Opinion
Case No. 97-0974-CR.
Opinion Released: April 1, 1998. Opinion Filed: April 1, 1998. Recommended for publication in the official reports.
APPEAL from a judgment and an order of the circuit court for Manitowoc County: ALLAN J. DEEHR, Judge. Affirmed.
Before Snyder, P.J., Brown and Anderson, JJ.
Peter G. Tkacz appeals from a judgment of conviction for party to the crime of first-degree reckless homicide by delivery of heroin in violation of §§ 940.02(2)(a), 939.05 and 161.14(3)(k), Stats., 1993-94; conspiracy to deliver heroin as a repeater contrary to §§ 161.14(3)(k), 161.41(1)(d)1, 161.41(1x) and 161.48, Stats., 1993-94; and an order denying his motion for postconviction relief. Tkacz raises the following issues on appeal: (1) there is insufficient evidence to support the homicide charge; (2) the convictions for both charges constitute double jeopardy; (3) his right to a unanimous jury was violated; (4) the jury should have received an instruction that, as to the delivery charge, a buyer-seller relationship is insufficient to establish membership in the conspiracy; (5) the joint trial of the codefendants violated constitutional and statutory provisions; (6) he should have been permitted to explore through cross-examination any potential bargain between the State and one of its crucial witnesses; and (7) the trial court improperly excluded evidence of the probationary status of a State's witness. We reject each of these claims; we therefore affirm.
In 1995, Tkacz was charged with one count of party to the crime of unlawfully causing the death of Laurie Karlin by the delivery of heroin, one count of unlawfully conspiring to deliver heroin, as a repeater, and one count of unlawfully conspiring to deliver cocaine, as a repeater. At the preliminary examination, the trial court bound Tkacz over for counts one and two and dismissed count three. At the arraignment, Tkacz pled not guilty.
Codefendant Jill Kunish-Wolff, whom Tkacz lived with during the time in question, was charged separately; however, the two were tried together and both were found guilty. In a separate appeal, No. 97-0979-CR, Kunish-Wolff has sought review of her conviction as well.
After a five-day trial, the jury returned a verdict of guilty of party to the crime of first-degree reckless homicide and conspiracy to deliver heroin. Tkacz was sentenced to prison for twenty years on count one and fifteen years on count two, consecutive, with 199 days of sentence credit; his operating privileges were suspended for six months; and a $140 mandatory surcharge was imposed. Tkacz filed a motion for postconviction relief which was denied. Tkacz appeals. Additional facts will be included within the discussion as necessary.
Discussion Sufficiency of Evidence on Count One
Tkacz first raises a sufficiency of the evidence argument for count one-party to the crime of first-degree reckless homicide by delivery of heroin. We review the sufficiency of the evidence using the following standard:
[A]n appellate court may not substitute its judgment for that of the trier of fact unless the evidence, viewed most favorably to the state and the conviction, is so lacking in probative value and force that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt. If any possibility exists that the trier of fact could have drawn the appropriate inferences from the evidence adduced at trial to find the requisite guilt, an appellate court may not overturn a verdict even if it believes that the trier of fact should not have found guilt based on the evidence before it.
State v. Poellinger , 153 Wis.2d 493, 507, 451 N.W.2d 752, 757-58 (1990) (citation omitted). The standard of review is the same whether the evidence presented at trial is direct or circumstantial. See id. at 503, 451 N.W.2d at 756. The test is whether this court can conclude that the trier of fact could, acting reasonably, be convinced of the defendant's guilt by evidence it had a right to believe and accept as true. See id. The credibility of the witnesses and the weight of the evidence are for the trier of fact. See id. In reviewing the evidence to challenge a finding of fact, we view the evidence in the light most favorable to the finding and, if more than one reasonable inference can be drawn from the evidence, the inference which supports the finding is the one that we must adopt. See id. at 503-04, 451 N.W.2d at 756.
Tkacz was charged with party to the crime of first-degree reckless homicide by delivery of heroin in violation of § 940.02(2)(a), Stats., 1993-94. For a finding of guilt, the following elements must be proven beyond a reasonable doubt: (1) the defendant delivered or aided and abetted the delivery of a controlled substance, (2) the controlled substance was heroin, (3) the defendant knew or believed that the substance was heroin, and (4) the recipient, Karlin, used the heroin and died as a result of that use. See Wis J I-Criminal 1021. The aider and abetter need not be present at the crime scene. See Roehl v. State , 77 Wis.2d 398, 407-08, 253 N.W.2d 210, 214 (1977).
Section 940.02(2)(a), Stats., 1993-94, prohibits causing death by manufacturing or delivering a controlled substance that another person uses and then dies as a result of that use. The law has been coined the "Len Bias Law." SeeWis J I-Criminal 1021 n. 1.
Tkacz concedes that the State's theory is sound — because Tkacz was involved in purchasing the heroin Kunish-Wolff gave to Karlin, he is guilty of causing Karlin's death. Nevertheless, Tkacz insists that the evidence is insufficient to prove that Karlin obtained the heroin from Kunish-Wolff or Tkacz. We disagree.
The evidence suggests that Karlin did not have, or use, heroin before she arrived at Kunish-Wolff and Tkacz's apartment. Jody Kunish, a close friend of Karlin, explained that she and Karlin were out drinking from approximately 6:30 to 8:45 p.m. on December 27, 1993. She noted that Karlin had six or seven doubles of "7 and 7." Karlin dropped Jody off at her home and stated that she was going to stop by Kunish-Wolff and Tkacz's to see if they had anything to help her sleep. Jody was emphatic that Karlin had not taken any drugs such as heroin before or while they were together because she knows how Karlin reacts to such drugs — "[she's] seen it before."
The evidence that Tkacz (through Kunish-Wolff) was the supplier, or aided and abetted the supplying of heroin, included testimony from James Brown, who frequently supplied heroin to Kunish-Wolff and Tkacz. He testified that the two often came to buy drugs together, but that Tkacz always went with Brown to purchase the drugs. Brown recalled that Karlin had been to his house three times, twice with Kunish-Wolff and Tkacz and that he never sold heroin directly to her, but that she may have used heroin he sold to others. Brown also testified that on December 27, 1993, Tkacz came to Milwaukee and bought four bags of brown heroin and eighteen bags of white heroin. Brown "distinctly recall[ed] asking him why was he getting so much dope, and [Tkacz] told [Brown] he had to sell it to pay his rent." Brown received one bag each of brown and white as payment and Tkacz used some of the brown heroin before returning to Manitowoc with the rest.
Portions of Kunish-Wolff's John Doe testimony were read to the jury. At the hearing, Kunish-Wolff testified that she and Tkacz, who lived together at the time, bought heroin as a "unit" and that even though they each held on to their own "stash," they would share new purchases with the other. Kunish-Wolff recalled that she and Tkacz went to Milwaukee on December 25, 1993, to purchase a small amount of heroin from Brown. Kunish-Wolff testified that Karlin had used heroin at Kunish-Wolff's house before; she stated that she had used heroin on December 27, before Karlin arrived at her home; and she admitted that Karlin had asked for heroin on the 27th, but Kunish-Wolff denied providing any to her. There was additional evidence that Karlin was unable to inject herself with heroin without assistance; someone had to do it for her.
In addition, there was evidence that Kunish-Wolff and Tkacz had supplied heroin to others. Rose Krist testified that on December 25, 1993, she asked Kunish-Wolff and Tkacz to buy her a ten-dollar bag of heroin from Milwaukee. They arranged to drop it off later that evening. Krist stated that Kunish-Wolff and Tkacz delivered the heroin as promised and that Tkacz injected the heroin for her. Krist, a longtime user, also explained how the injection affected her and why she believed it was in fact heroin. We conclude that there was sufficient evidence for the jury to conclude that Tkacz was the supplier, or aided and abetted the supplying, of heroin to Karlin.
Tkacz also maintains that there was inadequate evidence to prove that Karlin died from an overdose of heroin. The evidence suggests otherwise. Again, the evidence included testimony that Karlin had not used heroin while out drinking; that Tkacz had purchased heroin on December 27 and that Tkacz and Kunish-Wolff had about nineteen tins of heroin in their possession; that Kunish-Wolff admitted to using heroin on December 27; and that Karlin asked for heroin.
Additional evidence supports a heroin overdose. Kunish-Wolff reported to the police that Karlin was drunk when she arrived at her apartment. The physical condition and appearance of Karlin's body as related by medical personnel and officers at the scene were, according to the medical experts, consistent with an overdose of heroin. The medical examiner found that death was caused by a mixed drug overdose, predominantly morphine with alcohol as a substantial contributing factor. Medical tests found concentrations of both morphine and alcohol in Karlin's blood. The medical evidence disclosed that the morphine substance could result from the metabolism of heroin and that alcohol increases the impact of heroin and, in many cases, is fatal. Additional medical testimony was that Karlin manifested physical symptoms which were consistent with a heroin overdose. The testimony revealed that Karlin was admitted with adult respiratory distress syndrome which only occurs with intravenous narcotics — "classic for IV heroin use." There was sufficient evidence for a reasonable jury to conclude that Karlin died from an overdose of heroin.
It is not significant that neither a syringe with heroin residue was located nor that the syringes that were found contained traces of a drug not found in Karlin's blood. Tkacz is not charged with administering the fatal dose of heroin; rather, he is charged with aiding and abetting the delivery of heroin that resulted in death. The aider and abetter need not be present at the crime scene. See Roehl , 77 Wis.2d at 407-08, 253 N.W.2d at 214.
Moreover, "'when the question of the sufficiency of the evidence is presented on appeal in a criminal case the only question for this court is whether the evidence adduced, believed and rationally considered by the jury, was sufficient to prove the defendant['s] guilt beyond a reasonable doubt.'" Smith v. State , 69 Wis.2d 297, 305-06, 230 N.W.2d 858, 863 (1975) (quoted source omitted). "'The test is not whether this court is convinced of the [defendant's] guilt . . . but whether this court can conclude the trier of facts could, acting reasonably, be convinced to the required degree of certitude by the evidence which it had a right to believe and accept as true.'" Id. at 306, 230 N.W.2d at 863 (quoted source omitted). We conclude that the test has been satisfied in this case and that the jury acted reasonably in returning a guilty verdict for party to the crime of first-degree reckless homicide by delivery of heroin.
Double Jeopardy
Tkacz next argues that his convictions for the two offenses constitute a double jeopardy violation — delivery of heroin is a lesser included offense of first-degree reckless homicide by delivery of heroin. Tkacz does not question the validity of a prosecution for a drug offense which was not the basis for the reckless homicide conviction; however, he maintains "this is not how the prosecutor chose to proceed." He insists that the time frame of the delivery charge, October through December 1993, includes the date of the alleged homicide and proof of the delivery count could have been the basis for satisfying the delivery element of the reckless homicide charge.
The Double Jeopardy Clause is intended to provide three protections: "protection against a second prosecution for the same offense after acquittal; protection against a second prosecution for the same offense after conviction; and protection against multiple punishments for the same offense." State v. Sauceda , 168 Wis.2d 486, 492, 485 N.W.2d 1, 3 (1992). This case involves the third protection. Whether a defendant's convictions violate his or her double jeopardy rights involves a question of law which this court reviews independently. See id.
Wisconsin employs the "same elements" test of Blockburger v. United States , 284 U.S. 299 (1932), for determining which offenses are the same for double jeopardy purposes. See State v. Dillon , 187 Wis.2d 39, 51, 522 N.W.2d 530, 535 (Ct.App. 1994). Under the "same elements" test, we are required to analyze each offense to determine whether either is a lesser included offense of the other. See Sauceda , 168 Wis.2d at 494, 485 N.W.2d at 4. An offense is a lesser included one only if all of its statutory elements can be demonstrated without proof of any fact or element except those proved for the "greater" offense. See id. at 494-95, 485 N.W.2d at 4. Accordingly, the State can prosecute Tkacz for the two offenses if each offense necessarily requires proof of an element that the other does not. See State v. Kurzawa , 180 Wis.2d 502, 515, 509 N.W.2d 712, 717 (1994).
Our analysis reveals that each offense requires proof of an element that the other does not. The elements of party to the crime of first-degree reckless homicide by delivery of heroin are: (1) the defendant delivered or aided and abetted the delivery of a controlled substance, (2) the controlled substance was heroin, (3) the defendant knew or believed that the substance was heroin, and (4) the recipient victim used the heroin and died as a result of that use. See Wis J I-Criminal 1021. In contrast, the elements of conspiracy to deliver a controlled substance are: (1) the defendant delivered (or conspired with another to deliver) a substance, (2) the substance was heroin, and (3) the defendant knew or believed the substance was heroin. See Wis J I-Criminal 6020.
It is clear that each offense requires proof of an element that the other does not. First-degree reckless homicide by delivery of heroin requires proof of delivery to a particular consumer whereas conspiring to deliver does not. Under the homicide charge, the victim must use the heroin and he or she must die from that use; delivery has no such requirements. Also, under the homicide charge, the State must establish a causal connection between the actor's conduct-use of the delivered heroin — and the prohibited result — death resulting from that use. The delivery charge goes no further than the initial transfer or attempt to transfer from one person to another. Therefore, we conclude that the "same elements" test is satisfied and double jeopardy is not violated.
Conspiracy to deliver may be demonstrated by circumstantial evidence without confirmation of delivery to a specific consumer. See State v. Cavallari , 214 Wis.2d 42, 51, 571 N.W.2d 176, 180 (Ct.App. 1997). In fact, evidence of a conspiracy may include evidence of large quantities of drugs, prolonged cooperation, standardized dealings and sales on credit. See United States v. Sax , 39 F.3d 1380, 1385-86 (7th Cir. 1994).
Once the "same elements" test has been met, multiple punishments are presumed to be allowed unless a defendant can demonstrate contrary legislative intent. See State v. Johnson , 178 Wis.2d 42, 49-50, 503 N.W.2d 575, 577 (Ct. App. 1993). This presumption can be overcome only by a clear indication of legislative intent to the contrary. See id. Tkacz has failed to submit any evidence of contrary legislative intent; therefore, the charges against him do not constitute double jeopardy.
Tkacz's discussion on "whatever distinctions may exist between aiding and abetting and conspiring, they do not amount to distinctive elements which constitute separate offenses" does not address this point. Under the "same elements" analysis, the two charges involve different factual assertions regardless of the aiding and abetting or conspiring components.
Unanimous Jury Verdict
Tkacz argues that the delivery count should be vacated and a new trial be granted because he was denied a unanimous verdict on the conspiracy charge. At the instructions conference, the trial court indicated that the unanimous verdict jury instruction would be read to the jury. Tkacz made no objections to this instruction, nor did he request a specific instruction requiring the jurors to agree on the specific overt acts that constituted the conspiracy before finding him guilty of that charge. Tkacz first raised this concern by postconviction motion, approximately one year after trial.
Wisconsin J I-Criminal 515 provides: "This is a criminal, not a civil, case; therefore, before the jury may return a verdict which may legally be received, such verdict must be reached unanimously. In a criminal case, all 12 jurors must agree in order to arrive at a verdict."
The State maintains that Tkacz has waived review of this claim. We agree; this court has held that by failing to object to the verdict, the instructions given at trial or requesting a special jury instruction on the issue of jury unanimity, the defendant waived his or her right to appeal the issue. See State v. Green , 208 Wis.2d 290, 304, 560 N.W.2d 295, 300 (Ct.App. 1997); State v. Speese , 191 Wis.2d 205, 226, 528 N.W.2d 63, 71 (Ct.App. 1995), (failure to object to standard jury instruction on unanimity constitutes waiver) rev'd on other grounds, 199 Wis.2d 597, 545 N.W.2d 510 (1996). Tkacz waived review of this issue.
We recognize that in State v. Heitkemper , 196 Wis.2d 218, 228 n. 3, 538 N.W.2d 561, 565 (Ct.App. 1995), this court concluded that "'the right to a unanimous verdict . . . is so fundamental that it cannot be waived.'" (Quoting Holland v. State , 87 Wis.2d 567, 597-98, 275 N.W.2d 162, 177 (Ct. App.), rev'd, 91 Wis.2d 134, 280 N.W.2d 288 (1979)). Heitkemper is obviously in conflict with State v. Green , 208 Wis.2d 290, 304, 560 N.W.2d 295, 300 (Ct.App. 1997). When a decision of this court is in clear conflict with a prior decision of this same court, we may follow the decision which we conclude is correct. See State v. Kuehl , 199 Wis.2d 143, 149, 545 N.W.2d 840, 842 (Ct.App. 1995). The supreme court in State v. Schumacher , 144 Wis.2d 388, 416, 424 N.W.2d 672, 683 (1988), unambiguously stated: "[T]he court of appeals does not have the power to review unobjected-to jury instructions." We believe that Green is the correct pronouncement of the law.
Tkacz also made an ineffective assistance of counsel argument at the postconviction hearing. The trial court determined that the unanimity instruction provided to the jury was appropriate because there was but one crime-conspiracy to deliver heroin in Manitowoc over a set period of time — and the crimes were not conceptually distinct — there were not alternate ways of committing the offense. The trial court also held that there was no prejudice to Tkacz by his attorney's failure to raise the unanimity issue at trial because the court would have rejected it on the same basis noted above.
In order to prove a claim of ineffective assistance of counsel, a defendant must show that counsel's performance was deficient and that such performance prejudiced his or her defense. See Strickland v. Washington , 466 U.S. 668, 687 (1984). However, we may avoid the deficient performance analysis if we can resolve the ineffectiveness issue on the grounds of lack of prejudice. See State v. Moats , 156 Wis.2d 74, 101, 457 N.W.2d 299, 311 (1990). Whether counsel's performance prejudiced the defendant is a question of law which we review de novo. See id. We conclude that because the trial court stated at the postconviction motion hearing that it would have overruled an objection had one been made, counsel cannot be faulted for not bringing a motion that would have failed. See State v. Simpson , 185 Wis.2d 772, 784, 519 N.W.2d 662, 666 (Ct.App. 1994). Therefore, Tkacz was not prejudiced by trial counsel's failure to object.
Illegal Conspiracy
Alternatively, Tkacz contends that the delivery count should be vacated and a new trial be granted because the jury was permitted to convict him of conspiracy on an illegal theory. Tkacz argues that the jury should have received an instruction that, with respect to the conspiracy charge in count two, a buyer-seller relationship is insufficient to establish membership in the conspiracy as enunciated in State v. Smith , 189 Wis.2d 496, 525 N.W.2d 264 (1995). We disagree.
In Smith , the defendant seller was convicted of conspiracy to deliver a controlled substance. See id. at 498, 525 N.W.2d at 265. However, the only evidence presented by the State was that the seller purported to have in his possession and agreed to sell a small amount of controlled substance to the buyer. See id. The amount was consistent with personal use, and there was no claim that the buyer intended to sell, deliver or give the controlled substance to a third party. See id. at 502, 525 N.W.2d at 266. Based on that evidence, the supreme court concluded that the most the buyer could have been guilty of was misdemeanor possession, a different crime from that which the defendant seller was charged. Because there was no factual basis to sustain a theory of conspiracy to deliver a controlled substance, the supreme court allowed the defendant seller to withdraw his guilty plea. See id. at 504, 525 N.W.2d at 267.
As recently explained by the supreme court, the rationale of Smith was that members of a conspiracy must be in agreement to commit the same crime. See State v. Sample , No. 96-2184-CR, slip op. at 16-17 (para. 27) (Wis. Feb. 10, 1998). And when there is evidence of merely a buyer-seller relationship for a small amount of drugs for a buyer's personal use, a conspiracy has not been established. See Smith , 189 Wis.2d at 501, 525 N.W.2d at 266. Rather, the State must present evidence that an agreement existed between the seller and the buyer that the buyer would deliver at least some of the controlled substances to a third party. See State v. Cavallari , 214 Wis.2d 42, 51, 571 N.W.2d 176, 180 (Ct.App. 1997). A conspiratorial agreement may be demonstrated by circumstantial evidence. See id. Evidence of a conspiracy, as opposed to a buyer-seller relationship, may include transactions involving large quantities of drugs, prolonged cooperation between the parties, standardized dealings and sales on credit. See United States v. Sax , 39 F.3d 1380, 1385-86 (7th Cir. 1994).
This case is quite unlike Smith and is not consistent with mere personal use of a controlled substance. The evidence instead points to a conspiracy: Tkacz and Kunish-Wolff would regularly go to Milwaukee to purchase ten to fifteen bags of heroin, most of which they brought back to Manitowoc; Brown would cut Tkacz and Kunish-Wolff a deal on the price based on their long-term relationship; on at least one occasion Tkacz and Kunish-Wolff delivered drugs to Krist; and on some occasions Tkacz picked up and delivered drugs to Kunish-Wolff and vice versa. Based on such standardized dealings, a jury could reasonably find a conspiracy to deliver a controlled substance.
Moreover, this case does not fit the purpose of the buyer-seller instruction and such an instruction is not supported by the evidence. When considering a challenge to the evidence supporting an instruction, we view the supporting evidence in the light most favorable to the party requesting it, which here is Tkacz. See State v. Gaudesi , 112 Wis.2d 213, 223, 332 N.W.2d 302, 306 (1983). The question is whether a reasonable construction of the evidence would allow the jury to find the facts suggested by the instruction. See State v. Coleman , 206 Wis.2d 199, 212-13, 556 N.W.2d 701, 706-07 (1996).
The purpose of the instruction is to ensure that the jury understands that an agreement to purchase controlled substances, without any other agreement to achieve another criminal objective, is not a conspiracy. See United States v. Turner , 93 F.3d 276, 285 (7th Cir. 1996); see also United States v. Ivy , 83 F.3d 1266, 1285-86 (10th Cir. 1996), cert. denied, 117 S.Ct. 253 (1996) (noting that the purpose of the buyer-seller rule is to separate consumers, who generally do not share the criminal objective, from others who do further the objective of the conspiracy). The instruction is not appropriate when there is evidence of multiple drug transactions, as opposed to a single, isolated sale. See United States v. Wiggins , 104 F.3d 174, 177 (8th Cir. 1997).
Again, the testimony indicates that Tkacz and Kunish-Wolff purchased large quantities of heroin on a regular basis from Milwaukee. There is evidence of at least one completed drug sale. And there was testimony that Karlin, the victim, had received heroin from Tkacz and Kunish-Wolff at least twice prior to her death. No reasonable juror would have believed that Tkacz was involved in a mere one-time buyer-seller relationship. We conclude that the trial court did not commit reversible error by not providing a Smith — like instruction because it was not supported by the evidence.
The trial court explained a conspiracy to deliver to the jury as follows:
Conspiracy involves more than just one person delivering a controlled substance to another. A person who is a member of a conspiracy if, with intent that a crime be committed, the person agrees with or joins with another for the purpose of committing that crime. A conspiracy is a mutual understanding to accomplish some common criminal objective or to work together for a common criminal purpose. It is not necessary that the conspirators had any express or formal agreement, or that they had a meeting, or even that they all knew each other.
We conclude that this instruction was proper. See Wis J I-Criminal 410.
Codefendant's Joint Trial
Tkacz seeks a new trial on the basis that he was required to have a joint trial with codefendant Kunish-Wolff. Prior to trial, Tkacz filed a motion for a joint trial with dual juries to ensure a fair and impartial trial for each defendant. Tkacz took issue with inculpatory statements given by Kunish-Wolff which also implicated Tkacz and posed confrontation issues as recognized in Bruton v. United States , 391 U.S. 123 (1968).
However, Tkacz withdrew the motion when the State agreed to accept a limiting instruction that statements of one defendant could not be used to determine the guilt of the other. The court gave the limiting instruction at the outset of trial, prior to the reading of Kunish-Wolff's testimony relating to Tkacz and again in its final instructions to the jury.
Tkacz now contends that the reading of Kunish-Wolff's John Doe testimony linked him to the theories of liability, Kunish-Wolff did not testify and therefore, his constitutional right to confront and cross-examine her were violated entitling him to a new trial. The State, on the other hand, posits that by withdrawing his request for dual juries and agreeing to a joint trial with a limiting instruction for the jury, he has waived the right to complain about a joint trial with Kunish-Wolff.
We agree with the State. A defendant cannot follow one course of strategy at trial and then, if dissatisfied with the result, complain that he or she should be discharged or retried. See State v. Kraemer , 156 Wis.2d 761, 765, 457 N.W.2d 562, 564 (Ct.App. 1990). A waiver which is the result of a strategic choice binds both the defendant and the appellate court, precluding review of the waived claim. See id. at 765-66, 457 N.W.2d at 564. Tkacz, through counsel, clearly acquiesced to the cautionary jury instruction and withdrew his motion for a joint trial with dual juries. He has therefore waived this issue.
Evidentiary Issues
Tkacz next raises two evidentiary issues relating to two State witnesses: failure to admit Brown's plea agreement and precluding inquiry into Krist's probationary status. The question of the admissibility of evidence lies within the sound discretion of the trial court. See State v. Pepin , 110 Wis.2d 431, 435, 328 N.W.2d 898, 900 (Ct.App. 1982). When we review a discretionary decision, we examine the record to determine if the trial court logically interpreted the facts and applied the proper legal standard. See State v. Rogers , 196 Wis.2d 817, 829, 539 N.W.2d 897, 902 (1995). We will address each issue in turn.
James Brown
Tkacz first questioned Brown's plea agreement during the trial. The prosecutor stated that: "James Brown entered his plea to some charges and we told him we'd read in everything else, and we have made no additional assurances in terms of his testimony here. At this point — actually he's a writted witness because his cases are closed." The prosecutor explained that Brown pled to three felonies, and numerous potential charges, involving drug transactions with a list of potential codefendants, were read in. Brown was also told that if there were other defendants he would be called back to testify. The prosecutor also agreed to provide Brown with the transcript to his preliminary hearing when Tkacz's trial was over.
During Brown's testimony, Tkacz's counsel asked if he was getting anything in return for his testimony and Brown responded "no." Brown discussed his prison sentence, probation, parole eligibility and mandatory release dates, and he acknowledged that certain charges of delivery were dropped in exchange for his guilty plea in Manitowoc county. Brown stated he was told by his attorney that a second-degree reckless homicide charge was not issued because he pled guilty to the drug charges. Brown stated that he was looking to receive the transcript to his preliminary for his testimony. In addition, the trial court introduced, on its own motion, the minutes of Brown's plea hearing which outlined the terms of the plea agreement.
At the postconviction motion hearing, the trial court disagreed with Tkacz that Brown gave false testimony relating to his plea agreement or that the State had an obligation to correct any of the testimony given by Brown, with one exception. The court believed the State should have corrected Brown's statement that he "[wasn't] allowed any read-ins or anything." However, "once the Court recognized that Mr. Brown had testified falsely, the Court interjected itself and . . . did introduce Exhibit No. 10." Kunish-Wolff's trial counsel testified that he did not believe this additional information would make Brown less believable to the jury. The court concluded that "in light of the State's failure to disclose more . . . than just the fact that there had been a plea that had been entered into, I don't see any reasonable probability that the result of the trial in the case of either defendant would have been any different . . . ."
On appeal, Tkacz insists his "rights were denied by the failure to expose the prosecution's bargain to obtain the testimony of a crucial witness." Tkacz argues that: (1) the prosecutor failed to disclose the terms of the agreement and failed to correct false testimony of a government witness, (2) the trial court stymied the defense's efforts to learn whether Brown was receiving a benefit for his testimony and it curtailed cross-examination of Brown, and (3) defense counsel was ineffective for failing to examine Brown's file or Exhibit 10.
It is undisputed that both Tkacz and Kunish-Wolff made demands for discovery from the prosecution. Section 971.23(1) and (7), Stats., imposes a continuing duty on the prosecution to disclose exculpatory evidence after the request is made. See also State v. Ruiz , 118 Wis.2d 177, 196-97, 347 N.W.2d 352, 361 (1984). There is only one way for a prosecutor to respond to a request for exculpatory evidence such as the terms of a plea agreement of a State's witness — full and complete disclosure. See id. We conclude that the prosecutor's failure to fully disclose the terms of the plea agreement reached with Brown in this case constitutes error. See id. ; see also State v. Nerison , 136 Wis.2d 37, 46, 401 N.W.2d 1, 5 (1987).
Section 971.23, Stats., provides in relevant part:
What a district attorney must disclose to a defendant. Upon demand, the district attorney shall . . . disclose to the defendant or his or her attorney . . . all of the following materials and information . . . [in] control of the state:
. . . .
Any relevant written or recorded statements of a witness . . . that the district attorney intends to offer in evidence at trial.
. . . .
Any exculpatory evidence.
Continuing duty to disclose. If, subsequent to compliance with a requirement of this section, and prior to or during trial, a party discovers additional material . . . the party shall promptly notify the other party . . . .
(7m) Sanctions for failure to comply. (a) 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.
The sanctions for a party's failure to comply with the disclosure statute include exclusion of the witness or evidence; the court may grant the opposing party a recess or continuance; or the court may advise the jury of any failure or refusal to disclose material or information required to be disclosed or of any untimely disclosure of material or information required to be disclosed. See § 971.23(7m), Stats. Here the trial court did none of the above. Instead, the court instructed Tkacz to conduct a search of Brown's record himself. Not only did the trial court ignore the fundamental duty of the prosecutor to provide this information, see § 971.23(1)(h) and (7), Stats., but it is also improper to place the burden on the defense to search the records for exculpatory evidence, see State v. Randall , 197 Wis.2d 29, 37, 539 N.W.2d 708, 712 (Ct.App. 1995). We conclude that the trial court committed error when it failed to order the prosecutor to respond to Tkacz's request for exculpatory evidence.
We nevertheless conclude that the errors by the prosecutor and the trial court were harmless. Our review of a claimed discovery violation under § 971.23, Stats., is subject to a harmless error analysis. See State v. Koopmans , 202 Wis.2d 386, 396, 550 N.W.2d 715, 720 (Ct.App. 1996), aff'd,210 Wis.2d 671, 563 N.W.2d 528 (1997). The test of harmless error is whether the appellate court in its independent determination can conclude there is sufficient evidence, other than and uninfluenced by the inadmissible evidence, which would convict the defendant beyond a reasonable doubt. See State v. Denny , 163 Wis.2d 352, 359, 471 N.W.2d 606, 609 (Ct.App. 1991). It is undisputed that Tkacz and Kunish-Wolff procured heroin as a "unit"; Karlin was drunk when she arrived at Tkacz's apartment; Kunish-Wolff admitted using heroin earlier in the day; Karlin asked her for heroin; Karlin could not inject heroin without assistance; and there was medical testimony that the physical symptoms exhibited by Karlin were consistent with a heroin overdose. We conclude that without consideration of Brown's testimony, this evidence would be sufficient in the minds of a jury to convict Tkacz.
In order to establish a claim of ineffective assistance of counsel, a defendant must show that counsel's performance was deficient and that such performance prejudiced his or her defense. See Strickland v. Washington , 466 U.S. 668, 687 (1984). We may avoid the deficient performance analysis if the defendant has failed to show prejudice. See State v. Wirts , 176 Wis.2d 174, 180, 500 N.W.2d 317, 318 (Ct.App. 1993). To prove prejudice, the defendant must show that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different — whether the errors cause us to believe that the outcome has been rendered unreliable. See Strickland , 466 U.S. at 694-95. Because we conclude that any errors by the prosecutor or the trial court are harmless, we also conclude that even if the alleged omissions by trial counsel constituted deficient performance, there is no reasonable probability of a different outcome. Without prejudice, trial counsel's errors are not grounds for reversal. See State v. Pitsch , 124 Wis.2d 628, 633, 369 N.W.2d 711, 714 (1985).
Rose Krist
Tkacz also disputes the limited questioning as to Krist's probationary status. At trial, Krist testified that she bought heroin from Tkacz and Kunish-Wolff two days before Karlin's overdose. She admitted that when she initially spoke with the police detectives she did not discuss the sale; however, in a later interview she implicated both Tkacz and Kunish-Wolff in the drug sale. On cross-examination, defense counsel revealed that in between Krist's two interviews she was placed on probation. At that point, the State objected on relevancy grounds, and arguments were made outside the presence of the jury. The trial court rejected defense counsel's arguments of bias and impeachment concluding that an inquiry into the number of convictions, if any, was allowed, but that an inquiry relating to probationary status was impermissible.
The scope of cross-examination for impeachment purposes is within the sound discretion of the trial court. See State v. McCall , 202 Wis.2d 29, 35, 549 N.W.2d 418, 420 (1996). We must defer to the trial court's determination if a reasonable basis exists for it. See id. at 36, 549 N.W.2d at 421. It is the duty of the trial court to "curtail any undue prejudice by limiting cross-examination, including the exclusion of bias evidence which would divert the trial to extraneous matters or confuse the jury by placing undue emphasis on collateral issues." Id. at 41-42, 549 N.W.2d at 423. Even the constitutional right to confront witnesses is not absolute and does not restrict the trial court's latitude to impose reasonable limits on cross-examination based on concerns about prejudice, confusion or relevancy. See id. at 43-44, 549 N.W.2d at 424.
At the postconviction hearing, the trial court explained that Krist's probation had expired prior to trial and that there were no ramifications in her testifying one way or another or refusing to testify because her discharge had occurred. It noted that the statements she gave to the officers were not inconsistent with her testimony and the statements would not be used in the trial. The court also disagreed that her probationary status constituted other crimes evidence which could be used to establish intent, motive or identity. The court pointed out that it never foreclosed questions about Krist's failure to be forthcoming about the drug sale. It found that Krist's probationary status was collateral and to explore it further would cause undue delay.
We agree; there was ample impeachment evidence and further questioning about Krist's probationary status would have been cumulative. Krist indicated that she have five prior convictions, a history of drug use, and she admitted to lying to her husband and daughter about her purchase and use of heroin on Christmas day. Discrepancies with prior testimony were explored on cross-examination. Krist also denied receiving threats from the police if she failed to cooperate with them. We conclude that the trial court properly exercised its discretion in limiting the cross-examination of Krist.
By the Court. — Judgment and order affirmed.