State v. Stomner
| Decision Date | 20 August 1987 |
| Citation | 414 N.W.2d 318,141 Wis.2d 973 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.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. JAMES STOMNER, Defendant-Appellant. 86-0300-CR. |
| Court | Wisconsin Court of Appeals |
Circuit Court, Dane County
Affirmed
Appeal from a judgment of the circuit court for Dane county: Mark A. Frankel, Judge.
Before GARTZKE, P.J., DYKMAN, J., and SUNDBY, J.
James Stomner appeals from a judgment of conviction of first-degree murder, party to the crime, secs. 939.05 and 940.01, Stats. On October 14, 1983 Joseph Hecht murdered Caroline Hudson, the ex-wife of Richard Wheeler. Hecht pleaded guilty to first-degree murder. Stomner and Wheeler were jointly tried on first-degree murder charges. Wheeler testified that he had complained to Stomner regarding his problems with his ex-wife, that Stomner put him in touch with Hecht and that Wheeler had not intended that Hudson be killed. Stomner denied he made any arrangement between Wheeler and Hecht. The jury returned guilty verdicts against both defendants.
The issues are: (1) whether Stomner's trial should have been severed from Wheeler's; (2) whether the trial court should have allowed Stomner (a) to show that the state had offered to dismiss the charge against him and (b) to present psychiatric evidence regarding Hecht's personality disorders; (3) whether the court properly allowed the state to cross-examine Stomner regarding other crimes or misconduct; (4) whether prosecutorial misconduct requires a new trial; (5) whether the court ought not have allowed the state to impeach appellant by extrinsic evidence on a collateral matter; (6) whether the evidence supports a finding of Stomner's guilt; and (7) whether the trial court should have submitted alternative verdicts on second-degree murder. We decide each issue against Stomner's position and therefore affirm.
Stomner asserts he was prejudiced by being tried jointly with Wheeler. Stomner claimed he was not involved in and was unaware of a conspiracy to kill Hudson. Wheeler claimed he, Stomner and Hecht had conspired only to scare Hudson and not to kill her, and that the killing was not the natural and probable result. Stomner contends that the two defenses were antangonistic: that to believe Wheeler's version, the jury was forced to disbelieve Stomner's claim that he had no knowledge of the conspiracy.
Stomner filed a pretrial motion for severance. At that time Wheeler's counsel informed the court that if a joint trial were held, Wheeler would not testify. When he moved for severance, Stomner's counsel was unable specifically to state how the defenses would be antagonistic. The trial court denied the motion.
Stomner's counsel asserts that it was not until Wheeler's counsel gave his opening statement at the close of the state's case that Stomner knew of Wheeler's defense and that the defenses of Stomner and of Wheeler were antagonistic. The trial court again denied the motion to sever, on grounds that although the defenses were inconsistent, Wheeler had not really pointed the finger of guilt at Stomner. In the trial court's view, if the jury believed everything Wheeler's counsel asserted in his opening statement, then the jury would have to acquit not only Wheeler but Stomner. Further, Stomner would be faced with essentially the same evidence at a separate trial as he would at a consolidated trial, and the only advantage Stomner would gain would be one less defense counsel.
Section 971.12(3), Stats., provides that if a defendant is prejudiced by a joint trial with a codefendant, the trial court may grant a severance. Whether to grant a severance is within the trial court's discretion, and we review its ruling for abuse. Haldane v. State, 85 Wis.2d 182, 189, 270 N.W.2d 75, 78 (1978). Consolidation facilitates the speedy administration of justice. Id. If, however, a joint trial would be unduly prejudicial to a codefendant, efficiency must yield to due process. This is true when the codefendants intend to advance antagonistic defenses. Id. It is also true when the antagonism manifests itself during a trial. United States v. Johnson, 478 F.id 1129, 1134 (5th Cir. 1973).
The Wisconsin Supreme Court has been slow to find grounds for reversal based upon the claim that antagonistic defenses were asserted. Haldane, 85 Wis.2d at 190, 270 N.W.2d at 79. This is due partly to a strict application of the antagnoistic defense doctrine. The Haldane court said that defenses are antagonistic when a jury is 'forced to convict' a defendant, and examined the facts to determine whether antagonism existed 'to the point of mutual exclusion.' Haldane, 85 Wis.2d at 192-93, 270 N.W.2d at 80. The court determined that was 'logically necessary' in view of the conflicting testimony. Id. at 193, 270 N.W.2d at 80.
In view of the Haldane decision, we need not look elsewhere for an understanding of the degree to which antagonism must exist. We note, however, that the United States Court of Appeals for the Seventh Circuit agrees with the Haldane court.
This circuit has a well-established standard for determining when the claim of 'mutually antagonistic' defenses will mandate a severance. Such 'mutual antagonism' only exists where the acceptance of one party's defense will preclude the acquittal of the other. United States v. Kahn, 381 F.2d 824, 841 (7th Cir.), cert. denied, 389 U.S. 1015, 88 S.Ct. 591, 19 L.Ed.2d 661 (1967). See also United States v. McPartlin, 595 F.2d 1321, 1333, 1334 (7th Cir. 1979).
United States v. Ziperstein, 601 F.2d 281, 285 (7th Cir. 1979).
Because severance is discretionary, Haldane, 85 Wis.2d at 189, 270 N.W.2d at 78, our review is limited to whether the trial court exercised its discretion on the basis of facts of record, employed a logical rationale and a proper standard of law, and reached a conclusion a reasonable judge could reach. Loy v. Burderson, 107 Wis.2d 400, 414-15, 320 N.W.2d 175, 184 (1982). Here the critical elements are the trial court's rationale and rule of law. We conclude that both were sound.
We begin our analysis with the charges against Stomner and Wheeler. Each was charged with first-degree murder, sec. 940.91, Stats., party to the crime, sec. 939.05, Stats. The state's theory is that even though Stomner and Wheeler did not directly murder Hudson, each was a party to a conspiracy to commit a crime. Under sec. 939.05(2)(c) a party who conspires with another to commit a crime is concerned with the commission of that crime and 'is also concerned in the commission of any other crime which is committed in pursuance of the intended crime and which under the circumstances is a natural and probable consequence of the intended crime.' A person concerned in the commission of a crime may be charged and convicted of the commission of the crime although he did not directly commit it. Sec. 939.05(1).
The jury instructions followed sec. 939.05(2)(c), Stats. The jury was told that if two or more persons conspire to commit a crime, each is criminally responsible for the acts of his or her associates committed in the prosecution of the common design, the act of one of the conspirators being the act of each and all of them 'if such act follows incidentally and naturally in the execution of the common design as one of its natural and probable consequences, even though it was not intended as a part of the original design or common plan.'
To establish a right to severance, it is not enough for Stomner to show that his defense is antagonistic to Wheeler's with respect to the conspiracy. Conspiracy to commit a crime may, in and of itself, be a crime, if one or more of the parties to the conspiracy does an act to effect its object. Sec. 939.31, Stats. But neither Stomner nor Wheeler was charged with the crime of conspiracy. Each was charged with murder.
The question is whether the jury was forced to convict Stomner of murder if the jury believed Wheeler's defense. Haldane, 85 Wis.2d at 192, 270 N.W.2d at 80. This is not the case. The jury could have concluded that, just as Wheeler testified, Stomner put Wheeler in touch with Hecht, and Wheeler hired Hecht only to scare or harm Hudson. In that event the jurors had to determine whether murder was a natural and probable consequence of the crime intended by Wheeler and Stomner. The jurors could have concluded that murder was not such a result and could have acquitted both defendants.
Accordingly, because acceptance of Wheeler's defense did not prevent the jury from acquitting Stomner, the antagnoistic defense doctrine did not require the trial court to sever the trials. The court's refusal to sever the trials was not an abuse of discretion.
The trial court ruled that Stomner's counsel could not ask Detective Grann whether Grann, another detective and the deputy district attorney had made an offer to Stomner which he did not accept. According to Stomner, the offer was to dismiss the charges against him if he testified to a link or connection between Hecht and Wheeler. Stomner argued that the jury should have this information. The jurors could infer from it that Stomner was truthful when he declined the offer, since had Stomner been able to provide the link, he would have been a fool not to do so.
The trial court reasoned that Stomner sought evidence from Grann that Stomner had made a prior consistent statement. The court held that evidence of the prior consistent statement was inadmissible hearsay in the absence of a claim of recent fabrication. The court further concluded that the evidence was inadmissible under sec. 904.10, Stats., because it was evidence of a plea bargain.
Because evidentiary rulings are discretionary, once again our review is limited to whether abuse occurred. State v. Pharr, ...
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Stomner v. Kolb
...evidentiary rulings. The Wisconsin appellate court held that the trial court had not abused its discretion. State v. Stomner, 141 Wis.2d 973, 414 N.W.2d 318 (Wis.Ct.App.1987). The Wisconsin Supreme Court denied Stomner's petition for review. State v. Stomner, 142 Wis.2d 949, 417 N.W.2d 896 ......