State v. Bannister

• Decision Date: 03 July 2007
• Docket Number: No. 2005AP767-CR.,2005AP767-CR.
• Citation: 734 N.W.2d 892,2007 WI 86
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Edward BANNISTER, Defendant-Appellant.
• Court: Wisconsin Supreme Court

734 N.W.2d 892

2007 WI 86

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Edward BANNISTER, Defendant-Appellant.

No. 2005AP767-CR.

Supreme Court of Wisconsin.

Argued January 11, 2007.

Decided July 3, 2007.

For the plaintiff-respondent-petitioner the cause was argued by Christopher G. Wren, assistant attorney general, with whom on the briefs was Peggy A. Lautenschlager, attorney general.

For the defendant-appellant there was a brief by Craig S. Powell, Byron Lichstein, and Kohler & Hart, L.L.P., Milwaukee, and oral argument by Craig S. Powell.

¶ 1 JON P. WILCOX, J

This is a review of a published court of appeals decision, State v. Bannister, 2006 WI App 136, 294 Wis.2d 359, 720 N.W.2d 498. The court of appeals reversed a judgment of the Milwaukee County Circuit Court, John Siefert, Judge, and remanded the cause with directions. Judge Siefert entered a judgment of conviction consistent with the verdict of guilty reached by a jury. The jury found Edward Bannister (Bannister) guilty of delivery of a controlled substance pursuant to Wis. Stat. § 961.41(1)(a)(2005-06).¹

¶ 2 This case presents two issues. First, did the State satisfy the corroboration rule during the course of Bannister's trial? We hold that the State satisfied the corroboration rule by corroborating Bannister's confession with the presence of morphine in Michael Wolk's body at the time of his death, which constitutes a significant fact. Second, should the court grant Bannister a new trial in the interest of justice pursuant to Wis. Stat. § 751.06?² We hold that the real controversy in this case was tried and do not grant Bannister a new trial. Accordingly, we reverse the court of appeals.

I

¶ 3 On October 23, 2003, City of Cudahy Detective Michael Carchesi arrested Bannister at his home in Milwaukee County. Bannister had an open warrant with the Milwaukee County Sheriff's Department for failure to appear. Detective Carchesi wanted to discuss a case he was investigating that involved the suspicious death of Michael Wolk. Detective Carchesi and another officer transported Bannister to the police station.

¶ 4 The Cudahy Police Department's involvement in this case commenced when it dispatched Officer Brian Scott to the apartment of Michael Wolk and his wife on January 17, 2003. Mrs. Wolk had called 911 because her husband was unresponsive. She requested an ambulance.

¶ 5 Upon arrival, Emergency Medical Technicians (EMTs) attempted to revive Michael. After approximately twenty minutes, the EMTs gave up their efforts. Michael was pronounced dead on the scene.

¶ 6 The Milwaukee County Medical Examiner's Office was contacted. It went to the scene and took custody of Michael's body. The Medical Examiner also took other evidence, including a kitchen spoon, a white powdery substance, a couple of syringes, and rolling papers that were found on a table near Michael's body.

¶ 7 The Medical Examiner's Office examined the evidence collected. Its examination included a comprehensive toxicology screen on the kitchen spoon and syringes. Morphine was on both the spoon and the syringes. Morphine was also found in Michael's blood when a comprehensive screen on his blood was done. Dr. Jeffrey Jentzen, a Milwaukee County Medical Examiner, concluded that Michael died of morphine toxicity.

¶ 8 With Michael's death, the police began an investigation. At the outset of the investigation, Detective Carchesi interviewed Steven Wolk on two occasions. Steven was Michael's brother. Steven identified Bannister as their source for morphine.

¶ 9 Detective Carchesi called Bannister and asked him to come to the police station the following day. Bannister initially agreed to do so, but the following day he called back and explained he could not meet with them. No immediate action was taken by the Cudahy Police Department to interview Bannister, but the investigation continued.

¶ 10 It was eight months after requesting that Bannister appear at the police station that Detective Carchesi went to Bannister's residence and arrested him. Once Bannister and Detective Carchesi arrived at the police station, Detective Carchesi advised Bannister of his constitutional rights. Detective Carchesi also told Bannister that he was investigating the death of Michael Wolk.

¶ 11 During the interview, Bannister told Detective Carchesi that he knew Steven and Michael Wolk. The brothers stopped by his residence on several occasions for morphine. Bannister explained that he was prescribed morphine for his sickle cell anemia. Bannister told Detective Carchesi that he did not receive payment for the morphine. Bannister stated that he first gave the Wolks morphine in December 2002. He continued giving them morphine until mid-January 2003. Bannister told Detective Carchesi that he gave the Wolks morphine on eight to ten occasions, approximately every three days.

¶ 12 After interviewing Bannister, Detective Carchesi booked him for delivery of a controlled substance. The State subsequently charged Bannister with one count of delivery of a controlled substance.

¶ 13 On the day Bannister's trial began, the parties reached an agreement. The State agreed to not charge Bannister with reckless homicide. In exchange, Bannister agreed to not object to evidence that an autopsy was done upon Michael Wolk and that morphine was found in his body at the time of his death.

¶ 14 After the selection of the jury, the court held a Miranda-Goodchild hearing.³ Detective Carchesi testified about the information he provided Bannister regarding his constitutional rights and Bannister's reaction. The circuit court concluded that Miranda⁴ was complied with and Bannister's statement was given voluntarily. The circuit court denied Bannister's motion to suppress his statement given to Detective Carchesi.

¶ 15 During the State's opening statement, it summarized the evidence that would be presented at trial. The summary included reference to testimony from Steven Wolk. The State stated the following related to Steven Wolk's testimony:

I'm asking, for instance, if Steven should testify, you listen to him and you weigh his evidence and you weigh his credibility. It'll be out there for you. You may find he's a distasteful individual. He's a drug user. His brother was a drug user. Drugs killed his brother. You'll hear—it'll be clear that Steven Wolk isn't the nicest person in the world but he's a witness to what happened. He'll tell you that over a span of time, that he and his brother, together with Steven, would obtain morphine from the defendant, Edward Bannister. It went on for about a year. They would go to Edward Bannister's home and obtain it. Sometimes, Edward Bannister would give it to him, according to Steven. I don't know if that's true—but one thing, you have to weigh everything—would give it to him free of charge. Sometimes, he'd give him good faith money. That on or about the 14th or 15th of January, he can't remember the exact day, sometime in late morning or early afternoon, Steven Wolk, Michael Wolk went to the defendant's home and the defendant gave them two tablets of morphine, that they in turn gave the defendant $20.00 in exchange for that, and that Steven took one pill and Michael took another one of the pills so that they could use it at a later date or later time.

Steven Wolk never testified during the trial. He asserted his Fifth Amendment privilege against self-incrimination.

¶ 16 The State called four other witnesses during the trial. Officer Scott testified regarding the scene at Michael Wolk's apartment when he responded to Mrs. Wolk's 911 call. Susan Gock, Technical Director of the Milwaukee County Toxicology Lab, testified about the findings of the Medical Examiner's Office. Detective Carchesi testified regarding the investigation into Michael's death and the statement made by Bannister when he interviewed him. Finally, Dr. Jentzen testified about the autopsy conducted on Michael. Dr. Jentzen testified that Michael died of morphine toxicity.

¶ 17 Bannister rested his case without calling any witnesses. The jury returned a verdict of guilty. The circuit court entered a judgment of conviction consistent with the jury's verdict.

¶ 18 Bannister appealed to the court of appeals. He contended that the State's failure to corroborate his confession with a significant fact meant that insufficient evidence was presented to convict him. He also argued that he was entitled to a discretionary reversal pursuant to Wis. Stat. § 752.35.⁵

¶ 19 On the issue related to the corroboration of Bannister's confession, the court of appeals reversed the judgment the circuit judge entered. The court of appeals concluded that the presence of morphine in Michael's body did not constitute a corroboration of a significant fact. Bannister, 294 Wis.2d 359, ¶ 8, 720 N.W.2d 498. Noting that no case law specifically defined "significant fact," the court of appeals relied on the dictionary definition of "significant." Id., ¶ 9. "Significant" means "having or likely to have influence or effect: important." Id. (quoting Webster's Ninth New Collegiate Dictionary 1096 (1991)). Based on the evidence presented at trial, the court of appeals concluded that the finding of morphine in Michael's body was "not sufficient to corroborate Bannister's confession claiming to have given morphine pills on prior uncertain dates to the deceased." Id., ¶ 11.

¶ 20 Pursuant to Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938), which established that only dispositive issues need to be addressed on appeal, the court of appeals did not address Bannister's argument that he was entitled to a discretionary reversal.

¶ 21 The State petitioned this court for review of the judgment of the court of appeals.

II

¶ 22 We first address whether the State satisfied the corroboration rule during the course of Bannister's trial. The corroboration rule is a common-law standard. State v. Hauk, 2002 WI App 226, ¶ 20, 257 Wis.2d 579, 652 N.W.2d 393...