Nelson v. State, S

• Decision Date: 29 June 1973
• Docket Number: No. S,S
• Parties: Mark Kevin NELSON, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 123.
• Court: Wisconsin Supreme Court

Page 410

208 N.W.2d 410

59 Wis.2d 474

Mark Kevin NELSON, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 123.

Supreme Court of Wisconsin.

June 29, 1973.

Ross, Stevens, Pick & Ross, Madison, Jack F. Olson and Denis P. Bartell, Madison, of counsel, for plaintiff in error.

Robert W. Warren, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., Madison, for defendant in error.

CONNOR T. HANSEN, Justice.

Defendant and Thomas William Schmitt spent the evening of January 19, 1971, together in Madison, Wisconsin. At approximately 2 a.m. the following morning, defendant was a passenger in a car driven by Schmitt in a southerly direction on Park street when someone from another car traveling in the same direction made a gesture with a bottle. The two cars turned off Park street onto Fish Hatchery road and continued south. Eventually, Schmitt slowed his vehicle and came to a stop in the southbound lane of traffic. The other car stopped immediately behind the Schmitt car.

Defendant took two pistols from the glove department, passed one to Schmitt, and kept the other. Schmitt and the defendant got out of the car and proceeded to the rear in the direction of the other car.

Three men, Lynn Poole, William Norman Noll and Richard J. Brettingen, got out of the second car and approached Schmitt's car. The three had spent the evening together drinking. Some discussion ensued before Schmitt fired some shots into the air. Poole and Noll turned and ran. More shots were fired by both Schmitt and the defendant. Brettingen was fatally struck by four bullets.

The autopsy revealed that the victim received wounds which entered the stomach, breastbone, front-side of the neck and the mid portion of the back. Although the neck wound would have caused the victim's death within a matter of minutes without immediate medical attention, the back wound was identified as the fatal wound.

The pistol used by the defendant was recovered from a filed between Janesville and Milton, Wisconsin, where the defendant had thrown it. At trial, the State's expert, James Beck, testified that one bullet, the shot in the stomach, could positively be identified as having been fired from defendant's pistol, but that the other three could not be identified with, or excluded from, Nelson's gun. Charles M. Wilson, an expert with the Wisconsin State Crime Laboratory for more than twenty years, testified that two bullets, including the one which entered the victim's back definitely were not fired from defendant's pistol. He agreed that the bullet recovered from the victim's stomach wound was fired from defendant's pistol and that the other bullet could not be identified with or excluded from defendant's pistol.

Both Schmitt and the defendant were initially charged with first-degree murder. A bargain, however, was made between the district attorney and Schmitt. In exchange for Schmitt's agreement to testify on behalf of the State at defendant's trial, the charge against Schmitt was reduced to reckless use of a weapon, to which he pleaded guilty and was sentenced to six months in jail.

The sole issue on this appeal is whether the defendant was denied a fair trial because of the suppression of evidence favorable to the defendant at trial by the State.

The State has the affirmative duty to disclose to the defendant or his counsel any material or information within its possession or control which tends to negate the guilt of the defendant or would tend to reduce his punishment therefor. ⁵ In Brady v. Maryland (1963), 373 U.S. 83, 87, 88, 83 S.Ct. 1194, 1196, 1197, 10 L.Ed.2d 215, the United States Supreme Court stated:

'We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

'. . . A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice, even though, as in the present case, his action is not 'the result of guile,' to use the words of the Court of Appeals. 226 Md. (422), at 427, 174 A.2d (167) at 169.'

The exculpatory evidence alleged to have been suppressed by the State consists of knowledge on the part of the district attorney's office of a statement made by Schmitt to one Robert K. Adams. According to the sworn statement of Adams, he was a fellow inmate of Schmitt at Green Bay state reformatory in 1965 and became acquainted with him at that time. April 21, 1971, three months after the shooting, Adams had a conversation with Schmitt in which the shooting of Brettingen was mentioned and in which Schmitt admitted having shot Brettingen twice. Adams stated that Schmitt said to him 'I shot him (Brettingen) dead in the back.' In April, 1971, Adams related this conversation to detective Robert Compton of the Dane county sheriff's department, and suggested that he would testify against Schmitt in the hope that such testimony would assist Adams' brother in gaining a reduction in the sentence he was then serving. Neither the district attorney's office nor any other law enforcement agency subsequently contacted Adams.

An affidavit signed by Detective Compton states that he had had many dealings with Adams in the past concerning investigations of criminal activity in Dane county and believed Adams to be reliable. Compton stated that he was told by Adams that Schmitt had admitted shooting Brettingen twice in the back while Brettingen was lying on the ground. Compton's statement further indicates that prior to defendant's trial, Compton, on several occasions, decussed this admission of Schmitt with deputy district attorney Robert De Chambeau.

Schmitt's alleged statement to Adams was in direct conflict to Schmitt's testimony at trial. At trial, Schmitt testified that he never fired in the direction of Brettingen either intentionally or otherwise.

Prior to trial, Schmitt and the defendant were both facing prosecution upon charges of first-degree murder. Schmitt's testimony, like that of every accomplice, is suspect. Under these circumstances, courts have considered themselves under a special obligation to examine the asserted errors in the conduct of the trial to insure that a miscarriage of justice does not occur. ⁶ Schmitt was the State's sole witness to the actual shooting. Noll and Poole testified that upon hearing the first shots they counsel any material or information fired the shots or in what direction they were fired. The testimony of Adams would have contradicted that of witness-Schmitt. to reduce his punishment therefor.' thus be at issue.

While the duty of the State to disclose exculpatory evidence has not been constitutionally extended to require full disclosure of all evidence helpful to the accused, ⁷ there is precedent for the proposition that evidence, material on the issue of accused's guilt or innocence, should be disclosed to the accused even though it goes only to the credibility of a witness. ⁸

However, the exculpatory nature of Schmitt's statement to Adams need not depend solely upon its effects on Schmitt's credibility. The Information, filed March 12, 1971, charged that the defendant 'did feloniously and with intent to kill, murder Richard J. Brettingen, a human being . . . contrary to section 940.01 of the statutes . . .' Section 940.01(1), Stats., provides:

'. . . (1) Whoever causes the death of another human being with intent to kill that person or another shall be sentenced to life imprisonment.'

Before defendant could be found guilty of first-degree murder, the State carried the burden of showing beyond a reasonable doubt that the defendant caused the death of Brettingen. The autopsy report indicated that Brettingen's death was caused by the bullet wound in the back. Schmitt's admission that he shot the victim in the back would not just impeach Schmitt's credibility as a witness but would go directly to the issue of defendant's guilt or innocence on the murder charge. The evidence was exculpatory in nature, and its suppression by the State violated the due process clause of the fourteenth amendment.

The purpose of trial is as much the acquittal of the innocent as it is the conviction of the guilty. Although the prosecutor acts within the adversary system, there is ample room in that system, at least as far as 'due process' is concerned, to require the State to disclose exculpatory evidence to the accused. ⁹ The United States Supreme Court, in Berger v. United States (1935), 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314, discussed the role of the prosecuting attorney in the following manner:

'The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor--indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.'

Deputy district attorney De Chambeau, in his affidavit, states that the reason he failed to disclose the information to the defendant or his counsel was that he did not believe Adams to be reliable. This is of no consequence. Nondisclosure by the State's prosecutor cannot be justified...