State v. Kimpel

• Decision Date: 19 December 1989
• Docket Number: No. 89-0790,89-0790
• Citation: 451 N.W.2d 790,153 Wis.2d 697
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Thomas E. KIMPEL, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 790

451 N.W.2d 790

153 Wis.2d 697

STATE of Wisconsin, Plaintiff-Respondent, v. Thomas E. KIMPEL, Defendant-Appellant.

No. 89-0790.

Court of Appeals of Wisconsin.

Submitted on briefs Oct. 17, 1989.

Opinion Released Dec. 19, 1989.

Opinion Filed Dec. 19, 1989.

John D. Hanson and Van Metre, Hanson & Meyer, on the briefs, Madison, for defendant-appellant.

Donald J. Hanaway, Atty. Gen., and Daniel J. O'Brien, Asst. Atty. Gen., on the brief, Madison, for plaintiff-respondent.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

LaROCQUE, Judge.

Thomas Kimpel appeals an order denying his motion for a new trial under sec. 974.06, Stats., on grounds of newly-discovered evidence. The issues are whether the evidence is material and whether it is reasonably probable that a different result would be reached on a new trial, two of five prerequisites to a grant of a new trial based on newly-discovered evidence. State v. Boyce, 75 Wis.2d 452, 457, 249 N.W.2d 758, 760 (1977). Even if the new evidence were material and admissible, it is not reasonably probable that a different result would be reached. Accordingly, we affirm the trial court's denial of a new trial.

Kimpel was charged with attempted first-degree murder, and injury by conduct regardless of life with use of a weapon for his involvement in the March 24, 1984, stabbing of Earl Greely. ¹ At the preliminary hearing, Greely testified to his version of the events. He did not testify at the trial because on July 16, 1984, he was found dead in Superior. At the time of Kimpel's trial, no one had been charged in Greely's death.

At his trial, Kimpel did not testify, but he presented a claim of self-defense through the testimony of a police detective to whom he had given a statement. Kimpel claimed that he met Greely in a bar and Greely indicated that he would sell him some marijuana. They went to Greely's apartment where Greely made violent, homosexual advances toward him with a knife. Greely stabbed him in the groin area. During the struggle that ensued, Kimpel was able to get the knife away from Greely and then he stabbed Greely in self-defense. Despite Kimpel's self-defense claim, the jury found him guilty of all the charges.

Several years later, Charles Davis stood trial for Greely's murder. Davis claimed that he acted only in self-defense after he was violently, homosexually attacked by Greely. He testified that he met Greely outside a bar in Superior and that Greely asked him if he wanted to smoke some marijuana with him. They went to a shed nearby, and Greely told him to take down his pants. When Davis refused, Greely attacked him with a knife. During the struggle for the knife that followed, Davis stabbed Greely. It is Davis' testimony upon which Kimpel bases his motion for a new trial.

The trial court held that this testimony would be admissible under sec. 904.04(1)(b), Stats. ² The court, however, denied the motion for a new trial because it was not reasonably probable that a different result would be reached on retrial. It concluded that the evidence would merely impeach the credibility of a witness, which is not, by itself, a basis for a new trial. Simos v. State, 53 Wis.2d 493, 499, 192 N.W.2d 877, 880 (1972).

Kimpel argues that the trial court erred by failing to analyze the new evidence under sec. 904.04(2), Stats. ³ He asserts that Davis' testimony concerning a subsequent violent, homosexual act by Greely would be admissible as proof of Greely's motive, intent, opportunity, plan, and identity. As such, it would be substantially more than impeachment evidence, therefore satisfying the Boyce factor that it be reasonably probable that a different result be reached upon retrial.

Section 974.06, Stats., allows postconviction relief after the time for appeal has expired only if constitutional or jurisdictional issues are raised. State v. Nicholson, 148 Wis.2d 353, 360, 435 N.W.2d 298, 301 (Ct.App.1988). This court has held that due process may require a new trial under sec. 974.06 if new evidence is discovered. State v. Bembenek, 140 Wis.2d 248, 252, 409 N.W.2d 432, 434 (Ct.App.1987). However, in order to prevail, the evidence must meet the conditions as set out in Boyce:

(1) The evidence must have come to the moving party's knowledge after a trial; (2) the moving party must not have been negligent in seeking to discover it; (3) the evidence must be material to the issue; (4) the testimony must not be merely cumulative to the testimony which was introduced at trial; and (5) it must be reasonably probable that a different result would be reached on a new trial.

Bembenek, 140 Wis.2d at 252, 409 N.W.2d at 434 (quoting Boyce, 75 Wis.2d at 457, 249 N.W.2d at 760). ⁴

The decision whether to grant a new trial on grounds of newly-discovered evidence is normally a discretionary decision of the trial court. Boyce, 75 Wis.2d at 457, 249 N.W.2d at 760. However, whether due process requires a new trial because of newly-discovered evidence is a constitutional question subject to independent review in this court. Bembenek, 140 Wis.2d at 252, 409 N.W.2d at 434.

Use of other crimes, wrongs or acts evidence to prove that a person acted in conformity with his character on a particular occasion is generally excluded. Sec. 904.04(2), Stats. This "character rule" is universally established, and the evidence is "objectionable, not because it has no appreciable probative value, but because it has too much." Whitty v. State, 34 Wis.2d 278, 291-92, 149 N.W.2d 557, 563 (1967). Nevertheless, exceptions to the rule are found throughout the evidence code and are the source of considerable discussion and disagreement.

Section 906.09, Stats., although aimed at credibility and not character, permits limited admissibility of a prior criminal record of a witness. Witnesses also may be impeached 121 Mich.App. 704 under limmited circumstances by inquiry into specific instances of other conduct. Sec. 906.08(2), Stats. ⁵ In State v. Sonnenberg, 117 Wis.2d 159, 344 N.W.2d 95 (1984), four justices agreed that the impeachment provisions of sec. 906.08(2) limit the inquiry about other conduct to the cross-examination of the witness himself, while three concurring justices suggest that extrinsic evidence ought to be allowed, even on a collateral issue, if the conduct is sufficiently similar to the offense charged. In light of Greely's death, and the majority view in Sonnenberg, sec. 906.08(2) would not come into play upon a retrial.

Most debate surrounding other-wrongs evidence centers upon the provisions of sec. 904.04(2), Stats., providing an exception to the character rule if the evidence is offered for purposes "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." It is this provision upon which Kimpel relies. We first note that sec. 904.04(2) is applicable to prove something about a person other than a defendant. In State v. Oberlander, 149 Wis.2d 132, 144, 438 N.W.2d 580, 585 (1989), the supreme court declined to rule on an unpublished holding of the court of appeals that the use of evidence under this section is applicable to witnesses other than the defendant. We also note, however, that State v. Balistreri, 106 Wis.2d 741, 317 N.W.2d 493 (1982), tacitly accepted the broader view of the statute espoused by the court of appeals in Oberlander. In Balistreri, the supreme court reviewed as a matter of trial court discretion the exclusion of sec. 904.04(2) other-wrongs evidence by a witness other than a defendant. Id. at 757, 317 N.W.2d at 501. Finally, sec. 904.04(1) carefully distributes its application to a "person," "victim," "witness," or an "accused." Subsection (2) is applicable to any "person." We therefore conclude that other-wrongs evidence is not limited solely to a defendant's acts.

A determination whether other-wrongs evidence is admissible is a two-step process. State v. Friedrich, 135 Wis.2d 1, 19, 398 N.W.2d 763, 771 (1987). First, the trial court must find that the evidence fits within an exception of sec. 904.04(2), Stats. Second, the trial court must exercise its discretion to determine whether any prejudice resulting from the other crimes evidence outweighs its probative value. Id.; sec. 904.03, Stats. Implicit in this analysis is the requirement that the other-wrongs evidence is relevant to an issue in the case. Friedrich, 135 Wis.2d at 19, 398 N.W.2d at 771.

The trial court here had no occasion to apply this two-step analysis, since it ruled that Davis' testimony would be admissible under sec. 904.04(1)(b), Stats. Werner v. State, 66 Wis.2d 736, 226 N.W.2d 402 (1975), conflicts with the trial court's view of admissibility. Although Werner's trial apparently occurred prior to the current evidence code, the trial court rejected the...