Barrera v. State, 78-542-CR
| Citation | 99 Wis.2d 269,298 N.W.2d 820 |
| Decision Date | 25 November 1980 |
| Docket Number | No. 78-542-CR,78-542-CR |
| Parties | Reyes BARRERA, Jr., Plaintiff in error, v. STATE of Wisconsin, Defendant in error-Petitioner. |
| Court | United States State Supreme Court of Wisconsin |
Michael R. Klos, Asst. Atty. Gen., argued for defendant in error-petitioner; Bronson C. La Follette, Atty. Gen., on brief.
Jack E. Schairer, Asst. State Public Defender, argued for plaintiff in error; Richard L. Cates, State Public Defender, Robert J. Paul, Deputy State Public Defender, and Charles Bennett Vetzner, Asst. State Public Defender, of counsel, on brief.
This is a review of a decision of the court of appeals reversing a circuit court judgment convicting Reyes Barrera, Jr., of party to the crime of first degree murder and armed robbery, contrary to secs. 940.01, 943.32(2) and 939.05, Stats. After the jury trial the defendant was ordered committed to a term of life imprisonment on the murder charge and a consecutive sentence not to exceed 20 years for the armed robbery.
This action arose out of an armed robbery at the Park Avenue Liquor Store in Beaver Dam, Wisconsin, on October 15, 1976. The owner of the liquor store, Mrs. Janis Bussie, was shot and killed during the course of the robbery.
The facts adduced at trial establish that the defendant and his friend, Frederico Garcia, left Adrian, Michigan, on October 13, 1976, to travel to San Antonio, Texas, with a total of $80 between them to be used for traveling expenses. The two stopped en route in Beaver Dam, Wisconsin, to visit the defendant's brother, Eduardo Barrera, on October 14, 1976. The defendant's brother accepted their invitation to accompany them on their trip to Texas. On the morning of October 15, 1976, the men stopped at the Park Avenue Liquor Store where the defendant and Garcia each stole a bottle of wine.
The three men then drove into the countryside to test shells in Garcia's sawed-off shotgun. Garcia testified to a conversation with Barrera at about this time in which the defendant stated he was going to rob the lady in the liquor store if she was alone. Shortly before noon, the trio returned to the Park Avenue Liquor Store.
Barrera drove to the back of the store and told his brother to keep the car door open and to start the engine when he returned. He put the gun under his coat and went into the store. He returned to the car shortly thereafter, cocked the shotgun and expended a spent shell in the car. Garcia testified that the defendant appeared shaken as he drove off at a high rate of speed.
Next Barrera stopped the car at a gas station in Horicon, Wisconsin, and, according to Garcia, announced that he would rob the woman attendant if she were alone. She was not alone, and thus no robbery took place. Shortly after they left Horicon, Garcia testified that the defendant told them that he had shot the proprietor of the liquor store in Beaver Dam as she reached for a telephone.
Garcia then related that the defendant became extremely angry in Missouri when a gas station attendant spilled some gasoline on the ground and declared that someone was going to pay for the attendant's mistake. Shortly thereafter, when they stopped at another gas station in Marston, Missouri, the defendant robbed, shot and killed another woman, attendant Kathy Evans, approximately twelve hours after the killing in Beaver Dam.
Garcia, although previously advised not to refer to his polygraph examination by the prosecutor made reference to a "lie test" in explaining the circumstances surrounding his decision to testify for the state and against Barrera. The defense then moved for a mistrial in the absence of the jury, claiming that Garcia's remark about a "lie test" was prejudicial. The court denied the defendant's motion and in the absence of a request by Barrera, did not sua sponte give a cautionary instruction.
The defendant, when testifying at the trial, stated that the shooting of Mrs. Bussie in Beaver Dam was accidental and further denied any involvement in the Missouri killing. He said that when pointing the gun at Mrs. Bussie (Beaver Dam) he was nervous and trembling because he was "coming off this heroin" and that when he reached for the money, Mrs. Bussie grabbed the gun, causing it to fire accidentally during the ensuing struggle.
Garcia and the defendant were charged with party to the crime of first degree murder and armed robbery, arrested in Texas by F.B.I. agents under the unlawful flight statute, 18 U.S.C.A., § 1073, and subsequently brought back to Wisconsin to stand trial. 1
On April 5, 1977, a Goodchild pre-trial hearing was held to determine the admissibility of the defendant's statements to Robert Anderson, the polygraph examiner and certain law enforcement officials. At this hearing, the defense counsel stipulated to the voluntariness and admissibility of all statements given to Anderson. The statements to Mr. Anderson were obtained during two attempted but unsatisfactory polygraph examinations, on March 7 and March 17, and a pretest interview on April 4, 1977. In the conversation on April 4 the defendant admitted shooting Mrs. Bussie in Beaver Dam and Kathy Evans in Missouri.
At trial, however, defense counsel reversed his position and challenged the voluntariness of the statements and moved to suppress the April 4 statement. The trial court conducted a second Goodchild hearing outside the presence of the jury and reviewed a tape recording of the April 4 interview and ruled that the defendant's statements to Anderson were admissible.
After the jury trial, a judgment of conviction was entered on April 19, 1977. A motion for a new trial was heard and denied, and Barrera filed a writ of error to review the judgment of conviction. The court of appeals reversed the circuit court and remanded the case for a new trial. The state petitioned this court to review the appellate court's decision.
1. Did the trial court commit reversible error in admitting alleged prejudicial evidence of another crime?
2. Was Barrera's confession to Robert Anderson, the polygraph examiner, during the pretest interview on April 4, 1977, admissible in the absence of a Stanislawski 2 stipulation?
3. Was the trial court in error in ruling that the defendant's confession to Robert Anderson was voluntary?
4. Did the trial court commit reversible error in failing to give sua sponte a cautionary instruction to the jury in the absence of a request for the same after the witness, Garcia, made reference to a lie test? 3
Other Crimes Evidence
Prior to trial, the prosecutor informed the court and the defense counsel that he intended to offer testimony of the Missouri incident, the second killing and robbery, for the purpose of showing intent and absence of mistake or accident in the killing of Mrs. Bussie in Beaver Dam. Before trial, the prosecutor made an offer of proof in this regard and asked the court for a ruling on admissibility after he advised the court he intended to make reference to the Missouri slaying in his opening statement. In his offer of proof the prosecutor stated that Garcia would testify that on their way to Texas the three men stopped at a filling station in Marston, Missouri, where the defendant robbed, shot and killed the female attendant within 12 hours after the killing in Beaver Dam. He also stated that Mr. Anderson would testify that the defendant admitted to the slaying of the two women, one in Wisconsin and the other in Missouri.
Defense counsel objected to the introduction of the evidence of the Missouri killing on the grounds that the danger of unfair prejudice in its admission would substantially outweigh its probative value. The court noted in its decision that the defendant's objection required it to balance the alleged prejudicial effect of this testimony against its probative value and ruled this evidence "is admissible under the circumstances of which the court is aware at this time and the court is making this determination, not at the time the evidence is introduced, but at the request of the attorneys because the attorneys are about to give opening statements to the jury, and it is born out of necessity here that the court give an indication of its ruling and viewpoint concerning such evidence on the trial." Further, the court informed the defense counsel that he could renew his objection when the testimony was offered into evidence.
At trial, Frederico Garcia related the events leading up to the killing of the service station attendant in Missouri. Garcia testified in part that Barrera went into the gas station with the shotgun tucked close to his body and underneath his coat and shot and killed the woman attendant as she stepped back away from the cash register after handing him the money.
Robert Anderson, the next witness called to the stand, testified that Barrera admitted the Bussie killing as well as robbing and killing a service station attendant in Missouri with the same shotgun, some 12 hours later.
At trial the defense counsel did not object to this testimony of Garcia and Anderson, nor did he challenge the admissibility of this evidence in his motion for a new trial.
The court of appeals noted that although counsel's objection to receipt of the evidence of the Missouri robbery and killing had not been renewed at trial or raised as a ground for relief in the trial court by motion for a new trial, the court, on its own, exercised its discretionary authority to review the claimed error. It concluded that the evidence of the Missouri killing was not relevant, and that even if relevant, its probative value was outweighed by the danger of undue prejudice. On review in this court, the defendant reiterates the decision of the court of appeals.
This court has set forth the rules governing the admissibility of "other crimes evidence" many times. See: e. g., Vanlue v. State, 96 Wis.2d 81, 291 N.W.2d 467 (1980); Hammen v. State, 87 Wis.2d 791, 275 N.W.2d 709 (197...
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