Haskins v. State

• Decision Date: 27 June 1980
• Docket Number: No. 78-656-CR,78-656-CR
• Parties: Isaac HASKINS, Jr., Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 25

294 N.W.2d 25

97 Wis.2d 408

Isaac HASKINS, Jr., Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. 78-656-CR.

Supreme Court of Wisconsin.

Argued May 7, 1980.

Decided June 27, 1980.

William M. Coffey and Clifford R. Steele (argued), and Coffey & Coffey, Milwaukee, on brief, for plaintiff in error.

David J. Becker, Asst. Atty. Gen. (argued), and Bronson C. La Follette, Atty. Gen., on brief, for defendant in error.

CALLOW, Justice.

The principal issues on this review concern the admissibility of evidence of "other crimes" committed by the defendant's associates and the permissibility of cross-examination regarding events which form the basis of pending criminal prosecutions facing the defendant. We took this case by petition to bypass the court of appeals, consolidating it for purposes of disposition with Neely v. State, 97 Wis.2d 38, 292 N.W.2d 859 (1980), which involved the same crime and raised related issues.

I.

Following a jury trial, plaintiff in error Isaac Haskins was convicted of first-degree murder, party to a crime, for his participation in the shooting death of Felix Winters. As related in Neely v. State, supra, Winters and two other men robbed Haskins at his home. Haskins, in an attempt to locate Winters, went to the home of Winters' girl friend, Kathleen Lessard, accompanied by nine other men. Lessard testified her house was ransacked, and Haskins threatened the lives of Winters, who was not present, and Lessard and her son, who were present. At Haskins' order, one of his men, Robert Neely, took Lessard to the home of Helen Wright, the girl friend of one of Winters' accomplices. Neely forced his way into Wright's home and pointed a gun in her face, demanding to know the whereabouts of her boyfriend. Neely took from Wright some of the money that earlier had been stolen from Haskins and telephoned Haskins. Haskins arrived minutes later, and Neely gave him the money taken from Wright. Haskins then told Wright to let him know if her boyfriend contacted her. As a result of his participation in the events at the Wright and Lessard homes, Haskins was charged with ten felony counts in an information filed by the Milwaukee County District Attorney; at the time of these events, Wright and Lessard resided in Milwaukee County.

Several days after the robbery, Winters telephoned Haskins to apologize and offer reparation. Haskins appeared to accept Winters' overture but devised and directed a plan to kill him. See: Neely v. State, supra, at 40, 292 N.W.2d at 861-862. Pursuant to this plan, Winters was driven to a field in Kenosha County where he was shot and killed by Neely.

Haskins was charged with first-degree murder, and a jury trial was held commencing January 10, 1977. Prior to trial, Haskins filed a motion in limine requesting an order "prohibiting the prosecution from introducing any testimony or evidence upon the trial of this cause concerning any alleged crimes other than the crime charged and for which the defendant is on trial." Defense counsel made clear that the motion was directed to the incidents which occurred at the Wright and Lessard residences on the night of the robbery of Haskins and sought to have evidence of those incidents declared inadmissible as improper "other crimes" evidence and as having prejudicial effect which outweighed its probative value. The trial court denied the motion, deferring consideration of the issue until the evidence was actually proffered. At trial, the evidence was admitted.

Prior to the commencement of Haskins' presentation of evidence, defense counsel moved to prohibit the state from questioning the defendant on cross-examination concerning the Wright and Lessard incidents about which Haskins did not intend to testify on direct. Defense counsel further requested, in the alternative, that Haskins be permitted to invoke his privilege against self-incrimination and to refuse to answer any questions about those incidents. The trial court ruled that the state would be permitted to ask any relevant questions concerning the Wright and Lessard incidents if Haskins took the stand and that Haskins would be ordered by the court to answer the questions. Even if Haskins' testimony on direct avoided mention of the incidents, the trial court concluded they were proper subjects of cross-examination as "incidents which occurred in the middle of the entire question conspiracy to commit first degree murder." Defense counsel then advised the court that, because of this ruling, Haskins would not testify and made an offer of proof as to what Haskins' testimony would be if he had testified. Haskins did not take the stand, and the jury ultimately found him guilty. Writs of error were issued to review the judgment of conviction and the order denying post-trial motions. Further facts are stated in the opinion.

II.

Haskins argues the trial court erred in admitting three items of testimony: (1) the testimony of Lessard that, while she and Haskins were conversing at her dining room table, an unidentified person held a gun to the head of her child to induce her to disclose the whereabouts of Winters; (2) the testimony of Lessard that, while she was at Wright's apartment and outside Haskins' presence, Neely injected her with heroin in order to make her talk; and (3) Wright's testimony that Neely pointed a gun at her face when he entered her apartment in search of her boyfriend. After considering the merits of Haskins' contentions, ¹ we conclude the trial court committed no error in admitting the challenged testimony.

Haskins contends the testimony is inadmissible as evidence of "other crimes," under sec. 904.04(2), Stats. ² We disagree. In State v. Spraggin, 77 Wis.2d 89, 99, 252 N.W.2d 94 (1977), we discussed the use of "other crimes" evidence to establish a "plan":

"The word 'plan' in sec. 904.04(2) means a design or scheme formed to accomplish some particular purpose. . . . Evidence showing a plan establishes a definite prior design, plan, or scheme which includes the doing of the act charged. As Wigmore states, there must be 'such a concurrence of common features that the various acts are materially to be explained as caused by a general plan of which they are the individual manifestations.' "

Haskins was charged with causing the death of Winters, in concert with others. At trial, the state presented evidence in an effort to establish "a definite prior design, plan, or scheme" to apprehend and kill Winters. Locating Winters was a necessary and integral part of that design, plan, or scheme. The evidence Haskins claims was wrongly admitted showed members of Haskins' gang employing forcible and violent means in attempts to determine Winters' whereabouts. The acts were committed by members of the conspiracy to kill Winters; the victims of the acts were closely identified with either Winters or another robber. The acts and the conspiracy shared a common aim apprehension of Winters. These common features explain the acts " 'as caused by a general plan (to kill Winters) of which they are the individual manifestations.' " Id., quoting 2 Wigmore, Evidence, sec. 304 (3d ed. 1940). As such, evidence of the acts could be offered under the exception to sec. 904.04(2), Stats., allowing proof of plan.

Additionally, the evidence was properly offered under the exception allowing proof of motive. As the court of appeals recognized in Neely v. State, 86 Wis.2d 304, 311, 272 N.W.2d 381 (Ct.App.1978), evidence of the acts at the homes of Wright and Lessard demonstrated the motive for the murder Haskins' desire to get revenge against Winters for robbing him. The misdeeds and the actors' accompanying words show motive, "the reason which leads the mind to desire that result." Baker v. State, 120 Wis. 135, 145-46, 97 N.W. 566 (1903). The acts vividly reveal the intensity of the desire of Haskins and his accomplices to get revenge.

That these acts were not committed by Haskins does not render them inadmissible, as he argues. "(W)here several parties conspire or combine together to commit an unlawful act, each is criminally responsible for the acts of his associates committed in the prosecution of the common design, the act of each one of the conspirators being, in contemplation of the law, the act of each and all." Pollack v. State, 215 Wis. 200, 211, 253 N.W. 560 (1934); Kraut v. State, 228 Wis. 386, 399, 280 N.W. 327 (1938). Acts of one conspirator in furtherance of the conspiracy are admissible against the others ³ to evidence intent ⁴ or plan. ⁵ The identity of actors created by the law of conspiracy permits Haskins' invocation of sec. 904.04(2), Stats. However, this aspect of the law of conspiracy disposes of Haskins' objection under that section. The identity of actors renders the objected-to testimony, which relates "other crimes" evincing the motive and plan of Haskins' co-conspirators, relevant evidence of Haskins' motive and plan, as the acts are deemed in law to be those of Haskins. ⁶

To be admissible under sec. 904.04(2), Stats., evidence of other acts must not only be relevant but also be possessed of "probative value (which) must not be substantially outweighed by the dangers of unfair prejudice, confusion of the issues or misleading the jury or by consideration of undue delay, waste of time or needless presentation of cumulative evidence." State v. Johnson, 74 Wis.2d 26, 41, 245 N.W.2d 687 (1976). The balancing of these considerations and the consequent decision as to admissibility are committed to the discretion of the trial court. Hammen v. State, 87 Wis.2d 791, 799-800, 275 N.W.2d 709 (1979); State v. Spraggin, 77 Wis.2d at 94-95, 252 N.W.2d 94; Kelly v. State, 75 Wis.2d 303, 319, 249 N.W.2d 800 (1977). In this case the trial court made no explicit determination that the probative value of the evidence was not outweighed by its possible prejudicial effect. This result, however, must be attributed to defense counsel's failure to make his objection...