State v. Wolff

491 N.W.2d 498, 171 Wis. 2d 161, 1992 Wisc. App. LEXIS 577

• Court: Court of Appeals of Wisconsin
• Decided: September 10, 1992
• Docket: 91-2812-CR
• Status: Published

Opinions

EICH, C.J.

Frank Wolff appeals from a judgment of conviction and sentence and an order denying his postconviction motions. Following a jury trial, Wolff was convicted of arson to property other than a building contrary to sec. 943.03, Stats., and acquitted of arson to a building contrary to sec. 943.02, Stats. He was sentenced to two years (stayed) and placed on probation for four years.

He raises two issues on appeal. First, he argues that the trial court erred by admitting "other acts" evidence over his objection and by not performing the necessary balancing test under sec. 904.04(2), Stats. Second, he claims that the trial court erred when it overruled his objection to the prosecutor's reference to potential penalties in his closing argument. We see no error and affirm the judgment and order.

The charges against Wolff were based on an incident when he burned down a barn on his property which contained several items of personal property belonging to Nancy Goike. Much of Wolffs defense was based on his assertion that Goike had consented to his acts. He testified that Goike had not objected to his burning of the barn until the "last minute," and that a "party atmosphere" prevailed as they burned the barn because "[everybody was happy and having a good time." He also testified at some length concerning his personal relationship with Goike, stating, among other things, that he and Goike continued their relationship after the fire.

Attempting to rebut that testimony, the prosecutor questioned Wolff on other aspects of his relationship with Goike. He focused on two incidents: one where Wolff fired a pistol into Goike's son's fish aquarium, and another when he "rammed" Goike's car with his truck. Wolff objected to this testimony on grounds of relevance, and the trial court overruled the objections, stating that Wolff had opened the door to such questions by his own testimony.

Then, as part of its rebuttal case, the state called a minister, Sarah Chaney, who testified about the general characteristics of abusive relationships and their effect on the participants. Again, Wolff objected, arguing alternatively that the testimony was irrelevant and lacked proper foundation. The objection was overruled.

In his closing argument to the jury, defense counsel stated that the charge of arson to a building was a felony and that Wolff had been "grossly overcharged" by the district attorney. The trial court overruled the prosecutor's objection. Then, in response, the prosecutor stated to the jury that it was up to the court to sentence Wolff and that the court could impose probation without incarceration. Defense counsel's objection to the remark was similarly overruled. Other facts will be discussed in the body of the opinion.

Other Wrongs Evidence

Wolff challenges the admission of testimony about his prior acts toward Goike and her son, and the testimony of Rev. Chaney, as improperly received "other wrongs" evidence. As we have noted above, however, his objections to this testimony at trial were grounded solely on grounds of relevancy (and, with respect to the Chaney testimony, also on grounds of lack of proper foundation).

Section 901.03(l)(a), Stats., requires that an objection must make clear the specific grounds upon which it is based. In State v. Hartman, 145 Wis. 2d 1, 9, 426 N.W.2d 320, 323 (1988), the supreme court stated: "We have . . . held that objections to the admissibility of evidence must be made promptly and in terms which inform the circuit court of the exact grounds upon which the objection is based. Moreover, an objection preserves for appeal only the specific grounds stated in the objection." (Citations omitted.)

Thus, by failing to object to the challenged testimony on other wrongs grounds, Wolff has failed to preserve that objection for appeal, and we need not consider his arguments further.¹

Improper Closing Arguments

Wolffs attorney began his closing remarks to the jury by referring to the district attorney's discretion to charge crimes and the decision made in this case to charge Wolff with "arson to a building [which] is a Class B Felony." The prosecutor objected to the remark as improper argument and the trial court overruled the objection. Defense counsel continued his argument, stating at various points: (1) that Wolff had been "grossly overcharged" on the arson-to-building count; (2) that the prosecutor "called in the big guns — the big, big guns — the big, big, big guns and issued charges of arson to a building," and that such a charge was "just wrong. It's just wrong"; and (3) that the district attorney could have charged other, lesser offenses which were more appropriate but instead was "using the charges way out of proportion" to the facts of the case.

The prosecutor began his closing argument by stating that he wanted to elaborate on defense counsel's "lecture ... on the relative function of different officials involved in the criminal justice system." He went on to briefly discuss the district attorney's charging function and then stated:

Similarly, the judge, once a district attorney has filed charges an[d] obtained a conviction ... it's up to the judge to decide what an appropriate penalty is among a wide range of penalties for any given offense.

This big, big, big, big charge that we have leveled against Mr. Wolff might be punished by Judge Houck by probation without incarceration.

Defense counsel objected that it was "improper to argue sentencing at trial," and the court overruled the objection, stating that the remarks were not inappropriate in light of counsel's earlier arguments regarding the severity of the felony charge.² Wolff argues on appeal that the prosecutor's remark warrants reversal of his conviction because it violated his right to a fair trial.

It is improper for the prosecutor to refer to possible penalties in closing argument. State v. Garnett, 243 Wis. 615, 617-18, 11 N.W.2d 166, 167 (1943). It is also true, as Wolff suggests, that a prosecutor's misconduct can rise to such a level that the defendant is denied his or her due process right to a fair trial. Darden v. Wainwright, 477 U.S. 168, 181 (1986), reh'g denied, 478 U.S. 1036 (1986). The test to be applied when a prosecutor is charged with misconduct for remarks made in argument to the jury is whether those remarks "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Id., (quoting Donnelly v. De Christoforo, 416 U.S. 637, 643 (1974)).

We recognize, too, that counsel should be allowed considerable latitude in closing argument, and that the trial court has discretion to determine the propriety of counsel's statements and arguments to the jury. State v. Bergenthal, 47 Wis. 2d 668, 681, 178 N.W.2d 16, 24 (1970), cert. denied, 402 U.S. 972 (1971). "[A] criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone, for the statements . . . must be viewed in context; only by so doing can it be determined whether the prosecutor's conduct affected the fairness of the trial." United States v. Young, 470 U.S. 1, 11 (1985).

In light of the foregoing considerations, courts have developed the "invited reply" or "measured response" rule. In Young, for example, the Supreme Court noted that "most Courts of Appeal. . . have refused to reverse convictions where prosecutors have responded reasonably in closing argument to defense counsel's attacks, thus rendering it unlikely that the jury was led astray." 470 U.S. at 12. We reached a similar conclusion in State v. Edwardsen, 146 Wis. 2d 198, 430 N.W.2d 604 (Ct. App. 1988). In that case, the defendant objected that the prosecutor had commented on his failure to testify, thus violating his constitutional right against self-incrimination. We upheld the conviction, noting that the defendant, in his own argument had suggested a reason for his silence. We concluded:

In the instant case, the prosecution's comment constituted no more than a pertinent and measured reply to defendant's calling attention to his own failure to testify. As such, the comment did not violate constitutional prohibitions safeguarding defendant's right to remain silent. Id., 146 Wis. 2d at 215, 430 N.W.2d at 611.

It is not a black-and-white rule. That an argument or comment may have been invited by the other side does not invariably compel the conclusion that it can never be considered error. As the Supreme Court stated in Young, 470 U.S. at 12: "[T]he issue is not the prosecutor's license to make otherwise improper arguments, but whether the prosecutor's 'invited response,' taken in context, unfairly prejudiced the defendant."

Properly understood, the rule does not condone the prosecutor's descending to the level of defense counsel, nor does it embrace the proposition that two wrongs make a right. " [I]t merely recognizes that the impact on the defendant from the prosecutor's misbehavior may be less if the defendant's counsel aroused the jury against the prosecutor . . .. The prosecutor's misconduct may just have offset the defense counsel's misconduct, thus producing no net effect on the jury deliberations. United States v. Mazzone, 782 F.2d 757, 763 (7th Cir. 1986), cert. denied, 479 U.S. 838 (1986) (citation omitted).

The rule recognizes the reality that criminal trials "do[ ] not unfold like a play with actors following a script," and that our adversary system permits the district attorney to "prosecute with earnestness and vigor," as long as the blows struck, however hard, are not "foul ones." Young, 470 U.S. at 7,10. And its import has been that "if the prosecutor's remarks were 'invited' and did no more than respond substantially in order to 'right the scale,' such comments would not warrant reversing a conviction." Id. at 12-13. Thus, where the argument of the defense "clearly invited and provoked the remark of the prosecutor . . . the appellant cannot complain because his argument backfired.” State v. Yancey, 32 Wis. 2d 104, 116, 145 N.W.2d 145, 151 (1966).

We believe that is the case here. The prosecutor's remarks were indeed invited by defense counsel's repetition of his "overcharging" remarks, and they constituted a measured and reasonable response. And while the more desirable course of action might have been to sustain the prosecutor's initial objection, with an appropriate cautionary word to the jury,³ see Young, 470 U.S. at 14, we see no error, constitutional or otherwise, that would warrant overturning Wolffs conviction because of the prosecutor's remarks.⁴

By the Court. — Judgment and order affirmed.

1 Given the nature of his objections at trial, the futility of his "new” challenge on appeal is apparent. He argues, for example, that the trial court abused its discretion in failing to reject the evidence on other wrongs grounds; yet he never requested the court to exercise any such discretion. He also argues that the trial court erred by failing to balance the probative value of the evidence against its possible prejudicial effects, as is required when an other wrongs objection is raised; but, again, by failing to raise that objection, he never asked the court to strike any such balance. Haskins v. State, 97 Wis. 2d 408, 414-15, 294 N.W.2d 25, 31 (1980).

2 The trial court also considered the fact that there had been testimony from a witness, elicited by Wolffs counsel, that arson to a building was a Class B felony, and as such was "a much more serious offense than . . . arson to personal property."

3 Indeed, the trial court, on reflection, remarked at the post-conviction motion hearing that this might have been the better course.

4 Courts in other jurisdictions have generally refused to reverse in similar situations. See, e.g., United States v. Brisco, 473 F. Supp. 303, 309 (D. Del. 1979), affd, 615 F.2d 1354 (3d Cir. 1980), cert. denied, 446 U.S. 922 (1980); Henderson v. State, 460 So. 2d 331, 333 (Ala. Crim. App. 1984); State v. Jaramillo, 520 P.2d 1105, 1106-07 (Ariz. 1974); Jackson v. State, 328 S.E.2d 741, 743-44 (Ga. App. 1985); State v. Cordova, 674 P.2d 533, 536-37 (N.M. App. 1983); State v. Brown, 447 P.2d 82, 85 (Wash. 1968); State v. Wampler, 569 P.2d 46, 48-49 (Or. App. 1977), cert. denied, 436 U.S. 960 (1978).