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06/24/86 STATE WISCONSIN v. ROBERT J. BULIK

COURT OF APPEALS OF WISCONSIN, DISTRICT THREE


June 24, 1986

STATE OF WISCONSIN, PLAINTIFF-RESPONDENT
v.
ROBERT J. BULIK, DEFENDANT-APPELLANT

APPEAL from a judgment of the circuit court for Brown county: RICHARD G. GREENWOOD, Judge. Affirmed.

Cane, P.j., Dean and LaRocque, JJ.

The opinion of the court was delivered by: Larocque

LaROCQUE, J.

Robert Bulik, convicted of causing his wife's death, appeals a judgment and sentence for homicide by reckless conduct. He raises eleven claims.

(1) The original complaint charging first-degree murder was unsupported by adequate probable cause.

(2) The complaint contained misrepresentations that mandated its dismissal.

(3) The evidence at the preliminary hearing was insufficient to establish probable cause for first-degree murder.

(4) The conviction was based upon evidence unlawfully seized in a warrantless search of Bulik's home.

(5) Bulik's therapist violated the psychologist-patient privilege with his testimony concerning a motive for the crime.

(6) Bulik's offer to take a polygraph test should have been admissible to bolster his credibility.

(7) Testimony of a defense witness' personal experience with the effects of carbon monoxide on memory and behavior was improperly excluded.

(8) Bulik's "theory of the defense" instruction was improperly refused.

(9) The evidence was insufficient to support a conviction.

(10) A jury poll at the Conclusion of deliberations indicated that the verdict was not unanimous.

(11) The court abused its discretion at sentencing.

SUFFICIENCY OF THE COMPLAINT

A criminal complaint is a self-contained charge which must set forth facts that are sufficient, in themselves or together with reasonable inferences to which they give rise, to allow a reasonable person to conclude that a crime was probably committed and that the defendant is probably culpable. When the sufficiency of a criminal complaint is challenged, the alleged facts in the complaint must be sufficient to establish probable cause, not in a hypertechnical sense, but in a minimally adequate way through a commonsense evaluation by a neutral magistrate making a judgment that a crime has been committed. The magistrate need only be able to answer the hypothetical question: "What makes you think the defendant committed the offense charged?" It is sufficient if the complaint answers the following questions: What is the charge? Who is charged? When and where is the offense alleged to have taken place? Why is this particular person being charged? and, Who says so?

State v. Bembenek, 111 Wis. 2d 617, 626-27, 331 N.W.2d 616, 621 (Ct. App. 1983) [footnotes omitted].

The complaint establishes probable cause to support a charge of first-degree murder of Bulik's wife. The sworn statement of a Green Bay Police Department captain established on information and belief:

(1) Pamela Bulik according to pathologists, had considerable bruising to her body and suffered sufficient blunt trauma to her head to cause unconsciousness several hours prior to death.

(2) Robert admitted to an argument with Pamela the night of her death over Robert's affair with another woman.

(3) Pamela, who died of drowning in her bathtub, had suffered sufficient carbon monoxide poisoning, prior to drowning, according to the medical reports, to render her near comatose and unable to walk and talk.

(4) Bulik admitted that he had to carry her from the family van where the poisoning took place into the house and that he "ran a tub for her and that she must have gone to soak her legs in the tub and . . . apparently drowned . . . ."

(5) The police investigation indicated that the engine cowling prevented Pamela from starting the van from her passenger seat where Bulik said he found her sitting.

The facts recited considered as a whole raise sufficient inference that Bulik was responsible for Pamela's injuries, for placing her in the van, starting it, and later placing her in the tub.

MISREPRESENTATIONS IN THE COMPLAINT

Franks v. Delaware, 438 U.S. 154, 155-56 (1978), provides a remedy to a defendant confronted with criminal process commenced with affidavits containing false information or misstatements. This rule is applicable to criminal complaints. State v. Marshall, 92 Wis. 2d 101, 112, 284 N.W.2d 592, 596-97 (1979). In State v. Mann, 123 Wis. 2d 375, 387, 367 N.W.2d 209, 214 (1985), the Wisconsin Supreme Court indicated that once misrepresentations critical to the probable cause determination are established, they should be excised from the complaint and, if probable cause no longer exists, the sanction is dismissal of the complaint. Mann does not require the misrepresentations be intentional or reckless, in contrast to search warrant challenges. Id. The foregoing rules apply only if the misrepresentations are those of the complainant. Marshall, 92 Wis. 2d at 113, 284 N.W.2d at 597.

Bulik never requested a Franks hearing. He did not state his challenge to the integrity of the complaint in context of a misrepresentation, nor did he file an affidavit or offer of proof as required. Mann, 123 Wis. 2d at 388-89, 367 N.W.2d at 214-15. Rather, his motion alleged discrepancies between the complaint and the evidence adduced at the preliminary hearing. At the time the motion was filed with the trial court, defense counsel referred to "an inaccurate statement" in the complaint. Bulik's trial brief contained no Discussion of Franks or related issues. Bulik's challenge was merely a request to the court to draw different inferences from expert testimony, considerations outside the scope of a Franks analysis. See Mann, 123 Wis. 2d at 389, 367 N.W.2d at 215.

Even if a Franks challenge had been leveled, the evidence refutes the claim. The preliminary hearing does not reveal critical misstatements. The real significance of Pamela's bodily injuries is not whether she was probably knocked unconscious, as the complaint recites, but the strong inference that she had been in some type of altercation. The thrust of Dr. Skarphol's testimony was that the injuries were consistent with a significant blow to the head. Without some other explanation, a reasonable person would conclude that the blow came in a fight with Bulik. These and other discrepancies Bulik relies on are not "critical misstatements" within the Franks-Mann rule.

SUFFICIENCY OF THE BINDOVER

The evidence at the preliminary hearing established, as did the complaint, and on similar facts, sufficient probable cause. It indicated the intentional killing of Pamela Bulik from drowning in the bathtub after a fight and while she was nearly unconscious from carbon monoxide poisoning. See State v. Hooper, 101 Wis. 2d 517, 531, 305 N.W.2d 110, 117 (1981).

THE WARRANTLESS SEARCH OF BULIK'S HOME

Bulik maintains that the warrantless search of his home, considering the "totality of the circumstances," was in violation of his fourth amendment rights. See Schneckloth v. Bustamonte, 412 U.S. 218, 226-27, 248-49 (1973). Bulik and the state dispute whether the police search was within the limits of the implied consent doctrine as recently reiterated in State v. Douglas, 123 Wis. 2d 13, 17-18, 365 N.W.2d 580, 582 (1985), or whether the search exceeded those bounds as in State v. Pires, 55 Wis. 2d 597, 606-07, 201 N.W.2d 153, 158 (1972).

Bulik testified at trial: "I had nothing to hide. I gave them permission to search the house, the van, anything." We deem his testimony an explicit judicial acknowledgment that the search was consensual and did not exceed constitutional limits.

BULIK'S PSYCHOLOGIST-PATIENT PRIVILEGE

The state produced a psychologist who had counseled the Buliks regarding their marital problems. The testimony was offered as proof of motive, to show that Bulik was not interested in a reconciliation.

Section 905.04(2), Stats., provides in part:

"A patient has a privilege to refuse to disclose . . . confidential communications . . . obtained . . . the patient's psychologist."

Section 905.04(4)(d), Stats., provides:

Homicide trials. There is no privilege in trials for homicide when the disclosure relates directly to the facts or immediate circumstances of the homicide.

Bulik argues that the evidence of his motive does not relate "directly to the facts or immediate circumstances" of the homicide. We disagree. Both the general privilege and the limited homicide exception to the privilege are contrary to the common law, which did not recognize a doctor-patient privilege at all. Wharton's Criminal Evidence sec. 563 (13th ed. 1973). "tatutes should be construed as far as possible in harmony with the common law." Bob Ryan Leasing v. Sampair, 125 Wis. 2d 266, 268, 371 N.W.2d 405, 406 (Ct. App. 1985). We construe motive testimony to relate directly to the immediate circumstances of the homicide, especially here where the extra-marital love affair was the cause of an argument on the night of the alleged murder.

Although some of the details the psychologist testified to may have been irrelevant (such as the testimony that Bulik had sex with his girlfriend while the family was at church), no objection on grounds of relevancy was made. See sec. 901.03(1)(a), Stats.

THE OFFER TO TAKE A POLYGRAPH TEST

State v. Dean, 103 Wis. 2d 228, 279, 307 N.W.2d 628, 653 (1981), prohibits the admission of all polygraph-related evidence at trial. Bulik cites State v. Hoffman, 106 Wis. 2d 185, 217, 316 N.W.2d 143, 160 (Ct. App. 1982), to the effect that while a polygraph result might itself be inadmissible, an offer to take it may be relevant to the offeror's credibility. As the state points out, however, Hoffman involved a trial that had occurred prior to the Dean decision. We conclude that is no longer applicable in view of the blanket exclusion of polygraph evidence now in effect. Admission of an offer to take the test would raise recurring questions of whether the offer was with or without knowledge of the inadmissibility of the result. The potential confusion and delay presented by this collateral issue outweighs the limited probative value of the offer as a matter of law.

EXCLUDED EVIDENCE OF THE EFFECTS OF CARBON MONOXIDE

In ruling on the exclusion of evidence, we do not substitute our judgment for that of the trial court but uphold its decision if there is a reasonable basis for its ruling. State v. Pharr, 115 Wis. 2d 334, 342, 340 N.W.2d 498, 501 (1983).

Bulik argues that denial of defense testimony regarding a witness' "real life" experience with the effects of carbon monoxide poisoning was error. She was prepared to report difficulty with concentration, memory, and other side effects. The trial court ruled that the relevance was limited when compared to possible prejudice to the state because the witness' exposure was under different circumstances from that of the defendant. This factor was important in view of undisputed expert testimony that the reaction to carbon monoxide poisoning is highly individualized. The trial court excluded the evidence under sec. 904.03, Stats., and its ruling was not an abuse of discretion.

THE "THEORY OF THE DEFENSE" INSTRUCTION

A defendant is entitled to an instruction on the theory of his defense so long as the requested instruction is based on law and has a foundation in the evidence. State v. Davidson, 44 Wis. 2d 177, 191-92, 170 N.W.2d 755, 763 (1969).

The trial court refused to give Bulik's proposed instruction on grounds that the standard instructions adequately covered the elements of the offense. The trial court permitted Bulik to examine witnesses and argue the effect of carbon monoxide on his mental state, important factors in deciding whether the jury was misled. See United States v. Napue, 401 F.2d 107, 112 (7th Cir. 1968). We conclude that although Bulik was entitled to the instruction, its refusal was harmless error. See Davidson, 44 Wis. 2d at 192, 170 N.W.2d at 763.

SUFFICIENCY OF THE EVIDENCE

In reviewing a challenge to the sufficiency of the evidence, this court must consider the evidence in a light most favorable to the state. State v. Stanfield, 105 Wis. 2d 553, 563-64, 314 N.W.2d 339, 344 (1982). The test is whether the trier of fact could, acting reasonably, be convinced beyond a reasonable doubt by the evidence that it had a right to believe. State v. Wyss, 124 Wis. 2d 681, 693, 370 N.W.2d 745, 751 (1985).

Even if the jury accepted Bulik's version of events with regard to his conduct after he discovered his unconscious wife in the van, his testimony is not wholly exculpatory. He failed to seek medical help although her condition was such that he had to drag or carry her to bed. In the morning, observing her still groggy condition, he filled the bathtub, dragged her into the tub area, propped her up against a clothes hamper beside the floor-level tub, and left her there. Upon discovering his children were sick, he then went about opening windows, did household chores, left the home to run errands, and returned to find pamela face down in the tub. Bulik did not deny the impropriety of his conduct but sought acquittal on the grounds that he was not thinking clearly. The jury apparently accepted his description of events except for his claimed mental impairment, and his behavior can be said to have created a situation of unreasonable risk and high probability of death or great bodily harm and demonstrated a conscious disregard for his wife's safety, and a willingness to take known chances of perpetrating an injury within the meaning of sec. 940.06, Stats.

IMPEACHING THE JURY'S VERDICT

Where there is no timely objection in the trial court, errors need not be. reviewed on appeal unless the error is so plain or fundamental as to affect the defendant's substantial rights. Claybrooks v. State, 50 Wis. 2d 79, 84-85, 183 N.W.2d 139, 142 (1971). The jurors' comments in this case did not indicate plain error.

The trial court permitted defense counsel, in polling the jury, to ask whether each of them found Bulik guilty of demonstrating a conscious disregard for the safety of another and showing a willingness to take known chances of perpetrating an injury. One of the jurors replied: "You said conscious? . . . Seems to me that conscious was second degree." Defense counsel: "Are you finding homicide by reckless conduct then"? Juror: "Yes." A second juror stated: "I agree with [the first juror]. I don't think that question was raised." This juror, however, also confirmed his guilty verdict.

We believe polling should be limited to an inquiry whether the juror voted guilty or not guilty. Juries should not be cross-examined regarding the methods used to reach its verdict. Section 906.06(2), Stats.; see also State v. Poh, 116 Wis. 2d 510, 517-18, 343 N.W.2d 108, 113 (1984).

In any case, the issue was waived by trial counsel's failure to timely object to the jurors' responses.

THE COURT'S SENTENCING DISCRETION

The trial court imposed the maximum sentence of an indeterminate term of not to exceed ten years. Bulik says the court emphasized the gravity of the offense without considering the need to protect the public or rehabilitate the defendant. An abuse of discretion can be found if the court gives too much weight to one factor in the face of other contravening considerations. Ocanas v. State, 70 Wis. 2d 179, 187, 233 N.W.2d 457, 462 (1975). The weight to be given to any particular factor is for the trial court. Id. at 185, 233 N.W.2d at 461. We conclude that the trial court adequately articulated its reasoning process in determining sentence.

Bulik also refers to the extensive unfavorable pretrial publicity, anonymous letters sent the Judge demanding harsh treatment, and telephone threats to the Judge from an anonymous source during the course of trial. Nothing suggests that these factors influenced the sentence, and there is no reason to speculate that they did.

Not recommended for publication in the official reports.

19860624

© 1997 VersusLaw Inc.



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