State v. Gustafson

LOUIS J. CECI, J.

(concurring). Although I agree with the result of this case, I write separately because I disagree with the majority’s conclusion regarding the admission of R.G.’s no contest plea. This is because I believe that the introduction of R.G.’s no contest plea following his juvenile adjudication was clearly plain error and deprived James Gustafson of a fair trial.

The majority opinion conceded the following two points: (1) That R.G.’s no contest plea was not an admission (p. 687) and (2) that R.G.’s no contest plea was irrelevant to James Gustafson’s trial (p. 689).

I agree with these two concessions. However, the majority then concludes that the admission of the plea was *701not prejudicial. I disagree with this conclusion. This is because the jury was, in essence, told that the plea was an admission and was relevant to the question of James Gus-tafson’s guilt. Therefore, I cannot fathom how the majority can conclude that the erroneous admission did not reach the level of plain error.

The majority concedes that the district attorney incorrectly characterized R.G.’s plea as an admission of guilt by his statement that the no contest plea was “essentially admitting [that R.G.] had done what [he was] charged with.”1 As I noted above, the majority also concludes that the evidence of this plea was irrelevant. However, the jury received the following instruction from the trial judge at the conclusion of the trial:

“In weighing the evidence, you may take into account matters of your common knowledge and your observations and experience in the affairs of life.” Wis. J I— Criminal 195 (1983).

Utilizing their common knowledge, the jury obviously had uppermost in their minds the old adage “like father, like son.” Therefore, considering the nature of the father-son relationship and the fact that R.G. had admitted to sexually molesting C.Y. in the next room, the jury logically concluded that Gustafson must have been sexually molesting B.G. in the living room, or he would have stopped his son from molesting C.Y. This is evinced by the following question which the jury sent to the judge during their deliberations:

“Did [C.Y.] say that [R.G.] opened her blouse or molested her in the bathroom?”2

*702This question clearly indicates that the jury obviously considered R.G.’s “guilty plea” highly relevant to the question of James Gustafson’s guilt or innocence. I cannot visualize a reasonable jury reaching any other conclusion.

One cannot expect a jury to make a distinction between what they were told took place between the son and a young woman and what they were to determine occurred between the son’s father and another young woman, especially when both incidents occurred at the same time and in the same location. As this court noted in State v. Sonnenberg, 117 Wis. 2d 159, 178, 344 N.W.2d 95 (1984),

“The court of appeals put its finger on why the error was harmless when it pointed out that the two incidents were so dissimilar that it could hardly be said that the erroneously admitted testimony in respect to Herman was prejudicial to the defendant. It pointed out the remoteness in time between the two incidents. In short, the court of appeals concluded that the testimony of Cathy Herman was not highly prejudicial, likely to cause a jury to want to punish the defendant. . . .”

In this case, there is no question that the two incidents involving James Gustafson and his son could be considered remote, since they occurred simultaneously. Also, there is the added factor, missing in Sonnenberg, that the jury may have wished to punish James Gustafson for allowing his son to behave in such a manner as R.G. had “admitted *703to” concerning C.Y. This amounts to a denial of due process.

Clearly, this erroneously admitted “guilty plea” was highly prejudicial, in fact, inflammatory. Admission of the evidence of R.G.’s “guilty plea” without any cautionary instruction “substantially affected the defendant’s right to a fair trial.” McClelland v. State, 84 Wis. 2d 145, 162, 267 N.W.2d 843 (1978). This constitutes plain error and mandates a reversal. Reversal is required when it appears that the result might probably have been more favorable to the complaining party had this error not occurred. State v. Sonnenberg, 117 Wis. 2d at 179, citing Wold v. State, 57 Wis. 2d 344, 356-57, 204 N.W.2d 482 (1973). There is no question in my mind that a reasonable probability of a more favorable result exists had this error not occurred, based upon the inconsistency in B.G.’s testimony before and at trial.3 Accordingly, I would find that plain error resulted because of the prejudicial effect resulting from the introduction of R.G.’s no contest plea, which was presented to the jury by the state as a guilty plea, and thus deprived the defendant of a fair trial. Therefore, I would require a new trial because of this error. Concerning the issue of whether Gustafson’s right to a unanimous jury verdict was violated, I agree with the majority that State v. Lomagro, 113 Wis. 2d 582, 335 N.W.2d 583 (1983), is applicable to this case and that Lomagro should not be overruled.

The district attorney also referred to E.G.’s no contest plea in her closing argument as follows: “He did, however, testify that he admitted to the Court in his own proceeding that he had done what he was charged with.”

The record indicates the reporter read back the following testimony for the jurors:

*702“REPORTER:
‘Question: Did either [R.G.] or Mr. Gustafson also go to the bathroom immediately?
‘Answer: [R.G.] did.
‘Question: What happened next ?
‘Answer: We were in there and for about ten minutes and then Mr. Gustafson came in and grabbed B.G. out by the arm.
‘Question: What happened next to you?
‘Answer: [R.G.] started trying to go up my shirt and, and I guess that’s all.’ ”

Because the resolution of this case turned on the jury’s acceptance of one witness’s credibility over the other, namely, B.G.’s over the defendant’s, the fact that C.Y. testified that she and B.G. had met prior to the preliminary hearing- and agreed upon certain facts they would lie about may have influenced the jury to disregard B.G.’s testimony without R.G.’s highly prejudicial “guilty plea.”