Harris v. State, 22

• Decision Date: 02 November 1971
• Docket Number: No. 22,22
• Parties: Lewis W. HARRIS, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. State
• Court: Wisconsin Supreme Court

Page 198

191 N.W.2d 198

52 Wis.2d 703

Lewis W. HARRIS, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

State No. 22.

Supreme Court of Wisconsin.

Nov. 2, 1971.

On March 16, 1969, St. Gerard's School in Milwaukee was burglarized and a safe broken into. The plaintiff in error Lewis W. Harris was charged and convicted of the burglary (sec. 943.10(1)(a), Stats.) and was sentenced to serve an indeterminate term of not more than five years in the state prison at Waupun. He appeals from the conviction.

Salvatore C. Quarino, Milwaukee, for plaintiff in error.

Robert W. Warren, Atty. Gen., Michael R. Klos, Asst. Atty. Gen., Madison, for defendant in error.

HALLOWS, Chief Justice.

The central issue on this appeal is whether a voluntary statement made by Detective Joseph Cherney, in testifying for the state, was so prejudicial as to require a new trial. During direct examination Detective Cherney testified that during part of the day on which the burglary occurred he had kept Harris under surveillance. In describing the arrival of Harris and others at Harris' apartment, the detective stated, 'They (Harris and one Norman Pozorski) were in the apartment and about five minutes later another known convicted safecracker appeared on the scene and also entered the apartment Number 16.' The objection to the remark was sustained by the trial court and the jury was admonished to disregard the detective's statement. At the conclusion of the testimony, the court denied Harris' motion for a mistrial and after verdict denied his motion for a new trial.

It was well stated in Paulson v. State (1903), 118 Wis. 89, 94 N.W. 771, that one cannot be deemed to have been fairly tried on the question of guilt when the mind of the jury has been prejudiced by proof of the bad character of the accused or of his former criminal misconduct which is not properly in evidence. The nature of prior convictions may be introduced in evidence if a defendant takes the stand and denies having been previously convicted. Nicholas v. State (1971), 49 Wis.2d 683, 183 N.W.2d 11; see sec. 885.19, Stats. Some convictions for certain types of crime may be admitted in evidence to show an intent or a scheme where that is an element of the crime charged. Whitty v. State (1967), 34 Wis.2d 278, 149 N.W.2d 557; State v. Stevens (1965), 26 Wis.2d 451, 132 N.W.2d 502. Here, however, there was no justification for intimating Harris was a convicted safecracker. Law enforcement witnesses should be cautioned not to intentionally or unintentionally brand a defendant as a convict in their court testimony and thereby jeopardize the fairness of the criminal prosecution and possibly cause the expense of a new trial or an appeal.

Generally, whether remarks of witnesses or an attorney have such a prejudicial effect that a new trial should be granted is a question of fact. It has been held that the erroneous admission of a confession in evidence in violation of a constitutional right is as a matter of law not error harmless beyond a reasonable doubt and requires a new trial. Pulaski v. State (1964), 24 Wis.2d 450, 129 N.W.2d 204; Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, reh. den. 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241. We think the remark of Cherney is of such a nature it does not go directly to the issue of guilt as a confession by the accused does and therefore should be considered in the context of the other facts of the case by the court in determining whether in fact the remark was harmless beyond a reasonable doubt.

In such determinations, the curative effect of the court's admonition to the jury to disregard the evidence may be considered. Blackwell v. State (1969), 42 Wis.2d 615, 167 N.W.2d 587. Here, the remark was stricken as not responsive as to the question and the jury was admonished to disregard it. If this were all of the surrounding circumstances, it probably would not be sufficient. But, the evidence in support of the guilt is so strong and convincing that it renders any potential harmfulness of the remark nugatory.

Detective Cherney testified he saw Harris and a white male passenger drive in the direction of St. Gerard's School in the late afternoon of the day of the burglary. Later that evening he observed Harris arrive at his apartment in the company of Norman Pozorski. Harris removed a five-foot red crowbar from the rear of the car and put it in the trunk. Pozorski transferred a leather bag from inside the car to the trunk. The bag appeared to be heavy and made a loud metal-on-metal noise when thrown into the...