 641, 250 305 75 N.W.2d Wis.2d (1976); v. 13, 24, Lutz State, 245 679 74 N.W.2d Wis.2d 751, 743, Shelby Co., 235 N.W.2d Mut. Ins. 70 Wis.2d 595, 344 (1975) ; Kuick, 252 32 N.W.2d 426 v. State Wis. (1948). Co., 17 Mut. Ins.
In v. Milwaukee Automobile Lisowski (1962), court 504, this 666 117 N.W.2d Wis.2d said: ground judgment “A on the of mis- will not be reversed jury opinion after direction of a unless this court is record that the error has an examination of the entire seeking right party affected the reversal. of the substantial Stats, 274.37, sec. is Sec. This [now 817.37] probability, requiring possibility, the entire
test of not occurred, evidence that had to show not error probably result . .” would have been different.. quoted approval Family with in Bohlman v. American Co., 718, 726, (1974). Mut. Ins. 214 52 61 Wis.2d N.W.2d Thus, justice” under either the “interest standard 251.09, rights” Stats., of sec. or test “substantial adopted majority, appear it must that the de- likely acquitted fendant is on retrial. re- This quirement Indeed, majority virtually not met here. concedes much appear as when it states that would “[i]t properly that the evidence admissible would have been Although sufficient to convict the defendant.” the ma- j ority points out considerations which tend to reduce credibility incriminating testimony of the de- accomplice, Guyton, majority fendant’s David does Guyton’s not conclude that testimony have been would insufficient defendant, to convict the but rather charac- Guyton’s testimony “convinсing terizes as evidence Virgil’s guilt.. . .”
Guyton testified in regarding Virgil’s detail participa- tion in the testimony crime. His was corroborated by
199 inherently evidence, incred- circumstantial and was testimony ible. This a convic- was sufficient to sustain said, therefore, defendant tion. It cannot be new trial should not have been convicted that a will probably acquittal. reason, not, For that result this is my opinion, appropriate case for the exercise power plain pursuant to review court’s errors sec. 901.03(4), Stats. important emphasize
It is an error even where “plain,” the decision to such an error in the consider timely objection absence of a rests in the discretion Langston 288, 293, State, this court. v. 212 Wis.2d (1973); Claybrooks supra, 85; State, N.W.2d v. at Claybrooks State, 87, 89, Wis.2d 183 N.W.2d (1971); ante, p. 145, see: McClelland v. State 267 N.W.2d *28 (where timely objection (1978) 843 no made “the de- fendant is not entitled have the on matter considered appeal right.”) If otherwise, as a matter of the rule were “plain exception timely the error” would swallow the ob- jection by 901.03(1), Stats., which, terms, rule of sec. its applies affecting rights. to errors substantial important public purposes
Because are served the timely objection requirement, discretion to court’s “plain sparingly notice errors” should be exercised only “exceptional circumstances.” United States v. Atkinson, (1936). importance 297 U.S. The timely objection Supreme rules was discussed the Court of United States recent case of Wain- wright Sykes, (1974). v. case, U.S. In that Supreme corpus petition- Court held that a federal habeas challenge er raise a could not constitutional to the admis- court, of a sion confession his trial in state where the petitioner complied contemporaneous had with the objection court, rule of the petitioner state and where the failed to show “cause” for his timely failure to make a objection “prejudice” a result of as admission of the evidence. salutary purposes furthered emphasized
The court 901.03(1), Stats. by timely objection such as sec. rules timely objection enables pointed out, a the court As regard objection while record to made with permits the trial It are fresh. recollections witnesses demeanor, to make judge, the witnesses’ observed who has necessary decision factual determinations timely objection question. contributes A constitutional orderly finality litigation and the administration opportunity to by affording justice the trial court an avoiding objected to, possibly the evidence thus exclude the need for a new trial. addition,
In prosecu objection spot . . n on the force “. [a] card, and even if the a hard look at hole tion prosecutor the evidence he must take its judge admit thinks that trial will state contemplate possibility of re appellate or the ultimate issu versal ance the state courts corpus. . .” Wain a federal writ of habeas . wright Sykes, supra, v. at 89. Supreme which, that a rule as Court observed course, permitted matter of con defense counsel to raise might claims for stitutional time on review en first courage “sandbagging” lawyers, part on of defense might guilty take their who chances on a verdict of not in the trial court with the intent to raise their constitu gamble tional claims on review if their initial did not Wainwright pay Sykes, supra, off. at 89.
Further, Supreme contempora- the Court noted that a objection promotes perception rule neous the of a crimi- portentous nal trial properly as a decisive and event and proceedings, makes it the “main event” the rather than “tryout proceedings on the road” for later where the decisive constitutional issues will be for the raised first Supreme time. The Court observed: “. . . A defendant crime, has been accused of a serious place by the and this is time for him to set be tried jury peers guilty guilty of his and found either or not jury. greatest possible To the extent all which issues charge bear ing: proceed- on this should be determined in this courtroom, jury accused is inis box, been judge having bench, witnesses, is on the subpoenaed duly sworn, await their turn testify. Society’s resources have been concentrated at place decide, time and in order to within the limits of of fallibility, question guilt human or innocence Any one of procedural its citizens. rule which en- courages proceedings the result possible that those free of be as error thoroughly desirable, as and the con- temporaneous-objection surely rule falls within this clas- Wainwright Sykes, supra, v. sification.” at 90. purposes These timely objection are served rule set 901.03(1), fоrth in they sec. I do not believe Stats. by construing should be “plain defeated error” ex- ception timely objection so toas swallow the rule. I be- lieve the “discretion of this plain court error [under exception] questions justice review in the interest of though they even properly were not preserved raised and State, Turner trial,” at supra, at constrained govern discretionary same standards which reversal 251.09, under sec. Because Stats. those are standards here, not met I judgment would affirm the of conviction denying and the order postconviction motions defendant. hereby I am authorized to state that Mr. Han- Justice
ley and join dissenting Justice Callow Mr. in this opinion. notes sec. 856. determining harmless, In plain whether an error is quantum properly of other evidence rele admitted is Erroneously may tip vant. admitted evidence the scales case, though favor reversal a close even the same evidence would be harmless context of a case demonstrating overwhelming guilt. Cf., evidence of Glas States, ser v. United (1942). 315 U.S. In the present case, implicating than other the evidence the de fendant Eiland, only contained the statement of connecting evidence the defendant with the crime came