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COURT OF APPEALS
DECISION
DATED AND FILED
November 22, 2011
A. John
Voelker
Acting Clerk of Court of Appeals
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NOTICE
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This opinion is subject to
further editing.� If published, the
official version will appear in the bound volume of the Official
Reports.�
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.� See Wis. Stat. � 808.10 and Rule 809.62.�
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Appeal No.�
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STATE OF WISCONSIN�
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IN COURT OF
APPEALS
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DISTRICT I
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State of Wisconsin,
����������������������� Plaintiff-Respondent-Petitioner,
����������� v.
Olu
A. Rhodes,
����������������������� Defendant-Appellant.
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����������� APPEAL
from a judgment of the circuit court for Milwaukee County:� patricia d.
McMAHON, Judge.� Affirmed.�
����������� Before Fine, Kessler and Brennan,
JJ.
�1������� FINE, J. Olu A. Rhodes appeals a judgment entered after a jury
found him guilty of first-degree intentional homicide as party to a crime, see Wis.
Stat. �� 940.01(1)(a) & 939.05, and first-degree recklessly
endangering safety as party to a crime, see
Wis. Stat. �� 941.30(1) &
939.05. �This case was here before, and
we reversed and remanded for a new trial because we concluded that the trial
court had improperly truncated Rhodes�s right of
cross-examination. �State v. Rhodes,
2009AP25, unpublished slip op., 2010 WL 2671289 (WI App July 7, 2010). �The supreme court disagreed and reversed. �State v. Rhodes, 2011 WI 73, ��3�4, ___
Wis. 2d ___, ___, 799 N.W.2d 850, 853. �It
has directed us to consider Rhodes�s remaining
contentions, which we now do. �He
contends that the trial court: �(1)
erroneously allowed a State witness to give expert testimony for which, he
argues, she was not qualified; (2) erroneously did not grant a mistrial motion
when the State, in its closing argument, told the jury that cellular telephone records
showed that Rhodes was at the scene of the shootings; and (3) erroneously
excluded evidence that the victim who survived had once been convicted of
driving without a license. �We affirm. �
I.
�2������� As we recounted in our earlier opinion,
Olu A. Rhodes and his brother, Jelani Saleem,
were tried together for the shooting death of Robert Davis
and the shooting injury of Jonte
Watt. �The State�s theory was that the brothers
killed Davis because they thought he was responsible
for the beating of their sister, Nari Rhodes,
and that Watt was an unlucky bystander. �Watt and his girlfriend, Dominique Walker,
were with Davis at the time of the shooting. �Both Walker
and Watt identified the brothers as the shooters. �The jury acquitted Saleem.
Rhodes,
unpublished slip op., �2.e contends
Part of the State�s evidence was that Rhodes used
Saleem�s cell phone the day of the shooting, and that cell-phone records placed
him at the scene of the shootings. �To
support that theory, the State called an employee of the company providing
Saleem�s cell-phone service, and an employee of the Wisconsin Department of
Justice. �It is the testimony of the
latter witness, Melissa
Marchant, that Rhodes
contends was improper because, he claims, it was beyond the scope of her
expertise.
�3������� The telephone company representative produced, pursuant to
subpoena, a log of the calls made and received by Saleem�s cell phone, and the
cell-phone towers to which those calls were connected, together with the
towers� longitude and latitude coordinates.�
She testified that a cell-phone call will connect to the tower with the
strongest signal, which may be, but not necessarily is, the tower closest to
the cell phone. �She also agreed with Rhodes�s lawyer that the documents she produced could not
indicate where a person making a cell-phone call was standing when the call
connected to the tower, but, rather, the best that could be shown was that the
call came from within a particular tower�s sector. �
�4������� Marchant, who described herself as a �criminal intelligence
analyst� working for the Department of Justice, testified that, using a
computer program, she mapped the coordinates supplied by the cell-phone company
for their various towers, and translated those coordinates into street
intersections. �She testified that she
was a high-school graduate and had undergone training to learn how to map the
coordinates. �She also told the jury that
she �received telephone analysis training, paneling training which involves
cell phone, cell towers and understanding that information.� �As with the cell-phone company employee, she
acknowledged that a cell phone will �grab the closest tower with the strongest
reception.� �The State gave the requisite
notice to Rhodes and Saleem that either Marchant or another Department of
Justice employee would �testify to the ability of cellular phone records and
cellular towers to be used for the purpose of triangulating the position of a
cell phone at the time that cellular activities (i.e. text messaging, voice
calls) occur. �They will further testify
to the ability to map such activities in relation to a crime scene.� �See Wis. Stat. � 971.23(1)(e) (State must
disclose to a defendant �any reports or statements of experts made in
connection with the case or, if an expert does not prepare a report or statement,
a written summary of the expert�s findings or the subject matter of his or her
testimony.�). �The notice also told the
defendants that they could get copies of the potential witnesses� �curricula
vitae or resume� from the Milwaukee County district attorney. �
�5������� We address Rhodes�s contention in
turn.
II.
A.
Expert Testimony.
�6������� Admission of evidence is in the trial court�s reasoned
discretion. State v. Sullivan, 216 Wis. 2d 768, 780, 576 N.W.2d 30, 36
(1998). ��An appellate court will sustain
an evidentiary ruling if it finds that the circuit court examined the relevant
facts; applied a proper standard of law; and using a demonstrative rational
process, reached a conclusion that a reasonable judge could reach.� �Id., 216 Wis. 2d at 780�781, 576
N.W.2d at 36. �This is true of expert
testimony as well. �State v. Donner, 192 Wis.
2d 305, 317, 531 N.W.2d 369, 374 (Ct. App. 1995) (�The question of an expert
witness� qualifications is a matter resting in the sound discretion of the
circuit court, and unless it is shown that the court misused its discretion,
its ruling will stand.�). �Moreover, �[a]
witness called to give expert testimony may, like any other witness, establish
a proper testimonial foundation by his or her own testimony. �Cf. Rule
906.02, Stats. (A witness� requisite personal knowledge may be proven by his or
her own testimony.).� �James
v. Heintz, 165 Wis. 2d 572, 579, 478 N.W.2d 31, 34 (Ct. App. 1991).
�Further, Wis.
Stat. Rule 907.02 requires
a question-by-question analysis; an expert in one area may not have sufficient
expertise to answer all questions asked at trial. �See Green
v. Smith & Nephew AHP, Inc., 2000 WI App 192, �23, 238 Wis. 2d 477, 499�500, 617 N.W.2d
881, 891, aff�d, 2001 WI 109, 245 Wis. 2d 772, 629 N.W.2d 727.
�7������� At the time of trial, Wis.
Stat. Rule 907.02 provided: ��If
scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education,
may testify thereto in the form of an opinion or otherwise.�[1] �Rhodes does not
contend that the cell-phone company employee was not qualified or that her
testimony was not admissible; rather, he claims that the trial court should
have sustained the following objections to questions the State asked Marchant. �We set out concurrently with our analysis each
of the questions that Rhodes specifically identifies
in his brief. �He admits however that
Marchant was qualified to identify �points on the map that corresponded to cell
tower hits.� �
(1)������ �Q ��Now what is the significance of the towers? �What is a cell phone tower?� �Rhodes�s lawyer
objected, and the trial court overruled the objection. �This was well within the trial court�s
discretion because based on what Marchant said was her training, she would know
what a cell-phone tower was. �
(2)������ Rhodes also
objected when Marchant told the jury: ��If
you have one cell tower and you�re at home all day and you make 20 calls, it�s
just going to give you that one tower.� �The
trial court overruled the objection. �This
also was well within its discretion because given Marchant�s recounting of her
training, the answer was within her ken, and Rhodes
did not seek a voir dire of Marchant
to show that it was not. �See Wis.
Stat. Rule 901.03(3) (hearing on �offers of proof or asking questions�
should, �to the extent practicable,� be out of jury�s presence). �He also does not contend that her testimony
was wrong.
(3)������ Marchant then said: ��So it wouldn�t show another registration. �You could have multiple calls on that one
tower which is � which is what happened here.� �Rhodes asked that
the trial court strike the �last answer� because there was, according to him,
�no foundation.� �The trial court denied
the motion, telling Rhodes�s lawyer that he would
�be able to cross.� �Rhodes
does not develop an argument why this ruling was an erroneous exercise of
discretion. �Indeed, State v. Walstad, 119
Wis. 2d 483, 519, 351 N.W.2d 469, 487 (1984), tells us that cross-examination
was the preferred way of dealing with expert evidence that was helpful to a
jury and ��reliable enough to be probative.�� (One set of quotation marks and
citation omitted.) Significantly, as before, Rhodes
does not even suggest that the answer was wrong.
(4)������ Rhodes also
objected when Marchant said that a cell phone �will grab the closest tower to
the phone.� �The trial court overruled
the objection. �As we have seen, however,
Marchant also testified that a cell phone would �grab the closest tower with
the strongest reception,� and this was consistent with what the cell-phone
company employee also told the jury, so, at the most, the effect of Marchant�s
initial comment was de minimis.
Moreover, whether a cell phone �will grab� this or that tower appears on our
Record to be arguably within the scope of Marchant�s expertise as she described
it.� The trial court did not erroneously
exercise its discretion in overruling the objection.
B.������� Alleged Prosecutorial Misstatement During Closing Argument and Rhodes�s
Mistrial Motion.
�8������� A prosecutor during his or her summation is permitted to
comment fairly on the evidence. �See State
v. Amundson, 69 Wis. 2d 554, 572, 230 N.W.2d 775, 785 (1975). �Further, �[w]hether to grant a mistrial is a
decision that lies within the sound discretion of the circuit court.� �State v. Doss, 2008 WI 93, �69, 312
Wis. 2d 570, 606, 754 N.W.2d 150, 168. �
�9������� Further, Rhodes complains that the prosecutor misused the cell-phone
evidence to tell the jury during his closing argument: ��So you can look at all these records look at
the phone and they put Olu
Rhodes at the scene of the shooting
at the time of the shooting.� �Rhodes�s trial lawyer immediately objected: ��That is a misstatement of the evidence, and
you know it.� �The trial court overruled
the objection and, later, denied Rhodes�s motion for
a mistral, ruling that the prosecutor�s comment was �fair.� �
�10����� Rhodes admits that the cell-phone
evidence placed him �in the neighborhood� of the shootings, where Rhodes also lived. �As
we have seen, the jury heard testimony that the cell-phone records could only
show that a particular call connected within a cell tower�s sector, and could
not pinpoint an exact location. �Thus,
the trial court correctly recognized that the jury could assess whether the
towers� sectors were close enough to the scene of the shootings so, as the
prosecutor argued, the records connecting Rhodes�s
calls to those towers put him �at the scene of the shooting at the time of the
shooting.�
C.������� Surviving Victim�s Prior Convictions.
�11����� Rhodes argues that the trial court erred when it permitted the
jury to know about two of the surviving victim�s prior felony convictions,
possession of cocaine with intent to deliver, and carrying a concealed weapon,
but not that he also had a third conviction, which was for driving without a
license. �
�12����� As material, Wis. Stat. Rule 906.09 provides:
(1) General rule. For
the purpose of attacking the credibility of a witness, evidence that the
witness has been convicted of a crime or adjudicated delinquent is admissible. �The party cross-examining the witness is not
concluded by the witness�s answer.
(2) Exclusion. Evidence
of a conviction of a crime or an adjudication of delinquency may be excluded if
its probative value is substantially outweighed by the danger of unfair
prejudice.
�Whether to allow
prior-conviction evidence for impeachment purposes under � 906.09, Stats.,
is within the discretion of the trial court.� �State v. Kruzycki, 192 Wis. 2d 509,
525, 531 N.W.2d 429, 435 (Ct. App. 1995). �Wisconsin does not let the jury know the
nature of the crimes. �State
v. Rutchik, 116 Wis. 2d 61, 76, 341 N.W.2d 639, 646 (1984).
�13����� In denying Rhodes�s request that the
jury be told that the surviving victim had three rather than two convictions,
the trial court opined: ��I think that an
operating without a license is not such a crime that should be, even under the
Wisconsin rules, considered.� �Significantly,
Saleem�s lawyer agreed with the trial court. �Telling the jury that the surviving victim had
three rather than two prior convictions without also telling them that one of
the convictions was for a relatively minor offense, would have been misleading.
�The trial court did not erroneously
exercise its discretion in denying Rhodes�s request.
����������� By
the Court.�Judgment affirmed.
����������� Publication
in the official reports is not recommended.