State v. Bannister

2007 WI 86, 734 N.W.2d 892, 302 Wis. 2d 158, 2007 Wisc. LEXIS 413
CourtWisconsin Supreme Court
DecidedJuly 3, 2007
Docket2005AP767-CR
StatusPublished
Cited by20 cases

This text of 2007 WI 86 (State v. Bannister) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bannister, 2007 WI 86, 734 N.W.2d 892, 302 Wis. 2d 158, 2007 Wisc. LEXIS 413 (Wis. 2007).

Opinions

JON E WILCOX, J.

¶ 1. This is a review of a published court of appeals decision, State v. Bannister, 2006 WI App 136, 294 Wis. 2d 359, 720 N.W.2d 498. The court of appeals reversed a judgment of the Milwaukee County Circuit Court, John Siefert, Judge, and remanded the cause with directions. Judge Siefert entered a judgment of conviction consistent with the verdict of guilty reached by a jury. The jury found Edward Bannister (Bannister) guilty of delivery of a controlled substance pursuant to Wis. Stat. § 961.41(1)(a) (2005-06).1

¶ 2. This case presents two issues. First, did the State satisfy the corroboration rule during the course of Bannister's trial? We hold that the State satisfied the corroboration rule by corroborating Bannister's confession with the presence of morphine in Michael Wolk's body at the time of his death, which constitutes a significant fact. Second, should the court grant Bannister a new trial in the interest of justice pursuant to Wis. Stat. § 751.06?2 We hold that the real controversy in this case was tried and do not grant Bannister a new trial. Accordingly, we reverse the court of appeals.

[163]*163pH

¶ 3. On October 23, 2003, City of Cudahy Detective Michael Carchesi arrested Bannister at his home in Milwaukee County. Bannister had an open warrant with the Milwaukee County Sheriffs Department for failure to appear. Detective Carchesi wanted to discuss a case he was investigating that involved the suspicious death of Michael Wolk. Detective Carchesi and another officer transported Bannister to the police station.

¶ 4. The Cudahy Police Department's involvement in this case commenced when it dispatched Officer Brian Scott to the apartment of Michael Wolk and his wife on January 17, 2003. Mrs. Wolk had called 911 because her husband was unresponsive. She requested an ambulance.

¶ 5. Upon arrival, Emergency Medical Technicians (EMTs) attempted to revive Michael. After approximately twenty minutes, the EMTs gave up their efforts. Michael was pronounced dead on the scene.

¶ 6. The Milwaukee County Medical Examiner's Office was contacted. It went to the scene and took custody of Michael's body. The Medical Examiner also took other evidence, including a kitchen spoon, a white powdery substance, a couple of syringes, and rolling papers that were found on a table near Michael's body.

[164]*164¶ 7. The Medical Examiner's Office examined the evidence collected. Its examination included a comprehensive toxicology screen on the kitchen spoon and syringes. Morphine was on both the spoon and the syringes. Morphine was also found in Michael's blood when a comprehensive screen on his blood was done. Dr. Jeffrey Jentzen, a Milwaukee County Medical Examiner, concluded that Michael died of morphine toxicity.

¶ 8. With Michael's death, the police began an investigation. At the outset of the investigation, Detective Carchesi interviewed Steven Wolk on two occasions. Steven was Michael's brother. Steven identified Bannister as their source for morphine.

¶ 9. Detective Carchesi called Bannister and asked him to come to the police station the following day. Bannister initially agreed to do so, but the following day he called back and explained he could not meet with them. No immediate action was taken by the Cudahy Police Department to interview Bannister, but the investigation continued.

¶ 10. It was eight months after requesting that Bannister appear at the police station that Detective Carchesi went to Bannister's residence and arrested him. Once Bannister and Detective Carchesi arrived at the police station, Detective Carchesi advised Bannister of his constitutional rights. Detective Carchesi also told Bannister that he was investigating the death of Michael Wolk.

¶ 11. During the interview, Bannister told Detective Carchesi that he knew Steven and Michael Wolk. The brothers stopped by his residence on several occasions for morphine. Bannister explained that he was prescribed morphine for his sickle cell anemia. Bannister told Detective Carchesi that he did not receive [165]*165payment for the morphine. Bannister stated that he first gave the Wolks morphine in December 2002. He continued giving them morphine until mid-January 2003. Bannister told Detective Carchesi that he gave the Wolks morphine on eight to ten occasions, approximately every three days.

¶ 12. After interviewing Bannister, Detective Carchesi booked him for delivery of a controlled substance. The State subsequently charged Bannister with one count of delivery of a controlled substance.

¶ 13. On the day Bannister's trial began, the parties reached an agreement. The State agreed to not charge Bannister with reckless homicide. In exchange, Bannister agreed to not object to evidence that an autopsy was done upon Michael Wolk and that morphine was found in his body at the time of his death.

¶ 14. After the selection of the jury, the court held a Miranda-Goodchild hearing.3 Detective Carchesi testified about the information he provided Bannister regarding his constitutional rights and Bannister's reaction. The circuit court concluded that Miranda4 was complied with and Bannister's statement was given voluntarily. The circuit court denied Bannister's motion to suppress his statement given to Detective Carchesi.

¶ 15. During the State's opening statement, it summarized the evidence that would be presented at trial. The summary included reference to testimony from Steven Wolk. The State stated the following related to Steven Wolk's testimony:

I'm asking, for instance, if Steven should testify, you listen to him and you weigh his evidence and you [166]*166weigh his credibility. It'll be out there for you. You may find he's a distasteful individual. He's a drug user. His brother was a drug user. Drugs killed his brother. You'll hear — it'll he clear that Steven Wolk isn't the nicest person in the world but he's a witness to what happened.
He'll tell you that over a span of time, that he and his brother, together with Steven, would obtain morphine from the defendant, Edward Bannister. It went on for about a year. They would go to Edward Bannister's home and obtain it. Sometimes, Edward Bannister would give it to him, according to Steven. I don't know if that's true — but one thing, you have to weigh everything — would give it to him free of charge. Sometimes, he'd give him good faith money. That on or about the 14th or 15th of January, he can't remember the exact day, sometime in late morning or early afternoon, Steven Wolk, Michael Wolk went to the defendant's home and the defendant gave them two tablets of morphine, that they in turn gave the defendant $20.00 in exchange for that, and that Steven took one pill and Michael took another one of the pills so that they could use it at a later date or later time.

Steven Wolk never testified during the trial. He asserted his Fifth Amendment privilege against self-incrimination.

¶ 16. The State called four other witnesses during the trial. Officer Scott testified regarding the scene at Michael Wolk's apartment when he responded to Mrs. Wolk's 911 call.

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Cite This Page — Counsel Stack

Bluebook (online)
2007 WI 86, 734 N.W.2d 892, 302 Wis. 2d 158, 2007 Wisc. LEXIS 413, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bannister-wis-2007.