State v. Bannister

CURLEY, J.

¶ 1. Edward J. Bannister appeals the judgment convicting him of one count of delivery of a controlled substance, morphine, contrary to Wis. Stat. §§ 961.14(3) and 961.41(l)(a) (2003-04).1 Bannister argues that there was insufficient evidence to convict him because his confession was not corroborated by a significant fact. In addition, he alleges that several improprieties at trial prohibited the real controversy from being tried, and he is entitled to a discretionary reversal pursuant to Wis. Stat. § 752.35. Because the State failed to corroborate a significant fact of Bannister's confession, we reverse.2

I. Background.

¶ 2. On January 17, 2003, the City of Cudahy police were dispatched to the home of Michael Wolk. Upon their arrival, they discovered that Wolk, who was lying on the loveseat, was dead. Drug paraphernalia consisting of two syringes, a teaspoon, rolling papers, and a small white powdery rock substance were found on a nearby table. Later testing revealed morphine on the two syringes and teaspoon, and an autopsy of Wolk *362discovered that the cause of death was morphine toxicity. However, no morphine pills were found.

¶ 3. An investigation eventually led police to Bannister after they interviewed Wolk's brother, Steven, who told the police that both he and his brother had obtained morphine from Bannister. Steven Wolk gave the police inconsistent statements concerning the length of time this occurred. Steven also told the police he had a short-term memory deficit. Bannister was arrested and originally charged with delivering a controlled substance, morphine, to Michael Wolk, and first-degree reckless homicide. Some nine months after Wolk's death, Bannister was arrested and taken to the Cudahy police station, where he was given food after he informed the police that he suffers from sickle cell anemia. After being advised of his Miranda rights,3 Bannister told the detective that he gave morphine tablets to Steven or Michael Wolk eight to ten times between mid-December 2002 to mid-January 2003. The detective who interrogated Bannister later testified that he took notes of what Bannister said and transcribed his notes into a report. However, Bannister never saw the notes or signed the confession, and the notes were destroyed after the report was completed.4

¶ 4. Bannister waived his preliminary hearing and demanded a jury trial. On the first day of trial, the State announced that it planned to proceed only on the delivery of morphine charge. However, after Bannister's defense attorney suggested that any discussion of Wolk's death was unduly prejudicial, and the State responded by stating that it was prepared to proceed *363with the homicide charge, Bannister entered into a stipulation that, in exchange for not having to face the charge of reckless homicide, he would permit the State to introduce evidence that Wolk died as a result of a morphine overdose. Prior to the calling of witnesses, the trial court conducted a Miranda-Goodchild5 hearing and ruled that Bannister's confession was admissible.

¶ 5. During the State's opening statement to the jury, the prosecutor told the jury that "the purpose of the testimony regarding the death is not [sic] ask someone to answer for that death, but it's an important element of evidence that I think that you have to listen to." He also advised the jury that they may hear from Steven Wolk, and that his testimony would be that he and his brother Michael were either given or they purchased morphine tablets from Bannister over the span of several months, and that the last time they obtained morphine from Bannister was a couple of days before Michael's death either January 14th or 15th, 2003. However, when Steven Wolk was brought to the courtroom from prison (he had recently been convicted of a traffic homicide charge), he indicated under oath and outside the presence of the jury that he would not testify even if the State offered him immunity. As a result, the jury never heard any direct testimony from Steven Wolk.

¶ 6. Several other witnesses were called by the State. The police officer responding to the 911 call described what he observed at the Wolk residence. A laboratory technician and the medical examiner testified that morphine had been found on the drug para-*364phemalia near Michael Wolk's body, and that Michael Wolk died of morphine toxicity. The Cudahy police detective also testified about Bannister's confession. After the close of testimony at the jury instruction conference, Bannister's attorney advised the court that Steven Wolk did not testify because the prosecutor in his opening statement indicated that Steven Wolk would testify that Bannister had given them morphine pills. The trial court ruled that Bannister's attorney could not mention that Steven Wolk had not testified, because to do so would require the jury to know that Steven Wolk exercised his constitutional rights not to incriminate himself.

¶ 7. Bannister was subsequently convicted and sentenced to five years of confinement with three years of extended supervision to follow. At sentencing, the State asked the trial court, at the behest of Michael Wolk's widow,6 to order Bannister to pay restitution of approximately $40007 for Wolk's funeral expenses. The trial court agreed, and ordered Bannister to pay the funeral expenses as restitution. A postconviction motion was filed seeking a new trial. It was denied and this appeal follows.

II. AlNALYSXS.

¶ 8. Bannister first argues that there was insufficient evidence to sustain the conviction because his *365confession was not corroborated by any significant fact. The State maintains that the discovery of morphine in Wolk's body constitutes corroboration of a significant fact. We have carefully scrutinized the testimony in this case. After doing so, we must conclude that, under the unusual facts presented here, the presence of morphine in Michael Wolk's body does not constitute "corroboration of a significant fact" as is required by law.

¶ 9. Developed at common law, Wisconsin's corroboration rule, also known as the corpus delicti rule, requires that a "conviction of a crime may not he grounded on the admission or confessions of the accused alone." State v. Verhasselt, 83 Wis. 2d 647, 661, 266 N.W.2d 342 (1978). Instead, there must be corroboration of a "significant fact." Holt v. State, 17 Wis. 2d 468, 480, 117 N.W.2d 626 (1962). The corroboration rule ensures the reliability of the confession. See Verhasselt, 83 Wis. 2d at 662. "[T]he main concern behind the corroboration rule is that an accused will feel 'coerced or induced' when he or she 'is under the pressure of a police investigation' and make a false confession as a result." State v. Hauk, 2002 WI App 226, ¶ 25, 257 Wis. 2d 579, 652 N.W.2d 393 (footnote omitted). "Such corroboration is required in order to produce a confidence in the truth of the confession." Holt, 17 Wis. 2d at 480. As noted, the corroboration must be of a "significant fact" before the conviction can stand. Schultz v. State, 82 Wis. 2d 737, 753, 264 N.W.2d 245 (1978). While no case law defines exactly what a "significant fact" is, the dictionary defines "significant" as "having or likely to have influence or effect: important." Webster's Ninth New Collegiate Dictionary 1096 (1991). We independently review whether the evidence presented meets *366the corroboration standard. See Barth v. State, 26 Wis. 2d 466, 468, 132 N.W.2d 578 (1965).

¶ 10. We first observe that there is a dearth of information in the charging portion of the complaint concerning the charge against Bannister. It alleges only that Bannister delivered morphine at his residence "[o]n or about or between December 15, 2002 to January 17, 2003," a thirty-four-day span. No trial testimony explored or elaborated on this delivery. No eyewitnesses to the exchanges testified, and no other details fleshing out the facts of the delivery such as what time of day it occurred, what room the parties were in when the exchange occurred, or how the visit was set up was ever presented. The only evidence admitted at trial concerning these events was Bannister's rather generic confession that the deliveries occurred at his home. Like the charging portion of the complaint, Bannister's statement is also devoid of detail. Bannister told the detective little about the circumstances surrounding the delivery; he never mentioned what time of day the parties would meet, what the parties said, how they communicated, etc. We have only Bannister's barebones confession that at his house he gave morphine pills to Michael Wolk on three or four occasions, and to Steven Wolk on three or four occasions within the span of about one month.

¶ 11. The detective, who knew at the time of the interrogation that Wolk had died of a morphine overdose, testified that: "He told me that he gave morphine to Steve on three to four occasions and to his brother Michael on three to four occasions. I believe he said approximately every third day or in that range."8 In *367other words, Bannister confessed to giving Michael Wolk morphine pills three to four times over the span of thirty-four days. If, as the detective related, Bannister gave Michael Wolk the morphine pills three to four times approximately every third day, depending on when he started and stopped, the deliveries to Michael could have been easily concluded by mid-December. Thus, under this scenario, it would be extremely unlikely that any morphine found in Wolk's body on January 17, 2003, was obtained from Bannister unless Wolk saved some, and thus, does not corroborate the confession. Even if we assume that the deliveries occurred nearer to the time of Wolk's death, as was suggested by the prosecutor in his opening statement, when he claimed the last morphine exchange occurred two days before Wolk's death, the evidence of morphine in Wolk's body is not a significant fact corroborating Bannister's confession that he gave morphine pills to Wolk, it corroborates only that Wolk used morphine. This is so because Michael Wolk was a drug addict who regularly used illicit drugs. Consequently, the finding of morphine in his body was not a remarkable or important discovery. Just as a diabetic would have traces of insulin in the bloodstream, evidence of morphine would be expected in the bodies of morphine addicts.9 A significant fact is a meaningful and particularized fact that produces confidence in the truthfulness of the confession. Based on the evidence produced at trial, the finding of morphine in Wolk's body was not a significant *368fact corroborating Bannister's confession. Here, no other facts or circumstances supporting Bannister's confession were ever produced. No morphine pills or evidence of morphine pills were found next to Wolk's body, and the expert witnesses were unable to pinpoint the source of the morphine. No independent eyewitness testified to any drug exchanges between Bannister and the Wolks. Further, Bannister's confession did not yield any unusual information or circumstances that would not be widely known. Thus, under the circumstances present here, without additional evidence, the finding of morphine in Michael Wolk's morphine-addicted body is not sufficient to corroborate Bannister's confession claiming to have given morphine pills on prior uncertain dates to the deceased.

¶ 12. Inasmuch as the lack of corroboration of the confession presents the very situation that the corroboration rule was designed to prevent; that is, the possibility that the confession could have been false, the corroboration rule was not met. Accordingly, the evidence was insufficient to convict Bannister. Consequently, we reverse the conviction and remand this matter to the trial court for further proceedings.

By the Court. — Judgment reversed and cause remanded with directions.

All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

Because of our disposition of this first issue, it is not necessary for us to address the remaining arguments. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W 663 (1938) (only dispositive issues need be addressed).

Miranda v. Arizona, 384 U.S. 436 (1966).

The transcript notes that the report was introduced into evidence as an exhibit. However, no exhibits are in the record.

State ex rel. Goodchild v. Burke, 27 Wis. 2d 244, 133 N.W.2d 753 (1965).

This is contrary to the State's earlier position in opening statements that the State was not suggesting that the morphine that killed Wolk was the same morphine delivered by Bannister.

The judgment reflects that $4007 is owed for restitution; however, the transcript for the sentencing hearing indicates $4700. In light of the reversal, any money that Bannister has paid towards restitution should be returned to him.

This is the most specific testimony that the officer gave regarding the number of visits of the two men. At other times the officer stated that Bannister told him that he delivered *367morphine to either Steven or Michael Wolk eight to ten times, about every third day within the thirty-four-day span.

This is not to equate diabetes with morphine addiction. The comparison was used only to explain that people who regularly take medications can be expected to test positive for those drugs.