Racine man convicted of burglary to get new trial

By Kevin Murphy

Thursday, February 8, 2007 2:05 AM CST

Special to The Journal Times

MADISON -

A state appeals court Wednesday ordered a new trial for Racine man sentenced to 12 years in prison for armed burglary and firearm charges because the judge didn't allow the defendant to be present when jurors asked to see evidence.

The District 2 Court of Appeals concluded that Judge Allan Torhorst erred in sending photos of shotguns to deliberating jurors who had requested them and had asked what types of guns the police recovered in the case.

Without summoning defendant David Glebke, his trial attorney, Kathleen R. Lang Muffitt, or Assistant District Attorney Robert Repischak, Torhorst told jurors that "two shotguns and one air gun" were recovered. Although Torhorst said Glebke waived his right to be present for the jury question, neither the waiver nor the judge's response to the jury was put on the record. The lack of a complete record raises the possibility that the judge's answer was prejudicial to Glebke, according to the appeals decision.

Before the jurors returned with their guilty verdicts, Torhorst told Glebke and Repischak that he had answered a jury question while the parties were unavailable.

Glebke, 45, appealed after he was sentenced in April 2003. The state didn't contest Glebe's argument that Torhorst erred in communicating with the jury without Glebke or his attorney present, but said it was a harmless error.

The appeals court disagreed, stating that although there was abundant evidence that firearms were stolen and found in Glebke's possession, Torhorst's answer in effect instructed the jury that Glebke was guilty of felon in possession of a firearm. Also, the judge's answer suggested to jurors that Glebke was armed during the burglary, satisfying one of the elements of the offense.

A defendant's constitutional right to a trial includes the right to be present when the judge receives a question from the jury and a defendant's right to due process includes the right to having a jury, not a judge, decide every element of the offense, according to the decision.

"The trial court's answer had the effect of relieving the state of its burden of proof and invaded the province of the jury," wrote Judge Harry Snyder in the five-page opinion.

Calls to Repischak and Glebke's appeals attorney, Russell Bohach, weren't returned before deadline Wednesday night.

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