State v. Hoffman

Citation106 Wis.2d 185,316 N.W.2d 143
Decision Date26 January 1982
Docket NumberNo. 80-1224-CR,80-1224-CR
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Barbara G. HOFFMAN, Defendant-Appellant.
CourtCourt of Appeals of Wisconsin

Donald S. Eisenberg, Madison (argued), for defendant-appellant; Morris D. Berman, and Eisenberg, Giesen, Ewers & Hayes, S. C., Madison, on brief.

Thomas J. Balistreri, Asst. Atty. Gen. (argued), for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., on brief.

Before GARTZKE, P. J., and BABLITCH and DYKMAN, JJ.

DYKMAN, Judge.

Harold Berge died of cyanide poisoning on December 22, 1977. Defendant was charged with murdering him. A preliminary hearing was held on February 16, 1978, at which Gerald Davies testified against defendant. Davies died of cyanide poisoning on March 23, 1978. Defendant was subsequently charged with murdering Davies, and the two charges were tried together. Both counts alleged first-degree murder. The jury found defendant guilty of murdering Berge, and not guilty of murdering Davies. Defendant appeals from the judgment of conviction. We affirm.

Gerald Davies testified at a preliminary hearing that defendant called him on December 23, 1977, and asked if he would like to see her. Davies picked her up that evening and they returned to her apartment at about 9:30 p. m. where they both fell asleep watching television. Davies awoke at about 2:00 a. m., and awakened defendant. She told him she had something to talk about and asked him to stay, but slept for another hour. When she again awoke, she told Davies she had found a dead body in her apartment when she returned from work on December 22. 1 The body looked as though it had been beaten. Defendant told Davies that she had moved the body, but it was "too close."

Davies testified that he left defendant's apartment at about 4:00 a. m., got his car, and parked it in the alley behind the apartment. Defendant dragged a body from behind a snowbank in the parking lot. Davies helped her lift it into the back seat of his car. They then drove to the Blackhawk Ski Club, where they placed the body in a snowbank and attempted to conceal it. After returning to her apartment, defendant gave Davies some corn starch and spot remover and suggested that he clean his car and clothing. She also told him it would be better if he tried to forget what happened.

Davies went to the Madison Police Department on December 25, 1977, and related these events to a detective. The body was recovered and determined to be that of Harold Berge. The pathologist who performed the autopsy on Berge formed the initial opinion that he died from blunt force trauma to the head.

In October of 1977, Berge had named Linda Millar (a name occasionally used by defendant) beneficiary of two life insurance policies and had executed a deed creating a joint tenancy between himself and Linda Millar in property that had been in his name alone.

Davies had purchased a $750,000 insurance policy from Transport Life Insurance Company with coverage effective March 12, 1977. Davies' estate was initially made the policy's beneficiary, but he named defendant beneficiary and transferred ownership of the policy to her in May 1977. Premiums on the policy were in excess of $12,000 per year. The first two semi-annual premiums were paid, but the third was not. Transport Life received defendant's personal check for the third premium, but she stopped payment on that check. The policy lapsed about a month before Davies' death.

Davies also had insurance policies from Central Life Assurance Co. that provided coverage totalling $35,000 in case of accidental death. Davies made defendant beneficiary and owner of these policies on March 10, 1978.

A complaint was filed on January 18, 1978, charging defendant with the first-degree murder of Berge. Defendant was bound over after a preliminary hearing.

Gerald Davies was found dead in his bathtub on March 27, 1978. The same pathologist that examined Berge's body concluded that Davies died of cyanide poisoning on the evening of March 25. That conclusion led the pathologist to reconsider the cause of Berge's death. Subsequent tests revealed that Berge had also died of cyanide poisoning. 2

Defendant moved to remand for a second preliminary hearing to determine whether new evidence vitiated the finding that probable cause existed to bind over defendant. In addition to the new information regarding the cause of Berge's death, the motion was based on a letter written by Davies which stated that defendant had nothing to do with Berge's body. 3 The motion to remand was granted. The state subsequently dismissed the complaint against defendant and filed a new complaint charging her with the murders of Berge and Davies.

William Garrott testified at trial that defendant told him she was going to marry a man, take him to Mexico and kill him with botulism in order to collect $750,000 in insurance proceeds. Garrott said he saw a marriage license and a passport on a bulletin board in defendant's apartment. Records were introduced indicating defendant had applied for a marriage license and made an appointment to be married to Davies in April 1977.

Evidence was introduced at trial showing that chemical supplies were mailed at various times from a pharmaceutical firm to Davies at his and defendant's addresses. Those supplies could be used to grow the organism that causes botulism, as well as a variety of other bacteria. The supplies also included potassium cyanide, which was delivered to Davies at his address on May 16, 1977. The cyanide was purchased with Davies' check.

Defendant's father testified that he arrived at defendant's apartment in the early evening of December 22, 1977, and stayed with her until they left for Illinois on the morning of December 24. Defendant's parents both testified they were with defendant at her apartment from noon on March 25, 1978 to about 6:00 p. m. on March 26. Defendant's mother testified that they went to sleep at about 10:00 or 11:00 p. m. on March 25, that she heard no talking, and that nothing disturbed her sleep although she is a light sleeper. Telephone records indicated that three long distance calls were made from defendant's apartment after midnight on March 26.

Defendant raises the following issues on appeal:

1. Should the complaint have been dismissed: (a) for lack of new evidence to recharge defendant with Berge's murder; (b) for lack of probable cause; (c) because it was supported by untrue allegations?

2. Was a John Doe proceeding abused?

3. Should the two counts have been severed before trial?

4. Did the production of bank records at trial violate the fourth amendment of the United States Constitution and deny defendant her right of discovery?

5. Was defendant's cross-examination of Garrott improperly restricted?

6. Did the state commit prejudicial error in its closing argument by: (a) misstating the evidence; (b) using defendant's phone bill for an impermissible purpose; (c) arguing from defendant's phone bill despite its failure to provide her with reciprocal discovery after receiving her notice of alibi; (d) commenting on the pretrial silence of her parents?

I. Motions to Dismiss Complaint
A. Reissuance of complaint

After the true cause of Berge's death was discovered and Davies' letter was received by defendant's attorney, defendant moved to remand for a new preliminary hearing to determine whether there was still probable cause for a bindover. Judge Jones ruled that probable cause for a bindover was shown at the preliminary, and that the new evidence did not affect the validity of that determination. 4 He held, however, that defendant was entitled to notice of the means, manner, or circumstances of the killing during the preliminary stages of the case. Judge Jones believed that defendant had no notice of the cause of Berge's death that the state would attempt to prove, and that such lack of notice deprived the court of personal jurisdiction. He held that the error could be cured upon remand for a new preliminary hearing, and remanded the case for that purpose.

The state subsequently dismissed its complaint against defendant, and issued a new complaint on the same day charging her with the murders of Berge and Davies. The true cause of Berge's death was alleged in the new complaint.

Defendant contends that recharging her her was improper without bringing forth new or unused evidence that would tend to establish her guilt. Assuming Judge Jones' ruling concerning jurisdiction to be correct, we conclude the state was not required to bring forth additional evidence in order to recharge defendant. 5

Section 970.04, Stats., states: "If a preliminary examination has been had and the defendant has been discharged, the district attorney may file another complaint if he has or discovers additional evidence." This statute forbids reissuance of a complaint if the evidence presented at a preliminary hearing was insufficient, unless the state comes forward with new or previously unused evidence. Wittke v. State ex rel. Smith, 80 Wis.2d 332, 340, 259 N.W.2d 515, 518 (1977); State v. Antes, 74 Wis.2d 317, 323, 246 N.W.2d 671, 674 (1976). Those cases do not address the situation in which dismissal is pursuant to the state's motion after probable cause was established at the preliminary hearing.

The policy underlying the rule of Wittke and Antes militates against its extension to the facts of this case. That policy is one which favors finality of judicial decisions and conservation of judicial resources, while protecting an individual from being "twice vexed for the same cause." Thus, where "the existence of probable cause has been fully litigated (and) proceedings have culminated in a final order of dismissal," the state should not be permitted a second kick at the cat unless there is "additional evidence to support a different result." Wittke, 80 Wis.2d at...

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