Bowie v. State, 76-204-CR

• Decision Date: 31 October 1978
• Docket Number: No. 76-204-CR,76-204-CR
• Citation: 85 Wis.2d 549,271 N.W.2d 110
• Parties: Harold Ray BOWIE, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 110

271 N.W.2d 110

85 Wis.2d 549

Harold Ray BOWIE, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. 76-204-CR.

Supreme Court of Wisconsin.

Submitted on Briefs Sept. 7, 1978.

Decided Oct. 31, 1978.

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

Bronson C. La Follette, Atty. Gen., and Pamela Magee-Heilprin, Asst. Atty. Gen., for defendant in error.

ABRAHAMSON, Justice.

Harold Ray Bowie (the defendant) was convicted of forgery (uttering) as party to a crime contrary to secs. 943.38(2) ¹ and 939.05, ² Stats. On appeal Bowie asserts that the trial court committed two errors: (1) it erred in denying his motion for a mistrial after a witness for the prosecution testified that she had received threats concerning her testimony but did not connect those threats to the defendant; and (2) it erred in adjourning the proceedings to enable the prosecution to obtain a witness. We affirm the conviction.

At trial before a jury, the prosecution's primary witness, Gwendolyn Chambers, testified that on March 14, 1965, two men, one of whom she later learned was named Harold Bowie, arrived at her house in a car. She identified the defendant as the man in the car named Harold Bowie. The other man gave her a check for.$178.65 drawn on the Milwaukee Legal Services Clients Trust Account-North, signed "Daniel Taylor," and made out to Chambers; Chambers' name was typed on the check. The defendant told Chambers to cash the check and said that she and the two men would split the money three ways.

Chambers went into a National Food Store, endorsed the check at the "check window" and presented it to Edith McKnight, an employee, for cashing. She told McKnight that she worked at Milwaukee Legal Services. McKnight replied that she would have to phone Milwaukee Legal Services to see if the "Daniel Taylor" signature was authorized. At that point Chambers left the store, without the check, and returned to the men in the car. She told them what had happened, and they drove away.

At the close of the direct examination of Chambers, the prosecutor elicited the following testimony from her:

"Q. Miss Chambers, prior to coming to court today since this charge was issued, have you received any threats concerning your testimony?

"A. Yes, I have.

"Q. What were the nature of those threats?

"A. The first time I went to the preliminary hearing."

Defense counsel's objection was sustained. Outside the jury's presence, the witness stated that she had been told, in an anonymous phone call before the preliminary hearing, that if she testified against the defendant, she would be "knocked off." Relatives and acquaintances had also reported the threat to her, but she did not know who had originally made the threat. The court then instructed the jury "to disregard the last question asked of the witness, whether there was any threat made to her. Entirely disregard it, please." Defense counsel's motion for a mistrial was denied.

Chambers was unable to point to any connection between the defendant and the threat, apart from the fact that fulfillment of the threat was said to turn upon her testifying against him. She was unable to say that the threat had originated from the defendant or from someone acting on his behalf. Under these circumstances, the trial court correctly ruled that Chambers' testimony regarding the threat was inadmissible.

In Price v. State, 37 Wis.2d 117, 130-33, 154 N.W.2d 222 (1967), Cert. denied 391 U.S. 908, 88 S.Ct. 1662, 20 L.Ed.2d 423 (1968), this court held admissible evidence of threats by a defendant to a co-conspirator witness. We said that "the (defendant's) threat is circumstantial evidence of consciousness of guilt and, hence, of guilt itself." Id. at 132, 154 N.W.2d at 229. See also 2 Wigmore on Evidence, sec. 277, Et seq. (3d ed. 1940).

This rationale, persuasive when the threat has been made by the defendant, does not apply to a threat unconnected to the defendant. If the attempt to suppress testimony by a threat "is made by a third person, not in the presence of a defendant or shown to have been authorized by him, it should at once be suspect as a mere purporting attempt to suppress evidence and in truth an endeavor to prejudice the defendant before the jury in a way which he cannot rebut satisfactorily because he does not know the true identity of the pretender." People v. Weiss, 50 Cal.2d 535, 327 P.2d 527, 538 (1958). See cases cited in Annot., Admissibility in Criminal Case, on Issue of Defendant's Guilt, of Evidence That Third Person Has Attempted to Influence a Witness Not to Testify or to Testify Falsely, 79 A.L.R.3d 1156 (1977). In the present case, the prosecution was unable to connect the alleged threats to the defendant. Testimony regarding those threats was therefore inadmissible.

The trial court, having admonished the jury to disregard "the last question asked of the witness, whether there was any threat made to her," refused to rule that the prosecution's unwarranted injection of that testimony was an adequate basis for declaring a mistrial. The defendant argues on appeal that the court's admonition was incomplete and that the injection of this testimony was so prejudicial that even a correctly worded admonition would not cure the error. Under the facts of this case, we do not view this limited testimony of a threat, followed by the admonitory instruction, as prejudicial error requiring reversal.

The prosecutor asked the witness two questions: whether she had been threatened, and what the nature of the threats was. The court's admonition referred to "the last question asked of the witness, whether there was any threat made to her." Although the admonition could have been better phrased, there can be little doubt that the jury understood the admonition to refer to both questions asked of Chambers and both of her responses.

Chambers did not say that the defendant had made the threat; she did not indicate the purpose of the threat. Under these circumstances, we cannot conclude that the jury ignored the trial court's instruction and speculated as to the nature of the threat and the defendant's connection with it.

It can be said, beyond a reasonable doubt, that the witness's brief and vague reference to being threatened, followed by an instruction to disregard, did not contribute in any way to the jury's finding of the defendant's guilt. In light of the facts of this case, the error was harmless under any test of harmless error. The error affected no substantial right of the defendant. See sec. 901.03(1), Stats. ³

The defendant also contends that it was error for the court to grant the prosecution a continuance to allow it to produce Marilyn Dixon as a witness. The motion for continuance arose when the defendant, testifying on his own behalf, asserted that the transaction regarding the check had involved only Davis and Chambers. The prosecutor then requested the court to adjourn the cross-examination of defendant until the next day. He requested the continuance because Marilyn Dixon, a witness for the state, had not appeared that day. He said she would testify that Bowie had given her, and she had cashed, forged checks drawn on the Milwaukee Legal Services account. Only if she were to appear, would the prosecutor cross-examine Bowie concerning those checks.

The prosecutor stated to the trial court that Dixon had promised to appear for the first day of trial, but she failed to do so because of threats made to her. He admitted that she had not been served with a subpoena in time to compel her appearance on the first day. The trial court agreed to defer cross-examination of the defendant until the second day of trial. The trial court made it clear that the continuance was to be only until the next morning, at which time the cross-examination of the defendant would begin whether or not Dixon was in court.

The next morning Marilyn Dixon appeared in court. On cross-examination the defendant stated that he had never seen any checks like the one Chambers presented for cashing drawn on the Milwaukee Legal Services account. He denied having typed the name "Marilyn Dixon" as payee on four such...