¶ 53. (dissenting). The majority concludes that Edward Bannister should not be granted a new trial in the interest of justice upon his conviction for delivery of a controlled substance, morphine, where jurors heard evidence concerning Michael Wolk's death by morphine overdose, and where the prosecutor threatened to charge Bannister with reckless homicide in the death of Michael Wolk in order to secure Bannister's agreement not to object at trial to the admission of evidence relating to Michael Wolk's death. Because the evidence of Michael Wolk's death was highly prejudicial in nature, and the means by which the prosecutor secured admission of this evidence were questionable at best, I conclude that Ban*181nister should be granted a new trial in the interest of justice. Accordingly, I respectfully dissent.
¶ 54. On the morning of Bannister's jury trial, off-the-record discussions between the parties and the court left the prosecutor with the impression that the court believed that evidence about the death of Michael Wolk would be unduly prejudicial on a delivery of controlled substance charge. The prosecutor argued that he needed the evidence of Michael Wolk's death to corroborate Bannister's confession and prove the delivery charge. The prosecution notified the court that it would be prepared to file an amended information charging Bannister with first-degree reckless homicide unless Bannister agreed not to object to evidence of Michael Wolk's death during the trial on the delivery charge. Bannister chose not to object to that evidence, and the charge was not amended.
¶ 55. The prosecution referred to Michael Wolk's death during its opening statement. "Drugs killed [Steven Wolk's] brother." The State called four witnesses, each of whom testified to various aspects of Michael Wolk's death, including the autopsy results and cause of death. Other than Bannister's confession, no testimony regarding any delivery was offered into evidence.
¶ 56. Evidence of the morphine found in Michael Wolk's blood may have been relevant to establishing corroboration of Bannister's confession in order to prove the delivery charge. Majority op., ¶ 34. Evidence of Michael Wolk's death, on the other hand, was irrelevant to the delivery charge, and was highly prejudicial. Majority op., ¶ 35 ("Michael's death does not make the fact significant for the purpose of corroboration."). It should have been excluded pursuant to Wis. Stat. § (Rule) 904.02 ("Evidence which is not relevant is not admissible.").
*182¶ 57. The majority suggests that testimony regarding Michael's death was relevant because it related to his use of morphine, and that Michael's morphine use was relevant to the delivery charge. Majority op., ¶ 48. I do not dispute that Michael's morphine use may have been relevant in this case. Michael's death, however, was not. Moreover, that evidence was entirely unnecessary and highly prejudicial. As Judge Fine noted in his concurrence, "the solution was to ask for an agreement that Michael Wolk possessed morphine in mid-January 2003 without telling the jury that he died as a result." State v. Bannister, 2006 WI App 136, ¶ 16, 294 Wis. 2d 359, 720 N.W.2d 498, (Fine, J., concurring).
¶ 58. I recognize that this is a dissenting opinion. Thus, while I strongly disagree that the evidence relating to Michael's death was relevant, for purposes of this discussion, I will assume its relevancy. Nevertheless, we still have a big problem. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Wis. Stat. § (Rule) 904.03. "Evidence is prejudicial if it has a tendency to influence the outcome by improper means or if it appeals to the jury's sympathies, arouses its sense of horror, provokes its instinct to punish or otherwise causes a jury to base its decision on something other than the established propositions in the case." State v. Jackson, 216 Wis. 2d 646, 667, 575 N.W.2d 475 (1998) (citations omitted). Judge Fine correctly observes that "[wjaving the 'bloody shirt' of Wolk's overdose death invited — in the most blatant way — the jury to consider the evidence as proving that, beyond the delivery-charge, Bannister was also guilty of homicide." Bannister, 294 Wis. 2d 359, ¶ 16 (Fine, J., concurring). The state's case clearly appealed to the jury's sympathies, aroused its sense of horror, provoked its *183instincts to punish, and caused the jury to base its decision on the fact that Michael Wolk is dead.
¶ 59. If it appears from the record that the real controversy has not been fully tried, we may reverse the judgment and order a new trial, as necessary to accomplish the ends of justice. Wis. Stat. § 751.06. When the real controversy has not been tried, we may use our power of discretionary reversal without first finding a probability of a different result on retrial. Vollmer v. Luety, 156 Wis. 2d 1, 19, 456 N.W.2d 797 (1990). We have used this power to reverse judgments, after concluding that the real controversy was not tried, because the jury had before it evidence which should have been excluded. Id. at 20 (citing Logan v. State, 43 Wis. 2d 128, 137, 168 N.W.2d 171 (1969); State v. Penigar, 139 Wis. 2d 569, 578, 408 N.W.2d 28 (1987)). That is precisely the situation we are presented with here.
¶ 60. Before the trial, the prosecutor told Bannister's attorney that the State did not believe it had sufficient evidence to prove a reckless homicide charge. Yet, the prosecutor was prepared to file an amended charge for first-degree reckless homicide unless Bannister agreed to withdraw his objection to allowing evidence concerning Michael Wolk's death during the trial on the delivery of controlled substance charge. Judge Fine got it right when he opined:
If the prosecutor believed he could prove that Bannister had given Michael Wolk the morphine that caused Michael Wolk's death, he should have stayed with the first-degree-reckless-homicide charge and let the jury decide Bannister's guilt or innocence on that charge. If the prosecutor did not believe that he could prove that Bannister had given Michael Wolk the morphine that caused Michael Wolk's death, then his back-door use of the death-evidence was improper.
*184Bannister, 294 Wis. 2d 359, ¶ 24 (Fine, J., concurring). I wholeheartedly agree. Evidence suggesting that Bannister provided Wolk with the drugs that killed him should not have been heard by the jury during a drug trial.
¶ 61. In my view, Bannister has not received a fair tried. The real controversy, delivery of controlled substances, has not been fully tried. Taking into account Bannister's confession that he had given Michel Wolk some morphine, the evidence regarding Michael Wolk's death clearly appealed to the jury's sympathies, aroused its sense of horror, provoked its instincts to punish, and caused the jury to base its decision on the fact that Michael Wolk is dead and the drugs Bannister gave Michael Wolk may have killed him. Under these circumstances, I would invoke our power of discretionary reversal pursuant to Wis. Stat. § 751.06, and order a new trial.
¶ 62. For the foregoing reasons, I respectfully dissent.
¶ 63. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this dissenting opinion.