State v. Rutchik

• Decision Date: 04 January 1984
• Docket Number: No. 81-2352-CR,81-2352-CR
• Citation: 116 Wis.2d 61,341 N.W.2d 639
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Thomas John RUTCHIK, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 639

341 N.W.2d 639

116 Wis.2d 61

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Thomas John RUTCHIK, Defendant-Appellant.

No. 81-2352-CR.

Supreme Court of Wisconsin.

Argued Sept. 9, 1983.

Decided Jan. 4, 1984.

David J. Becker, Asst. Atty. Gen., argued, for plaintiff-respondent-petitioner; Bronson C. La Follette, Atty. Gen., on briefs.

Steven P. Weiss, Asst. State Public Defender, for defendant-appellant.

DAY, Justice.

This is a review of a decision of the court of appeals, 109 Wis.2d 696, 327 N.W.2d 722, reversing a judgment of the circuit court for Kenosha County, Hon. Michael S Fisher, circuit judge, convicting Thomas J. Rutchik of burglary under section 943.10(1)(a), Stats. 1979-80. ¹ Three issues are raised in this review: (1) Did the trial court err in admitting evidence of the nature of defendant's prior convictions? (2) Did the trial court's rulings on admission of other crimes evidence mislead the defendant and his counsel and thereby deny him effective assistance of counsel? and (3) Did the trial court err in sending a written transcript of a statement made by a prosecution witness to the jury? We conclude that evidence of defendant's previous convictions was properly admitted, and that the court's rulings on the matter did not deny the defendant effective assistance of counsel. We also conclude that the error, if any, in sending the transcript to the jury was harmless. We therefore reverse the decision of the court of appeals and reinstate the judgment of conviction.

At about 9:00 p.m. on the evening of February 28, 1981, Mr. and Mrs. George Foley returned home from attending funeral home visitation for Mrs. Foley's deceased sister, Marie Terrill. They were accompanied by two adult children, Mary Wynn and Robert Foley. Upon entering the house, Mrs. Wynn discovered that the front door was ajar and jewelry boxes were scattered about the floor of an upstairs bedroom. Mrs. Foley later determined that two of her necklaces were missing.

Meanwhile Robert Foley had gone around to a side door of the house with his brother-in-law when he noticed someone standing in the back yard. He ran toward the person, he later identified as the defendant, who fled down an alley. Robert Foley gave chase and caught up with the defendant after defendant had gotten into his car. Robert Foley asked the defendant what he had been doing in the Foley's back yard. The defendant responded that he was looking for his brother. Robert Foley took down the car's license number as it drove away. The car was registered in the name of defendant's father.

The defendant was arrested the next day and charged with burglary. At that time the defendant made a statement to the police in which he denied ever being in the alley or the Foley's yard. He was tried and convicted by a jury in the circuit court for Kenosha county on July 29, 1981. On August 20th, the court entered judgment on the verdict and sentenced the defendant to an indeterminate term not to exceed eight years in prison.

The first issue is whether the trial court properly admitted evidence concerning the nature of defendant's prior convictions.

In a pretrial motion in limine, the defendant requested a ruling to prohibit the state from raising the matter of defendant's prior criminal activity. The motion was apparently motivated by a statement in the complaint that the defendant had been convicted in 1978 of burglarizing a house left temporarily vacant while the occupants were attending a funeral. The complaint also recited a statement a friend of the defendant made to police at the time of defendant's arrest in 1978 in which she told police that the defendant told her he knew the house would be empty from having read an obituary in the newspaper.

The court granted the motion to prohibit other crimes evidence insofar as it related to the prosecution's case in chief. The court expressly stated, however, that "if something is brought up in the defendant's case which would permit testimony concerning other crimes, the court would not bar the state. But on the state's direct case, it would appear there would be no necessity to comment on or offer testimony in regard to other crimes." The prosecution complied with the court's ruling and introduced no evidence of prior convictions in its case in chief.

The defendant testified in his own behalf. After he had been called but before he testified, the court summoned both counsel to the bench and conducted a hearing out of the presence of the jury. The purpose of the hearing was to inquire into the number of the defendant's prior convictions. Having determined that the correct number was seven, the court instructed the defendant as follows:

"You understand, Mr. Rutchik, that if you are asked the question in regard to have you ever been convicted of a crime, and you answer yes, and you're then asked how many and you answer what has been determined to be the correct number, that being seven, at least in that instance there will be no further questions asked of you concerning the nature of the crimes, etc.; that if you do not answer truthfully, then counsel has the right to delve more deeply into the nature of the crimes and when you were convicted. Do you understand that?" (Emphasis added.)

In his testimony on direct examination, the defendant admitted having been in the Foley's back yard on the evening of February 25th. He said that the reason he lied in his statement to police was because he was afraid of being "pinned" with the burglary because of his past and his reputation in the community. On the witness stand he denied having committed the burglary. He said he was in the area to visit his brother who lived nearby. He had been to his brother's house but no one was home. As he was walking back to his car, he heard people shouting. He stepped into the Foley's back yard to see what the disturbance was about and saw someone run through the yard. The defendant then ran down the alley and got into his car when Robert Foley ran up and questioned him.

In its cross-examination, the prosecution immediately inquired into the nature and circumstances of the defendant's prior convictions. Counsel for the defendant objected. A hearing was held in which the State requested permission to elicit prior convictions evidence under section 904.04(2), Stats. 1979-80. In particular, the prosecutor wished to examine the witness regarding the 1978 burglary mentioned in the complaint. After hearing arguments on both sides, the court agreed to allow the questions stating:

"Well, I think there's some validity to the state's position in regard to the one particular offense. The Court does have some reluctance in this regard because the Court does not feel that a person should be convicted of one offense solely on the basis of what he may have done in the past.

"This whole area was brought up, unfortunately, in the defendant's testimony in regard to how he was thought of in the community and all of the problems he's had because of his past. And the Court will permit counsel to go into the one crime in particular and to, if necessary, get into questions concerning whether or not he previously got himself involved in criminal activities to support a drug habit."

Section 904.04(2), Stats., which governs the use of evidence of prior misdeeds states:

"Character evidence not admissible to prove conduct; exceptions; other crimes .... (2) OTHER CRIMES, WRONGS OR ACTS. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. This subsection does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

The general rule is one of exclusion; the jury is not permitted to convict someone based on the inference that if he broke the law once he is likely to do so again. However, other crimes evidence is admissible when offered for some purpose other than to prove the general criminal disposition of the accused. If the evidence of the defendant's prior burglaries is to be allowed in this case, it must be shown that it is relevant to one or more of the named purposes. Additionally, the probative value of the other crimes evidence must not be substantially outweighed by the danger of undue prejudice. Whitty v. State, 34 Wis.2d 278, 149 N.W.2d 557, cert. denied, 390 U.S. 959, 88 S.Ct. 1056, 19 L.Ed.2d 1155 (1967). The probative value of other crimes evidence "depends in part upon its nearness in time, place and circumstances to the alleged crime or element sought to be proved." Whitty, 34 Wis.2d at 294, 149 N.W.2d 537.

We conclude that the evidence of the prior crime established a definite method of operation and was therefore admissible to show preparation, plan, identity and intent. The defendant opened the door to other crimes evidence when he placed his intent in issue with his testimony that his presence in Foley's back yard on the evening of February 25th was coincidental and innocent. ² The state attempted to rebut that claim by introducing evidence that the defendant knew from having read the obituaries in the newspaper the Foleys would be away that evening, and that he had previously burglarized a house while the residents were at a funeral.

The defendant admitted that in 1978 he told a friend that he had read the obituary column and then gone to the residence and committed a burglary. The state adduced evidence that the defendant did the same thing in this case. In its case in chief, the prosecution had called Jeffrey Yorton, an inmate with the defendant at the county jail. Yorton testified that the defendant told him he decided to go to the Foleys because he had been "paging through the obituaries and saw that this [the Foley's house] was near his brother's house, or something in that order, but it was out of the...