Kutchera v. State, S

CourtUnited States State Supreme Court of Wisconsin
Citation230 N.W.2d 750,69 Wis.2d 534
Docket NumberNo. S,S
PartiesWilliam KUTCHERA, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error. tate 185.
Decision Date30 June 1975

Page 750

230 N.W.2d 750
69 Wis.2d 534
William KUTCHERA, Plaintiff-in-Error,
STATE of Wisconsin, Defendant-in-Error.
No. State 185.
Supreme Court of Wisconsin.
June 30, 1975.

Page 752

[69 Wis.2d 536] This case is before this court on six writs of error. The defendant, William Kutchera, was charged and found [69 Wis.2d 537] guilty of seven burglaries which occurred in June, 1973 in Marathon County, Wisconsin. Two separate trials were held, one involving three of the charges and the other involved the remaining four. The writs of error are to the judgment of conviction and sentence and order denying a motion for a new trial resulting from the first trial, the judgment of conviction and sentence and order denying a motion for a new trial resulting from the second trial, and two judgments of conviction and sentences which were entered modifying the original sentences imposed. The state has filed a request to review those portions of the judgments which modify the sentences originally imposed.

In June, 1973, a series of seven burglaries occurred in Marathon County. On June 11, 1973, the Egdahl Oil Company building was broken into and some office machines were taken. On the 19th, the Eagle's Club and the Trail's End Tavern were entered and money was removed from coin operated machines and some other items were taken. The Koo Koo Klub and the Continental Gardens were broken into on June 21st. Money was removed from coin operated machines and certain other items were taken. The Riverhills Golf Course Clubhouse was entered on June 24th and money was taken from machines and a cash box was missing. On June 27th, the Hut Tavern was burglarized and money was again taken from coin operated machines.

On July 5, 1973, the defendant was arrested and charged with these seven burglaries. The defendant subsequently gave an oral statement to the sheriff's department concerning his involvement in the burglaries. He waived his right to a preliminary examination on July 9, 1973, and was bound over for trial. He pled not guilty and demanded a jury trial.

Pre-trial motions were made and heard on October 1, 1973. The motions included: a motion to suppress any [69 Wis.2d 538] oral statements given by the defendant on the grounds that such statements were obtained in violation of the defendant's constitutional rights; a motion to suppress any written statements

Page 753

on the same grounds; a motion to physically inspect all physical evidence to be used at trial by the state; a motion to dismiss because defendant was arrested illegally, unconstitutionally and without a warrant; and a motion for a change of venue. The court denied the motions to dismiss and for a change of venue. The court denied the motion to suppress the defendant's unsigned written confession but said its 'ultimate admission . . . has to be determined at the time of trial.'

In September, the defendant made demands for a copy of the defendant's statement, for a copy of defendant's criminal record and the criminal record of prosecution witnesses, and a 'written summary of all oral statements of the defendant' which the state planned to use at trial. On November 2, 1973, a stipulation was entered into for the severance of the charges.

The first trial, involving three charges, was commenced on November 14, 1973. This trial concerned the burglaries at the Riverhills Golf Course, the Eagle's Club and Trail's End Tavern. George Obermeier testified that he and the defendant entered these three places and the defendant broke into the machines and they took the money and cigarettes. He said defendant was not drunk on the night in question.

Mrs. Sue Iwen Menebroeker testified that the defendant had told held he cut his arm breaking into the golf course bar and that 'they' had gone to the Eagle's Club and Trail's End Tavern on the same night. On cross-examination, she testified that the defendant went to taverns every day in June of 1973. He drank at least a case of shorty bottles of beer and about eight bottles of Bali Hai Wine on the average day in June. She further [69 Wis.2d 539] testified that the defendant was drunk on June 24, 1973, the night of the burglary at the golf course clubhouse.

Wilfred Riehle, owner of two bars in the area, testified he was told by the defendant that they were going to hit the golf course clubhouse. Riehle also testified he received two boxes of those packs of cigarettes from the defendant and bought $125.00 worth of change from the defendant. Obermeier was with the defendant when the deliveries were made.

The defendant's unsigned confession was received into evidence.

The defense called Esther Kutchera, his mother, and Karen Petrowski. These two witnesses testified as to defendant's heavy drinking.

The defendant testified that he spent about 16 hours in taverns on a daily basis in June. He had no specific recollection of June 19th or June 24th other than being in the tavern. The reason he does not remember is that he was drunk and in an alcoholic blackout. He claimed he was told about the burglaries by George Obermeier.

The jury found the defendant guilty on all three counts. The trial court denied the defendant's motions for a new trial. The defendant was sentenced to 10 years in prison on one count and 2 years each on the other two counts. The sentences were to run consecutively.

Prior to the second trial, the defendant moved for the impaneling of a new jury, for a change of venue, for the suppression of his written statements, for the exclusion of his past criminal record and for a change of judge. It was agreed to use the circuit court panel, and the motion for a change of venue was denied.

The second trial was held on January 16th and 17, 1974. This trial involved four burglaries. The fact that these burglaries took place was established. George Obermeier again testified that the defendant and he committed [69 Wis.2d 540] these four burglaries. He testified the defendant was sober and he never observed any bizarre or unusual conduct by the defendant. Again, the defendant broke into the machines at the bars. Lonnald Leary, Gary Prechel, Allen Fritz

Page 754

and Wilfred Riehle all testified as to receiving stolen property from the defendant and Obermeier.

The defendant again attempted to establish intoxication as a defense. Jeanie Rienke, a bartender at Willie's, testified that the defendant was drunk 90 percent of the time in June. Edward Betts, an alcoholism and drug counselor at the Marathon County Health Care Center, testified that the defendant had been at the center for 30 days in March and April of 1973 and had a problem with alcohol. The defendant again testified he did not remember breaking into the places because he was drunk.

The jury at the second trial found the defendant guilty on all counts. The sentences here were 10 years on one count and 1 year each on the other three. The 10 year sentence was to be concurrent with the sentences he was serving. The three 1-year sentences were to be consecutive to those then being served and consecutive to each other.

A motion to dismiss the information or for a new trial was denied on May 28, 1974. On that day the court did amend the sentences, however. The sentences imposed on November 30, 1973, were amended so as to run concurrently and the sentences imposed on January 17, 1974 were amended by reducing the 10 year sentence to a 6 year term to be served concurrently with those previously imposed and the three 1-year sentences were made concurrent. New judgments of conviction and sentences were entered on May 28, 1974 to amend the sentences.

Howard B. Eisenberg, State Public Defender, and Ronald L. [69 Wis.2d 541] Brandt, Asst. State Public Defender, Madison, [69 Wis.2d 540] for plaintiff-in-error.

[69 Wis.2d 541] Bronson C. LaFollette, Atty. Gen., and David J. Becker, Asst. Atty. Gen., Madison, for defendant-in-error.

HANLEY, Justice.

The following issues are presented upon this appeal:

1. Was it prejudicial error to allow certain witnesses to testify at the first trial then their names were not included in the state's list of witnesses furnished defense counsel under Sec. 971.23(3), Stats.?

2. Was it prejudicial error to permit certain witnesses to testify at the first trial about conversations with the defendant about the burglaries when no written summary of these were furnished defense counsel after a request under Sec. 971.23(1), Stats. for such summaries?

3. Was it prejudicial error for the trial court to receive into evidence the unsigned confession of the defendant?

4. Did the trial court err in refusing to grant a change of venue for the second trial?

5. Should a new trial on all four charges in the second trial be granted because the evidence is not sufficient to support conviction?

6. Should a new trial be granted because the trial court failed to include the names of witnesses who received stolen property from the defendant in its instruction to the jury on the weight to be given the testimony of accomplices?

7. Should a new trial be granted in the interests of justice?

8. Should the judgments entered May 28, 1974 be reversed insofar as they modify the original sentences imposed?

[69 Wis.2d 542] Witnesses Not Listed

Prior to the first trial, defense counsel made an offer to furnish lists of witnesses under Sec. 971.23(3), Stats. An exchange was made. The witnesses LaVern Michlig, Denzil Wirt and Russell Plant were not included on the list furnished defense counsel by the state. The defendant argues that the trial court committed prejudicial error in allowing these three witnesses to testify because they were not on the list.

Page 755

The first witness called by the state was Joseph Bertasso, secretary of the Eagle's Club. He testified that he secured the club June 18, 1973 and opened it June 19, 1973. He found that it had been burglarized. He testified he had not given the defendant consent to enter the premises after it was...

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