Neely v. State, 77-499-CR

• Citation: 86 Wis.2d 304,272 N.W.2d 381
• Decision Date: 31 October 1978
• Docket Number: No. 77-499-CR,77-499-CR
• Parties: Robert J. NEELY, Plaintiff in Error, vs. STATE of Wisconsin, Defendant in Error. *
• Court: Court of Appeals of Wisconsin

Page 381

272 N.W.2d 381

86 Wis.2d 304

Robert J. NEELY, Plaintiff in Error, vs. STATE of Wisconsin, Defendant in Error. ^*

No. 77-499-CR.

Court of Appeals of Wisconsin.

Argued Aug. 24, 1978.

Opinion Released Oct. 31, 1978.

Opinion Filed Oct. 31, 1978.

[86 Wis.2d 307] Steven P. Weiss, Asst. State Public Defender (argued), with whom on the briefs was Howard B. Eisenberg, State Public Defender, for plaintiff in error.

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

Before DECKER, C. J., and BROWN and BODE, JJ.

BROWN, Judge.

On October 16, 1976, the defendant was found guilty of first degree murder, contrary to sec. 940.01, Stats. The facts presented by the State are as follows.

During the early morning hours of December 11 or 12, 1975, Felix Winters and two other men robbed Isaac Haskins at his apartment. After the robbery, Haskins attempted to locate Winters. He and nine other men, including the defendant Robert Neely, went to the home of Winters' girlfriend, Kathy Lessard. In an attempt to get Ms. Lessard to tell them where Winters was, Neely injected pure heroin into Ms. Lessard's arm and held a gun to her son's head. Ms. Lessard then agreed to take the men to the home of Helen Wright where she had just seen Winters. Helen Wright was the girlfriend of one of Winters' accomplices.

After forcing their way into Ms. Wright's home, Neely put a gun in Ms. Wright's face and demanded to know where Winters was. Ms. Wright informed them that Winters was in Chicago. She was then told to call Haskins when she heard from either Winters or his accomplices.

A few days later Winters called Haskins to talk about the robbery and make amends. Winters told Haskins that Neely had set him up for the robbery. Haskins agreed to talk to Winters and invited him to his home. Meanwhile, Haskins and three other men devised a plan to kill Winters. Neely was not present when these plans were made.

Sometime later when Neely arrived at Haskins' home, Haskins confronted Neely with Winters' statement that Neely had set him up for the robbery. Neely denied it. Haskins then told Neely to kill Winters in order to prove that he had nothing to do with the robbery. Neely agreed and Haskins told Neely the plan.

The plan was to have Neely and the three other men take Winters to Indiana for the ostensible purpose of finding the other two robbers. On the way to Indiana they were to tell Winters that they first had to stop in Kenosha to pick up some guns, thus providing an excuse for getting off the freeway at Highway 158. At a prescribed point on Highway 158, they were to fake a flat tire and get everyone out of the car. Neely would then kill Winters. Haskins also told Neely and the other men that no matter what Haskins said when he met with Winters, the men were to carry out the plan.

Haskins then met with Winters and told him that if he would go to Indiana and help his men find the other two robbers, he would probably be forgiven and allowed to make restitution. Winters agreed.

The men started out for Indiana, got off at Highway 158, and faked a flat tire. When everyone got out of the car, Winters realized what was about to happen and ran. Neely ran after him in pursuit and fired at him. Winters stumbled but kept running. Neely continued after Winters. Another man joined in the chase. The other two men stayed at the car and watched. Eventually Winters turned and ran back towards Neely. Another shot was fired and Winters fell. Neely then returned to the car and the four men drove back to Milwaukee. When they reached Milwaukee, they told Haskins the job had been completed.

Winters' body was found on December 27, 1975. An autopsy revealed that the cause of death was a bullet wound. Neely was then charged with first degree murder and a five day jury trial was held commencing on October 11, 1976.

At trial, Neely testified in his own behalf and set forth his version of the murder. Neely claimed that he had no knowledge of the murder plan. He claimed that his only involvement in the murder was that he was in the car when the murder took place. He testified that he bought drugs from Haskins occasionally, but that he was not a dealer for Haskins, nor was he part of Haskins' gang. He was an independent drug dealer.

On October 16, 1976, the jury found Neely guilty of first degree murder and, after motions for a new trial were denied, the defendant was sentenced to life imprisonment.

This writ of error is brought from the judgment of conviction. The issues presented on this appeal are:

(1) Did the trial court err in admitting evidence of the Wright-Lessard incidents in the State's case-in-chief?

(2) Did the trial court err in admitting evidence of the Wright-Lessard incidents in rebuttal?

(3) Is the defendant entitled to a new trial because the district attorney, in his closing argument, commented on defendant's silence?

(4) Did the trial court err in determining that the prosecutor's questioning of Neely on the Wright-Lessard incidents were within the proper scope of cross-examination?

(5) Did the trial court err in determining that, by taking the stand in his own defense, the defendant had waived his privilege against self-incrimination as to all matters relevant to the case?

(6) Did the trial court err in refusing to instruct the jury that no adverse inference could be drawn from the defendant's silence?

(7) Should the defendant be granted a new trial in the interest of justice?

ADMISSIBILITY OF THE WRIGHT-LESSARD INCIDENTS IN THE CASE-IN-CHIEF

In the State's case-in-chief, Ms. Wright testified to the incidents that took place at her home on December 11 or 12, 1975, approximately a week before Winters was killed. The defendant objected to the admission of the evidence on the grounds that it was immaterial, irrelevant, and any probative value it may have had was outweighed by its prejudicial effect, thus making it inadmissible under sec. 904.03, Stats. The trial court concluded that the testimony was material because it tended to show Neely's motive for killing Winters. Based on its substantial probative value in showing motive, the trial court also concluded that its probative value was not outweighed by its prejudicial effect. We agree.

Evidence is material if it is offered to prove a proposition which is a matter in issue or probative of a matter in issue. McCormick, Evidence (2d Ed. 1972), § 185, at 434. Motive was a matter in issue in this case and the evidence was offered to prove motive. Therefore, it was material.

Under sec. 904.01, Stats., relevant evidence is defined as any evidence "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." A fact that is of consequence to the determination of the action is a material fact. Any evidence which tends to prove a material fact is relevant. State v. Becker, 51 Wis.2d 659, 667, 188 N.W.2d 449, 453 (1971); Oseman v. State, 32 Wis.2d 523, 526, 145 N.W.2d 766, 768-69 (1966); McCormick, Evidence (2d Ed. 1972), § 185, at 435. Even though the evidence is only a link in the chain of facts which must be proven to make the proposition at issue appear more or less probable, the evidence is still relevant. Oseman v. State, supra.

Here the Wright-Lessard evidence was offered to prove motive. The State's theory was that the Wright-Lessard incidents tended to show that Neely was an active participant in Haskins' plan to get revenge against Winters for robbing his home. Haskins' motive was revenge, and Neely's motive was to help Haskins and thereby assert his loyalty. The plan to get revenge and the simultaneous showing of loyal participation in the search for Winters began with the incidents at the homes of Ms. Wright and Ms. Lessard. Since the seeking of revenge was manifested there and was the first "link in the chain of facts" ending in Winters' murder, it was relevant to the main issue in the case did Neely participate in the murder of Winters.

All relevant testimony is not admissible, however. It is excludable under sec. 904.03, Stats., if its probative value is substantially outweighed by the danger of unfair prejudice. In determining whether the probative value of certain evidence is outweighed by its prejudicial effect, the trial court must balance the need the State has for the evidence against the likelihood that the jury will render a verdict based on an emotional reaction to this evidence. Whitty v. State, 34 Wis.2d 278, 294-95, 149 N.W.2d 557, 564 (1967); Federal Advisory Committee's Note, Fed.R.Evid. 403, reprinted with Wisconsin Rules of Evidence, sec. 904.03, 59 Wis.2d at R74. Assuming the evidence is prejudicial, generally, the prejudicial effect of the evidence will outweigh the probative value if the evidence is merely cumulative.

Evidence of prior crimes or occurrences should be sparingly used by the prosecution and only when reasonably necessary. Piling on such evidence as a final "kick at the cat" when sufficient evidence is already in the record runs the danger, if such evidence is admitted, of violating the defendant's right to a fair trial because of its needless prejudicial effect on the issue of guilt or innocence. Whitty v. State, 34 Wis.2d at 297, 149 N.W.2d at 565.

The test on appeal is whether the trial court abused its discretion in applying the balancing test. Kelly v. State, 75 Wis.2d 303, 319, 249 N.W.2d 800, 808 (1977). In this case, the evidence was prejudicial but it was not needless. All of the other evidence against Neely was supplied by his co-conspirators. They had all been given promises by the State for reduced charges or sentences in exchange for their testimony. Their testimony, while not incredible, was possibly suspect. Ms. Wright, however, had no impeachable motive for testifying. Thus, her testimony was necessary to corroborate the...