State v. Brecht

• Decision Date: 23 March 1988
• Docket Number: No. 86-1317-CR,86-1317-CR
• Citation: 421 N.W.2d 96,143 Wis.2d 297
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Todd A. BRECHT, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 96

421 N.W.2d 96

143 Wis.2d 297

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Todd A. BRECHT, Defendant-Appellant.

No. 86-1317-CR.

Supreme Court of Wisconsin.

Argued Dec. 2, 1987.

Decided March 23, 1988.

Jeffrey M. Gabrysiak, Asst. Atty. Gen., argued for plaintiff-respondent-petitioner; Donald J. Hanaway, Atty. Gen., on brief.

Janet A. Jenkins, La Crosse, argued for defendant-appellant; Arneson & Jenkins, S.C., La Crosse, on brief.

BABLITCH, Justice.

The State of Wisconsin (State) seeks review of a court of appeals' decision, State v. Brecht, 138 Wis.2d 158, 405 N.W.2d 718 (1987), that reversed the judgment of conviction for first degree murder entered against Todd A. Brecht (Brecht) by the circuit court for Buffalo county, Judge Peter G. Pappas. The court of appeals based its reversal on the grounds that references to Brecht's pre-trial silence during cross-examination and during the State's closing argument impermissibly infringed on Brecht's constitutional rights to silence and to a fair trial, and that such errors were prejudicial.

While we agree that some of the State's references to Brecht's silence were constitutional error, we hold that such error was harmless. In considering the other issues raised on appeal, we conclude that the circuit court properly exercised its discretion in admitting evidence of Brecht's homosexuality because such evidence may have been relevant to the issue of motive. However, the circuit court erred in ruling that the State could cross-examine Brecht's character witness about Brecht's prior convictions. Nonetheless, we conclude that Brecht was not prejudiced by this error. Accordingly, we reverse the decision of the court of appeals.

On October 17, 1985, Brecht shot and wounded his brother-in-law, Roger Hartman (Hartman), who was the district attorney for Buffalo county, Wisconsin. Hartman died several weeks later. Brecht was arrested on the day of the shooting and subsequently tried by jury. He argued at trial that the shooting was accidental. The jury, however, found him guilty of the first degree murder of Hartman. The following facts are relevant to this appeal.

On October 12, 1985, Molly and Roger Hartman went to the Georgia State prison to secure the release of Molly Hartman's younger brother, Brecht. At that time, Brecht was imprisoned after conviction for a felony theft of $3,750. His release from prison and placement on probation were conditioned on payment of $3,750 in restitution for his theft. The Hartmans paid his restitution and obtained his release and the transfer of his probation to Wisconsin. The conditions of Brecht's probation, as stated in defense counsel's brief, consisted of the following: "1) not violating the law of any government; 2) avoiding injurious and vicious habits--especially alcoholic intoxication, and; 3) not leaving the State without permission."

The Hartmans brought Brecht to their home in Alma, Wisconsin, where he was to stay until an opening in an Eau Claire halfway house became available. The Hartmans told Brecht that while he lived in their home he was to refrain from homosexual activity in the Alma area and from drinking.

Brecht testified that on the day of the shooting he had been drinking and playing with a gun that belonged to Roger Hartman while the latter was at work and Molly Hartman was out shopping. Brecht had been using the gun to shoot at tin cans in the Hartman's yard. After firing the gun, Brecht testified that he saw Roger Hartman pull into the driveway. Because Brecht did not want Hartman to see him with the gun, he ran into the rear garage and entered a downstairs hallway. Brecht explained that he intended to replace the gun in the upstairs room where he had found it.

With the gun in hand, Brecht stopped to listen for Hartman. Hearing nothing, Brecht testified that he started running for the stairs to the upper level when he tripped and the gun discharged. A bullet struck Hartman in the back.

Brecht yelled to Hartman and looked for him but Hartman had disappeared. Brecht then took Molly Hartman's car and drove around the area searching for Hartman. Upon spotting Hartman at the door of a neighbor's house, Brecht drove off in the car. The Hartman car was observed traveling at a faster than normal speed away from Alma and towards Fountain City.

Neighbors of the Hartmans testified that Roger Hartman had come to their house seeking help and told them that Brecht had shot him. Police officers who had surveyed the Hartman residence after the shooting, testified that they had found beer cans in the house, and a liquor bottle and a soda can with a bullet hole in it and spent .22 casing in the backyard. Experts from the State Crime Laboratory testified that Brecht's fingerprints were on an ammunition box and on a brandy bottle found in the Hartman home. Additionally, it was noted that the doorway area leading into the hallway from the garage was covered with tightly stretched carpet and that nothing was observed on which one could trip.

Meanwhile, Brecht had driven the Hartman car into a ditch near Fountain City, rendering the car inoperable. Officer Zeller arrived and offered Brecht assistance with the car, but Brecht told Zeller that his sister would call a wrecker for him. Brecht subsequently obtained a ride from a stranger, Melvin Schlesselman, to the nearest town, Winona, Minnesota. He did not mention the shooting incident to either Schlesselman or Zeller.

In Minnesota, Brecht was stopped by the Winona police in a shopping center. He falsely identified himself and when his true identity was ascertained, he was arrested by the police for the shooting of Hartman in Wisconsin. Brecht told officer Papke, one of the arresting officers, that it was a mistake and that he wanted to talk with "somebody that would understand [him]." However, neither Brecht's testimony nor that of the police officers' indicate that Brecht explained the shooting incident upon arrest.

The record is unclear when Brecht received his Miranda warnings. The State submitted testimony by two of the five officers involved in the arrest, who testified that Brecht was not given his Miranda warnings in their presence. However, the record does reflect that Brecht did receive his Miranda warnings at his initial appearance.

On November 11, 1985, Hartman died. A coroner testified that the bullet wound was a substantial factor in producing his death. He also testified that the bullet which entered Hartman's back and exited his chest, traveled on a basically horizontal to slightly downward trajectory.

At trial, the State questioned Zeller, Schlesselman and Papke during its case-in-chief about Brecht's failure to mention Hartman's condition and the accidental nature of the shooting. Additionally, the State attempted to directly impeach Brecht's credibility by cross-examining Brecht on his pre-trial silence concerning the shooting and by making reference to his silence during closing argument.

The State also sought to introduce evidence of Brecht's homosexuality to establish a possible motive for the shooting. The circuit court permitted the introduction of such evidence, over Brecht's objection, noting its relevancy to the issue of motive. During trial, the State produced letters Brecht had written to an inmate in the Georgia prison where Brecht had been incarcerated. The State alleges that one of the letters contained homosexual overtones, a fact Brecht disputes. Additionally, the State elicited testimony from Molly Hartman on Brecht's homosexuality. Molly Hartman testified at trial that her husband had disapproved of Brecht's homosexuality. However, she gave conflicting testimony as to whether her husband had communicated this disapproval directly to Brecht.

Brecht sought to call his probation officer to testify about Brecht's non-violent character. The circuit court ruled that the introduction of such evidence would also permit the State to cross-examine the officer about Brecht's conviction for writing worthless checks. Consequently, Brecht chose not to call his probation officer and rested his case.

Additionally, both parties stipulated to the filing of ex parte briefs to the court. These briefs were subsequently filed in open court.

The jury found Brecht guilty of first degree murder by use of a dangerous weapon. He was sentenced to life in prison with penalty enhancement for use of a dangerous weapon and for being a repeat offender. Brecht appealed the judgment of conviction.

The court of appeals reversed the conviction on the grounds that the State's references to Brecht's silence impermissibly infringed Brecht's right to silence and to a fair trial, and that such references were prejudicial. The court further concluded that the circuit court erred in admitting evidence of Brecht's homosexuality and in ruling that the State could cross-examine the probation officer on Brecht's worthless checks conviction.

The State subsequently filed a petition to review with this court, seeking reversal of the court of appeals' decision. The petition was granted on July 29, 1987.

The central question presented on review is whether Brecht's constitutional rights to silence ¹ and to a fair trial were violated by the State's references to his silence. The references at issue include: 1) elicitation of evidence on Brecht's pre-Miranda silence during the State's case-in-chief, 2) references to Brecht's pre-Miranda silence after Brecht elected to testify, and 3) comments on Brecht's post-Miranda silence during the State's cross-examination of Brecht and closing argument. If such references were constitutional error, we must also determine whether the error was harmless beyond a reasonable doubt. Brecht asserts that references to his silence in all three contexts were constitutional error and prejudicial.

We first consider Brecht's claim that the elicitation of evidence on his silence during the State's case-in-chief violated his...