State v. Edward Bannister
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2007 WI 86 SUPREME COURT CASE NO.: OF WISCONSIN 2005AP767-CR COMPLETE TITLE: State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Edward Bannister, Defendant-Appellant. REVIEW OF A DECISION OF THE COURT OF APPEALS 2006 WI App 136 Reported at: 294 Wis. 2d 359, 720 N.W.2d 498 (Ct. App. 2006 Published) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: July 3, 2007 January 11, 2007 Circuit Milwaukee John Siefert BUTLER, Jr., J., dissents (opinion filed). ABRAHAMSON, C.J., joins the dissent. NOT PARTICIPATING: ATTORNEYS: For the plaintiff-respondent-petitioner the cause was argued by Christopher G. Wren, assistant attorney general, with whom on the briefs was Peggy A. Lautenschlager, attorney general. For the defendant-appellant there was a brief by Craig S. Powell, Byron Lichstein, and Kohler & Hart, LLP, Milwaukee, and oral argument by Craig S. Powell. 2007 WI 86 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2005AP767-CR (L.C. No. 2003CF6219) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, Plaintiff-Respondent-Petitioner, FILED v. JUL 3, 2007 Edward Bannister, David R. Schanker Clerk of Supreme Court Defendant-Appellant. REVIEW of a decision of the Court of Appeals. ¶1 JON P. WILCOX, J. Reversed. This is a review of a published court of appeals decision, State v. Bannister, 2006 WI App 136, 294 Wis. 2d 359, 720 N.W.2d 498. The court of appeals reversed a judgment of the Milwaukee County Circuit Court, John Siefert, Judge, and remanded the cause with directions. Judge Siefert entered a judgment of conviction consistent with the verdict of guilty reached (Bannister) by guilty a jury. of The delivery jury of found a Edward controlled Bannister substance pursuant to Wis. Stat. § 961.41(1)(a)(2005-06).1 1 Wisconsin Stat. § 961.41(1)(a) provides the following: No. ¶2 This case presents two issues. 2005AP767-CR First, did the State satisfy the corroboration rule during the course of Bannister's trial? by We hold that the State satisfied the corroboration rule corroborating Bannister's confession with the presence of morphine in Michael Wolk's body at the time of his death, which constitutes a significant fact. Second, should the court grant Bannister a new trial in the interest of justice pursuant to Wis. Stat. § 751.06?2 We hold that the real controversy in this case do was tried and not grant Bannister a new trial. Accordingly, we reverse the court of appeals. Schedule I and II narcotic drugs generally. Except as provided in par. (d), if a person violates this subsection with respect to a controlled substance included in schedule I or II which is a narcotic drug, or a controlled substance analog of a controlled substance included in schedule I or II which is a narcotic drug, the person is guilty of a Class E felony. All subsequent references to the Wisconsin Statutes are to the 2005-06 version, unless otherwise stated. 2 Wisconsin Stat. § 751.06 provides the following: In an appeal in the supreme court, if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the court may reverse the judgment or order appealed from, regardless of whether the proper motion or objection appears in the record, and may direct the entry of the proper judgment or remit the case to the trial court for the entry of the proper judgment or for a new trial, and direct the making of such amendments in the pleadings and the adoption of such procedure in that court, not inconsistent with statutes or rules, as are necessary to accomplish the ends of justice. 2 No. 2005AP767-CR I ¶3 On October 23, 2003, City of Cudahy Detective Michael Carchesi arrested Bannister at his home in Milwaukee County. Bannister had an open warrant with the Sheriff's Department for failure to appear. Milwaukee County Detective Carchesi wanted to discuss a case he was investigating that involved the suspicious death of Michael Wolk. Detective Carchesi and another officer transported Bannister to the police station. ¶4 The Cudahy Police Department's involvement in this case commenced when it dispatched Officer Brian Scott to the apartment of Michael Wolk and his wife on January 17, 2003. Mrs. Wolk had called 911 because her husband was unresponsive. She requested an ambulance. ¶5 Upon attempted arrival, to revive Emergency Michael. Medical minutes, the EMTs gave up their efforts. (EMTs) approximately After Technicians twenty Michael was pronounced dead on the scene. ¶6 The contacted. body. a Milwaukee County Medical Examiner's Office was It went to the scene and took custody of Michael's The Medical Examiner also took other evidence, including kitchen spoon, a white powdery substance, a couple of syringes, and rolling papers that were found on a table near Michael's body. ¶7 collected. The Medical Examiner's Office examined the evidence Its examination included a comprehensive toxicology screen on the kitchen spoon and syringes. Morphine was on both the was spoon and the syringes. Morphine 3 also found in No. 2005AP767-CR Michael's blood when a comprehensive screen on his blood was done. Dr. Jeffrey Jentzen, a Milwaukee County Medical Examiner, concluded that Michael died of morphine toxicity. ¶8 With Michael's investigation. death, the police began an At the outset of the investigation, Detective Carchesi interviewed Steven Wolk on two occasions. Michael's brother. Steven was Steven identified Bannister as their source for morphine. ¶9 come Detective Carchesi called Bannister and asked him to to the police station the following day. Bannister initially agreed to do so, but the following day he called back and explained he could not meet with them. was taken by the Cudahy Police No immediate action Department to interview Bannister, but the investigation continued. ¶10 It was eight months after requesting that Bannister appear at the police station that Detective Carchesi went to Bannister's residence Detective Carchesi Carchesi advised and arrested arrived at Bannister the of him. Once police his Bannister station, constitutional and Detective rights. Detective Carchesi also told Bannister that he was investigating the death of Michael Wolk. ¶11 During the interview, Bannister told Carchesi that he knew Steven and Michael Wolk. stopped by Bannister his residence explained sickle cell anemia. that on he several was occasions prescribed Detective The brothers for morphine morphine. for his Bannister told Detective Carchesi that he did not receive payment for the morphine. 4 Bannister stated that No. he first gave the Wolks morphine in December 2002. giving them morphine until mid-January 2003. 2005AP767-CR He continued Bannister told Detective Carchesi that he gave the Wolks morphine on eight to ten occasions, approximately every three days. ¶12 After interviewing Bannister, Detective booked him for delivery of a controlled substance. Carchesi The State subsequently charged Bannister with one count of delivery of a controlled substance. ¶13 On the day Bannister's reached an agreement. trial began, the parties The State agreed to not charge Bannister with reckless homicide. In exchange, Bannister agreed to not object to evidence that an autopsy was done upon Michael Wolk and that morphine was found in his body at the time of his death. ¶14 After the selection Miranda-Goodchild hearing.3 the information constitutional he rights of jury, the court held a Detective Carchesi testified about provided and the Bannister Bannister's regarding reaction. The his circuit court concluded that Miranda4 was complied with and Bannister's statement was given voluntarily. The circuit court denied Bannister's motion to suppress his statement given to Detective Carchesi. 3 State ex rel. N.W.2d 753 (1965). 4 Goodchild v. Burke, 27 Miranda v. Arizona, 384 U.S. 436 (1966). 5 Wis. 2d 244, 133 No. ¶15 During the State's opening statement, 2005AP767-CR it the evidence that would be presented at trial. summarized The summary included reference to testimony from Steven Wolk. The State stated the following related to Steven Wolk's testimony: I'm asking, for instance, if Steven should testify, you listen to him and you weigh his evidence and you weigh his credibility. It'll be out there for you. You may find he's a distasteful individual. He's a drug user. His brother was a drug user. Drugs killed his brother. You'll hear it'll be clear that Steven Wolk isn't the nicest person in the world but he's a witness to what happened. He'll tell you that over a span of time, that he and his brother, together with Steven, would obtain morphine from the defendant, Edward Bannister. It went on for about a year. They would go to Edward Bannister's home and obtain it. Sometimes, Edward Bannister would give it to him, according to Steven. I don't know if that's true but one thing, you have to weigh everything would give it to him free of charge. Sometimes, he'd give him good faith money. That on or about the 14th or 15th of January, he can't remember the exact day, sometime in late morning or early afternoon, Steven Wolk, Michael Wolk went to the defendant's home and the defendant gave them two tablets of morphine, that they in turn gave the defendant $20.00 in exchange for that, and that Steven took one pill and Michael took another one of the pills so that they could use it at a later date or later time. Steven Wolk never testified during the trial. He asserted his Fifth Amendment privilege against self-incrimination. ¶16 trial. The State four other witnesses during the Officer Scott testified regarding the scene at Michael Wolk's apartment Susan called Gock, Toxicology when he Technical Lab, testified responded Director about 6 to of the Mrs. Wolk's the Milwaukee findings of 911 call. the County Medical No. Examiner's Office. 2005AP767-CR Detective Carchesi testified regarding the investigation into Michael's death and the statement made by Bannister when he interviewed him. Finally, Dr. testified about the autopsy conducted on Michael. Jentzen Dr. Jentzen testified that Michael died of morphine toxicity. ¶17 Bannister witnesses. court rested his case without calling The jury returned a verdict of guilty. entered a judgment of conviction any The circuit consistent with the jury's verdict. ¶18 Bannister appealed to the court of appeals. He contended that the State's failure to corroborate his confession with a significant fact meant that insufficient evidence was presented to convict him. He also argued that he was entitled to a discretionary reversal pursuant to Wis. Stat. § 752.35.5 ¶19 On Bannister's 5 the issue confession, related the court to of the corroboration appeals reversed Wisconsin Stat. § 752.35 provides the following: Discretionary reversal. In an appeal to the court of appeals, if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the court may reverse the judgment or order appealed from, regardless of whether the proper motion or objection appears in the record and may direct the entry of the proper judgment or remit the case to the trial court for entry of the proper judgment or for a new trial, and direct the making of such amendments in the pleadings and the adoption of such procedure in that court, not inconsistent with statutes or rules, as are necessary to accomplish the ends of justice. 7 of the No. judgment the circuit judge entered. The 2005AP767-CR court of appeals concluded that the presence of morphine in Michael's body did not constitute Bannister, 294 a corroboration Wis. 2d 359, ¶8. of a significant Noting that no fact. case law specifically defined "significant fact," the court of appeals relied on the dictionary definition of "significant." "Significant" means effect: important." "having the court likely to have influence or Id. (quoting Webster's Ninth New Collegiate Dictionary 1096 (1991)). trial, or Id., ¶9. of Based on the evidence presented at appeals concluded that the finding of morphine in Michael's body was "not sufficient to corroborate Bannister's confession claiming to have given morphine pills on prior uncertain dates to the deceased." ¶20 Id., ¶11. Pursuant to Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938), which established that only dispositive issues need to be addressed on appeal, the court of appeals did not address Bannister's argument that he was this court entitled to a discretionary reversal. ¶21 The State petitioned for review of the satisfied the corroboration rule during the course of Bannister's trial. The judgment of the court of appeals. II ¶22 We first address whether the State corroboration rule is a common-law standard. 2002 WI App 226, ¶20, 257 Wis. 2d 579, State v. Hauk, 652 N.W.2d 393. Determining if the facts fulfill a common-law standard presents a question of law. Peplinski 8 v. Fobe's Roofing, Inc., 193 No. Wis. 2d 6, 18, 531 N.W.2d 597 (1995). 2005AP767-CR We view the facts in evidence in a light most favorable to the jury's verdict. State v. Poellinger, 153 Wis. 2d 493, 507, 451 See N.W.2d 752 (1990). ¶23 The corroboration rule ensures that a conviction does not stand when there is an absence of any evidence independent of the defendant's confession that the crime in fact occurred. Holt v. State, 17 Wis. 2d 468, 480, 117 N.W.2d 626 (1962). The corroboration rule functions as a "restriction on the power of the jury to convict." (1954). A defendant's Smith v. United States, 348 U.S. 147, 153 conviction will not confession alone. stand State on v. the basis of Verhasselt, a 83 Wis. 2d 647, 661, 266 N.W.2d 342 (1978). ¶24 The development of the corroboration rule commenced in 1660s England. Richard A. Leo et al., Bringing Reliability Back in: False Confessions and Legal Safeguards in the Twenty-First Century, 2006 Wis. L. Rev. 479, 502 (2006) (discussing the roots of the corroboration rule). Perry's Case, 14 Howell St. Tr. 1312 (1660), presented a case where three people were executed for a suspected murder. The convictions were based upon the discovery of a missing person's bloody hat and the confession of one of the defendants. mother. Years after the defendants' executions, the missing man reappeared. such The confessor implicated his brother and cases He was alive. by requiring The corroboration rule addressed evidence that the crime occurred, independent of a defendant's confession. 9 actually No. ¶25 2005AP767-CR Wisconsin has been applying the corroboration rule for over 135 years. See Griswold v. State, 24 Wis. 144 (1869). Throughout that time, the State has had to present some evidence that the crime charged actually occurred, independent of the defendant's confession. In Griswold, the court discussed the threshold for satisfying the corroboration rule in terms of the State presenting evidence that corroborated the confession "in some particulars." ¶26 Id. at 147. The present phrasing of the corroboration rule test requires that the State corroborate "any significant fact." In explaining the test, the court stated the following: All the elements of the crime do not have to be proved independently of an accused's confession; however, there must be some corroboration of the confession in order to support a conviction. Such corroboration is required in order to produce a confidence in the truth of the confession. The corroboration, however, can be far less than is necessary to establish the crime independently of the confession. If there is corroboration of any significant fact, that is sufficient under the Wisconsin test. Holt, 17 Wis. 2d at 480. A significant fact has been corroborated when there is confidence in that the fact that the crime the defendant has confessed to indeed occurred. ¶27 Prior cases applying the corroboration rule test have established the contours of a significant fact, even though the court has not explicitly defined the term "significant fact." For instance, a significant fact need not independently establish the specific elements of a crime. Id. In Holt, the defendant was charged with murder in the first degree. 10 She No. contended evidence that to the State corroborate had her failed confession to 2005AP767-CR present because sufficient it failed to prove that her baby was alive when it was placed in the furnace. The court concluded that the corroboration rule did not require that the evidence corroborate any particular aspect of her confession, such as her statement that the baby was alive when she placed it in the furnace. "If there is corroboration of any significant fact, that is sufficient under the Wisconsin test." Id. (emphasis added). ¶28 (1965), Jackson also independently v. State, illustrates establish that a 29 Wis. 2d 225, the specific 138 N.W.2d 260 significant fact element a of need crime. Jackson, the defendant was convicted for using heroin. her arrest, she had admitted that she used heroin. not In During The court noted that "needle marks, together with the laboratory report that traces of opium alkaloid were found on some of the seized paraphernalia, did supply sufficient corroborating evidence to sustain the conviction." Id. at 231-32. The needle marks and laboratory report alone would not establish that the defendant actually used heroin. Nevertheless, that evidence sufficiently corroborated her confession. ¶29 There may be many significant facts in a record, but any one of them satisfies the corroboration rule. Wis. 2d at 480. Holt, 17 The Holt statement of the corroboration rule test itself states that the corroboration of "any significant fact" is sufficient. that proposition. The application of the test also supports In Triplett v. State, 65 Wis. 2d 365, 372, 11 No. 2005AP767-CR 222 N.W.2d 689 (1974), the court noted one significant fact that was itself sufficient, significant facts. before Although it the provided record a in list some of other cases have presented multiple significant facts, see also, Verhasselt, 83 Wis. 2d at 662, the test requires only one significant fact to be corroborated for it to be satisfied. ¶30 It is also unnecessary that the significant fact be particular enough to independently link the defendant to the State v. DeHart, 242 Wis. 562, 566, 8 N.W.2d 360 (1943). crime. In DeHart, the defendant confessed to being a party to a murder and robbery. Specifically, he told authorities that he was not inside when the shooting occurred, but he stayed outside to keep watch. The court stated that "evidence as to the location and condition of the body, and expert testimony that the condition of the bones was consistent with buckshot wounds inflicted at close None range, of sufficiently the corroborated corroborating evidence the confession." specifically Id. related to DeHart's role in the crime. Rather, the corroborating evidence permits the confidence in that fact that the crime DeHart confessed to indeed occurred. ¶31 the A significant fact is one that gives confidence that crime significant specific the defendant fact elements confessed need not either of the crime defendant to the crime. to actually independently or occur. A establish the independently link the Rather, the State must present at least one significant fact that gives confidence that the crime the defendant has been convicted of actually did occur. 12 No. ¶32 2005AP767-CR When a court addresses a defendant's claim that his or her confession was insufficiently corroborated, it examines the sufficiency of evidence presented at trial. Schultz v. State, 82 Wis. 2d 737, 753, 264 N.W.2d 245 (1978)(stating that "[o]ther evidence adduced at trial corroborated the defendant's version of the events"); Barth v. State, 26 Wis. 2d 466, 468, 132 N.W.2d 578 (1965)(stating that "[w]e have carefully scrutinized the testimony in this case and particularly the portion . . . relied upon by the state"); DeHart, 242 Wis. at 566 (stating that "evidence as to the location and condition of the body, and expert testimony that the condition of the bones was consistent with buckshot wounds inflicted at close range, sufficiently corroborated the confession"); Griswold, 24 Wis. at 147 (stating evidence that against "[a]side the from plaintiff in his confessions error, there given was in other testimony, which was direct, going to establish his guilt"). Because courts consider the corroboration rule after a jury verdict, the evidence is viewed in a light most favorable to the verdict. See State v. Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752 (1990). ¶33 The State contends that the court should classify the corroboration rule as a rule of admissibility, rather than as one of evidentiary sufficiency. Given that the corroboration rule functions to ensure a jury has not convicted a defendant on his or her confession alone, the continued treatment of it as a rule of evidentiary sufficiency is warranted. 13 No. ¶34 2005AP767-CR In this case, the evidence of morphine being present in Michael Wolk's body at the time of his death constitutes a significant fact. fact that The presence of morphine is evidence of the Michael Bannister's used confession morphine. that he That delivered fact corroborates morphine between December 2002 and mid-January 2003 to the Wolks because it gives confidence that he in fact gave the Wolks morphine. ¶35 Michael's death does not make the fact significant for the purpose of corroboration. Rather, the circumstances of the case, with Michael dying in his apartment, preserved the fact that he used morphine. Had Michael lived, like his brother Steven, and the morphine had gone through his system, the means of corroboration would not have been available. It is the fact that circumstances permitted the morphine to be documented as being in makes the Michael's body, presence of rather the than morphine his a death itself, significant fact that that corroborates Bannister's confession. ¶36 more Bannister contends that a significant fact must be a meaningful and particularized fact. In supporting his contention, Bannister points out that both his own confession and the State's corroborative evidence lacks detail. He proffers that had details of the delivery of the morphine been part of the confession or corroborative evidence, his conviction might have been sustainable. ¶37 deviate Adopting such a definition of significant fact would from corroboration. Wisconsin's well-established test for Rather than permitting "any significant fact," 14 No. or "some particulars," Bannister's proposed 2005AP767-CR definition would require that the right or proper fact within the confession be corroborated. Requiring that specific aspects of the confession be corroborated, would require this court to abandon its test and adopt the one adopted in other jurisdictions. This court has repeatedly rejected the approaches of other jurisdictions when it comes to the corroboration rule. See Schultz, 82 Wis. 2d at 752-53. ¶38 The State presented evidence that Michael Wolk used morphine. That fact was significant because it gave confidence that Bannister delivered morphine to the Wolks. Accordingly, the State satisfied the corroboration rule. III ¶39 Having concluded that the State satisfied the corroboration rule, we now address whether Bannister should be granted a new trial in the interest of justice. ¶40 This court has both inherent and statutory power to review waived errors. 456 N.W.2d 797 (1990). Vollmer v. Luety, 156 Wis. 2d 1, 11-12, Wisconsin Stat. § 751.06 provides the following: Discretionary reversal. In an appeal in the supreme court, if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the court may reverse the judgment or order appealed from, regardless of whether the proper motion or objection appears in the record, and may direct the entry of the proper judgment or remit the case to the trial court for the entry of the proper judgment or for a new trial, and direct the making of such amendments in the pleadings and the adoption of 15 No. 2005AP767-CR such procedure in that court, not inconsistent with statutes or rules, as are necessary to accomplish the ends of justice. Pursuant to § 751.06, the court may exercise its discretion when either the real controversy has not been tried or it is probable that there has been a miscarriage of justice. Bannister because contends of the that the real presentation of controversy evidence In this case, was related not to tried Michael Wolk's death and the prejudicial statements made by the State. ¶41 The court has exercised its power to reverse when the real controversy has not situations. Vollmer, been 156 fully tried Wis. 2d at in 19. many The different court has exercised the power when important evidence was kept from the jury. State v. Cuyler, 110 Wis. 2d 133, 142-43, 327 N.W.2d 662 (1983). It has also exercised the power when evidence presented to the jury should have been excluded. Wis. 2d 569, 578, 408 N.W.2d 28 State v. Penigar, 139 (1987). The court has also exercised its power when it concluded there was an error in a jury instruction, Air Wisconsin, Inc. v. North Cent. Airlines, Inc., 98 Wis. 2d 301, 318, 296 N.W.2d 749 (1980), and an error in a verdict question, Wis. 2d 607, 616, 292 Clark v. N.W.2d 630 Leisure (1980). Vehicles, An Inc., 96 insufficient record, Bostonian Homes, Inc. v. Struck, 44 Wis. 2d 553, 559-60, 171 N.W.2d 320 (1969), and an incomplete record, Walter v. Four Wheel Drive Auto Co., 213 Wis. 559, 572, 252 N.W. 346 (1934), also caused the court to conclude that the real controversy had not been tried. The court has a broad discretion to reverse 16 No. 2005AP767-CR judgments, which "enables it to achieve justice in individual cases." ¶42 Vollmer, 156 Wis. 2d at 21. Although the court has exercised its power of discretionary reversal in numerous different situations, it does so only in exceptional cases. Id. The long-established general rule is that an appellate court does not review an error unless it has been properly preserved. 490, 162 N.W. 655 (1917). Cappon v. O'Day, 165 Wis. 486, We have recognized some of the many Vollmer, 156 Wis. 2d at 10-11. reasons for the general rule. It gives attorneys an incentive to diligently try the case at trial because of the threat of waiver. It emphasizes the need for objections, which brings an issue to the judge's attention and allows him or her to correct errors. When trial judges take the opportunity to correct an error, the general rule functions to reduce the need for appeals. for the court of appeals The general rule also preserves the role of corrector of errors actually made by trial courts, rather than addressing issues not even raised in the trial court. ¶43 Bannister's circumstance. controversy case does not present an exceptional A jury returned a verdict of guilt after the real had been tried. The State's mention of Steven Wolk's testimony and evidence related to Michael Wolk did not cloud the real controversy to the extent that the interest of justice warrants a new trial. ¶44 Bannister contends the real controversy (i.e., whether Bannister delivered morphine to the Wolks) was not fully tried. Specifically, he contends that the following items prevented the 17 No. jury from deciding the real controversy: to Steven statement, Wolk's its anticipated presentation testimony of evidence 2005AP767-CR the State's reference during related its to opening Michael's death, and its characterization of Bannister's initial failure to appear at the Cudahy Police Department to be interviewed. ¶45 Steven The Wolk State during did its discuss opening the anticipated statement. It testimony of stated the following: I'm asking, for instance, if Steven should testify, you listen to him and you weigh his evidence and you weigh his credibility. It'll be out there for you. You may find he's a distasteful individual. He's a drug user. His brother was a drug user. Drugs killed his brother. You'll hear it'll be clear that Steven Wolk isn't the nicest person in the world but he's a witness to what happened. He'll tell you that over a span of time, that he and his brother, together with Steven, would obtain morphine from the defendant, Edward Bannister. It went on for about a year. They would go to Edward Bannister's home and obtain it. Sometimes, Edward Bannister would give it to him, according to Steven. I don't know if that's true but one thing, you have to weigh everything would give it to him free of charge. Sometimes, he'd give him good faith money. That on the 14th or 15th of January, he can't remember the exact day, sometime in late morning or early afternoon, Steven Wolk, Michael Wolk went to the defendant's home and the defendant gave them two tablets of morphine, that they in turn gave the defendant $20.00 in exchange for that, and that Steven took one pill and Michael took another one of the pills so that they could use it at a later date or later time. Bannister stresses the State's prefacing of its summary of Steven's anticipated testimony with "if Steven should testify" manifests its suspicion that Steven would not be testifying. 18 No. 2005AP767-CR With such a suspicion, the argument goes, the State should not have summarized Steven s anticipated testimony. Bannister contends that this aspect of the State's opening statement is even more troubling because the circuit court denied his motion to point out to the jury the fact that Steven did not testify. ¶46 The State's discussion about Steven Wolk's testimony did not prevent the real controversy from being tried. The jury received an instruction that the statements of the attorneys were not evidence. did not potential consider The limiting instruction means that the jury the testimony. State's statement Finding that the about State's Steven Wolk's reference to Steven's testimony clouded the real controversy would imply that the limiting instruction that the trial court provided the jury had no effect. limiting That is not an implication consistent with how instructions generally are treated. See State v. Fawcett, 145 Wis. 2d 244, 257, 426 N.W.2d 91 (Ct. App. 1988). ¶47 The jury also repeatedly heard references to the death of Michael Wolk. This included testimony by all of the State's witnesses that mentioned Michael's death in one way or another. In addition to the evidence presented to the jury, the State mentioned in its opening statement that Mrs. Wolk found her husband Michael dead from an overdose. ¶48 The statements related to Michael Wolk's death did not cause the true controversy to not be tried. The relevancy of the testimony that mentioned Michael's death was that it related to his use of morphine. The Medical Examiner's Office found it was in Michael s blood. It also found morphine on the syringes 19 No. and kitchen captured spoon. evidence The that he occurrence had used of 2005AP767-CR Michael's morphine. overdose Evidence of Michael's morphine use, which was established with the testimony about the findings of the Medical Examiner's Office, related to the State's Wolks. theory that Bannister delivered morphine to the Bannister himself even entered into an agreement that permitted the admission of the evidence. ¶49 The jury also heard testimony regarding the circumstances surrounding Detective Carchesi ordering Bannister to appear at the police department for an interview. Bannister contends that the State mischaracterized his failure to appear at the police department. Specifically, Bannister argues the State did the following inappropriate redirect examination of Detective Carchesi: Q: On February 17, defendant, correct? A: Yes sir. Q: And you told him to come into the Cudahy Police Department on February 18, 2003? A: Yes sir. Q: And he never did come in, did he? A: No, he did not. Bannister argues that the 2003, only you talked purpose for to the the redirect examination was to emphasize to the jury Bannister's failure to appear. ¶50 at the The testimony regarding Bannister's failure to appear Cudahy Police Department 20 did not keep the jury from No. deciding the real controversy. level that we need to 2005AP767-CR The matter does not rise to the exercise our power of discretionary reversal. ¶51 The State's reference to Steven Wolk's anticipated testimony, presentation of evidence related to Michael Wolk's death, and characterization of Bannister's failure to appear did not prevent the real controversy to be tried. Accordingly, we decline to exercise our power to grant Bannister a new trial. IV ¶52 This case presented two issues. First, did the State satisfy the corroboration rule during the course of Bannister's trial? by We hold that the State satisfied the corroboration rule corroborating Bannister's confession with the presence of morphine in Michael Wolk's body at the time of his death, which constitutes a significant fact. Second, should the court grant Bannister a new trial in the interest of justice pursuant to Wis. Stat. § 751.06? case was tried and We hold that the real controversy in this do not grant Bannister a new trial. of appeals Accordingly, we reverse the court of appeals. By the Court. The decision of the reversed, and we affirm the conviction. 21 court is No. ¶53 LOUIS B. BUTLER, JR., J. concludes that Edward Bannister trial interest in the of 2005AP767-CR.lbb (dissenting). should justice not upon be The majority granted new conviction his a for delivery of a controlled substance, morphine, where jurors heard evidence concerning Michael Wolk's death by morphine overdose, and where the prosecutor threatened to charge Bannister with reckless secure homicide in Bannister's the death agreement of not Michael to Wolk in order at trial to object admission of evidence relating to Michael Wolk's death. to the Because the evidence of Michael Wolk's death was highly prejudicial in nature, and the means by which the prosecutor secured admission of this evidence were Bannister should justice. be questionable granted a at new best, trial in I conclude the that interest of Accordingly, I respectfully dissent. ¶54 On the morning of Bannister's jury trial, off-the- record discussions between the parties and the court left the prosecutor evidence with about the impression the death of that the Michael court Wolk believed would be that unduly prejudicial on a delivery of controlled substance charge. The prosecutor argued that he needed the evidence of Michael Wolk's death to corroborate delivery charge. would be Bannister confession and prove the The prosecution notified the court that it prepared with Bannister's to file an first-degree amended information intentional homicide charging unless Bannister agreed not to object to evidence of Michael Wolk's 1 No. death during the trial on the delivery charge. 2005AP767-CR.lbb Bannister chose not to object to that evidence, and the charge was not amended. ¶55 The prosecution referred during its opening statement. brother." The State to Michael Wolk's death "Drugs killed [Steven Wolk's] called four witnesses, each of whom testified to various aspects of Michael Wolk's death, including the autopsy results and cause of death. Other than Bannister's confession, no testimony regarding any delivery was offered into evidence. ¶56 may Evidence of the morphine found in Michael Wolk's blood have been relevant to establishing corroboration of Bannister's confession in order to prove the delivery charge. Majority op., ¶34. other hand, was Evidence of Michael Wolk's death, on the irrelevant highly prejudicial. not make the corroboration."). to the delivery charge, and was Majority op., ¶35 ("Michael's death does fact It significant should have for been the purpose of pursuant to excluded Wis. Stat. § (Rule) 904.02 ("Evidence which is not relevant is not admissible."). ¶57 The majority suggests that testimony regarding Michael's death was relevant because it related to his use of morphine, and that Michael's morphine use was relevant to the delivery charge. Michael's morphine Majority op., ¶48. use may have Michael's death, however, was not. entirely noted in unnecessary his and highly concurrence, "the 2 been I do not dispute that relevant in this case. Moreover, that evidence was prejudicial. solution was As to Judge ask Fine for an No. 2005AP767-CR.lbb agreement that Michael Wolk possessed morphine in mid-January 2003 without telling the jury that he died as a result." v. Bannister, 2006 WI App 136, ¶16, 294 State Wis. 2d 359, 720 N.W.2d 498, (Fine, J., concurring). ¶58 while I recognize that this is a dissenting opinion. I strongly disagree that the evidence Thus, relating to Michael's death was relevant, for purposes of this discussion, I will assume its relevancy. Nevertheless, we still have a big problem. Relevant evidence may be excluded if its probative value substantially is prejudice. outweighed Wis. Stat. § (Rule) by the danger 904.03. of unfair "Evidence is prejudicial if it has a tendency to influence the outcome by improper means or if it appeals to the jury's sympathies, arouses its sense of horror, provokes its instinct to punish or otherwise causes a jury to base its decision on something other than the established propositions in the case." State v. Jackson, 216 Wis. 2d 646, 667, 575 N.W.2d 475 (1998) (citations omitted). Judge Fine correctly observes that "[w]aving the 'bloody shirt' of Wolk's overdose death invited in the most blatant way the jury to consider the evidence as proving that, beyond the delivery-charge, Bannister 294 was Wis. 2d 359, also ¶16 guilty (Fine, of homicide." Bannister, J., concurring). The state's case clearly appealed to the jury's sympathies, aroused its sense of horror, provoked its instincts to punish, and caused the jury to base its decision on the fact that Michael Wolk is dead. 3 No. ¶59 If controversy it has appears not from been the fully record tried, we 2005AP767-CR.lbb that may the real reverse the judgment and order a new trial, as necessary to accomplish the ends of justice. controversy has Wis. Stat. § 751.06. not been tried, we may When use our the power real of discretionary reversal without first finding a probability of a different result on retrial. 19, 456 N.W.2d 797 (1990). Vollmer v. Luety, 156 Wis. 2d 1, We have used this power to reverse judgments, after concluding that the real controversy was not tried, because the jury had before it evidence which should have been excluded. Id. at 20 (citing Logan v. State, 43 Wis. 2d 128, 137, 168 N.W.2d 171 (1969); State v. Penigar, 139 Wis. 2d 569, 578, 408 N.W.2d 28 (1987)). That is precisely the situation we are presented with here. ¶60 Before attorney that evidence to the the prove trial, State a did the prosecutor not reckless believe homicide told it had charge. Bannister's sufficient Yet, the prosecutor was prepared to file an amended charge for firstdegree reckless homicide unless Bannister agreed to withdraw his objection to allowing evidence concerning Michael Wolk's death during the trial on the delivery of controlled substance charge. Judge Fine got it right when he opined: If the prosecutor believed he could prove that Bannister had given Michael Wolk the morphine that caused Michael Wolk's death, he should have stayed with the first-degree-reckless-homicide charge and let the jury decide Bannister's guilt or innocence on that charge. If the prosecutor did not believe that he could prove that Bannister had given Michael Wolk the morphine that caused Michael Wolk's death, then his back-door use of the death-evidence was improper. 4 No. Bannister, 294 wholeheartedly Wis. 2d 359, agree. ¶24 Evidence (Fine, J., suggesting 2005AP767-CR.lbb concurring). that I Bannister provided Wolk with the drugs that killed him should not have been heard by the jury during a drug trial. ¶61 In my view, Bannister has not received a fair trial. The real controversy, delivery of controlled substances, has not been fully tried. Taking into account Bannister's confession that Michel he had given Wolk some morphine, the evidence regarding Michael Wolk's death clearly appealed to the jury's sympathies, aroused its sense of horror, provoked its instincts to punish, and caused the jury to base its decision on the fact that Michael Wolk is dead and the drugs Bannister gave Michael Wolk may have killed him. invoke our power of Under these circumstances, I would discretionary reversal pursuant to Wis. Stat. § 751.06, and order a new trial. ¶62 For the foregoing reasons, I respectfully dissent. ¶63 I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this dissenting opinion. 5 No. 1 2005AP767-CR.lbb
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