Galloway v. State
| Decision Date | 10 January 1967 |
| Citation | 147 N.W.2d 542,32 Wis.2d 414 |
| Parties | Thomas Albert GALLOWAY, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error (two cases). |
| Court | Wisconsin Supreme Court |
Edward D. Cleveland, Milwaukee, for plaintiff in error.
Bronson C. La Follette, Atty. Gen., Wm. A. Platz, Asst. Atty. Gen., Hugh R. O'Connell, Dist. Atty., Milwaukee County, for defendant in error.
As set forth at page 424 of the original opinion in 32 Wis.2d, at page 766 of 145 N.W.2d the trial court sustained an objection to the following question put to plaintiff-in-error, Galloway, on cross-examination: 'Well, is that why you refused to answer questions asked by the police officer?' It is contended that it was prejudicial error for the trial court not to have followed up its ruling by an instruction to the jury to disregard the comment embodied in the question.
The basis assigned in our original opinion for finding no prejudicial error was stated as follows:
. .'
We now acknowledge that our statement of the Wisconsin pre-Miranda rule was too broad. It should have been limited to those situations where questions are accusatory in nature, as was the case in both Gullickson and Zuehlke. As cogently stated in McCormick v. State 1, 'The circumstances must be such as would naturally call for some action or reply on the question of guilt.'
The trial court correctly ruled that evidence concerning the failure to respond to a nonaccusatory charge is not admissible. In Riger v. State 2 a defendant refused to answer a police officer's question concerning a date that the defendant had allegedly made with a complaining witness. The trial court admitted the evidence, and this court ruled that it was error to do so, adding, at page 203, 23 N.W.2d at page 457 'the admission of this testimony could not have been prejudicial to the defendant.' In the case at bar, the question put to Mr. Galloway on cross-examination was not, in our opinion, prejudicial to him. Not only did the trial court sustain the objection to the question, but the defendant's trial counsel did not request an instruction that the jury should disregard the prosecutor's...
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