Moore v. State

• Decision Date: 02 May 1978
• Docket Number: No. 76-139-CR,76-139-CR
• Citation: 265 N.W.2d 540,83 Wis.2d 285
• Parties: Gary D. MOORE, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.
• Court: Wisconsin Supreme Court

Page 540

265 N.W.2d 540

83 Wis.2d 285

Gary D. MOORE, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.

No. 76-139-CR.

Supreme Court of Wisconsin.

Argued March 7, 1978.

Decided May 2, 1978.

Gary D. Moore, plaintiff in error, was found guilty by a jury of rape, contrary to sec. 944.01(1), Stats.1971. Judgment of conviction was entered, and he was sentenced to serve a term of thirty years, consecutive to a term he was then serving. The post-trial motions and motions for postconviction relief under sec. 974.06, were denied. Writs of error issued to review the judgment of conviction and the orders denying post-trial relief.

Jack E. Schairer, Asst. State Public Defender (argued), and Howard B. Eisenberg, State Public Defender, on brief, for plaintiff-in-error.

Pamela Magee-Heilprin, Asst. Atty. Gen. (argued), and Bronson C. La Follette, Atty. Gen., on brief, for defendant-in-error.

CONNOR T. HANSEN, Justice.

For the purposes of this appeal, it is unnecessary to recount the testimony adduced at trial in detail. The victim, her husband who was not home at the time of the incident, and their small child, occupied an apartment in a building in which the defendant and his family also occupied an apartment. The victim had seen the defendant in the building on prior occasions.

The victim identified the defendant and testified he gained entry to the apartment under the representation that he was to fix the ceiling tile. He grabbed her by the neck, threatened her with a knife, cut and ripped her sweatshirt, dragged her to the living room couch, raped her and then cut the telephone cord.

The defendant presented the defense of alibi supported by the testimony of Gary Hendricks. Hendricks testified that he and Gary Moore went barhopping on the night of the rape. Hendricks testified that the next morning he heard the defendant's stepbrother, Bradley Beaudry, tell the defendant that he, Beaudry, had "ripped off the broad downstairs" and was going to Canada, and that the defendant then told Hendricks to leave because the police would be coming. Upon cross-examination, Hendricks testified that he and the defendant had been co-defendants in two previous convictions after escaping together from Wisconsin State Reformatory and stealing a car.

The jury returned a verdict of guilty. The defendant was committed to the Department of Health & Social Services for a sixty-day presentence examination pursuant to sec. 975.01, Stats. The presentence report returned to the trial court included a psychiatrist's report stating that the defendant had admitted committing the rape. The report did not recommend specialized treatment of the defendant, and he was sentenced as provided by statute.

One of the issues raised on this review arises from the fact that prior to trial the defendant, by letter to the trial court, requested that he be permitted to take part in the examination and cross-examination of witnesses. This letter stated:

"Dear Sir: I wish to inform the Court that it is my wish and my intent to participate in the examination and cross examination of all witnesses for and against me in the trial I am confronted with on March 26th. I feel my best interests as well as my Constitutional guarantees will be best safeguarded by the Court recognizing me, the Defendant, as co-counsel in which capacity I shall be able to demand the nature and cause of the accusations against me and to meet the witnesses face to face, as well as enjoy the Constitutional right of assisting in my own defense as is ascertained by the Constitution of the United States and outlined in due process procedures.

"I also wish to inform the Court that the defense will, in all probability, expect to use voir dire examination and challenges for cause in the examination of the prospective jurors to determine competency and qualifications of jury members."

A pretrial hearing was held on this request. The defendant's letter was entered into the record, and the defendant's request to participate as co-counsel in his defense was denied, under the trial court's authority to exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence. Sec. 906.11, Stats.

The issues raised on this review are as follows:

1. Did the trial court err in permitting cross-examination of witness Gary Hendricks regarding prior offenses involving the defendant?

2. Is a criminal defendant entitled, under either the federal constitution or the constitution of Wisconsin, to have his defense presented by both his counsel and himself?

3. Did use of the sex deviate report deprive the defendant of equal protection or of due process?

4. Did the trial court abuse its discretion in sentencing the defendant?

5. Should the defendant's sentence be modified in the interest of justice?

EVIDENCE OF PRIOR CRIMES.

On direct examination, Hendricks, the alibi witness, was asked how many times he had been convicted, and he testified that he had been convicted four times. On cross-examination by the state, the witness testified he and the defendant were schoolboy chums. The prosecutor then asked Hendricks whether or not he wanted to tell the jury whether he and the defendant were co-defendants in two of the convictions, and the witness responded "Yes, certainly." Defense counsel objected on the ground that the question was both immaterial and prejudicial. The trial court, upon inquiry as to the purpose of the question, was advised that it was to show "motivation and credibility" of the witness, whereupon the trial court permitted the witness to answer, and he responded, "We escaped together, in 1969, from the Wisconsin State Reformatory and stole a car."

The defendant first contends that the trial court failed to weigh the probative value of the evidence against its prejudicial effect, as required by statute and the decisions of this court. The established rule that evidence of prior crimes may not be introduced to show a witness' bad character or criminal propensity is subject to certain exceptions. Whitty v. State, 34 Wis.2d 278, 149 N.W.2d 557 (1967), cert. denied, 390 U.S. 959, 88 S.Ct. 1056, 19 L.Ed.2d 1155. When one of these exceptions is asserted, the trial judge must exercise his discretion to determine whether any prejudicial effect of the evidence outweighs its probative value. Kwosek v. State, 60 Wis.2d 276, 282, 208 N.W.2d 308 (1973). This rule is codified in sec. 906.09(2) and (3), Stats. which provide:

"(2) Exclusion. Evidence of a conviction of a crime may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.

"(3) Admissibility of conviction. No question inquiring with respect to conviction of a crime, nor introduction of evidence with respect thereto shall be permitted until the judge determines pursuant to s. 901.04 whether the evidence should be excluded."

Here the presiding judge considered the objection that the questioning was prejudicial and immaterial, and he inquired as to the purpose of the questioning. Advised that the question was for the limited purpose of showing the witness' motivation and impeaching his credibility, the court allowed the witness to answer, on the understanding that there would be no further questions regarding prior offenses. On this record it is apparent that the trial court did, in fact, exercise discretion in permitting the question and admitting the answer.

However, the prosecutor's cross-examination of Hendricks regarding prior offenses was contrary to the rule established by the decisions of this court. When a witness has truthfully testified as to his prior convictions on direct examination, nothing further may be said about them on cross-examination. There is no need to allow the facts stated on direct examination to be repeated on cross-examination, and this court has recognized the potential for prejudice inherent in evidence of prior crimes. Nicholas v. State, 49 Wis.2d 683, 183 N.W.2d 11 (1971); accord: Underwood v. Strasser, 48 Wis.2d 568, 180 N.W.2d 631 (1970).

In the instant case Hendricks testified on direct examination that he had been convicted of a crime on four occasions. There is no suggestion that this answer was inaccurate or incomplete. It follows, therefore, that cross-examination of Hendricks with regard to his prior offenses was improper.

The state argues that the testimony elicited should be admitted for its probative value with regard to the credibility of the defendant. The defendant's credibility was put in issue when he asserted an alibi defense. State v. Midell, 39 Wis.2d 733, 159 N.W.2d 614 (1968). However, when asked the purpose of the inquiry, the prosecutor stated only that it was to show the motivation and credibility of Hendricks.

In addition, the procedure followed in this case was not the approved manner of eliciting evidence of prior convictions for the purpose of impeaching the defendant's testimony. Staples v. State, 74 Wis.2d 13, 24, 245 N.W.2d 679 (1976). Although the defendant himself might properly have been questioned about his prior convictions, the state failed to do so during his testimony. Moreover, even if the questions had been directed to the defendant, himself, he could not have been asked about the circumstances of prior crimes or the fact that he and Hendricks had been co-defendants.

However, the fact that the trial court permitted an improper question concerning the prior criminal conduct of the witness, does not mean the judgment should be reversed ipso facto. Under sec. 817.37, Stats. ¹ a judgment will not be reversed or a new trial granted unless it appears that the error has affected the substantial rights of the party seeking relief. The effect of erroneously admitted evidence must be realistically evaluated in the context of the case, and a new trial will not be granted unless the error was so prejudicial that a different result might have been reached if the evidence had not been admitted....