Bergeron v. State

• Decision Date: 31 October 1978
• Docket Number: No. 76-534-CR,76-534-CR
• Citation: 85 Wis.2d 595,271 N.W.2d 386
• Parties: Walter E. BERGERON, Plaintiff in error, v. STATE of Wisconsin, Defendant in error.
• Court: Wisconsin Supreme Court

Page 386

271 N.W.2d 386

85 Wis.2d 595

Walter E. BERGERON, Plaintiff in error, v.STATE of Wisconsin, Defendant in error.

No. 76-534-CR.

Supreme Court of Wisconsin.

Argued Oct. 2, 1978.

Decided Oct. 31, 1978.

The plaintiff in error, Walter Bergeron(hereinafter defendant) by writ of error seeks a review of a judgment for first degree murder party to the crime.Following a jury trial the defendant was found guilty of first degree murder party to the crime in the December 30, 1975 slaying of Marvin Boguskie in Green Bay, such conduct being contrary to sec. 940.01andsec. 939.05(2)(c), Stats.The defendant also brings a writ of error to review the trial court's order denying the defendant's motion for judgment of acquittal or in the alternative for a new trial.The defendant was sentenced to life imprisonment.Prior to trial, the defendant requested that his case be consolidated with one Terry Neeley for his role in the Boguskie murder.An earlier pre-trial motion had been brought by Neeley seeking the admissibility without stipulation of a polygraph examination.The motion was denied.Prior to the taking of any testimony, Neeley's counsel sought a rehearing on the polygraph issue and again this motion was denied.At the request of the prosecutorthe court ordered that during the trial no reference be made to the polygraph test.The court further ordered that the prosecutor file an amended information electing under sec. 939.05(2) to charge the defendant and Neeley either as aiders and abettors or as co-conspirators to the crime of first degree murder.

The prosecution called witnesses to establish that Marvin Boguskie had been shot by a 12 gauge shotgun in the back yard of his home at approximately 11:30 p. m. on December 30, 1975 and that his death was caused by gunshot wounds to the chest.Also, Green Bay police officers testified as to the results of their investigation into the murder conspiracy.

The state established that a conspiracy was formed to kill Marvin Boguskie.The 4 members participating in the conspiracy were the defendant, the co-defendant, Neeley, Mark Moes and John Schroeder.It was revealed at trial that Neeley desired to kill his stepfather because of his mistreatment of Neeley's mother.The state in proving its case offered the testimony of one John Schroeder, a co-conspirator.Schroeder testified in detail as to the existence of a plan to kill Boguskie in which Moes agreed to act as the "trigger man" for the sum of $1,000.Neeley supplied a 12 gauge shotgun.Schroeder explained that the plan was to kill Boguskie on December 29, 1975 as he left his place of employment, the Gardner-Denver plant.The killing could not be accomplished on the 29th as there were too many people present on the plant parking lot and the slaying of Boguskie took place the following night, December 30th, in his back yard.

Howard B. Eisenberg, State Public Defender, and Jack E. Schairer, Asst. State Public Defender(argued), for plaintiff in error.

Pamela Magee-Heilprin, Asst. Atty. Gen. (argued), for defendant in error; Bronson C. La Follette, Atty. Gen., on brief.

COFFEY, Justice.

There are 3 issues presented on appeal:

1.Was it prejudicial error for the trial court to submit a jury question dealing with a single conspiracy rather than an alternative question as to the existence of a multiple conspiracy?

2.Did the trial court err in permitting the admission of hearsay statements of co-conspirators which were allegedly not made during the course of and in furtherance of the conspiracy pursuant to sec. 908.01(4)(b)(5)?

3.Did the trial court err in requiring the state to elect between the aider and abettor section and the conspiracy subsection of sec. 939.05, Stats.?

The defendant contends that the evidence adduced at trial raised a substantial issue of fact as to the existence of one or more conspiracies rather than one overall scheme to murder Marvin Boguskie.They maintained that the plan to kill Boguskie in the parking lot of the Gardner-Denver plant on December 29, 1975 constituted a separate and distinct conspiracy from the planned killing of Boguskie on December 30, 1975.Both the defendant and the co-defendant Neeley argue that they had withdrawn from the conspiracy after the December 29th planned killing failed to materialize and thus prior to Boguskie's murder.They allege Mark Moes was acting individually or in conjunction with others on the night of December 30th.The defendant alleges that the instructions and verdict as framed gave the jury a limited choice: (1) did the defendant participate in the conspiracy to kill Boguskie on December 30th? and (2) did the defendant Bergeron withdraw from the conspiracy prior to the December 30th slaying?The defendant claims that the single conspiracy verdict was prejudicial as the law of conspiracy permits the acts and declarations of co-conspirators to bind the other members of the criminal plan.State v. Adams, 257 Wis. 433, 43 N.W.2d 446(1950)andSchultz v. State, 133 Wis. 215, 225, 113 N.W. 428(1907).The defendant contends the facts in his case are analogous to the case law recited in State v. Waste Management of Wisconsin, 81 Wis.2d 555, 577-78, 261 N.W.2d 147(1977)andKotteakos v. United States, 328 U.S. 750, 767-771, 66 S.Ct. 1239, 90 L.Ed. 1557(1946), wherein the respective courts held in the absence of a multiple conspiracy jury instruction there is the potential that a jury may use improper evidence regarding conspirators common to more than one conspiracy in determining the guilt of the individual defendant.We hold a single conspiracy existed to kill Marvin Boguskie through the date of December 30, 1975 and the defendant's position in regard to the existence of multiple conspiracies is without merit.The record does not indicate that the defendant requested a multiple conspiracy jury instruction.Even though the instruction conference was not transcribed, the record is void of any objection prior to or immediately after the reading of the instructions to the jury.The issue was first raised on motions after verdict where it was contended that the trial court Sua sponte should have given a multiple conspiracy instruction.This court will not find error in the failure of a trial court to give a particular instruction in the absence of a timely and specific request before the jury convenes.Where the request has been denied, objection must be made in the record.Laster v. State, 60 Wis.2d 525, 539, 211 N.W.2d 13(1973);¹State v. Schenk, 53 Wis.2d 327, 333, 193 N.W.2d 26(1972);Kimmons v. State, 51 Wis.2d 266, 268, 186 N.W.2d 308(1971);Mitchell v. State, 47 Wis.2d 695, 700, 177 N.W.2d 833(1970).The failure to request an instruction or to object effectively waives any right to review.Langston v. State, 61 Wis.2d 288, 293, 212 N.W.2d 113(1973);State v. Cydzik, 60 Wis.2d 683, 694, 211 N.W.2d 421(1973).However, in the case of plain error, ²this court may use its discretionary powers of review to consider an issue which has been waived.Werner v. State, 66 Wis.2d 736, 751, 226 N.W.2d 402.

We hold that the failure of the court to Sua sponte grant an instruction on the multiple conspiracy question did not constitute plain error.The failure to give the multiple conspiracy instruction is not "ipso facto"³ prejudicial.Berger v. United States, 295 U.S. 78, 81, 55 S.Ct. 629, 79 L.Ed. 1314(1935) held that where an indictment charges a single conspiracy and multiple conspiracies are proven, the variance is not fatal when there is little possibility of jury confusion.Kotteakos v. United States, supra, 328 U.S. at 774, 66 S.Ct. 1239, while finding a potential for the transference of guilt among members of separate conspiracies, thus differing in result from Berger v. United States, supra, noted that the result reached in Berger was correct under those factual circumstances.Therefore, the failure to instruct as to the existence of multiple conspiracies where multiple conspiracies are proven would constitute reversible error.We do not hold plain error in this case as the overwhelming evidence of guilt in the single conspiracy leaves no possibility of jury confusion.⁴An instruction whether requested or not is to be given only where the evidence reasonably requires it.State v. Amundson, 69 Wis.2d 554, 564, 230 N.W.2d 775(1975);Fletcher v. State, 68 Wis.2d 381, 385, 228 N.W.2d 708(1975);State v. Boutch, 60 Wis.2d 397, 401, 210 N.W.2d 751(1973).While the existence of multiple conspiracies is usually a question of fact for the jury, ⁵ this principle does not compel a court to give the multiple conspiracy instruction when as a matter of law the evidence does not require the instruction.

Substantively, the elements necessary to prove a conspiracy are:

"(1) An agreement among two or more persons to direct their conduct toward the realization of a criminal objective.

"(2) Each member of the conspiracy must individually consciously intend the realization of the particular criminal objective.Each must have an individual 'stake in the venture.' "State v. Nutley, 24 Wis.2d 527, 556, 129 N.W.2d 155, 167(1964).

Federal case law has delineated the characteristics of a single conspiracy from those of a multiple conspiracy as follows:

In a single conspiracy:

1.All parties knowingly join and participate in a single overriding scheme.

2.All parties intend to aid in the perpetration of this single illegal objective.

3.All parties seek a common end through the comprehensive plan.

In a multiple conspiracy context:

1.No two agreements are tied together as stages in the formation of a larger, all-inclusive combination, each directed toward achieving a single unlawful end or result.Rather, each separate agreement has its own distinct, illegal end.

2.No conspirator, with the exception of a common figure, is interested in the aims of any other.

3.No conspirator aids in accomplishing the objectives of any other.⁶

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