Virgil v. State

¶1(dissenting). The majority concludes that, although no timely objection was made, admission of testimony regarding Clarence Eiland’s out-of-court statements was “plain error.” I respectfully dissent.

¶2The general rule in this state is that error may not be predicated upon the admission of evidence unless a substantial right of the party is affected and a timely objection appears of record. Sec. 901.03(1) (a), Stats.1 Sec. 901.03(4) recognizes an exception to this rule and provides:

“PLAIN EEEOE. Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the judge.”

¶3*196This “plain error” exception is “consistent with s. 251.-09,”2 Judicial Council Committee Note, 59 Wis.2d at R14, and is intended “to preserve the discretion of this court to review questions in the interest of justice even though they were not properly raised and preserved at trial.” Turner v. State, 76 Wis.2d 1, 16, 250 N.W.2d 706 (1977). Thus the “plain error” statute does not alter, but merely preserves, this court’s discretionary power to reverse or order a new trial in the interest of justice.

¶4The exercise of this power is governed by well-established principles. For this court to exercise its discretionary powers in the interest of justice, this court must be convinced that the defendant should not have been found guilty, McAdoo v. State, 65 Wis.2d 596, 612, 223 N.W.2d 521 (1974) ; State v. Hungerford, 54 Wis.2d 744, 751, 196 N.W.2d 647 (1972), and it must appear that a new trial will probably result in acquittal. State v. Lindsey, 53 Wis.2d 759, 769, 193 N.W.2d 699; State v. Heidelbach, 49 Wis.2d 350, 360, 182 N.W.2d 497 (1971); see: Roehl v. State, 77 Wis.2d 398, 421, 253 N.W.2d 210 (1977).

¶5The majority concludes that the focus of inquiry under the “plain error” exception is different from that under the “interest of justice” standard of sec. 251.09, Stats., and that the “plain error” standard “does not implicate *197issues of miscarriage of justice or probable different result on retrial.” (Slip opinion at p. 20, fn. 2.) This is contrary to what we said in Turner v. State, supra.

¶6Further, the standard proposed by the majority— whether an error has “affected the substantial rights” of the defendant — is the same standard set forth in sec. 817.37, Stats.3 In Claybrooks v. State, 50 Wis.2d 79, 183 N.W.2d 139 (1971), cited by the majority, this court applied this “substantial rights” standard to the review of two alleged errors in a trial court’s jury instructions. This court held that this standard was not met with regard to the first error because the error “did not, in this case, result in a miscarriage of justice.” Claybrooks v. State, supra, at 85. The second error was held similarly insufficient for reversal because it did not appear that “had such error not been committed, the verdict might probably have been different.” Claybrooks v. State, supra, at 86.

¶7Similarly, in Christensen v. Economy Fire & Casualty Co., 77 Wis.2d 50, 63, 252 N.W.2d 81 (1977), after setting forth the “substantial rights” language of sec. 817.37, Stats., this court stated that the appropriate standard of review was whether, if the error had not been committed, the result “£. . . might probably have been more favorable to the party complaining’ ” or “ ‘would probably have been different,’ ” quoting Nimmer v. Purtell, 69 Wis.2d *19821, 38, 39, 230 N.W.2d 258 (1975) ; See: Green v. State, 75 Wis.2d 631, 641, 250 N.W.2d 305 (1977); Staples v. State, 74 Wis.2d 13, 24, 245 N.W.2d 679 (1976); Lutz v. Shelby Mut. Ins. Co., 70 Wis.2d 743, 751, 235 N.W.2d 426 (1975) ; State v. Kuick, 252 Wis. 595, 32 N.W.2d 344 (1948).

¶8In Lisowski v. Milwaukee Automobile Mut. Ins. Co., 17 Wis.2d 499, 503, 504, 117 N.W.2d 666 (1962), this court said:

“A judgment will not be reversed on the ground of misdirection of a jury unless this court is of the opinion after an examination of the entire record that the error has affected the substantial right of the party seeking the reversal. Sec. 274.37, Stats, [now sec. 817.37] This is a test of probability, not possibility, requiring the entire evidence to show that had not the error occurred, the result would probably have been different.. . .”

¶9quoted with approval in Bohlman v. American Family Mut. Ins. Co., 61 Wis.2d 718, 726, 214 N.W.2d 52 (1974).

¶10Thus, under either the “interest of justice” standard of sec. 251.09, Stats., or the “substantial rights” test adopted by the majority, it must appear that the defendant is likely to be acquitted on a retrial. This requirement is not met here. Indeed, the majority virtually concedes as much when it states that “[i]t would appear that the evidence properly admissible would have been sufficient to convict the defendant.” Although the ma-j ority points out considerations which may tend to reduce the credibility of the incriminating testimony of the defendant’s accomplice, David Guyton, the majority does not conclude that Guyton’s testimony would have been insufficient to convict the defendant, but rather characterizes Guyton’s testimony as “convincing evidence of Virgil’s guilt.. . .”

¶11Guyton testified in detail regarding Virgil’s participation in the crime. His testimony was corroborated by *199circumstantial evidence, and was not inherently incredible. This testimony was sufficient to sustain a conviction. It cannot be said, therefore, that the defendant should not have been convicted or that a new trial will probably result in acquittal. For that reason, this is not, in my opinion, an appropriate case for the exercise of this court’s power to review plain errors pursuant to sec. 901.03(4), Stats.

¶12It is important to emphasize that even where an error is “plain,” the decision to consider such an error in the absence of a timely objection rests in the discretion of this court. Langston v. State, 61 Wis.2d 288, 293, 212 N.W.2d 113 (1973); Claybrooks v. State, supra, at 85; Claybrooks v. State, 50 Wis.2d 87, 89, 183 N.W.2d 143 (1971); see: McClelland v. State ante, p. 145, 267 N.W.2d 843 (1978) (where no timely objection is made “the defendant is not entitled to have the matter considered on appeal as a matter of right.”) If the rule were otherwise, the “plain error” exception would swallow the timely objection rule of sec. 901.03(1), Stats., which, by its terms, applies to errors affecting substantial rights.

¶13Because important public purposes are served by the timely objection requirement, this court’s discretion to notice “plain errors” should be exercised sparingly and only in “exceptional circumstances.” United States v. Atkinson, 297 U.S. 157, 160 (1936). The importance of timely objection rules was discussed by the Supreme Court of the United States in the recent case of Wainwright v. Sykes, 433 U.S. 72 (1974). In that case, the Supreme Court held that a federal habeas corpus petitioner could not raise a constitutional challenge to the admission of a confession in his trial in state court, where the petitioner had not complied with the contemporaneous objection rule of the state court, and where the petitioner failed to show “cause” for his failure to make a timely objection and “prejudice” as a result of admission of the evidence.

¶14*200The court emphasized the salutary purposes furthered by timely objection rules such as sec. 901.03(1), Stats. As the court pointed out, a timely objection enables the record to be made with regard to an objection while the recollections of witnesses are fresh. It permits the trial judge, who has observed the witnesses’ demeanor, to make any factual determinations necessary for decision of the constitutional question. A timely objection contributes to the finality of litigation and the orderly administration of justice by affording the trial court an opportunity to exclude the evidence objected to, thus possibly avoiding the need for a new trial.

¶15In addition,

“. . . [a] n objection on the spot may force the prosecution to take a hard look at its hole card, and even if the prosecutor thinks that the state trial judge will admit the evidence he must contemplate the possibility of reversal by the state appellate courts or the ultimate issuance of a federal writ of habeas corpus. . . .” Wainwright v. Sykes, supra, at 89.

¶16The Supreme Court observed that a rule which, as a matter of course, permitted defense counsel to raise constitutional claims for the first time on review might encourage “sandbagging” on the part of defense lawyers, who might take their chances on a verdict of not guilty in the trial court with the intent to raise their constitutional claims on review if their initial gamble did not pay off. Wainwright v. Sykes, supra, at 89.

¶17Further, the Supreme Court noted that a contemporaneous objection rule promotes the perception of a criminal trial as a decisive and portentous event and properly makes it the “main event” in the proceedings, rather than a “tryout on the road” for later proceedings where the decisive constitutional issues will be raised for the first time. The Supreme Court observed:

“. . . A defendant has been accused of a serious crime, and this is the time and place set for him to be tried by a *201jury of his peers and found either guilty or not guilty by that jury. To the greatest extent possible all issues which bear on this charge should be determined in this proceeding: the accused is in the courtroom, the jury is in the box, the judge is on the bench, and the witnesses, having been subpoenaed and duly sworn, await their turn to testify. Society’s resources have been concentrated at that time and place in order to decide, within the limits of human fallibility, the question of guilt or innocence of one of its citizens. Any procedural rule which encourages the result that those proceedings be as free of error as possible is thoroughly desirable, and the contemporaneous-objection rule surely falls within this classification.” Wainwright v. Sykes, supra, at 90.

¶18These purposes are served by the timely objection rule set forth in sec. 901.03(1), Stats. I do not believe they should be defeated by construing the “plain error” exception so as to swallow the timely objection rule. I believe the “discretion of this court [under the plain error exception] to review questions in the interest of justice even though they were not properly raised and preserved at trial,” Turner v. State, supra, at 16, is constrained by the same standards which govern discretionary reversal under sec. 251.09, Stats. Because those standards are not met here, I would affirm the judgment of conviction and the order denying the postconviction motions of the defendant.

¶19I am hereby authorized to state that Mr. Justice Han-ley and Mr. Justice Callow join in this dissenting opinion.