Buckner v. State

• Decision Date: 07 December 1972
• Docket Number: No. S,S
• Citation: 202 N.W.2d 406,56 Wis.2d 539
• Parties: Russell E. BUCKNER, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 75.
• Court: Wisconsin Supreme Court

Page 406

202 N.W.2d 406

56 Wis.2d 539

Russell E. BUCKNER, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 75.

Supreme Court of Wisconsin.

Dec. 7, 1972.

Charles D. Hoornstra, Madison, for plaintiff in error.

Robert W. Warren, Atty. Gen., Richard J. Boyd, Asst. Atty. Gen., Madison, for defendant in error.

WILKIE, Justice.

Several issues are raised on this review:

1. Did the trial court err in permitting arresting Officer Ponty to testify that he observed defendant holding a gun on a young couple after the robbery?

2. Did the trial court err in allowing Officer Ponty to testify that defendant exercised his privilege against self-incrimination?

3. Was the sentence in violation of any of defendant's constitutional rights or an abuse of the trial court's discretion?

4. Did the trial court properly deny defendant's motion for a new trial based upon newly discovered evidence?

1. Testimony concerning the gun-pointing incident. As his first claim of error at the trial, defendant asserts that the testimony of Officer Ponty, regarding his observation of defendant holding a gun to the neck of a young man in the parking lot, went far beyond that which was designated as permissible by the trial court in chambers. The trial court, with Ponty present, had held that the testimony could include the mention of a gun and the specifics of the arrest. The trial court, however, specifically refused to allow mention of the incident as another robbery. Counsel for defendant objected to any testimony of a weapon appearing to be pointed at the couple, without that couple being present at the trial. Officer Ponty's testimony was:

'. . . Mr. Buckner had a--what appeared to be a pistol or revolver in his hand and was holding it to the neck of a young couple, the male party of the young couple.'

The trial court overruled counsel's prompt objection to the statement.

Defendant also alleges prejudicial error was committed when one of defendant's accomplices stated during trial that defendant was attempting another robbery just prior to the arrest. Counsel for defendant immediately objected to the statement; the trial court sustained the objection on the ground that it was not responsive to the question. The court then directed rected the jury to disregard the statement. This instruction was sufficient to cure any prejudicial effect of the statement. ¹

Defendant insists that Officer Ponty's reference to a gun pointing at the couple in the parking lot was prejudicial to defendant because the couple was not present at the trial. Defendant argues that this testimony violated the fundamental fairness requirement of due process and the Sixth amendment right to compulsory process because of his inability to rebut such testimony. The relevance of this argues defendant, is its critical pertinence to his state of mind. The fact that he may have been committing another robbery with another gun incident would certainly, according to defendant, go to the question of defendant's mens rea in shooting O'Donahue. Defendant had attempted to show his lack of such intent by his lack of sleep, excessive drinking, marijuana smoking and taking off his glasses.

Defendant cites several cases which, he asserts, are supportive of his argument that Officer Ponty's statement was prejudicial to his attempted showing of a lack of mens rea. In Giles v. Maryland, ² the prosecutor actually suppressed evidence which was favorable to the defendant. The case is not in point. Here there was no such suppression of evidence by the prosecutor but simply a decision not to subpoena Miss Boehnen. ³ The case of Washington v. Texas, ⁴ also cited by the defendant, also is not in point. In Washington the United States Supreme Court overturned a state statute which provided that persons charged as principals could not be introudced as witnesses for each other. There is no such denial of the right to introduce a witness here.

This case is controlled by the very recent case of Elam v. State. ⁵ In Elam one of the issues before this court was whether the trial court abused its discretion by denying defendant's motion for a continuance. This court noted that both the United States and Wisconsin Constitutions guarantee to a criminally accused the right "to have compulsory process." ⁶ This court noted that such right does not require the state to be successful in attempting to subpoena the witness but only that a diligent, good faith attempt be made. The court stated:

'While a state may not by statute, rule, or otherwise deny a defendant the right to compulsory deny a defendant the the case of other constitutional rights, provide reasonable regulations for the exercise and administration of the right. Since the primary responsibility for having witnesses present in court rests with the parties and not the court, the rule is that a motion for a continuance to obtain the attendance of witnesses is addressed to the discretion of the trial court, and the exercise of that discretion will not be disturbed upon appeal or review except where it is clearly shown that there has been an abuse.' ⁷

Also enumerated in Elam were three considerations which a trial court should evaluate in ruling an a motion for a continuance. These considerations are the materiality of the absent witness's testimony, the neglect of the moving party, and the reasonable expectation that the absent witness might be located. ⁸

These three considerations apply equally to a trial court's ruling on the admissibility of evidence where there exists the possibility of rebuttal by absent witnesses. The testimony here of the absent witnesses was relevant to the issue of whether defendant held a gun to the young man's neck in the parking lot. After trial one of these witnesses stated under oath that it was not defendant that held the gun but one of his companions. But there was a definite lack of diligence on the part of defense counsel to procure this witness. In his affidavit after the trial he states he was led to believe the state would call Miss Boehnen. The prosecuting attorney, however, flatly denies such representations were made to the defense counsel. Under the circumstances, we do not think counsel for defendant had a right to rely unquestioningly on opposing counsel's purported statement that he would probably subpoena this important witness. The final consideration suggested in Elam is whether there is a probability that the witness can be found. It appears that neither counsel actually considered using these witnesses until the trial had begun. With the trial in process the trial court was confronted with the decision to entirely prohibit testimony that was highly relevant to the issue of defendant's state of mind or to allow a much restricted version of what occurred. As the state points out, this court has adopted the American Law Institute Model Code of Evidence rule which requires a trial court to balance the relevance of evidence with its potential prejudice. ⁹ This balancing was exactly what the instant trial court was faced with. There was no error in the trial court's decision that the relevance of this evidence outweighed the potential prejudice.

Defendant places great weight on the court's and prosecuting attorney's knowledge that the witnesses were beyond the trial court's compulsory process. The implication, of course, is that defendant was duped. It appears these witnesses would have, in all probability, been returned by another state under the Uniform Act to secure the attendance of witnesses from without a state in criminal proceedings. ¹⁰ The United States Supreme Court noted in 1968 that this Act was, at that time, adopted in 45 states, the District of Columbia, the Canal Zone, Puerto Rico, and the Virgin Islands. ¹¹ Rather than being duped, we are satisfied that the defendant and his counsel were either negligent or dilatory in seeking the whereabouts of these vital witnesses.

2. Testimony concerning exercise of defendant's privilege against self-incrimination. Defendant's second allegation of error involves the trial court's allowance of Officer Ponty's testimony that defendant had, upon being informed of the death of O'Donahue, invoked the Fifth Amendment. It is the defendant's position that this testimony relating to the issue of defendant's remorse violated the defendant's privilege against self-incrimination. To support his position on this, defendant cites Helton v. United States ¹² and United States v. Matos. ¹³ In Matos, the Seventh Circuit Court of Appeals reversed a federal district court's allowance into evidence of the testimony of a postal inspector that the defendant had indicated he did not desire to make a statement. The appellate court considered it vitally important that there was a complete absence of a curative instruction while this testimony went to the credibility of a defendant in what it considered to be a close case. So also in Helton, wherein a police officer testified the defendant refused to explain the presence of marijuana. There, too, the key was a lack of any curative instruction. In the instant case, however, the trial court did give a very complete curative admonition to the jury on the day after the remark was made:

'THE COURT: . . . First I think I should admonish the jury that in the direct examination of Officer Ponty yesterday on rebuttal when he mentioned hearing a conversation between the defendant and other officers there he volunteered the information that Mr. Buckner's constitutional rights had been explained to him and that he had replied that he understood them but that he didn't want to say anything.

'Now that was an answer that was immaterial completely to this lawsuit because as I explained to you at the commencement of the lawsuit, the burden of proving the commission of a crime is completely upon the State. The defendant does not have to take the stand, and you are to draw absolutely no inference from...