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Harmless Error; Jury View

State v. Jason M. Bruckbauer, 2009AP1823-CR, District 4, 8/19/10

court of appeals decision (3-judge, not recommended for publication); for Bruckbauer: Dennis Schertz; BiC; Resp.; Reply

Harmless Error

Any error in admission of a pretrial ID of Bruckbauer from a photo array was harmless, where: the challenged ID didn’t directly implicate him in the homicide but merely placed him at the scene; multiple witnesses testified to hostility between him and victim, including a veiled threat made by Bruckbauer; Bruckbauer was in possession of the murder weapon, which smelled of gunpowder as if recently fired the night of the homicide and which was later disposed of by his wife; Bruckbauer confessed to a cellmate, ¶¶14-20.

The court lays out the test for harmless error at ¶¶12-13.

Jury View

The trial court did not erroneously exercise discretion in authorizing a jury view of the crime scene at a different time of day than the crime occurred.

¶25 Although the court in Herrington held that it is not improper for a jury view to be held when lighting conditions are similar to those present when the offense at issue took place, it did not hold that it is improper for the court not to hold a jury view when the lighting conditions are similar and Bruckbauer does not cite to any legal authority which indicates a circuit court is compelled to order a jury view of the scene of an offense under lighting conditions identical to, or even similar to,  those present when the offense at issue occurred.

¶26 The purpose of a jury view is to enable the jury to understand the evidence introduced.  Haswell v. Reuter, 171 Wis. 228, 233, 177 N.W. 8 (1920). The circuit court here explained that the jury view in this case would provide the jury “some sense of distance, placement, [and] a spatial view of the scene.” The circuit court also noted the difficulty in exactly reproducing the lighting conditions from October, the month Linder was murdered, at the time of trial, which took place in the months of January and February. The court stated that it could be explained to the jury during trial that lighting conditions at the time of their view were somewhat different than those at the time of Linder’s murder. An erroneous exercise of discretion will not be found where the circuit court sets forth a reasonable basis for its determination. State v. McCall, 202 Wis. 2d 29, 35, 549 N.W.2d 418 (1996). We cannot say here that the court erroneously exercised its discretion by denying Bruckbauer’s request to have the jury view the scene of the crime at the approximate time the crime occurred.

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