Drenning v. State, 1980 Wisc. App. LEXIS 3721 (WI Ct. App. 4 1980)

Drenning v. State, 1980 Wisc. App. LEXIS 3721 (WI Ct. App. 4 1980)

Court of Appeals of Wisconsin, District Four

May 23, 1980

Nos. 78-938-CR & 78-939-CR

1980 Wisc. App. LEXIS 3721 | 97 Wis. 2d 753 | 295 N.W.2d 225

STEVEN EDWARD DRENNING, Plaintiff in Error, v. STATE OF WISCONSIN, Defendant in Error, LARRY GENE SOLLES, Plaintiff in Error, v. STATE OF WISCONSIN, Defendant in Error.

Judges: Before Gartzke, P.J., Dean, J. and Dykman, J.

Opinion by: DYKMAN


DYKMAN, J. Defendants appeal from the judgment of conviction entered August 31, 1976, and the denial of motions for a new trial entered November 9, 1978, on the convictions of second-degree murder, armed robbery, and concealing identity during the commission of a crime contrary to secs. 940.02, 943.32(1)(a) and (2), and 946.62, Stats., respectively.


Steven Edward Drenning, and Larry Gene Solles, defendants, and an accomplice Carol Treuthardt were charged with first-degree murder, armed robbery, and concealing their identity during the commission of a crime, contrary to secs. 940.01(1), 943.32(1)(a) and (2), and 946.62, Stats., respectively. During the Drenning-Solles trial, the state moved to grant Treuthardt immunity in exchange for her testimony. The motion was granted and Treuthardt testified for the state. The charges pending against the two remaining defendants were consolidated for trial.

The charges stemmed from the murder of Frederick “Pat” Anderson, a service station attendant employed at a Clark gasoline station in Janesville, Wisconsin, which occurred at approximately 2:50 a.m., on March 22, 1976.

The state’s theory at trial was that on the evening of the alleged offenses Solles and Treuthardt, who had been living together, met with Drenning, an acquaintance of Solles. With Treuthardt driving Solles’ automobile the three went to the Oasis Restaurant in Janesville before driving to the general vicinity of the Clark service station on Centerway Avenue. The state contended that the defendant Drenning put on a ski mask and shot and killed Frederick Anderson, the service station attendant, while robbing the station. Treuthardt testified that she parked about a block away from the service station, that Drenning got out of the vehicle and asked, “Should I shoot him?” and Solles responded, “Only if you have to,” and that Drenning pulled a ski mask over his head as he left. She also testified that she heard what she thought were two gun shots, after which Drenning returned to the car and said, “Larry, I shot him. I think I killed him. I shot him.” She testified that Drenning handed Solles some money and said, “All I could get is $ 12,” to which Solles replied “Is that all?” Treuthardt further testified that while driving from Janesville, Drenning kept repeating, “I shot him. Larry, I think I killed him.”

The defense theory was that the station attendant’s death was accidental. Drenning testified that he went to the gas station to sell a gun because he had heard street talk that Anderson would be interested in buying the gun. He believed that Anderson held himself out as a former mercenary who had been involved in military activities, had acted as an occasional undercover agent for various governmental agencies, and was known to trade in guns.

Drenning testified that he went into the station and asked Anderson if he wanted to buy the gun for $ 75. While he stood in the doorway, Anderson took the gun into the back room and then returned, telling Drenning he was “nuts” to ask that price. Anderson offered Drenning $ 20. Drenning testified that when he attempted to retrieve the gun, Anderson shoved him toward the door and the gun fired. Drenning testified that he was shocked and stood paralyzed while Anderson jumped back. Drenning said, “Are you all right?” and then Anderson grabbed him by the jacket with the gun between the two of them. Anderson yelled to him, “Get the hell out of here,” indicating he did not want the police to come. As Anderson shoved Drenning toward the door, Drenning fell and the gun dropped toward the floor discharging a second time. He testified that he was not sure if the gun was in his hand when it discharged the second time. Drenning stated that he grabbed the gun and ran because he was scared. Drenning was on probation for a prior conviction and possession of a weapon was a violation of his probation. He further testified that he did not know that Anderson was hit by the second shot.

Drenning testified that he did not know who owned the ski mask and gloves found by police in the car. Solles testified that the gloves were his and the ski mask belonged to Charley Hayes, a friend who used his car frequently.

The state’s evidence showed that Anderson was killed by only a portion or fragment of a bullet which had ricocheted.

Testimony from the State Crime Laboratory showed that the pistol, which was recovered from the Solles’ car later that morning, was a defective.357 single action Magnum revolver. The evidence indicated the gun could be discharged without pulling the trigger if the hammer was in the downward or closed position and was struck from behind by a hard object.

After a five-week trial, the defendants were convicted of second-degree murder, armed robbery and concealing identity and sentenced to 25, 30, and 5 years respectively, to be served consecutively. More extensive facts will be presented throughout the opinion.

On appeal, defendants assert numerous contentions:

(1) The testimony of accomplice Treuthardt is unreliable as a matter of law and absent her testimony there is insufficient evidence to sustain the convictions.

(2) There is insufficient evidence to support a conviction for armed robbery.

(3) The defendants were denied their right to be tried in the county in which the offense occurred.

(4) The trial court erred in submitting the second-degree murder instructions to the jury.

(5) The jury selection process denied the defendants their statutory and constitutional rights.

(6) The court’s jury instruction regarding negligent homicide and conspiracy was erroneous.

(7) The party-to-a-crime statute, sec. 939.05, Stats., is unconstitutional and denied the defendants their right to a unanimous jury verdict as to the particular manner in which a codefendant participated in a crime.

(8) Individual and cumulative acts of prosecutorial misconduct deprived the defendants of their federal and state constitutional rights to due process, fair trial, effective assistance of counsel and jury trial within the meaning of the fifth, sixth and fourteenth amendments of the United States Constitution and art. I, secs. 7 and 8 of the Wisconsin Constitution.

The trial court found against the defendants on all issues raised.

I. Reliability of Accomplice’s Testimony

Defendants contend that the testimony of accomplice Carol Treuthardt was on its face unreliable and incredible as a matter of law. They conclude that absent corroboration by other evidence as to the principle facts the defendants’ convictions cannot stand if they are based upon her testimony.

The Wisconsin Supreme Court has repeatedly held that “the uncorroborated testimony of an accomplice is sufficient if the finder of fact finds the testimony credible,” Kutchera v. State, 69 Wis.2d 534, 549, 230 N.W.2d 750, 758 (1975); Rohl v. State, 65 Wis.2d 683, 223 N.W.2d 567 (1974). This court will not upset a jury’s determination of credibility unless the evidence is inherently or patently incredible. Chapman v. State, 69 Wis.2d 581, 230 N.W.2d 824 (1975); Wildman v. State, 69 Wis.2d 610, 230 N.W.2d 809 (1975); Simos v. State, 53 Wis.2d 493, 192 N.W.2d 877 (1972).

To be incredible as a matter of law, evidence must be “‘… in conflict with the uniform course of nature or with fully established or conceded facts.'” (Footnote omitted.) Chapman v. State, 69 Wis.2d at 583, 230 N.W.2d at 825.

Defendants suggest several reasons for finding Treuthardt’s testimony incredible: (1) She had a motivation to lie because she was granted immunity from prosecution and she grew extremely depressed and lonely while in jail which made her more amenable to a deal; (2) She was highly intoxicated during the events giving rise to the charges; (3) She had a poor memory specifically regarding the incident, and in general; [1] (4) She was easily swayed by suggestion; [2] and, (5) She had refused a deal offered by the district attorney because she stated she knew nothing about the incident. [3]

All of the points raised above were brought out in detail during extensive cross-examination of Treuthardt by defense counsel. These facts were for the jury to weigh in determining the witness’s credibility. Ruiz v. State, 75 Wis.2d 230, 249 N.W.2d 277 (1977).

Treuthardt’s motivation to lie–the offer of immunity and her increased depression — was a factor for the jury to consider in determining her credibility, Ruiz, 75 Wis.2d 230, and does not effect her competency to testify, State ex rel. Kowaleski v. Kubiak, 256 Wis. 518, 521, 41 N.W.2d 605 (1950).

Treuthardt’s intoxication did not render her testimony incredible as a matter of law. As the court stated in Ruiz, 75 Wis.2d at 234, 249 N.W.2d at 280:

Clearly the state of a witness’ sobriety at the time he makes an observation is relevant, and a jury can ignore the testimony of one it believes to have been so intoxicated as to be unreliable, but intoxication per se does not render the testimony of a witness incredible as a matter of law. State v. John, 11 Wis.2d 1, 103 N.W.2d 304 (1960).

In Ruiz, 75 Wis.2d at 235, 249 N.W.2d at 280, the court concluded, “[d]runk or not, Garcia was believed by the jury, and we cannot conclude that there was such evidence of intoxication that it was irresponsible for the jury to give credence to his testimony.”

In John, 11 Wis.2d at 11, 103 N.W.2d at 310, the court stated:

It would serve no purpose to detail his testimony in that respect, since there is nothing in the evidence to prove that his state of drunkenness was such as would have rendered him incapable of recalling the events to which he testified. His credibility and the weight of his testimony were for the jury.

We do not conclude that it would be irresponsible for the jury to give credence to Treuthardt’s testimony. The record does not show that her intoxication rendered her incapable of remembering the events to which she testified. Some of the facts remembered by Treuthardt were corroborated by other testimony.

Her testimony that she heard two shots in the Clark station was corroborated by Drenning, who admitted that his gun discharged twice. Her testimony regarding how she and the defendants spent their day and evening was corroborated by numerous witnesses. Her testimony that Drenning had a ski mask was corroborated by the officer who saw Solles sitting on the mask in the car after stopping the defendants. If the jury found the above evidence credible, it could also find her uncorroborated testimony credible. The effect to be given a witness’s “state of sobriety and the extent to which it may have affected his testimony if he was intoxicated was a matter for the jury.” State v. Powers, 66 Wis.2d 84, 93, 224 N.W.2d 206, 210 (1974).

The jury could find her testimony credible in spite of her inability to remember certain events and the fact that she responded easily to suggestions regarding the incident. The jury was made fully aware of these facts and could consider them in its determination.

Treuthardt’s failure to accept a deal with the district attorney when she was first arrested because she did not remember anything is not proof that she in fact did not remember anything about the incident. Again, these facts were made known to and presumably taken into account by the jury.

Defendants assert that the correct rule for determining whether a witness’s testimony is incredible is stated in a series of sexual assault cases involving uncorroborated testimony of alleged victims of sexual assaults. Syvock v. State, 61 Wis.2d 411, 213 N.W.2d 11 (1973); State v. Crabtree, 237 Wis. 16, 296 N.W. 79 (1941); Ganzel v. State, 185 Wis. 589, 201 N.W. 724 (1925); Donovan v. State, 140 Wis. 570, 122 N.W. 1022 (1909); Wilcox v. The State, 102 Wis. 650, 78 N.W. 763 (1899); O’Boyle v. The State, 100 Wis. 296, 75 N.W. 989 (1898).

In Syvock, 61 Wis.2d at 413-14, 213 N.W.2d at 12-13, the court stated:

A conviction for taking indecent liberties with a child can rest upon the uncorroborated testimony of the minor on the trial. “This court recognizes [however], that utmost restraint must be used in weighing the evidence in a case of this nature because of the great difficulty the defendant faces in defending himself from such a charge and also because there ordinarily are no witnesses other than the parties themselves and that frequently the only possible defense is a direct denial.” This court has said that “[w]here the testimony of the prosecuting witness bears upon its face evidence of its unreliability, to sustain a conviction there should be corroboration by other evidence as to the principal facts relied on to constitute the crime.” (Footnotes ommitted.)

However, in the most recent sexual assault case in which the defendant claimed the victim’s testimony was so unreliable that it was insufficient as a matter of law to sustain a conviction, State v. Clark, 87 Wis.2d 804, 816, 275 N.W.2d 715, 721 (1979), the Wisconsin court stated:

Generally, testimony must be in conflict with nature or fully established or conceded facts to be so “‘inherently or patently incredible'” that this court will substitute its judgment for that of the jury. Wildman v. State, 69 Wis.2d 610, 613, 230 N.W.2d 809 (1975); Champman v. State, 69 Wis.2d 581, 583, 230 N.W.2d 824 (1975). Compare: O’Boyle v. State, 100 Wis. 296, 300, 75 N.W. 989 (1898) (testimony of prosecutrix presents “several physical improbabilities, if not impossibilities”); Donovan v. State, 140 Wis. 570, 220 N.W. 1002 (1909) (testimony “intrinsically improbable and almost incredible”).

It is not clear that there is any need, as suggested by the defendants, to reconcile the two lines of cases. The scrutiny given uncorroborated testimony of alleged sexual assault victims now appears to be aligned with the rule stated in Chapman and Wildman regarding testimony which is incredible as a matter of law. Even if a distinction between the cases remains, defendants have not explained why the standard applied in sexual assault cases, which involve unique defense problems, and an act (sexual intercourse) which is not in itself criminal, should apply to a case involving an accomplice to an armed robbery and murder. Defendants’ interpretation of the rule is particularly inapplicable in this case where there was evidence which corroborated some of Treuthardt’s testimony.

We conclude that Treuthardt’s testimony was not incredible as a matter of law, and that the elements of unreliability noted by the defendants were facts for the jury to consider in determining her credibility.

II. Sufficiency of Evidence to Support a Conviction for Armed Robbery

Defendants contend that there was insufficient evidence to convict them for armed robbery because the jury was required to speculate as to whether anything was actually taken from the gas station. They point to inconsistencies in the testimony by the prosecution’s witnesses regarding the amount of money taken by the defendants.

The prosecution took pictures of cash kept on a shelf in the back room. From this picture and other customary accounting procedures the service station manager conducted an inventory to determine if anything was missing. The station manager reported shortages in terms of dollar amounts but testified that this shortage could have included stock items as well as cash.

The criminal complaint stated that there was $ 24.81 missing. The manager testified at the trial that there was a $ 25.48 shortage and that there was usually only a one or two dollar variance at the deceased’s station. The manager’s testimony at the preliminary hearing and at the trial was inconsistent as to the total amount of money in the station at the time of the inventory. He claimed that the inconsistency was merely a typographical error in the transcript of the preliminary hearing.

Another prosecution witness testified that he had purchased gas at the station the morning of the incident and had paid with a unique torn and Scotch-taped $ 20 bill. This bill was not found in the station or in the possession of the victim or either defendant. The defendants had more money in their possession than the $ 25 reportedly missing, but there was no method of identifying the money as that taken from the station. In fact, the prosecution returned Treuthardt’s purse to her without indicating whether a complete inventory had been made of its contents.

The other evidence of what was taken from the station was Treuthardt’s testimony that when Drenning returned to the car from the gas station he said, “All I could get was $ 12.”

Section 943.32, Stats., requires the state to prove that the defendants took property from the person or presence of the owner with the intent to steal. [4] Defendants assert that since Treuthardt’s testimony is so unreliable as to be incredible, and since the station owner could not pinpoint the exact amount of money taken, the prosecution did not prove that any property was taken from the station.

We have already concluded that Treuthardt’s testimony was not incredible. It is not necessary to establish the precise amount of money taken to show that money was taken. Kain v. State, 48 Wis.2d 212, 217, 179 N.W.2d 777 (1970), held that inconsistencies regarding the amount of money stolen go to the credibility of the witness but do not affect the underlying fact that something was taken. The jury could have believed the station manager when he said that the amount missing was greater than usual. Whether the discrepancy was $ 24 or $ 25 affects the credibility, not the competency, of this testimony.

Although the precision of the state’s evidence and the method of determining the amount taken were not exemplary, there was sufficient evidence for the jury to find that money had been taken by the defendants from the station.

III. Right to be Tried in the County Where the Offense Occurred

Defendants claim that they were denied their right to be tried in the county where the offense occurred as guaranteed by art. I, sec. 7, of the Wisconsin Constitution because pretrial misconduct by the prosecutor’s office forced defendants to request a change of venue.

Between the time of the defendants’ arrest and the trial, the prosecutor’s office issued several press releases which were found by the State Bar’s District Grievance Committee to have violated four rules of the Code of Professional Responsibility regarding pretrial publicity. The trial court subsequently ordered all parties to cease making comments to the media regarding the case. The defendants argued to the trial court that they could not receive a fair trial in Rock County because of the pretrial publicity. Solles moved the court to dismiss the charges against him or, in the alternative, to change the place of trial. Drenning only requested that the court change the place of trial. The court changed the place of trial to Waukesha County.

Defendants claim that their requests to change the place of trial do not constitute waivers of their constitutional right to have the trial in Rock County because: (1) The source of the prejudicial publicity was the prosecutor’s office; (2) Solles was primarily requesting a motion to dismiss and not a change of venue; and, (3) The defendants cannot be forced to choose between two constitutional rights–that of a fair trial and the right to be tried in the county where the crime occurred.

The change of venue granted by the trial court did not deny defendants’ constitutional rights to a trial in the county in which the offense occurred.

Article I, sec. 7 of the Wisconsin Constitution provides in relevant part:

In all criminal prosecutions the accused shall enjoy the right… to a speedy public trial by an impartial jury of the county or district wherein the offense shall have been committed.

Section 971.19(1), Stats., provides: “Criminal actions shall be tried in the county where the crime was committed, except as otherwise provided.”

State v. Mendoza, 80 Wis.2d 122, 140, 258 N.W.2d 260, 267 (1977), held that “[a] defendant may apply for a change of venue and thereby waive his right under the constitution.” The defendant’s strategical choice to request or not request a change of venue controls whether the place of trial is moved as long as the defendant’s choice is made knowingly and intelligently. Mendoza, 80 Wis.2d at 144. Defendants do not assert that the motion for a change of venue was not knowingly or intelligently made.

The substance of defendants’ argument is that the application for a change of venue does not constitute a waiver when prosecutorial misconduct renders other remedies inadequate and a party is, in effect, forced to request a change of venue in order to obtain a fair trial. Defendants cite no law in support of the notion that any constitutional rights are violated when a change of venue is the only manner in which a fair trial can be preserved.

State ex rel. Schulter v. Roraff, 39 Wis.2d 342, 159 N.W.2d 25 (1968) cert. den. 393 U.S. 1066 (1969), deals directly with the issue before us. In Schulter, the defendant claimed that prejudicial pretrial publicity resulting from a state-conducted inquest required dismissal of a pending criminal action. The defendants in this case insist that it is a significant difference that the source of the publicity in Schulter was an inquest rather than normal investigation and trial preparatory activities. The court in Schulter, 39 Wis.2d at 351, 159 N.W.2d at 30, rejected this view:

The inquest, although conducted by the district attorney on behalf of the state and resulting in publicity, stands on no different footing in respect to prejudicial pretrial publicity than other pretrial activity. It is not the source of pretrial publicity which determines the prejudice and the remedy but the nature, amount and the effect of such pretrial publicity.

The court in Schulter, 39 Wis.2d at 351, 159 N.W.2d at 30, also rejected the notion that dismissal is the only adequate remedy.

It is claimed the inquest was unnecessary, held for the purpose of publicity and was prejudicial in resulting in a finding of guilt. If true, Schulter is entitled to relief but not necessarily the dismissal of the charges.

Related to this is defendants’ statement in their brief that other remedies such as extended voir dire and continuance were inadequate because of the pervasive prejudice resulting from the pretrial publicity. The record is silent with respect to a factual basis for defendants’ contention. These remedies cannot be considered inadequate merely because defendants’ counsel considers them to be so. As the court in Schulter, 39 Wis.2d at 352, 159 N.W.2d at 31, said:

It is true the ineffectiveness of voir dire and judicial admonition to correct prejudice have been recognized. Irving v. Dowd (1961), 366 U.W. 717, 81 Sup. Ct. 1639, 6 L. Ed. 2d 751; Krulewitch v. United States (1949), 336 U.S. 440, 69 Sup. Ct. 716, 93 L. Ed. 790. But the ineffectiveness of such methods depends upon the particular circumstances in each case. Such methods are not to be branded as a matter of law totally ineffective in every case.

Schulter, 39 Wis.2d at 352, 159 N.W.2d at 31, considered and rejected the contention that a change of venue denies a defendant the right to be tried in the county in which the offense occurred.

The United States Supreme Court has recently stated that a person should not have to waive one constitutional right to claim another. Simmons v. United States (1968), 390 U.S. 377, 88 Sup. Ct. 967, 19 L. Ed. 2d 1247. But in the Simmons Case the accused could have had the benefit of both the fourth and the fifth amendments. In the case at bar it is impossible to have a speedy trial and also claim such a trial is prejudicial and unfair because it is held too speedily. Likewise, Schulter cannot insist on a jury trial in the county wherein the offense was committed and also claim the county is prejudiced and he cannot receive a fair trial.

When constitutional rights conflict the accused must make a choice and the solution is not in the avoidance of such choice because a choice is required or it may prove to be a difficult one for the accused.

Finally, the United Supreme Court in McGautha v. California, 402 U.S. 183, 212-13 (1971), reconsidered the conclusion in Simmons, 59 Wis.2d 493, that a defendant must not be forced to choose between two constitutional rights.

While we have no occasion to question the soundness of the result in Simmons and do not do so, to the extent that its rationale was based on a “tension” between constitutional rights and the policies behind them, the validity of that reasoning must now be regarded as open to question, and it certainly cannot be given the broad thrust which is attributed to it by Crampton in the present case.

The criminal process, like the rest of the legal system, is replete with situations requiring “the making of difficult judgments” as to which course to follow. McMann v. Richardson, 397 U.S. at 769, 25 L. Ed.2d., at 772. Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose. The threshold question is whether compelling the election impairs to an appreciable extent any of the policies behind the rights involved.

See also Middendorf v. Henry, 425 U.S. 25, 48 (1976), in which the Supreme Court cited McGautha with approval.

Compelling the defendants to request a change of venue and forego a trial in Rock County in order to obtain a fair trial does not impair the policies behind the rights involved. Both the right to request a change of venue and the right to be tried in the county where the crime occurred are intended to secure a fair trial. Mendoza, 80 Wis.2d at 143. They are mutually exclusive methods of achieving a common goal. The defendants’ decision as to which right would better provide a fair trial is to be respected. The defendants offered the trial court two alternatives: dismissing the charges or changing the place of trial. The trial court determined that the remedy suggested by the defendants which was short of dismissal was adequate. As the court in Schulter, 39 Wis.2d at 352-53, 159 N.W.2d at 31, concluded:

We do not share [the defendant’s] view that the publicity… was so great or so prejudicial that he cannot receive a fair trial using the available remedies to overcome any prejudice of the pretrial publicity. Dismissal of the charges is too drastic a cure for the alleged infirmity.

We conclude that the defendants were not denied their constitutional right to a trial in Rock County by the change of venue.

IV. Submission of Second-Degree Murder to the Jury

Defendants assert that the court erred in submitting second-degree murder instructions [5] because: (1) Neither the prosecution nor the defense proceeded on a second-degree murder theory; (2) The defendants repeatedly objected to the submission of the second-degree instruction to the jury; (3) It is unconstitutional to require the defendants to show evidence of other lesser included offenses; and, (4) There was insufficient evidence to submit second-degree instructions to the jury.

On review of a trial court’s decision to submit a lesser included offense this court determines whether there were reasonable grounds for acquittal on the greater charge and reasonable grounds for conviction on the lesser charge. Garcia v. State, 73 Wis.2d 174, 186, 242 N.W.2d 919 (1976). There is no requirement that the court have the permission of the defendants to submit a particular instruction nor is the trial court confined to the particular theories pursued by the parties at the commencement of the action. Hardison v. State, 61 Wis.2d 262, 212 N.W.2d 103 (1973).

To determine whether there is a reasonable ground in the evidence to support acquittal on the greater charge and conviction on the lesser charge, the evidence is to be viewed in the light most favorable to the accused. Jones v. State, 70 Wis.2d 41, 233 N.W.2d 430 (1975). Both the prosecution and defense requested first-degree murder instructions. The evidence indicating that the defendant intended to kill the deceased was presented in Treuthardt’s testimony of the conversation between Solles and Drenning in which the defendants decided to only kill the gas station attendant if they had to.

Evidence presented by both the state and the defendants indicated that the defendants were highly intoxicated and drugged. Both Solles and Drenning testified that Drenning was highly intoxicated and very high. The state’s brief summarizes Drenning’s testimony regarding alcohol and drugs ingested during the day of the incident.

Drenning testified he awoke at about 9:30 a.m. on March 21, 1976, and began drinking wine. At about 11:00 a.m/., he drank a little beer and smoked marijuana at a home on Madison Street. At 1:30 p.m. that day, he arrived at Rip’s Shamrock Bar and began drinking beer. Between 1:30 and about 6:00 p.m. he remained at the bar, drinking beer and some whiskey. At 6:00 or 6:30 p.m., Drenning left Rip’s and returned home, arriving back at the bar about a half an hour later. During the evening, he drank more beer and whiskey, smoked marijuana, and injected crystal methedrine in his arm. When he left Rip’s at closing, he and Solles took two or three six-packs of beer with them. According to Drenning, they were drinking the beer as they rode around in the early hours of March 22.

After leaving the Oasis Restaurant at approximately 2:30 a.m., Drenning inhaled the drug THC, the biologically active ingredient in marijuana. After snorting the THC, Drenning continued to drink the intoxicating beverages remaining in the car. From 9:30 a.m. on March 21 until about 3:00 a.m. the next morning, Drenning ate only an order of french fries and a piece of lettuce. (Citations to the transcript are omitted.)

This evidence created a reasonable doubt as to whether the defendants could have formed the intent to kill the deceased, and demonstrated a reasonable ground for acquittal of the first-degree murder charge.

The defendants’ claim that the shooting was an accident would also support acquittal on the first-degree murder charge.

The evidence provided reasonable grounds for a conviction of second-degree murder. Section 940.02, Stats. (1977), requires the state to prove that: (1) The accused’s conduct was imminently dangerous to another; (2) The accused’s conduct was of such a character that it evinced a depraved mind, regardless of life; and, (3) The accused’s conduct, imminently dangerous to another and evincing a depraved mind, regardless of life, caused the death of the victim. Wis. J.I.–Criminal, Part I, sec. 1110, and Turner v. State, 76 Wis.2d 1, 250 N.W.2d 706 (1977).

The defendants characterize their conduct as “the mere pointing of a weapon” and assert that this conduct is not imminently dangerous. In light of the evidence presented solely by the defendants, this characterization is somewhat limited. Defendants’ conduct is more fully described by their own testimony as entering a gas station with a defective loaded gun at three o’clock in the morning under the influence of alcohol and drugs, engaging in a struggle for the gun, and fleeing, with the gun in hand, after it had fired twice in the direction of the attendant.

Defendants’ conduct coupled with Treuthardt’s testimony that the defendants stated they would kill if they had to, constitutes imminently dangerous conduct. The defendants’ assertion that there is a difference between stating that they would kill only if they had to and making a clear threat to kill, is specious. The jury could have believed that the defendants made the statements as described by Treuthardt but concluded that their extreme intoxicated and drugged state prevented them from forming the intent required for first-degree murder.

There was also sufficient evidence that defendant Drenning’s conduct evinced a depraved mind which “lacks a moral sense, an appreciation of life, is unreasonable and lacks judgment. A depraved mind has a general intent to do the acts and the consciousness of the nature of the acts and possible result but lacks the specific intent to do the harm.” State v. Weso, 60 Wis.2d 404, 411-12, 210 N.W.2d 442, 446 (1973). The amount of drugs and alcohol defendants consumed on the day of the murder is also indicative that they lacked appreciation of life and were of minds which were unreasonable and lacked judgment. The fact that the defendants would carry a loaded defective gun while in that mental and physical condition also indicates unreasonableness and lack of judgment. To flee after a second shot fired at close range toward a human being without determining if that person was struck by the bullet is further evidence that defendants have a lack of a moral sense and appreciation of life. Finally, this imminently dangerous conduct which evinced depraved minds was the direct cause of the deceased’s death.

Defendants argue that regardless of the sufficiency of the evidence to submit a second-degree instruction, the trial court should be reversed because it incorrectly based its decision on its belief that the defendants first raised the intoxication defense. Defendants objected to the second-degree instruction. Defendants claim however that they agreed to submission of the intoxication defense instruction only in response to the trial court’s insistence on submitting the second-degree murder charge.

The record reflects, however, that prior to the voir dire of potential jurors, and before the court’s intentions regarding instructions were known, the defendants requested the trial court to read both the intoxication defense instruction and the homicide by intoxicated use of a weapon instruction to the prospective jurors.

DANIEL: I would request the following jury instructions be read to the panel prior to the drawing of individual names, and that would be Wisconsin Standard Jury Instruction 765, which would be Intoxication Negating State of Mind Essential to Crime… 1190, which is the Instruction on Homicide By Intoxicated Use….

Also, during his closing argument one of the defendant’s counsel urged the jurors to consider homicide by intoxicated use of a fire arm during their deliberations.

Homicide by intoxicated user. I submit to you, ladies and gentlemen, that in listening to that instruction and reviewing that evidence, going over the testimony of all of the witnesses and reviewing the physical facts as outlined and presented that is what we have. That is what occurred.

There was sufficient evidence presented at trial for the court to submit an intoxication defense instruction to the jury.

The degree of a defendant’s intoxication may be determined from his conduct, his own testimony regarding his condition, and the testimony of witnesses. This instruction is proper only where, viewing the evidence in the light most favorable to the defendant, a jury could reasonably have found that he was so intoxicated that he lacked the intent to kill. (Citations omitted.) Larson v. State, 86 Wis.2d 187, 195, 271 N.W.2d 647, 650 (1978).

The court could consider the defendants’ testimony regarding their condition as well as Treuthardt’s testimony concerning the amount and kinds of alcohol and drugs taken by the defendants.

The defendants seem to argue in their brief that the court and jury cannot believe the defendants’ testimony regarding the extent of intoxication without accepting all of the defendants’ testimony as true. No citations are provided for this proposition of law. In fact, the jury was instructed that if it believed a witness had testified falsely in a particular respect, it was at liberty to accept or disregard other testimony by that witness unless it was corroborated by other evidence. The jury could have concluded that the defendants’ account of the incident was not truthful, but could have believed the defendants’ testimony as to the amount of drugs and alcohol taken because it was corroborated by other evidence.

It is an odd, although not original, argument that evidence presented by defendants’ own witness which supports a lesser charge should be disregarded by the court in determining what lesser degrees of homicide to submit to the jury. When presented with a similar argument the court in Eckert v. State, 114 Wis. 160, 164, 89 N.W. 826, 828 (1902) stated, “Eckert is in no position to object to a verdict based upon the supposed truthfulness of his own testimony…”

Defendants also contend that the requirement of Harris v. State, 68 Wis.2d 436, 228 N.W.2d 645 (1975), that the defendants produce evidence which casts a reasonable doubt on all greater degrees of homicide before the court will submit lesser included crimes, is unconstitutional. Since the trial court submitted verdicts on all the lesser included offenses that were requested by the defendants, the facts before us do not warrant a consideration of this issue, and we decline to do so.

V. Errors in the Jury Selection Process

Defendants claim they were denied their statutory and constitutional rights to a trial by a jury of their peers guaranteed by the United States[6]  and Wisconsin [7] Constitutions and by ch. 756, Wisconsin Stats., which outlines the jury selection procedure, [8] for two reasons: (1) The clerk of court’s office excused jurors for reasons other than vacation without proper authorization by the judge as required by secs. 756.01 and 756.02; and, (2) The judge allowed further exemptions from jury duty which constituted a systematic exclusion of persons solely on the basis of employment.

The clerk of courts excused jurors from duty who claimed they were either ill or had vacation plans. The state concedes that the clerk of courts has no authority to exclude jurors from service under ch. 756, Stats. Defendants claim that prejudice is presumed from such an irregularity and that a new trial is required.

Only substantial compliance with ch. 756 is required. State v. Bond, 41 Wis.2d 219, 227, 163 N.W.2d 601 (1969). Irregularities in jury selection procedures do not demand a new trial unless the defendant can show prejudice, Pamenet V. State, 49 Wis.2d 501, 509, 182 N.W.2d 459 (1971).

The defendants have shown no prejudice as a result of the clerk’s excusing prospective jurors because of vacation or illness.

Defendants rely on Brown v. State, 58 Wis.2d 158, 172, 205 N.W.2d 566 (1973), to assert that the clerk’s systematic exclusion constitutes the systematic discrimination which is presumed to be prejudicial. The court in Brown adopted the rules outlined in State v. Holmstrom, 43 Wis.2d 465, 168 N.W.2d 574 (1969), describing defendants’ burden in challenging a jury array on the basis of systematic discrimination.The court in Holmstrom, 43 Wis.2d at 472, 168 N.W.2d at 578, summarized:

We conclude from the cases cited above that to succeed on a challenge to the jury array the defendant must show:

(1) A systematic exclusion;

(2) Of some representative unit of citizens. A systematic exclusion can be shown by the direct testimony of the jury commissioners or by proving a disproportionate representation of a unit of citizens on the jury array over a period of time.

As far as defining what amounts to a cohesive unit of citizens, the United States Supreme Court has held that there should be no systematic exclusion of any “… economic, social, religious, racial, political… [or] geographical groups of the community….” Thiel v. Southern Pacific Co. (1946), 328 U.S. 217, 220, 66 Sup. Ct. 984, 90 L.Ed. 1181.

The only representative groups of persons exempted by the clerk of courts are persons who are either sick or are on vacation. This court does not find such groups analogous to those listed in Holmstrom, nor do we consider their exclusion to undermine defendants’ right to a trial by a jury of their peers.

The same conclusion applies to the judge’s granting of exemptions for reasons of employment. There is no common factor in the employment of the persons excused which would identify them as a “representative unit of citizens.” Holmstrom, 43 Wis.2d at 472, 168 N.W.2d at 578. The group of excused persons included a hospital switchboard operator, a self-employed service station operator, a self-employed sign painter in the process of a divorce, a sole employee of a secretarial service, a corporate sales director, a corporate production manager and the executive secretary of the Waukesha water utility.

Defendants do not aid the court in identifying what group is represented by these persons and only claim that the exemptions were questionable because they were a matter of the trial judge’s policy. Defendants make no showing that the judge’s exclusions exceeded his authority to excuse jurors if he or she finds “that jury service would entail undue hardship, extreme inconvenience or serious obstruction or delay in the fair and impartial administration of justice.” Sec. 756.02 (2)(a), Stats.

The substance of defendants’ complaint appears to be that the Waukesha County court system is too lax in excusing its jurors. This is not a claim of constitutional dimensions, which compels a presumption of prejudice. Absent a showing of actual prejudice, the defendants are not entitled to a new trial on this issue.

VI. Erroneous Jury Instruction

Defendants contend that the trial court incorrectly stated the law and thereby committed prejudicial error in submitting the following instruction to the jury:

If you find, however, that Steven Edward Drenning caused the death of Frederick Patrick Anderson, III, by reckless conduct, homicide by negligent use of a weapon, or homicide by intoxicated use of a weapon, you must find Larry Gene Solles not guilty of the offenses charged in Count One of the Information. The crimes of homicide by reckless conduct, homicide by negligent use of a weapon, and homicide by intoxicated use of a weapon are negligent acts which cannot be the result of a conspiracy.

Defendant Solles claims that this statement of the law prejudiced him because it precluded the jury from finding Drenning guilty of negligent or reckless homicide, or homicide by intoxicated use of a weapon if the jury wanted both defendants to share responsibility for Anderson’s death.

Trial counsel did not object to the instruction at the trial. The Wisconsin court has said that failure to make a timely objection to an error in a jury instruction waives any defects, Kutchera v. State, 69 Wis.2d 534, 230 N.W.2d 750 (1975), except when an instruction incorrectly states the law, Lambert v. State, 73 Wis.2d 590, 607, 243 N.W.2d 524 (1976).

This exception has been eliminated however, by Rule 805.13(3), [9] which applies to criminal cases by virtue of sec. 972.01, Stats. [10] Rule 805.13(3) provides:

At the close of the evidence and before arguments to the jury, the court shall conduct a conference with counsel outside the presence of the jury. At the conference, or at such earlier time as the court reasonably directs, counsel may file written motions that the court instruct the jury on the law, and submit verdict questions, as set forth in the motions. The court shall inform counsel on the record of its proposed action on the motions and of the instructions and verdict it proposes to submit. Counsel may object to the proposed instructions or verdict on the gounds of incompleteness or other error, stating the grounds for objection with particularity on the record. Failure to object at the conference constitutes a waiver of any error in the proposed instructions or verdict. (Emphasis added.)

In Gyldenvand v. Schroeder, 90 Wis.2d 690, 696, 280 N.W.2d 235 (1979), the Wisconsin court explained that the adoption of Rule 805.13, abolished the formal substantive distinction by providing that failure to object to jury instructions at the instruction conference waives any error in the proposed instructions. The court concluded that “whether the defect was one of form or substance,” the party had “waived the right to review the alleged error by failure to object.” Gyldenvand, 90 Wis.2d at 697, 280 N.W.2d at 238.

Thus any objection to the jury instruction was waived by the defendants’ failure to object during the instruction conference.

VII. Unanimous Verdict

Defendants assert that the party-to-a-crime statute, sec. 939.05, Stats., [11] is unconstitutional and denies them their right to a unanimous jury verdict as to the particular manner in which the codefendant participated in the crime. The Wisconsin Supreme Court recently decided in Holland v. State, 91 Wis.2d 134, 143, 280 N.W.2d 288, 292-93 (1979), that the party-to-a-crime statute does not violate a defendant’s right to a unanimous jury verdict as guaranteed by art. I. secs. 5 and 7 of the Wisconsin Constitution. The court concluded:

Unanimity is required only with respect to the ultimate issue of the defendant’s guilt or innocence of the crime charged, and unanimity is not required with respect to the alternative means or ways in which the crime can be committed. The cases across the country–New York, Michigan, Washington–recognize and note that it is sufficient that all jurors unanimously agree on their ultimate conclusion that the defendant was guilty of the crime charged, through they may not agree on the manner in which the defendant participated in the crime if under any of the alternative ways the defendant would be guilty of the crime charged. To permit any other conclusion would be to permit the guilty defendant to escape account-ability under the law because jurors could not unanimously choose beyond a reasonable doubt which of several alternate ways the defendant actually participated, even though all agree that he was, in fact, a participant.

In a pro se motion to the court, defendant Solles makes a generalized attack on the constitutionality of sec. 939.05, Stats., and the accompanying jury instruction, Wis J I– Criminal 400. Solles claims that the holding of Sandstrom v. Montana, U.S. , 61 L.Ed.2d 39, 99 S. Ct. (1979), applies to this case because the jury instruction shifts the burden of proof from the prosecution to the defendant by creating an unconstitutional presumption. In Sandstrom, the United States Supreme Court held that in a case in which a crime of intent has been charged, a jury instruction which stated that “the law presumes that a person intends the ordinary consequences of his voluntary acts” violates the fourteenth amendment of the United States Constitution which requires that the state prove every element of a criminal offense beyond a reasonable doubt.

This court does not find such a presumption contained in sec. 939.05, Stats., or in Wis J I–Criminal 400. The statement in sec. 939.05(2)(c), that a party will be held liable for other crimes “committed in pursuance of the intended crime and which under the circumstances is a natural and probable consequence of the intended crime” does not create a presumption that the party intended to commit the original crime. It is a statement of criminal liability for any other crimes committed in pursuance of the intended crime and does not relieve the state from its burden of showing that the defendant intended to commit the original crime.

Solles also challenges the constitutionality of sec. 939.05(2)(c), Stats., which absolves a party from liability if he or she withdraws before the crime is accomplished. As a withdrawal defense was not involved in this case, this court need not consider defendant’s contention that this provision of the statute and jury instruction unconstitutionally shifts the burden of proof.

Finally, Solles in his Pro se brief contends that it is a violation of sec. 939.71, Stats., and the fifth and fourteenth amendments of the United States Constitution to punish him for both armed robbery and concealing identity because each offense contains similar elements. This court has recently rejected a similar claim in Vogel v. State, 87 Wis.2d 541, 275 N.W.2d 180 (1979), in which we concluded that concealing identity during the commission of a crime is a separate crime to which a person may be a party under sec. 939.05, Stats.

VIII. Prosecutorial Misconduct

The defendants seek a reversal of their convictions or a new trial because they were denied their federal and state constitutional rights to due process, fair trial, effective assistance of counsel and jury trial because of prosecutorial misconduct.

A. Acts of Alleged Misconduct

Defendants describe at length various acts of alleged misconduct. For purposes of considering the defendants’ contention in an organized manner, the acts will be categorized as follows:

(1) Acts of alleged misconduct occurring before the trial;

(2) Acts occurring during the trial; and,

(3) Acts which directly relate to the evidentiary issues presented.

B. Theories Underlying Defendants’ Claim

The defendants present three theories to sustain their contention that the prosecutor’s misconduct deprived them of their constitutional rights:

(1) Jury inactivity caused by trial delay deprived the defendants of due process of law;

(2) The cumulative effect of the prosecutor’s misconduct is analogous to situations in which prosecutors knowingly allow a jury to consider perjured testimony; and,

(3) The misconduct and gross negligence in destroying and failing to preserve exculpatory evidence deprived the defendants of a fair trial and requires reversal.

The acts occurring during the trial and those which relate to evidentiary issues touch on the trial delay theory. The combination of all three categories provide the basis for the theory relating to the cumulative effect of the misconduct. The acts which relate to evidentiary issues support the challenge regarding the prosecutor’s failure to preserve or produce exculpatory evidence.

A. Acts of Alleged Misconduct

(1) Pretrial Activity

Several statements made to the media by the prosecutor and his assistants prior to trial resulted in the trial court issuing a gag order and granting a change of venue for the trial. The State Bar of Wisconsin District 12 Grievance Committee found that the district attorney and certain of his assistants violated Disciplinary Rule 7-107(B) which relates to pretrial publicity, but did not proceed further because the committee believed it unlikely that further violations would occur.

The defendants claim that this forced change of venue created a great deal of inconvenience in preparing for and conducting the trial and aggravated the difficulty of midtrial investigations required by the prosecutor’s subsequent misconduct.

The prosecutor did not comply with the court’s pretrial discovery order of May 11, 1976, in accordance with sec. 971.23, Stats., [12] in several respects. In some instances, the prosecutor delivered the required material late, while in others, the material was not produced until the defendants later discovered its existence and requested it. Much of the evidence requested by the defendants was presented by the prosecutor on the first day of trial by placing a pile of material containing large quantities of papers, reports and statements at defense counsel’s table. This late production of evidence required numerous midtrial delays to accommodate additional investigations, evidentiary hearings and recesses required to cull the material presented.

Some of the evidence produced after the discovery order deadline include: photographs used by the prosecution in photo identification procedures; photographs of money left on the back shelf of the service station which were substituted for the actual money found; statements and summaries of statements of the defendants; fingerprint reports; police officers’ notes; copies of the defendants’ criminal records; notes which formed the basis of evidentiary lists prepared by the police; and conclusions reached by a witness regarding weights of the two bullets, direction of the bullet and workings of the gun.

Examples of evidence which were not produced until after defense counsel discovered their existence and made a request include: the victim’s brain, which, despite the prosecutor’s silence when it was mentioned during the pretrial hearing, was available for testing the amount of bullet fragments which remained; x-rays of the victim’s brain; the failure of the coroner to perform complete tests on the victim’s body, requiring a midtrial exhumation of the body; the fact that a prosecution witness failed to identify any of the defendants; the fact that there was a discrepancy regarding the amount of money and goods missing from the service station; evidence of metal fragments found; a box of defendants’ clothes overlooked by the prosecutor; a report by the police department regarding the victim’s reputation as a mercenary who was interested in buying guns; and 11 pages of a 14-page exhibit related to hair analysis testimony which the prosecutor stated were not necessary to produce because defense counsel had been present for the tests, a fact proven untrue in an evidentiary hearing held during the trial.

The prosecutor admitted to not having read the pretrial discovery order of the court.

(2) Misconduct During the Trial

The defendants also cite numerous acts of alleged misconduct by the prosecutor during the trial: the prosecutor’s statement to the jury indicating that a witness was missing a vacation because the defense had subpoenaed her; the prosecutor’s repeated attempt to ask witnesses questions which would require the witnesses to refer to excluded evidence or to make improper statements; [13] the prosecutor’s referrence to witnesses, including accomplice Carol Treuthardt, by their first names after frequent admonishment by the court; the prosecutor’s practice of repeating or paraphrasing questions to which the court had sustained objections; [14] the prosecutor’s use of nonadmitted photo of the victim’s facial wound during an examination of a prosecution witness in a manner which allowed the jury to see it; [15] the prosecutor’s improper references to the defendants’ prior conviction record; [16] and, the prosecutor’s engaging in delay tactics at one point until a piece of evidence could be retrieved from Janesville by an assistant.

(3) Misconduct Related to Evidence

In addition to the acts of alleged misconduct related to pretrial activity, the discovery order and general trial conduct, the defendants contend that the prosecutor destroyed or failed to preserve physical evidence which was exculpatory.

A witness who had purchased gas just prior to the shooting testified that he had paid for his gas with a torn $ 20 bill which he could recognize again if he saw it. Since the prosecutor did not preserve the money at the station but merely photographed the piles of money in the back of the service station, this bill was not preserved. Since the bill was not found on any of the defendants, the defendants contend that its presence at the station would have exculpated them in the armed robbery charge. Related to this piece of evidence is the prosecutor’s failure to preserve accomplice Treuthardt’s purse when she was arrested. This failure contradicted the prosecutor’s claimed practice of so carefully retaining all of the defendants’ personal effects when they were arrested that defense counsel had to request the court to order the return of the defendants’ money so that they could purchase personal products. Although some of the contents of Treuthardt’s purse were inventoried, the purse and remaining contents were returned to her soon after her arrest. Defendants contend that if the purse had been preserved, and the unique $ 20 bill was not found, its absence would have exculpated the defendants on the armed robbery charge.

The defendants also claim that a memo between two officers on March 22, 1976, which was not turned over to them until the first day of trial in the pile of material placed on their table, was exculpatory because it discussed the failure of the police department to locate this $ 20 bill. The location of this memo in the record is misidentified in the brief and cannot be found in the voluminous record. Thus the contents of the memo are unknown to this court.

The state did not preserve the actual cash from the rear shelves of the gas station which were in plain view and instead substituted a photograph of the cash. This resulted in a failure to conclusively determine the whereabouts of the torn $ 20 bill and, by transferring the cash to the station manager to use for inventory, precluded either the state or the defense from verifying the missing amount claimed by the station manager.

The defendants raise three claims of failure to produce or preserve evidence related to the metal bullet fragments from the defendant’s weapon. First, the state’s failure to properly preserve the crime scene initially prevented the discovery of a bullet jacket until later, after an oil truck had passed over the area. Second, two bullet fragments which had been removed from the victim’s brain by the coroner were lost. Third, bullet fragments which had been removed from the victim and placed in a vial disappeared during the trial. The defendants contend that these items were exculpatory because the accumulated bullet fragments were less than the total sum of the two bullets fired thus tending to support the defense theory that the victim had been killed by a ricocheting bullet and not from a weapon pointed directly at him.

The defendants further contend that the effect of the state’s behavior regarding this evidence is aggravated by the fact that the defense counsel was prevented from entering the crime scene and preserving any evidence although an oil truck and other police cars were allowed to drive through the area.

Defense counsel preserved each error for the record and requested a mistrial for each incident of alleged misconduct. The trial court responded each time with a less drastic remedy, such as admonishing the prosecutor in front of the jury and in chambers, allowing the defense counsel to conduct midtrial investigations, and excluding evidence. Defendants argue that these less drastic remedies were not sufficient to counteract the impact of some of the errors and did not cure the effect of the cumulation of the errors on defendants’ right to a fair trial.

The evidentiary problems which could not be remedied by the court include prosecutor’s failure to preserve the contents of Treuthardt’s purse and the cash at the service station, and the loss of the vial containing the bullet fragments.

Although defense counsel had to investigate and produce evidence under stressful conditions during midtrial on several occasions, they in fact were able to conduct their own tests, obtain the necessary expert testimony, obtain the reports and statements withheld by the prosecutor’s office, conduct effective cross-examination, and hold hearings on evidentiary issues. Even though the court could not remedy certain evidentiary shortcomings of the prosecutor, the defendants were still able to present their defense that the victim was shot with a ricocheting bullet; that there was a question as to whether any money was missing from the service station; that the state’s evidence relating the defendants to the ski mask was questionable; and, that the victim had a reputation of being a mercenary who was interested in buying weapons. With respect to the missing vial containing bullet fragments, the state conceded that less than a whole bullet was found.

In short, because of the diligence of defense counsel, [17] the prosecutor’s alleged failures did not prevent the defendants from presenting an adequate defense. The substance of the defendants’ arguments, which they support with the three legal theories presented, is that the level of inconvenience and hardship they experienced in presenting a defense as a result of the prosecutor’s misconduct violated their rights to a fair trial, effective assistance of counsel and a jury trial. The fact is that despite difficulty, defendants were able to mount their defense.

B. Theories Underlying Defendants’ Claim

(1) Jury Inactivity Resulting from Trial Delay Caused by Prosecutor’s Misconduct

Defendants ask this court to adopt a principle recognized in some New York cases that the length of a trial may deprive a defendant of due process of law. People v. Clemente, 8 N.Y.2d 1, 167 N.E.2d 327 (1960); People v. Steinhardt, 9 N.Y.2d 267, 173 N.E.2d 871 (1961); People v. Rosenfield, 11 N.Y.2d 290, 183 N.E.2d 656 (1962); United States v. Dardi, 330 F.2d 316 (1964).

The general principles stated in these cases are that an unduly lengthened trial alone is insufficient to require reversal, but that an inordinate length caused by actions of the state accompanied by other factors may deprive a defendant of a fair trial.

This trial consumed 26 days and the transcript consists of 4,828 pages. The jury was involved in the proceedings for 20-1/2 of those days, during which it was excluded 154 times, equaling more than seven full days. During the trial, some jurors became ill, reported to the court that they were concerned about the time away from the courtroom and dozed off during the trial.

While most of the prosecutor’s errors were not discernible by the jury since the evidentiary disputes were heard away from the jury, the defendants assume that the delay caused by the disputes was sufficiently prejudicial to prevent them from receiving a fair trial. The defendants claim that they were given a “Hobson’s choice” of not preserving errors for the record, or of extending the trial time by properly objecting and requesting relief.

The record reflects that the numerous absences from the courtroom by the jury were primarily caused by the court having to respond to objections based on allegations of prosecutorial negligence or misconduct.

In some instances the delays were a result of midtrial investigations required by the prosecutor’s violation of the discovery order or his failure to produce evidence. When the prosecutor failed to inform the defendants that the victim’s brain was available for testing of bullet fragments and remained silent when the issue was discussed during the preliminary examination, there was no opportunity for the defendants to conduct their own tests on the brain until midtrial. Thus time was consumed in obtaining the brain, conducting the tests and analyzing the results. When the coroner did not perform complete tests on the victim’s body regarding drug analysis and bullet fragments, the court allowed a midtrial exhumation of the body, which had been buried in a different county, so that the additional tests could be conducted. The time involved in contacting the necessary persons to exhume the body and to perform the tests and in arguing the evidentiary issues involved added to the length of the trial.

The results of both investigations were relevant to the defendants’ theory that the victim was shot by a ricocheting bullet.

On what was to have been that last day of trial, the prosecutor told the court out of the presence of the jury that he was about to cross-examine the defendant, Solles, regarding correspondence between the defendant and his girlfriend-accomplice Treuthardt. The defendants objected because they had never been supplied with the letters and considered them to be included in their demand for statements made by the defendants.After the jury again left the courtroom, defense counsel argued that the prosecutor’s informing the defense counsel that the letters existed did not comply with the specific demand made by defense counsel for all statements made by the defendant which must be furnished as required by sec. 971.23(1), Stats. The prosecutor had been operating under the belief that he could produce such statements at the trial if used for impeachment purposes only. The prosecutor argued that the defense counsel had used the same letters in their cross-examination of Treuthardt and knew of the letters’ existence, so there was no prejudice.

After the court found the letters admissible, the prosecutor indicated that he did not have the letters with him and needed a continuance until one of his assistants could retrieve them from Janesville. Section 906.13, Stats., requires that the statements be presented to defense counsel at the end of the examination on that issue. The court, in an attempt to have the trial concluded that day as the defense counsel had planned asked the prosecutor to continue his cross-examination of defendant Solles without going into the issues contained in the letters.

The prosecution began the cross-examination by asking several mundane questions which were interpreted by the court as delay tactics until the letters could be delivered. The court expressed its anger in chambers to counsel and decided to break for dinner until the letters arrived rather than allow the prosecutor to ask useless questions. The jury was made aware of the reason for the recess when they returned to the courtroom:

DANIEL: Judge, I would further request that the jury be advised where that information is available and how long it’s been available to the State so they know.

BABLITCH: Objection, Judge.

COURT: Well, gentlemen, please. The information is in the possession of the State of Wisconsin in Janesville. It’s not in Waukesha.

WELKER: Since March.

DANIEL: Since March.

BABLITCH: If it please the Court, I would like those remarks to be stricken.

COURT: They’ll not be stricken from the record, Mr. Bablitch.

When the cross-examination recommenced, the prosecution only used one of the letters.

Defendants assert that the cases cited from New York support their contention that the nature of the prosecutor’s acts and the length of the trial violated defendants’ rights to a fair trial, effective assistance of counsel and jury trial.

The cases cited by the defendants to support this proposition of law are distinguishable from this case for several reasons. In Steinhardt, 173 N.E.2d 871, in which the defendants’s conviction was reversed the court based its finding on the length of the trial, 53 days, caused by the quarreling between the counsel and the introduction of completely extraneous matters into the record by the prosecution and the fact that the prosecutor made improper comments. In that case, for example, the prosecutor recited all of his military honors to the jury, filling 20 pages of the record, and then asked the jury to disregard his comments.

In a subsequent case, Rosenfield, 183 N.E.2d at 660, in which the New York court reversed a conviction because of the length of the trial and the prosecutor’s continous attempts to offer inadmissible and prejudicial matters into the record, the court characterized Steinhardt as a “sorry exhibition of silly wrangling and emphasis on extraneous matters by both counsel.”

The trial court in Dardi, 330 F.2d 316, consumed over 11 months, only fifty percent of which was devoted to the taking of testimony. The court affirmed the conviction however not only because of the nature of multi-defendant trials which generally take more time, but because (a) the irrelevant courtroom colloquies contained no prejudicial matter and (b) both parties were the source of the delay.

In Clemente, 167 N.E.2d at 328, the court did not overturn the conviction resulting from a 14-month trial because no prejudicial error was committed and both parties contributed to the length of trial. The court said:

Strongly as one must deprecate a jury trial which lasted so long, it is not to be condemned, as urged by the defendants, as a denial of due process solely because of that. The test to be applied here, as in many other due process cases, is whether under all of the circumstances the defendants were accorded a fair trial.

Although the proceedings were long drawn out, and not infrequently interrupted, the record discloses that the testimony adduced by the People, though diffuse and repetitive, was overwhelming and unambiguous; the jurors could not have experienced untoward difficulty in following the evidence, intelligently assessing it and coming to a reasoned conclusion. Moreover, the defense itself must share the responsibility for the length of the trial. The prosecution’s case, it is true, was in large part cumulative, but time after time when an objection might well have stopped further introduction of such evidence, the defense remained silent and, indeed, actually added to the massiveness of the record by unduly extended cross-examination.

Although the state claims that the circus atmosphere of Steinhardt was not duplicated here, the record reveals that the jury was at least required to take several intermissions. The primary differences between this case and the Steinhardt line of cases, are (1) the length of this trial was relatively short and (2) the alleged misconduct took place primarily out of the jury’s view.

The only cases from New York which reversed convictions for this reason cited the prejudicial effect of the activity and prosecutor’s comments before the jury as a factor.

The court in Dardi, 330 F.2d at 329, described some of the negative effects of long trials on jurys and agreed that unduly lengthened trials should be avoided:

the possibility of the jury being unable to remember testimony given in the earlier stages of the trial, the jury’s impatience in being deprived of the opportunity to attend to their own affairs, their expressed resentment at short court sessions, abandonment of any summer vacation plans and their restlessness over the long periods involved in court-counsel colloquy.

The trial court in the case before us also recognized the problems accompanying the trial delay and jury inactivity when it stated to the prosecutor:

I am still taking your motion under advisement, Mr. Bablitch. I expressed my concern and it’s really as simple as all that, and my principle concern is that we have thirteen people out there, twelve of which will ultimately decide the facts and I wonder in my own mind two or three weeks down the road how much of this testimony they are going to remember. People remember best when facts are fresh in their minds and the more protracted a trial becomes the less fresh those facts become and the more apt there is to be a miscarriage of justice, as I said the other day, not necessarily only from the defendants’ standpoint but from the State’s standpoint as well….

The defendants in this case imply that because of the negative effects of prolonged trials such those stated in Dardi, prejudice can be presumed from the jury’s inactivity resulting from trial delay caused by a prosecutor’s misconduct.

The record reflects that the jury was well aware that the prosecutor was making numerous errors, repeating similar errors and causing the court dismay. The trial court chastised the prosecutor’s actions several times in front of the jury. It is not clear that the jury was not prejudiced more against the prosecutor than the defendants. The court acknowledged this possibility when it commented:

Today is the first day I found myself sitting here not even hearing questions, not even hearing responses. Now, I can’t try the case for the State of Wisconsin. Mr. Bablitch, you are going to put in this case the way you want to put it in. We have gotten to the stage where I feel that this whole thing may end up in a miscarriage of justice, not only from the defendants’ standpoint but I am equally concerned about the State of Wisconsin. The delays and that jury being tied up in that jury room and this thing dragging as it is– it’s an important case, I don’t mean to underplay the importance–can be taken out on the State as well as the defendants. All I can do is ask counsel to cooperate and get this thing in as quickly and smoothly as possible consistent with their obligation to their clients, the State and defense counsel.

The second-degree murder verdict offers no guide as to the object of the jury’s prejudice, if any.

The prejudicial aspect of the defendants’ claim of prosecutorial misconduct as a violation of due process is not sufficiently clear-cut for this court to follow the principles expressed in the New York cases. The length of trial, although longer than it needed to be, was not so long as to shock this court’s conscience, and the resulting jury inactivity cannot be considered presumptively prejudicial against the defendants.

We do not agree with the state, however, that the delay should be attributed to the defendants because of over-extensive argument. Given the need to renew similar objections and the trial court’s refusal to declare a mistrial, the defendants were in a difficult position of gauging at what point the trial court might find that the prosecution had been too negligent or had engaged in misconduct to the point that a mistrial would be required.

(2) Cumulative Effect of Misconduct

Defendants argue that the cumulative effect of the prosecutor’s misconduct in this case is analogous to a prosecutor’s violating a defendant’s right to a fair trial by allowing perjured testimony to be used at a trial. Mooney v. Holohan, 294 U.S. 102 (1935). This violation of due process is included within the general protections outlined in Brady v. Maryland, 373 U.S. 83, 87 (1963), which found that a defendant’s due process rights were violated when the prosecution suppressed exculpatory evidence requested by the defendant which is material to either guilt or punishment, irrespective of the good or bad faith of the prosecution.

U.S. v. Agurs, 427 U.S. 97, 103 (1976), characterized the Brady rule as applying to three situations which involve “the discovery, after trial, of information which had been known to the prosecution but unknown to the defense.” (Emphasis added.) The situation described in Mooney, 294 U.S. at 112, which defendant claims applies here, is that due process “cannot be deemed to be satisfied by mere notice and hearing if a State has contrived a conviction through the pretence of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured.”

The Brady rule as it encompasses the holding of Mooney is inapplicable to this situation because the actions complained of in this case took place during the trial. While the situations considered by Brady and Mooney relate to the fairness of a defendant’s trial, the standard for error is whether the jury would have reached a different verdict if the omitted evidence had been presented. In this case there is no claim of evidence discovered subsequent to the jury verdict. The jury heard all the evidence which was the focus of the defendants’ objections.

In State v. Stanislawski, 62 Wis.2d 730, 216 N.W.2d 8 (1974), however, the Wisconsin Supreme Court reversed a sexual assault conviction in the interest of justice when the prosecutor withheld or belatedly revealed during the trial highly significant evidence. The court concluded that the prosecutor had violated his duty to produce significant evidence concerning the case and defendant’s guilt pursuant to the rule of Brady, on three occasions: (1) the production late in the trial of an accurate copy of the complainant’s statement to the police did not cure the prosecutor’s earlier production of an incomplete and inaccurate statement which omitted statements unfavorable to the prosecutor; (2) the prosecutor’s complete failure to produce fingerprint reports which showed that the defendant’s fingerprints were not found on a bicycle he was supposed to have grabbed; and (3) hair analysis tests discovered by defense counsel late in the trial, which revealed that pubic hairs found were not those of the defendant or of the victim’s boyfriend.

Thus, a prosecutor may violate his duty to disclose under the Brady rule, as applied in this state, by belatedly producing exculpatory evidence during the trial.

The real complaint of the defendants is not that the jury was unable to consider all exculpatory evidence, but that the cumulative effect of the prosecutor’s late production and discovery of evidence, his pretrial misconduct which was the basis for a change of venue, his failure to conform to trial court directions and his general conduct during the trial, is equivalent to the prosecutorial misconduct of allowing perjured testimony to continue uncorrected.

Neither party has directed this court to a case in which a court has considered the effect of a prosecutor’s misconduct or general incompetence on a defendant’s right to a fair trial. Aside from Stanislawski which considered similar evidentiary issues related to a prosecutor’s misconduct, this court’s research has only revealed one case which reviewed a trial in which the prosecutor committed several errors of incompetence during the trial and the defense counsel represented the defendant vigorously. In that case, Hoppe v. State, 74 Wis.2d 107, 246 N.W.2d 122 (1976), the court concluded that because the trial court responded to the defense counsel’s objections forthrightly with admonitions and jury instructions, and because the court was not convinced that a new trial under optimal circumstances would reach a different result, the court would not grant a new trial in the interest of justice. The court’s reasoning was as follows:

The defendant also argues that the district attorney followed a pattern of leading questions and improper remarks to a degree that prejudiced the jury and denied the defendant due process. A motion for mistrial on this ground was made during and after trial and is properly preserved in the record. Like the motion for change of venue for prejudice, a motion for mistrial on the grounds of improper prosecutorial conduct is addressed to the sound discretion of the trial court and will not be reversed by this court unless there is evidence of abuse of discretion and prejudice to the defendant. State v. Davidson (1969), 44 Wis.2d 177, 194, 170 N.W.2d 755; embry v. State (1970), 46 Wis.2d 151, 161, 174 N.W.2d 521.

It is the duty of the prosecutor to deal fairly with the accused, and statements by the prosecutor that he believes, on the basis of facts known to him but not revealed to the jury, that a defendant is guilty is sufficient to warrant a reversal. It is, however, the general rule that improper remarks by a prosecutor are not necessarily prejudicial where objections are promtly made and sustained and where curative instructions and admonitions are given by the court. State, v. Davidson, supra; State v. Bergenthal (1970), 47 Wis.2d 668, 682, 178 N.W.2d 16. Where, however, the pattern of misconduct by a prosecutor is egregious and repetitive, objections and curative instructions may be insufficient to dispel the prejudice to the defendant. Berger v. United States (1935), 295 U.S. 78, 55 Sup. Ct. 629, 79 L. Ed. 1314.

A review of the record indicates that, during the course of an extensive trial reported in 1500 pages of transcript, approximately 20 objections were made on the ground of leading questions. Fourteen of these objections were sustained. Although these questions revealed an inartfulness on the part of the prosecutor, in the main they did not go to the question of Hoppe’s guilt. They were more probative of the prosecutor’s ineptness than they were of any intent to prejudice the defendant. On those questions which arguably could have prejudiced the defendant, the trial judge severely admonished the district attorney and instructed the jury to distregard the questions. Hoppe v. State, 74 Wis.2d at 119-20, 246 N.W.2d at 130.

The Wisconsin Supreme Court has concluded that it is a matter of a trial court’s discretion to grant a mistrial on the basis of prosecutorial misconduct.

“The motion for a mistrial based on prosecutorial misconduct is addressed to the discretion of the trial court.An appellate court will not reverse this unless the trial court has abused its discretion.” Taylor v. State, 52 Wis.2d 453, 460, 190 N.W.2d 208, 212 (1971); State v. Holmstrom, 43 Wis.2d 465, 168 N.W.2d 574 (1969); Blackwell v. State, 42 Wis.2d 615, 167 N.W.2d 587 (1969). In Taylor the court stated that the mere asking of improper questions and proffering of improper evidence ordinarily will not justify an order declaring a mistrial. The court explained that:

The prosecutorial conduct alleged to have caused an unfair trial is to be considered in the whole context of the trial.

The alleged misconduct is harmless if, in its absence, the same result would have been reached by the jury on the facts presented. Taylor, 52 Wis.2d at 460, 190 N.W.2d at 212.

The court concluded that because no prejudice resulted from any possible improper questions or attempts to offer improper evidence, the trial court had not abused its discretion in refusing to grant a mistrial.

Thus, if prosecutorial misconduct is established it must be prejudicial to the defendant’s verdict to warrant a new trial. Harris v. State, 52 Wis.2d 703, 191 N.W.2d 198 (1971). It is a question of fact as to whether misconduct is sufficiently prejudicial. Gelhaar v. State, 58 Wis.2d 547, 207 N.W.2d 88 (1973).

If the misconduct does not go directly to the issue of guilt, the effect of the court’s curative instructions and admonitions may be considered. Gelhaar at 562. In Gelhaar, the court found that as a matter of fact, the prosecutor’s conduct could not have unduly prejudiced the defendant and the overwhelming evidence of guilt rendered the error harmless beyond a reasonable doubt.

In Schnick v. State, 184 Wis. 661, 663-64, 200 N.W. 303, 304 (1924), the court refused to reverse a conviction based on prosecutorial misconduct absent any prejudice. The court said:

Complaint is made of the conduct of the district attorney in addressing the jury. It does appear that the district attorney indulged in unseemly personalities, and he was chided by the trial court therefor, but the court also suggested that the address of the defendant’s attorney was somewhat responsible for the situation. The conduct of attorneys on the trial of a case is largely within the discretion of the trial judge, and unless it appears that a party is prejudiced by misconduct on the part of the attorney this court will not reverse a judgment for that reason.

During the course of this trial, the trial court frequently expressed its concern about the prosecutor’s conduct and its effect on the defendants’ trial.

In discussing the evidence which the prosecutor did not disclose in accordance with the pretrial discovery order, the court said:

I am satisfied that that evidence was properly demanded. I am satisfied that it was in the exclusive possession of the State of Wisconsin. I am satisfied that the failure of the State of Wisconsin to furnish that to defense counsel was not purposeful, malicious or as a result of prosecutorial misconduct. Certainly careless negligence, something I can’t understand in view of the gravity of this case and their duty to disclose.

Later, the court added:

I find myself in a most untenable situation, unbelievable. First of all, there is now a motion for a mistrial or dismissal, a mistrial, in the alternative a continuance, because of evidence that the defendants claim is exculpatory. Among those documents there are some individuals who were shown pictures who were in the area of the Oasis and they could not identify the defendants, and that type of a negative–or unable to–identification is exculpatory in nature. There is case law to that effect. We have Exhibit 35 which apparently are capsules which haven’t been scientifically tested by the defendants. There is a brain in existence which hasn’t been analyzed or tested by a pathologist of the defendants’ choosing and they are entitled to that, and now we are missing some evidence. We seem to be–it’s like a snowball. We started out with a small sized snowball and now we have virtually a mountain of snow. I am also in a situation where we have a jury that has been out of the courtroom, I would guess, a full 85 percent of the time since last Saturday when we started taking testimony.

The assistant district attorney at one point acknowledged the extent of trial error which had occured:

MILLER: … We have had nothing but a comedy of errors displayed during the entirety of this trial. Everyone involved in the conduct of this trial has flubbed, including the coroner, the pathologist, the officer taking evidence into custody, the person who didn’t notice the hair in the hat up at the crime lab, and on and on and on. Everyone has goofed.

When the prosecutor claimed he should not be held responsible for the failure of others to properly administer tests or preserve evidence, the court responded:

COURT: That depends upon who he performed the autopsy for. If he performed that autopsy at the widow’s request, I would agree. If he did it at the request of the police department or the District Attorney, I take issue.

WELKER: Or the coroner.

COURT: Or the coroner, right, then he is a State agent. Okay, now, gentlemen, let me conclude this session by making some general observations. First of all, at the last hearing we had before we left Branch 2 in Rock County I felt in good conscience that the defendants still had an opportunity to examine what evidence may have been discovered on or about June 21 which had been inadvertently mislaid by the State and still had the opportunity hopefully to have that examined, tested scientifically as they have a right to do under the statute, line up their expert witnesses and have them here to testify. Whether that is evidence that was possibly exculpatory in nature the good Lord only knows. There is a chance it may well be as Mr. Welker points out. If there was a ricochet and only part of a bullet went into this man’s brain this bears directly on the issue of intent. Now, the defendants don’t even have the opportunity under these circumstances to determine whether that evidence is exculpatory. I am satisfied as to one thing, they should have the opportunity under the statute to lay their hands on the evidence, send it to their own experts for analysis and if it turns out favorable, which it may not, then have that expert available to testify in rebuttal to any testimony the State may put in. Now, the thing that bothers me is that the State’s argument in this case is that “well, heavens, what we did you can’t blame us for. It was here.That stuff was in a locker someplace and all of a sudden we learned about it on the 21st day of June, 1976, and then we did the right thing, Judge. We turned around and we told the defendants and that is all we have to do under the statute.” I take issue with that statement. The evidence was available on the 22nd day of March, 1976. It stayed in the possession of the State of Wisconsin from the 22nd day of March, 1976, and as far as I can tell, through today’s date. It’s similar to the argument that the State of Wisconsin used in State versus Hadley, which is a speedy trial case, where the attorney general says “gee, justice, you can’t blame us because Judge Baker got sick and then Judge Fiorenza came down only incidently on a few times and then we had a change in the DA’s staff and–you know–what could we do, what could the State do,” and the Supreme Court answered that. They said it’s up to the State of Wisconsin to provide judges, court facilities and DA’s and if the State doesn’t then they must pay the penalty. The State has an absolute obligation to know it’s case, I feel. They have that obligation for two reasons: Number one, they have the obligation under the statute, under the case law, to disclose exculpatory evidence to the defendants and also to allow the defendants an opportunity to take evidence, physical evidence, whatever it may be, and send it to experts for testing to determine whether that evidence may be favorable to them. There is a good chance the evidence is not exculpatory after it’s tested, but I am not prepared to say today whether that evidence would or would not be exculpatory. There is some grave doubt in my mind that either way, I feel that too much has been accomplished too late. I am aware of what you have done in preparing for this case, Mr. Bablitch, and I appreciate you have been very busy, and I am satisfied that what you have done is not done purposely or maliciously and I am satisfied that there has been no misconduct on your part.

At one point during the trial, the court ruled that a prosecution witness could not testify regarding evidence which had to be excluded because of the prosecutor’s failures to produce the physical evidence to the defendants. After the assistant prosecutor told the court it might consider a midtrial writ of error because of the court’s ruling, the court responded:

I might add for the record, Mr. Miller, had this stuff been disclosed the Court wouldn’t be in the position it’s been in through most of this trial.

At one point the trial court acknowledged that the prosecutor’s behavior could raise the question of whether the defendants’ right to a fair trial had been violated:

COURT: My principle concern really–in fact, the only concern I have in the outcome of this whole trial is to make sure that justice is accomplished or done between the State and the defendant. In the eyes of the Court, whether they are acquitted or convicted doesn’t make a bit of difference, just to make sure justice is done. And frankly, I have two concerns, Mr. Bablitch. They do have a right. You are going to have a pathologist testify here in a few minutes or that is your hope, at least, and obviously his testimony is based upon a scientific testing process else he couldn’t testify at all.That gives to the defendant a corresponding right to get the evidence and scientifically test it. I am further extremely concerned and, in fact, embarrassed every time I have to watch that jury come out of the jury room and those facilities aren’t the most comfortable in the world, and they have got families at home and they have got things they have got planned. I am going to add insult to injury and go back in my office and cool off for about five minutes, because I have never been this upset in the 21 years I have practiced law.

(4:05 P.M. a recess was taken after which the following proceedings were had at 4:10 P.M.)

COURT: Let the record show the presence of Mr. Solles, Mr. Drenning, Mr. Welker, Mr. Daniel, their attorneys respectively, State of Wisconsin represented by Mr. Bablitch. I have a friend who has a court way up north and he keeps a sign on his bench that says, “Keep your cool,” and I think I ought to have a similar sign made for myself. This is a difficult decision to make. I feel we are going to have a record that is going to be miserable. I am going to deny defense motions for dismissal or in the alternative a mistrial or in the alternative a continuance. I am going to order that the State of Wisconsin make available to defense counsel the brain for testing and analysis and the exhibit that has been marked Exhibit No. 35. I am going to allow over objection of defense counsel the pathologist to testify. I feel that in doing so I am walking a very narrow line on committing reversible error, a very narrow line, and I would have to agree with defense counsel that there is a grave question in my mind but what due process hasn’t been violated. But at any rate we are going to go ahead on that basis and we’re going to go right now.

In a memorandum decision written almost two years after the trial in response to postverdict motions, the trial court found that the prosecutor’s errors did not constitute misconduct, that the defendants were not sufficiently prejudiced by the prosecutor’s errors to warrant a mistrial, and there was sufficient evidence to convict the defendants on all charges.

The defendants offer no standards by which to determine whether the acts of the prosecutor constitute misconduct. Without deciding whether the prosecutor’s errors constitute misconduct, we do not conclude that his errors are of constitutional dimensions. The trial court’s finding that the defendants were not prejudiced by the errors is not against the great weight and clear preponderance of the evidence. Gelhaar, 58 Wis.2d 547. In addition, we have already concluded that there was sufficient evidence to convict the defendants on all charges.

In considering whether the acts of the prosecutor here were analogous to the misconduct described earlier in Mooney, 294 U.S. 102, it is important to remember that “[t]he principle of Mooney v. Holohan is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused.” Brady, 373 U.S. at 87.

We conclude that this case is more in line with Hoppe than Stanislawski, in that a new trial under optimum circumstances absent the errors would not necessarily present a different result. In Stanislawski, 62 Wis.2d 730, the specific evidence withheld was material to the guilt of the defendant, and its consideration by the jury could very well have resulted in a different verdict. We conclude that the trial court did not abuse its discretion in denying a mistrial based on prosecutorial misconduct.

(3) Destruction and Failure to Preserve Evidence

Defendants assert that the prosecutor’s misconduct and negligence in destroying and failing to preserve exculpatory evidence deprived them of a fair trial and requires reversal.

Defendants claim that the prosecutor’s failure to preserve Treuthardt’s purse and its contents when she was arrested and the cash found on the rear shelves of the service station prevented them from locating the unique $ 20 bill paid by a customer prior to the shooting and from verifying the amount of money missing as claimed by the station owner. In addition, the prosecutor lost several bullet fragments which would have supported the defendants’ “ricocheting bullet” theory.

The Wisconsin Supreme Court discussed the prosecutor’s duty to obtain evidence in preparation for a trial in Wold v. State, 57 Wis.2d 344, 349-50, 204 N.W.2d 482, 486-87 (1973).

The duty rests upon the prosecution to obtain all evidence in the possession of investigative agencies of the state…. The test of whether evidence should be disclosed is not whether in fact the prosecutor knows of its existence but, rather, whether by the exercise of due diligence he should have discovered it.

Although sec. 971.23(7), Stats., did not apply to the facts in Wold, the court discussed its significance in relation to inadequate trial preparation.

If sec. 971.23(7), Stats., were applicable, the failure of adequate preparation for trial should not constitute “good cause… shown for failure to comply” when it misleads the defense. If there is to be pretrial discovery, broad or limited, in criminal cases, defense counsel should be able to rely upon evidence as disclosed by the state; otherwise, the purpose of discovery is frustrated and more injustice is done than if no discovery were allowed. (Footnote omitted.) Wold, 57 Wis.2d at 350-51, 204 N.W.2d at 487.

The court further discussed the remedies to be applied when the prosecutor falls short of this duty.

Perhaps not all evidence which should be disclosed to the defendant need be excluded. The harm may be slight and avoided by a short adjournment to allow the defendant to investigate or acquire rebutting evidence. The penalty for breach of disclosure should fit the nature of the proffered evidence and remove any harmful effect on the defendant. Wold, 57 Wis.2d at 351, 204 N.W.2d at 487.

In State v. Amundson, 69 Wis.2d 554, 579, 230 N.W.2d 775, 788-89 (1975), the court specifically discussed the issue of lost or destroyed evidence and concluded that while a defendant does not have to show the exculpatory nature of the evidence, the good or bad faith of the prosecutor is a factor to consider in selecting the remedy.

[T]he good or bad faith of the prosecutor is a factor to be considered within the constitutional framework of whether an item of evidence has been “suppressed” by its destruction. Moreover, in an individual case, the good or bad faith of the state in destroying the evidence could reflect on the value and importance of the evidence. The burden of producing the evidence or of explaining why it could not do so, falls on the government.

In determining the proper analysis to be applied by the trial court in determining whether reversal is required because evidence is lost or destroyed, the court in Amundson found the reasoning of the United States Court of Appeals in United States v. Bryant, 439 F.2d 642 (D.C. Cir. 1971), persuasive. That court directed the lower court to consider the degree of negligence or bad faith by the government, the importance of the evidence lost, and the other evidence of guilt adduced at trial. Bryant, 439 F.2d at 653. See also State ex rel. Huser v. Rasmussen, 84 Wis.2d 600, 267 N.W.2d 285 (1978).

The trial court found that the evidence was lost because of the prosecutor’s negligence, that the evidence was not material to the defense and that there was other sufficient evidence to convict. The record supports the trial court’s finding that there was no bad faith on the part of the prosecutor in relation to the loss or failure to preserve the cash in the service station, Treuthardt’s purse or the metal fragments.

In addition, the cash and purse were not material to the defense in the context of the other evidence adduced at trial. Finding the $ 20 bill in the pile of cash on the rear shelf of the station and proof that Treuthardt’s purse did not contain the $ 20 bill, would, at best, corroborate the existing ambiguity regarding whether any money was actually taken. Failure of the defendants to take the unique $ 20 bill is no more exculpatory than their failure to take the rest of the cash on the rear shelf of the station. The jury saw the picture of the remaining cash and knew that the defendants had not taken it.The defendants have not explained why their failure to take this particular $ 20 bill is any more significant than their failure to take the rest of the money. Also, finding the $ 20 bill at the station would not have contradicted Treuthardt’s testimony that the defendants only got $ 12 during the robbery.

Since the station manager’s testimony regarding the result of the inventory revealed a discrepancy in the amount missing, another total which might result from an independent inventory would, again, only corroborate the existing ambiguity.

The missing bullet fragments were also not material to the defendants’ case in the context of the other evidence. If the actual fragments had been produced, the defendants would have been better able to show the exact amount of the bullet which hit the victim. Showing that the victim was killed by less than a whole bullet, would support their theory that the victim was killed by a ricocheting bullet. However, the defendants established with other evidence that the deceased was killed by less than a whole bullet which had ricocheted. The missing bullet fragments would have allowed them to show the exact amount of the bullet which hit the deceased and would have only been cumulative to the evidence presented at trial which showed that the deceased was shot by less than a whole bullet.

We conclude that in this case the prosecutor’s failure to preserve the cash, Treuthardt’s purse, and the metal bullet fragments did not prejudice the defendants’ case in the context of the other evidence which was produced.

By the Court. –Judgments affirmed.

Inclusion in the official reports is not recommended.


  1. Treuthardt testified that she was very intoxicated the day of the incident and had blank spots in her mind as to the amount of alcohol and drugs consumed and as to the events of the day. Her memory regarding other events in her life, such as an attempted suicide, was also unclear.
  2. Treuthardt testified that her memory improved when someone helped her remember events, such as her attorney or the prosecutor who took her for a ride to the scene of the murder to jog her memory.
  3. When Treuthardt was arrested she claimed to know nothing that had happened and even wrote a friend from jail that as far as she knew, she could have committed the crime.
  4. Section 943.32, Stats., provides:

Robbery. (1) Whoever, with intent to steal, takes property from the person or presence of the owner by either of the following means is guilty of a Class C felony:

(a) By using force against the person of the owner with intent thereby to overcome his physical resistance or physical power of resistance to the taking or carrying away of the property; or

(b) By threatening the imminent use of force against the person of the owner or of another who is present with intent thereby to compel the owner to acquiesce in the taking or carrying away of the property.

(2) Whoever violates sub. (1) while armed with a dangerous weapon is guilty of a Class B felony.

(3) In this section “owner” means a person in possession of property whether his possession is lawful or unlawful.

  1. Section 940.02, Stats., provides:

Second-degree murder. Whoever caused the death of another human being under either of the following circumstances is guilty of a Class B felony:

(1) By conduct imminently dangerous to another and evincing a depraved mind, regardless of human life; or

(2) As a natural and probable consequence of the commission of or attempt to commit a felony.

  1. United States Constitutional Amendment VI and VII
  2. Wisconsin Constitution, art. I, sec. 7
  3. Defendants only claimed that their “statutory and constitutional rights” were denied. It is assumed that the aforementioned sections of the United States and Wisconsin constitutions and Wisconsin statutes are the rights to which they refer.
  4. Supreme Court Order, 67 Wis.2d at 703, effective January 1, 1976.
  5. Section 972.01, Stats., provides:

Jury; civil rules applicable. The summoning of jurors, the impaneling and qualifications of the jury, the challenge of jurors of cause and the duty of the court in charging the jury and giving instructions and discharging the jury when unable to agree shall be the same in criminal as in civil actions, except that s. 805.08(3) shall not apply.

  1. Section 939.05, Stats., provides:

Parties to crime. (1) Whoever is concerned in the commission of a crime is a principal and may be charged with and convicted of the commission of the crime although he did bot directly commit it and although the person who directly committed it has not been convicted or has been convicted of some other degree of the crime or of some other crime based on the same act.

(2) A person is concerned in the commission of the crime if he:

(a) Directly commits the crime; or

(b) Intentionally aids and abets the commission of it; or

(c) Is a party to a conspiracy with another to commit it or advises, hires, counsels or otherwise procures another to commit it. Such a party 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. This paragraph does not apply to a person who voluntarily changes his mind and no longer desires that the crime be committed and notifies the other parties concerned of his withdrawal within a reasonable time before the commission of the crime so as to allow the others also to withdraw.

  1. Section 971.23, Stats., provides in relevant part:

Discovery and inspection. (1) Defendant’s Statements. Upon demand, the district attorney shall permit the defendant within a reasonable time before trial to inspect and copy or photograph any written or recorded statement concerning the alleged crime made by the defendant which is within the possession, custody or control of the state including the testimony of the defendant in an s. 968.26 proceeding or before a grand jury. Upon demand, the district attorney shall furnish the defendant with a written summary of all oral statements of the defendant which he plans to use in the course of the trial. The names of witnesses to the written and oral statements which the state plans to use in the course of the trial shall also be furnished.

(2) Prior Criminal Record. Upon demand prior to trial, the district attorney shall furnish the defendant a copy of his criminal record which is within the possession, custody or control of the state.

(4) Inspection of Physical Evidence. On motion of a party subject to s. 971.31(5), all parties shall produce at a reasonable time and place designated by the court all physical evidence which each party intends to introduce in evidence. Thereupon, any party shall be permitted to inspect or copy such physical evidence in the presence of a person designated by the court. The order shall specify the time, place and manner of making the inspection, copies or photographs and may prescribe such terms and conditions as are just.

(5) Scientific Testing. On motion of a party subject to s. 971.31(5), the court may order the production of any item of physical evidence which is intended to be introduced at the trial for scientific analysis under such terms and conditions as the court prescribes. The court may also order the production of reports or results of any scientific tests or experiments made by any party relating to evidence intended to be introduced at the trial.

(7) Continuing Duty to Disclose; Failure to Comply. If. subsequent to compliance with a requirement of this section, and prior to or during trial, a party discovers additional material or the names of additional witnesses requested which are subject to discovery, inspection or production hereunder, he shall promptly notify the other party of the existence of the additional material or names. The court shall exclude any witness not listed or evidence not presented for inspection or copying required by this section, unless good cause is shown for failure to comply. The court may in appropriate cases grant the opposing party a recess or a continuance.

  1. During the trial, the trial court admonished the prosecutor for asking objectionable questions:

COURT: Mr. Bablitch, it’s disruptive to have to object all the time. You are a lawyer of some number of years experience and I think you can phrase the questions so it’s not objectionable. Would you proceed and follow my instructions relative to what happened outside the presence of the jury? I don’t want to chase the jury out again.

COURT: Well, Mr. Bablitch, the witness is your witness and you control him. You control his responses by your questions and frankly the fact the the picture was made for the purposes of introducing that into evidence has no bearing at all. The fact is he made a picture or he took a picture and compared it, and fortunately for the State of Wisconsin this witness didn’t finish his answer, and your point is well taken. The jury doesn’t know who the other expert was going to be that may testify. However, had he finished his answer I think Mr. Welker is right, a Fifth Amendment right would have been violated. So, Mr. Daniel, I am going to deny your motion. However, again, Mr. Bablitch, I caution you and admonish you to be careful in phrasing your questions so as to not draw from a witness a response that would be prejudicial to the constitutional rights of these defendants, and you control that.

  1. An example of this type of action was described by the defense attorney during the trial:

I would like one more time to object to the repeated asking of questions by Mr. Bablitch after an answer after the objection has been sustained forcing me one more time to object in the presence of the jury. I realize the Court is going to give that instruction to the jury that I have got a right and a duty to object and that they are not to take that into consideration. But as the Court knows it’s awfully difficult for jurors to put that out of their minds. If I look obstreperous, that is a very difficult thing for anybody to put out of his mind just because the Judge tells them they are supposed to. If I recall the sequence of events Mr. Bablitch asked a question which went something like, “Mr. Wilimovsky, do you have an opinion as to the direction of the bullet that made the hole in the collar?” I objected on the grounds of no foundation. We had a recess. Mr. Daniel gave a speech that went on and on and concluded by saying, “Would you please tell Mr. Bablitch not to keep asking improper questions?” The Court admonished Mr. Bablitch, sustained the objection and Mr. Bablitch said, “Well, I’ll lay a foundation.” We went back on the record. We called the jury in and he said, “Mr. Wilimovsky, do you have an opinion as to what direction the bullet went?” That is exactly the same question he asked right before the recess. He was admonished with respect to how to ask questions and ten seconds later he asked the same question and I am forced tc make the same objection in the presence of the jury. Judge, I don’t think I ought to have to keep doing that.

COURT: Your objection, Mr. Welker, is noted for the record.

  1. The trial court admonished the prosecutor for this action:

COURT: Mr. Bablitch, I was frankly shocked when it happened, in fact, shocked to the point where I forgot to call you Mr. Bablitch. I said, “Jim,” because you were standing next to the witness.You were holding the photograph up in the air over your head where at least some jurors could see it. Now, that is not proper conduct. I am not accusing you of doing it purposefully but you are going to have to be more careful in the future.

  1. The prosecutor refused to accept the court’s ruling regarding the scope of questioning the prosecutor could pursue regarding the defendants’ criminal records:
  2. BABLITCH…. I have a disagreement with the Court in regard to the scope or the extent which the matter can be pursued on cross examination. It is my contention that the Bailey case, Nicholas case and others merely stand for the proposition that you can go no farther than the number of crimes and how many you have been convicted for. Certainly that position is a position that is held by me in good faith. It continues to be held by me at this moment. MR. DANIEL: Judge, that begs the question.

COURT: Maybe I went to the wrong law school, but, Mr. Bablitch, there is only one way to read the case that I quoted from. There is only one way to read the Adams case and to say that those cases hold something different is to abort that. The very clear meaning of those phrases set forth by the Wisconsin Supreme Court is just like my saying that wall is green, and it most certainly is green. It’s as simple as all that. I think you’re certainly a competent attorney. I think you can read those cases and you can understand those cases as well as I can. And if you can show me a case to the contrary then I’ll grant you a recess right now to show me a case that has language different than the case that I read from….

  1. Defendants assert that the prosecutor’s misconduct denied their right to effective assistance of counsel. The record shows that defense counsel in this case performed remarkably well and showed a high level of competence. The trial court recognized this at one point during the trial: “I might add that no matter what happens on this case I can never, nor can any appellate court, say that Mr. Drenning and Mr. Solles were represented except by the most competent of counsel.”
  2. The prosecutor’s belated discovery and production of the evidence violated the discovery order and sec. 971.23, Stats. The Statutory remedy for such violations is outlined in sec. 971.23(7). See fn. 10. In this case the court followed the statutory alternatives to remedy each objection by excluding evidence, or granting recesses and continuances.
  3. The prosecutor repeatedly phrased his objections in narrative form without indicating the legal basis for the objection. At one point, the court felt compelled to instruct him in the proper manner of stating an objection:

COURT…. Mr. Bablitch I have to agree I have the Wisconsin Rules of Evidence Handbook and it goes from Chapter 901 through Chapter 911. That’s only ten chapters. It starts out with General Provisions, Judicial Notice, Presumptions, Relevancy, Privileges, Witnesses Opinions and Expert Testimony, Hearsay, Authentication and Identification, Contents of Writings, Recordings, and Photographs and Miscellaneous Rules. Now, if you want to object just, “objection, your Honor, relevancy,” or “objection, your Honor, hearsay,” or “objection, your Honor, no proper foundation.” Once the jury is dismissed then if your want to say it isn’t a fact then we’ll look at that further.I don’t want that type of thing to get before the jury. That is one of the reasons we send that jury frequently out of the room.