State v. Balistreri
| Citation | 317 N.W.2d 493,106 Wis.2d 741 |
| Decision Date | 30 March 1982 |
| Docket Number | No. 80-1156-CR,80-1156-CR |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Anthony BALISTRERI, Defendant-Appellant. |
| Court | United States State Supreme Court of Wisconsin |
Clifford R. Steele, Milwaukee, argued, for defendant-appellant; Geraghty, Steele & Burke, Milwaukee, on brief.
Michael R. Klos, Asst. Atty. Gen., argued, for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., on brief.
The issues in this case are:
(1) Did the trial court properly limit the cross-examination of a prosecution witness, Robert Roe, concerning the commission of prior crimes?
(2) Did the trial court properly instruct the jury that it could find the defendant guilty as a party to the crime of manslaughter/self-defense on the basis of the evidence adduced at trial?
We accepted this appeal on certification from the court of appeals.
The individual versions of the facts leading up to the offense are bizarre and varied when considering the number of witnesses who testified at the trial. The jury had to search for the truth, whatever the truth was as found by them. In doing this the jury found the defendant, Anthony Balistreri, guilty of a violation of secs. 940.05(2) and 939.05, Stats., 1 as a party to the crime of manslaughter, imperfect self-defense. The jury also found the defendant not guilty as a party to the crime of first degree murder and not guilty as a party to the crime of second degree murder.
The offense arises out of the shooting death of Michael Trapp outside of a house on Milwaukee's east side.
The defendant relies on the following facts on this appeal: on December 16, 1978, the defendant attended a party at the house of Tim Delaney. About midnight, Michael Trapp, who was not at the party, told Jay Delaney on the telephone that he (Trapp) was on his way to the Delaney home to either collect a $5,000 drug debt from Tim Delaney or "blow his head off." Tim Delaney asked the defendant, Jay and another person to leave the house and stated that he would calm Trapp down and then all could return to the party.
The defendant asked Delaney whether Trapp would bring guns to the meeting, and Delaney stated Trapp had never brought guns in the past.
The defendant went home and called Robert Roe and the Casberg brothers, Kevin and Carl, to his home so they could return to Delaneys' house. The defendant testified he told them not to bring guns. However, Roe testified the defendant told him specifically to bring a .357 magnum and a shotgun along, which, pursuant to the defendant's request, he did.
The defendant testified that when he learned of Roe's bringing guns, he told Roe to return them to Roe's car. Instead, the guns were brought along in the defendant's car.
On the way to Delaneys' house, Roe brought out the magnum. The defendant testified that he tried to snatch it away from Roe without success. Roe stated it only had two shells in it so that it was almost harmless.
The shotgun was on the rear seat of the defendant's car where the Casberg brothers were located.
When the defendant and cohorts arrived at Delaneys' home, they all remained in the car. Two persons, one identified as Pete and one named John Johnson, came to the car from the Delaney house and informed the defendant and others in the car that Michael Trapp was in the Delaney house armed with two guns and holding four people hostage.
Pete and John Johnson then went back and forth between the Delaney house and the car several times telling the defendant that everything was all right in the house and that he should leave. On each such trip, the defendant would drive his car away, travel around the block and return to stop in the front of Delaneys' house. This series of events was repeated three or four times, and each time the defendant stopped in front of Delaneys' house.
Finally, John Johnson exited the house, came to the defendant's car, entered it, and sat on the front passenger's seat. The defendant was at all relevant times in the driver seat, and Roe was between the defendant and Johnson. When Johnson entered the car he was armed with a modified, semi-automatic .32 pistol. The modification was to make it fully automatic.
Michael Trapp then exited the house with Tim Delaney. Trapp approached the car and had a .44 magnum revolver in either his belt or his hand, depending on the testimony believed.
According to testimony of the defendant, Tim Delaney and the Casbergs, Trapp pulled his gun from his belt and pointed it inside the front passenger window and said: "I'm going to blow your ______ head off." Johnson grabbed Trapp's gun and there was a struggle between them. There was then a loud discharge, "like a cannon," and a flash from Trapp's gun. After that, there was a series of rapid, softer shots apparently from Johnson's gun. The .357 magnum was fired, but the testimony conflicted as to who fired it. Roe stated the defendant fired the gun, whereas the defendant stated Roe fired the gun. Tim Delaney and the Casbergs testified that the shot came from the middle of the front seat, since they saw the flash at that location. Roe stated he didn't hold or shoot the gun at that time.
The state's principal witness, Robert Roe, stated Trapp did not pull out a gun as he approached the window of the car. This was corroborated by Michael Blake, an associate of Trapp, and Delores Landers, the only independent, uninvolved witness who had watched the events from the window of a neighboring house.
After the shooting, the defendant drove away and then came back, allegedly to see who was shot. Michael Trapp was on his back on the pavement in the street with the .44 weapon in his hand. Investigation later showed there was one expended shell in the chamber of Trapp's weapon. An autopsy revealed that Trapp had .20% alcohol and an undetermined amount of cocaine in his blood.
In addition to the foregoing facts selectively relied on by the defendant, the following was known by the jury. Michael Blake had viewed the events of the shooting while he stood in the front window of the Delaney residence. Roe testified that the defendant called him and advised him to bring his magnum revolver and shotgun because there was a "war" ensuing with drug rival Michael Trapp whom the defendant had previously threatened. Also, Roe testified that on Johnson's last trip to the Delaney house, the defendant told Johnson to get his gun, which Johnson did prior to returning to the car. On the final trip around the block, according to Roe, the defendant and Johnson discussed killing Michael Trapp. Roe testified that the defendant stated: "I'm going to kill that bastard," and that Johnson replied:
Roe then testified to the following series of events. As Trapp approached the car, Roe observed a revolver tucked in Trapp's trousers, but Trapp's hands were empty. The .357 magnum revolver was lying at the defendant's feet on the transmission hump, and Johnson had the .32 caliber pistol in his hand. As Trapp leaned over slightly, he placed his hand on the outside of the car near the open passenger window where John Johnson was sitting. The defendant then took the .357 magnum revolver, leaned over and fired once at Trapp who was standing outside the car. Immediately thereafter, Johnson fired five or six shots from his automatic pistol at point blank range at the victim, Michael Trapp. After the shooting the defendant told Roe to advise the police, if questioned, that the shooting of Trapp was in self-defense and that Trapp had come out of the Delaney residence waving a gun. The defendant also told Roe that Trapp's drug customers had no supplier now and that he (the defendant) "could walk right into that."
Michael Blake, a confederate of Trapp, corroborated Robert Roe's testimony in part. Blake testified Johnson informed him, after one of the visits to the defendant's car, that "Trapp was not leaving alive." Blake watched Trapp and Delaney walk to defendant's car; he observed that Trapp had a gun in the belt of his trousers, but that Trapp did not remove the gun as he approached the car. He saw Trapp lean in the front window on the passenger's side; there appeared to be a brief struggle, and then a shot was discharged from the "center of [the] front seat" followed by four or five rapidly fired shots from inside the car. Blake saw Trapp pull out his revolver after the first shot was fired and saw it discharge in the air as Trapp fell.
Delores Landers, who lived next door to the Delaney residence, was sitting at her front window for some time prior to and at the time of the shooting. She was armed with a pistol and had a pair of binoculars. She stated she occupied that defensive position because the neighborhood had been repeatedly terrorized during the preceding six months. Delores Landers testified concerning the sequence of events leading up to the shooting of Michael Trapp. She confirmed that Trapp was not carrying a revolver in his hand as he approached the car and that Trapp neither removed a revolver from his belt nor thrust it into the window of defendant's car before the shots were fired.
David Loosemore, who did not witness the shooting events, testified that he loaned a .357 magnum revolver to the defendant in November, 1978. The defendant called Loosemore on December 17, 1978, and informed him that Trapp was dead and that "his competition was gone and the market was now." The defendant told Loosemore that the .357 magnum revolver "blew big holes" and asked Loosemore if he could re-bore the revolver and provide 500 shells for him. Loosemore also testified that the defendant called him around the end of December, 1978, and asked Loosemore to tell the police that Robert Roe came to his (Loosemore's) house and forcibly removed the .357 magnum revolver.
The defendant had given three prior statements to the police which were inconsistent on a number of...
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