State v. Cole
| Decision Date | 06 November 1991 |
| Docket Number | No. 90-2778-CR,90-2778-CR |
| Citation | 165 Wis.2d 511,478 N.W.2d 595 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. Stanley COLE, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Appeal from a judgment of the circuit court for Racine county: Dennis J. Barry, Judge.
Circuit Court, Racine County
REVERSED AND REMANDED.
Before NEAL NETTESHEIM, P.J., and BROWN and ANDERSON, JJ.
Stanley Cole appeals from a judgment of conviction for first-degree homicide. 1 We conclude that the real controversy was not fully tried because relevant and admissible evidence on the critical issue of credibility was unavailable to Cole or to the state until after trial, and Cole was unable to obtain the attendance of a witness who conceivably could corroborate exculpatory testimony. Therefore, in the exercise of our discretionary powers we reverse the conviction and remand for a new trial in the interest of justice.
During the late evening hours of May 31, 1988, several individuals confronted Dana Bostick on a street in Racine. Bostick was shot twice in the back by two different guns. A sixteen-month police investigation disclosed that four different guns were involved. The district attorney ultimately filed a criminal complaint in October of 1989, charging Keith Betts, Norzell Pittman, Reginald Pittman and Stanley Cole as parties to first-degree intentional homicide by use of a dangerous weapon. 2
Cole entered a plea of not guilty. On March 15, 1990, after a four-day jury trial, Cole was convicted of being a party to the crime of first-degree intentional homicide by use of a dangerous weapon. During the trial, the trial court denied Cole's motion to adjourn to obtain the attendance of a witness. Cole claimed that this witness possibly would corroborate testimony that Cole did not participate in the shooting of Bostick.
Before sentencing, Cole filed two motions for a new trial pursuant to sec. 974.02(1), Stats. The first motion sought a new trial on the grounds of newly discovered evidence. At trial there was testimony that Javail Winston did not receive any special consideration for his testimony for the state. The alleged newly discovered evidence was a letter to Winston written by Investigator Jon Soderberg of the City of Racine Police Department promising special consideration in exchange for Winston's testimony. This letter did not come to the notice of the Racine County District Attorney's office until after Cole's trial. The district attorney promptly turned the letter over to Cole's trial counsel. The trial court denied the motion, finding that there was not a reasonable probability that there would be a different result after a second trial.
The second motion for a new trial alleged lack of juror candor during voir dire which denied Cole his constitutional right to an impartial jury. 3 After denying Cole's motions for a new trial, the court sentenced Cole to life imprisonment plus twelve years.
In this appeal, Cole asserts that the trial court erred in not granting his motions for a new trial and in denying his request for an adjournment during the trial to attempt to obtain the attendance of a witness. The exercise of our discretionary power of reversal compels us to reverse Cole's conviction and remand for a new trial.
We also conclude that the veracity and credibility of each witness were major factors in the determination of Cole's guilt or innocence. The jury was unable to assess the veracity and credibility of Soderberg and Winston because it did not have the evidence of the special consideration promised to Winston by Soderberg. In addition, the jury did not hear the testimony of a possibly corroborating witness. Because veracity and credibility were major issues and a criminal trial is a search for the truth, we hold that the real controversy was not fully tried. Therefore, we hold that Cole is entitled to a new trial in the interest of justice.
During Cole's trial the jury heard several different versions of what occurred when Bostick was shot. In addition, the jury heard most of the fact witnesses impeached with prior inconsistent statements given either during the police investigation or at the John Doe investigation. It is necessary to relate the trial testimony in some detail to show why we have concluded that the veracity and credibility of the witnesses were major issues in the trial.
The state's first two major witnesses were Reginald Pittman and his younger brother Norzell Pittman. Both Reginald and Norzell were convicted and sentenced for their involvement in the death of Bostick. They testified that neither Cole nor Betts was present. Reginald testified that although he never told anyone what happened, his girlfriend, Robin Hamilton, had come to learn about the Bostick shooting.
Hamilton is the possible witness who was the catalyst for Cole's request for an adjournment. On the last day of trial, Cole's counsel moved for an adjournment to give him time to locate Hamilton. In support of the motion, counsel presented an offer of proof by calling Officer David Boldus. Officer Boldus testified that he had a sworn statement, part of which set forth a conversation in which Hamilton purportedly said Reginald Pittman and Derrick Brown shot Bostick as he ran away after an argument. Hamilton said she knew about the shooting because of comments made by Reginald. The trial court denied the motion for a continuance because there was no probability that Hamilton could be located in a reasonable time.
Another witness was Iran Jennings who was Cole's girlfriend for four years. Jennings testified that on the day of the shooting she had a party at her home and Cole had been at the party all day and could not have been involved in the shooting.
To impeach Jennings' testimony the state called Patrolman Daniel Small who stated that Jennings approached him after a fight with Cole and wanted to make a statement. This statement implicated Cole in the shooting of Bostick. During her testimony Jennings denied making any statement to Small. The state also impeached Jennings with her John Doe testimony.
Tyrone Thompson was the next witness called by the state; he was a reluctant witness because he feared for his personal safety in prison. He was at the scene of the shooting. During questioning at the scene by Investigator Herbert Nikolai, Thompson denied any knowledge of what happened. Thompson testified that he had told Soderberg that he saw Norzell Pittman pull out a gun and point it at Bostick and that he had heard gunshots, but he denied that he ever told Soderberg that Cole was in the area.
Soderberg was recalled to the stand in response to this testimony. He related a statement in which Thompson said that Thompson had seen Cole, Norzell, Reginald, Betts and an individual known as Marlo arguing with Bostick. Thompson said he saw Norzell pull a gun and shoot Bostick, and as Bostick ran from the area Thompson heard more shots. The state also impeached Thompson with his John Doe testimony.
The next witness called by the state was Javail Winston. Winston testified that on July 4, 1989, at Fox Lake Correctional Institution, he overheard Norzell Pittman bragging about the Bostick shooting. Winston's testimony was that Norzell said he had argued with Bostick along with his brother Reginald, KB, Keith Betts, Stan and two individuals known as Marlo and Kango. Norzell bragged that Bostick broke away, someone fired a shot at him, and then everyone started shooting. Winston testified that he did not know that the "Stan" Norzell referred to was Stanley Cole until Winston was brought to Racine to testify.
On cross-examination, Winston denied he told Soderberg that Cole was not with those who were shooting. Recalled by Cole, Soderberg testified that his report of the interview with Winston did not contain any statement that Cole was among those who shot at Bostick. A defense investigator also impeached Winston's testimony when he testified that Winston had confirmed that statement was correct and Cole had not shot at Bostick.
Although Winston was in prison at the time of the shooting, he volunteered to give information to Officer Small. Soderberg interviewed Winston on August 23, 1989. At the start of the interview Winston requested a reward for providing information. Cole's attorney questioned Soderberg about Winston's request. Soderberg replied:
Prior to conducting the interview with Mr. Winston, realizing that he's an inmate in the prison system, before Mr. Winston said anything, I told him that under no circumstances could I give him consideration, write him a favorable letter or even guarantee that the information he gave me would be considered confidential. If he wished to make a statement about what an individual told him, then he was placing this information out freely, without any expectation of anything in return and that as a result of that he could receive--how can I say this--trouble in prison from other inmates and he would be willing, if he would be willing to make that statement, he would have it [sic] to give it under those circumstances.
Soderberg testified that Winston asked a second time if he would be given any special consideration. Soderberg replied that it was "not my responsibility to give consideration, that I would approach the District Attorney's Office and they would make any determination." When asked if he was aware of any consideration or any promises made to Winston in exchange for his testimony, Soderberg's response was "No." When quizzed about any promises, Winston answered that neither Soderberg or anyone from the district attorney's office made any promises to get his testimony.
The final witness called by the state ...
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