State v. Schultz

CHIEF JUSTICE HEFFERNAN

(concurring). I concur in the mandate of the majority affirming the decision of the court of appeals upholding the conviction. However, I would affirm the decision and the conviction on other grounds.

On appeal, defendant argues that his testimony at trial was not inconsistent with his testimony at the Goodchild1 hearing and, therefore, it was erroneous for the trial judge to allow admission of his Goodchild testimony for the purpose of impeaching his trial testimony. Defense counsel, however, did not object to admission of the Goodchild testimony on that ground. Defense counsel objected to admission of defendant's Goodchild testimony only on constitutional grounds. Therefore, in this case, the trial judge did not have an opportunity to consider whether or not the defendant's testimony at trial was in fact inconsistent with his testimony at the Good-child hearing. When no objection is made to the admission of evidence, a defendant is not entitled to a review as a matter of right. This court may properly exercise its discretion and review rulings on the admission of evidence, irrespective of a proper objection.2 I elect to review the erroneous admission of this evidence because this court should avoid considering a constitutional issue *428if the case can be resolved on other grounds.3

While prior inconsistent statements may be used to impeach a witness' credibility, a threshold inconsistency must be shown before the proposed inconsistent statement may be introduced.4 In order to determine whether a prior statement is indeed inconsistent, a court must examine not just individual words or phrases alone, but instead must consider the whole impression or effect of the prior statement.5 This court addressed the use of evidence, excluded at trial, for the purpose of impeachment in Wold v. State, 57 Wis. 2d 344, 204 N.W.2d 482 (1973):

[EJvidence excluded on direct should not be used for impeachment unless the accused takes the stand and testifies to matters directly contrary to what is in the excluded statement. The foundation for the use of the impeaching statements must be found in prior testimony. [Emphasis added.]

57 Wis. 2d at 356.

Therefore, this court must examine the precise language of defendant's testimony within the context of the Goodchild hearing in order to determine whether his Goodchild testimony was directly contrary to his trial testimony.

The purpose of a Goodchild hearing is to determine whether a defendant's statements were obtained in violation of constitutional requirements, and therefore would *429be inadmissible at trial.6 The Goodchild hearing serves the sole purpose of providing a defendant with the opportunity of making a record of the facts and circumstances under which the confession was obtained.7 Defendant testified in March of 1986 at the Goodchild hearing that, when Investigator Roderick questioned him on November 20, 1985, he was suffering from the effects of carbon monoxide poisoning and therefore was unable to knowingly and intelligently waive his right to counsel. It is uncontrovertible that all of the defendant's testimony at the Goodchild hearing related to his state of mind on November 20, 1985, as he was lying in a hospital bed recovering from carbon monoxide poisoning and being interrogated by Investigator Roderick. At no time did the defendant testify at the Goodchild hearing about his ability in March of 1986 to recall what happened on November 19,1985, nor would such testimony have been relevant. The following exchange took place between the defendant and his attorney at the Goodchild hearing in March, 1986.

Q. [Defense Counsel] Do you recall how you felt physically on November 20, 1985?
A. [Defendant] Like I couldn't move. When I was — or would come to consciousness, I was just like in a daze.
Q. [Defense Counsel] Do you recall mentally how you felt on November 20, 1985?
A. [Defendant] I couldn't remember anything about anything.

On cross-examination, the assistant district attorney inquired further about the defendant's state of mind *430on November 20,1985, when Investigator Roderick was interrogating him at the hospital:

Q. [Asst. District Attorney] I believe you testified that on November 20th, mentally, you couldn't remember anything about anything? [Emphasis added.]
A. [Defendant] Very much so, yes.
Q. [Asst. District Attorney] When you state you can't remember anything about anything, are you referring to the events of November 19? [Emphasis added.]
A. [Defendant] Yes.
Q. [Asst. District Attorney] So, it's your belief that at the time you were being questioned [on November 20, 1985] you had no recollection of the events of November 19th? [Emphasis added.]
A. [Defendant] Very little.

The state argues that the defendant testified at his Goodchild hearing that he was still, as of March 28, 1986, unable to recall what happened on November 19, 1985. Therefore, the state claims that admission of the defendant's Goodchild testimony at trial was proper, relying on the theory that the defendant testified at his Goodchild hearing that he could not remember what happened the night of November 19, 1985, but now, conveniently, at trial he could remember.

The state claims that, because the defendant used the present tense "can't," he was referring to his ability at the Goodchild hearing in March, 1986 to recall what happened on November 19, 1985. However, this interpretation is inaccurate. The assistant district attorney misquoted the defendant's testimony at the Goodchild *431hearing. The defendant had just said he "couldn't" remember, not "can't" remember. Furthermore, the assistant district attorney eliminated any confusion by subsequently asking the defendant if he was referring to his ability to recollect the events of November 19, 1985, "at the time [he was] being questioned." Given the context and content of the defendant's Goodchild testimony, I conclude that its admission for the purpose of impeaching his trial testimony was erroneous because the defendant's Goodchild testimony was not inconsistent with his testimony at trial.

Although I conclude that the admission of the Good-child testimony was erroneous, in deciding whether the conviction should stand, it is necessary to determine whether that evidentiary error was prejudicial. I conclude it was not. There is no reasonable possibility in this case that the inadmissible Goodchild testimony contributed to the verdict of guilty.8 The error was harmless, and the decision affirming the conviction may properly be affirmed.

This case illustrates the importance of carefully scrutinizing the admission of Goodchild testimony before allowing its use for the purpose of impeaching a defendant's testimony at trial. The majority is correct in stating that the government has a strong interest in preventing perjury and that defendants have an obligation to tell the truth if they choose to take the stand. However, I disagree with the majority that this policy of truthfulness is being furthered in this case, for this is a case where the state has created the impression that an inconsistency existed where there was none. The majority's rationale should be limited to those situations where it is clear that the defendant is committing per*432jury at trial. I concur in the mandate because there was overwhelming evidence of guilt produced at trial, but I find no foundation of inconsistency that would permit the use of the Goodchild testimony for impeaching the defendant's testimony at trial.

I am authorized to state that Justice Shirley S. Abrahamson joins in this concurrence.

State ex rel. Goodchild v. Burke, 27 Wis. 2d 244, 265, 133 N.W.2d 753 (1965).

State v. Cleveland, 118 Wis. 2d 615, 632, 348 N.W.2d 512 (1984); Ollinger v. Grall, 80 Wis. 2d 213, 223, 258 N.W.2d 693 (1977); and State v. Sonnenberg, 117 Wis. 2d 159, 176, 344 N.W.2d 95 (1984).

Labor & Farm Party v. Elections Board, 117 Wis. 2d 351, 344 N.W.2d 177 (1984); Kollasch v. Adamany, 104 Wis. 2d 552, 313 N.W.2d 47 (1981).

See 3A Wigmore, Evidence, sec. 1040; sec. 908.01(4)(a), Stats.; and United States v. Hale, 422 U.S. 171 (1975).

Wigmore, supra.

Goodchild, 27 Wis. 2d at 265.

Id.

State v. Dyess, 124 Wis. 2d 525, 370 N.W.2d 222 (1985).