PUBLISHED OPINION
Case No.: 94-3350-CR
† Petition
for Review Filed.
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff-Respondent, †
v.
WALTER SMITH,
Defendant-Appellant.
Submitted on Briefs: ---
Oral Argument: March 14, 1996
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: June 25, 1996
Opinion Filed: June 25, 1996
Source of APPEAL Appeal
from a judgment and an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Milwaukee
(If "Special", JUDGE: JOHN A. FRANKE
so indicate)
JUDGES: Wedemeyer,
P.J., Sullivan and Schudson, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSFor
the defendant-appellant the cause was submitted on the briefs of Patricia K.
Flood, assistant state public defender.
Respondent
ATTORNEYSFor
the plaintiff-respondent the cause was submitted on the briefs of James E.
Doyle, attorney general, and Jerome S. Schmidt, assistant attorney
general.
COURT OF APPEALS DECISION DATED AND RELEASED June 25, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-3350-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
WALTER SMITH,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: JOHN A. FRANKE, Judge. Reversed and cause remanded for a new
trial.
Before Wedemeyer, P.J.,
Sullivan and Schudson, JJ.
SULLIVAN,
J. Walter Smith appeals from a judgment of conviction for
first-degree intentional homicide, as a party to a crime. He also appeals from an order denying his
motion for postconviction relief. At
issue is whether the trial court committed reversible error when it refused to
allow Smith, under Rule 906.09, Stats., to impeach a State witness by
introducing evidence of the witness's prior criminal convictions.[1] We conclude that the trial court misapplied
Wisconsin law when it excluded the evidence, and further, that this error was
not harmless. Accordingly, we must
reverse both the judgment and order and remand for a new trial.
I.
Background.
On July 16, 1993, Travis
Craig was shot and killed while he stood at a phone booth with his uncle,
George Owens. Craig was shot twice; a
9mm bullet recovered from Craig's body matched eight cartridge casings found in
an alley adjacent to the phone booth.
The State's theory was that
Owens was the intended target of the shooting, and that Smith and Troy Jackson,
as parties to a crime, killed Craig while shooting at Owens. The State's theory was that the shooting was
the result of an ongoing argument between Jackson and Owens over the quality of
cocaine sold by Jackson to Owens's girlfriend, Myrtle Robertson.
No physical evidence or
eyewitness testimony linked either Smith or Jackson to the shooting; the
State's case was based exclusively on circumstantial evidence. The key evidence was supplied through
Robertson's testimony. Both the State
and Smith concede that Robertson made conflicting statements concerning what
occurred on the day of the shooting.
At trial, Robertson
testified that on the day of the shooting, she saw Jackson and his girlfriend
outside—Smith was not seen. She went
inside and called her mother on the telephone and then heard a gunshot. She went outside and was told by friends that
there was an altercation between Jackson and Owens. She went back inside and called her sister, and while on the
phone, Jackson and Smith knocked on the door.
Smith told her that if she did not tell them where Owens was, he would
kill her. Smith had a gun that looked
like an Uzi, and she thought Jackson had a firearm as well.
Robertson stated she
then walked with Smith and Jackson to Owens's uncle's apartment, but was unable
to get inside, so they returned to her apartment. Smith and Jackson left and came back, and Robertson attempted to call
Owens's uncle, but was unsuccessful.
She said Smith told her they didn't want George Owens, they wanted his
son, because Owens was not worth killing.
They then left her apartment.
Robertson stated that
she then received a call from Jeanetta Owens and talked for about twenty
minutes. Jeanetta Owens called again
around midnight. While Robertson was on
the phone, someone knocked on the door.
Jackson, his girlfriend, and Smith were outside.
Robertson stated that
Smith told her that the police would be coming to ask her questions and he warned
her not to give the police his name.
Robertson stated he threatened to kill her if she did. At this time, neither Smith nor Jackson
appeared to be carrying a gun.
Robertson gave variant
statements to police. During
Robertson's first questioning by police, she told them that it was Jackson, not
Smith, who had a gun when they first visited her apartment. She gave a second statement in which she
said Jackson had an Uzi‑type gun.
She later gave a third statement in which she said both Jackson and Smith
were carrying guns.
Further, at the
preliminary hearing, Robertson testified that Smith was alone when he came to
her apartment the second time; however, at trial, she could not remember this
testimony. During her trial testimony,
Robertson was repeatedly challenged through her prior inconsistent statements
and different versions of what she stated had occurred. Both Smith and the State concede that
Robertson's testimony was severely tested on these points during
cross-examination.
Smith argues that the
trial court erred, however, before Robertson even testified at trial. Robertson, George Owens, and another State
witness had criminal records—so did Smith and Jackson. Smith wished to impeach the State's
witnesses, particularly Robertson, by questioning them about their prior
convictions.
According to the
transcript in this case, Robertson had two convictions in 1975 for injury by
conduct regardless of life, one drug-related conviction in 1982, a conviction
for battery in 1985, and a conviction for drug possession with intent to
deliver in 1990.
The trial court heard
arguments on the admission of this evidence, and as will be discussed in detail
below, ruled that none of the witnesses' prior convictions would be allowed
into evidence. The jury convicted both
Smith and Jackson of Craig's homicide, as party to a crime. Smith filed a postconviction motion
alleging, inter alia, that the trial court erroneously exercised its
discretion in excluding the prior conviction evidence. The trial court denied the motion, stating
that the evidence was properly excluded.
II.
Analysis.
A. Prior Conviction
Evidence.
Although the trial court
excluded all evidence of prior convictions, Smith focuses his challenge on the
exclusion of Robertson's prior convictions—so do we. Based on the trial court's ruling when compared to the standards
set forth in Wisconsin law, we conclude that the trial court erroneously
exercised its discretion in excluding evidence of Robertson's convictions.
Evidence that a witness
has been convicted of a crime is admissible for the purpose of attacking the
witness's credibility by an inference on the witness's character for
truthfulness. Rule 906.09, Stats.
(1993‑94).[2] A prior conviction of any crime is relevant
to the credibility of a witness's testimony.
State v. Kruzycki, 192 Wis.2d 509, 524, 531 N.W.2d 429,
435 (Ct. App. 1995). Rule 906.09 “reflects the longstanding
view in Wisconsin that `one who has been convicted of a crime is less likely to
be a truthful witness than one who has not been convicted.'” State v. Kuntz, 160 Wis.2d
722, 752, 467 N.W.2d 531, 542 (1991) (citation omitted).
Whether to admit prior
conviction evidence for impeachment purposes under Rule 906.09 is a matter within the discretion of the trial
court. Kruzycki, 192
Wis.2d at 525, 531 N.W.2d at 435. “When
we review a discretionary decision, we consider only whether the trial court
properly exercised its discretion, putting to one side whether we would have
made the same ruling.” Id. Nonetheless, a trial court's misapplication
of the law is an erroneous exercise of discretion on which we must reverse the
trial court's ruling. State v.
Hutnik, 39 Wis.2d 754, 763, 159 N.W.2d 733, 737 (1968).
A trial court
considering whether to admit evidence of prior convictions for impeachment
purposes should consider the following factors: (1) the lapse of time
since the conviction; (2) the rehabilitation or pardon of the person
convicted; (3) the gravity of the crime; and (4) the involvement of
dishonesty or false statement in the crime.
Kruzycki, 192 Wis.2d at 525, 531 N.W.2d at 435 (citation
omitted). These factors are weighed in
a balancing test to determine whether the probative value of the prior
conviction evidence “is substantially outweighed by the danger of unfair
prejudice.” Rule 906.09(2), Stats.
(1993‑94).[3]
Here, the trial court
refused to admit evidence of Robertson's prior convictions, based primarily, as
the State reluctantly conceded at oral argument, on an erroneous interpretation
of Wisconsin law. The trial court stated
that it had a problem with giving the jurors information about the number of a
witness's prior convictions “without telling them what the convictions are
for.”
When ruling on this
issue at trial, the court stated:
[A]s I've said many times from the bench
in excluding evidence of these convictions for defendants, I have serious
doubts about the probative value of any of this when the jury doesn't learn
about what the conviction is for. If I
was sitting on a jury and heard that someone had a prior conviction, I would
lean forward and wait to hear whether it was for homicide, perjury, forgery, or
retail theft of a pack of cigarettes before I would have the slightest idea
what weight to give it in deciding someone's credibility.
Again,
when ruling on postconviction motions, the trial court posited that evidence of
prior convictions in general had “low probative value.” Hence, the trial court ruled its “principal
concern [was] that jurors, not knowing what the[ ] convictions [we]re for,
might give them much greater weight than they deserve.” We are concerned that the trial court's
general attitude on prior conviction evidence, as reflected throughout the
record, tainted its analysis of the probative value of Robertson's prior
convictions.
Wisconsin law is very
clear that if evidence of prior convictions is admitted, witnesses may be asked
if they have been convicted of a crime, and if the answer is yes, the number of
convictions. State v. Midell,
39 Wis.2d 733, 738‑39, 159 N.W.2d 614, 617 (1968). The nature of the convictions is not to be
discussed by the proffering party. See
id. As one commentator
has noted about this “counting rule”:
The convictions
themselves do not necessarily have to bear on a person's character for
truthfulness. ... The assumption is that the longer the criminal
record, the less credible the individual.
This reasoning applies regardless of the nature of the prior
conviction. Burglary, murder or
criminal drunk driving convictions are deemed as probative of credibility under
this rule as a false swearing conviction.
In short, it is not necessary to directly link the nature of the offense
with the character for truthfulness; the link is provided by the fact of
conviction.
Daniel D. Blinka, Wisconsin Evidence
§ 609.1 at 311 (West's Wisconsin Practice Series, Vol. 7, 1991).
Thus, the heart of the
trial court's ruling is contrary to Wisconsin law—the law presumes that the
number of convictions is relevant to a witness's credibility, even without a
jury being informed about the nature of the convictions. The trial court's discretionary ruling was
primarily guided by a consideration that is contrary to the presumptions of
Wisconsin law; thus, the trial court misapplied the law on this point.
The trial court also
premised its ruling on its conclusion that evidence of prior convictions was
not very probative because “most of [the witnesses] were involved in
drugs.” Indeed, the court stated that
evidence of a prior conviction, “without knowing what it's for doesn't ...
really add much to the mix.” In
essence, the trial court concluded that because many of the witnesses had
sordid histories involving drugs, the probative value of these same witnesses'
criminal records was minimized.
While
this may be a reasonable consideration in the trial court's overall balancing
of probative value versus unfair prejudice, the law in this State presumes that
“`one who has been convicted of a crime is less likely to be a truthful witness
than one who has not been convicted.'” Kuntz,
160 Wis.2d at 752, 467 N.W.2d at 542 (citation omitted). Thus, evidence of convictions could
influence the jury's consideration of a witness's testimony above and beyond
that of other “negative” witness behaviors also brought to light at trial. Indeed, contrary to the trial court's
reasoning, convictions are presumed to “add much to the mix.” Once again, we fear that the trial court's
attitude on this evidence colored its ruling.
Finally, we note that
the trial court did not individualize its analysis to each of the witnesses'
prior conviction evidence; the trial court made a blanket ruling excluding all
the evidence.[4] It reasoned that if the evidence was
excluded as to one witness, it would be excluded as to all witnesses. The trial court stated at the postconviction
hearing that it was necessary to look at all the witnesses together for
consistency purposes.
While consistency in
evidentiary rulings is a necessity, the trial court must still look at each
witness individually and consider the proper factors in weighing whether the
probative value of prior conviction evidence for that witness is substantially
outweighed by the danger of unfair prejudice.
It is possible that while one witness's prior conviction evidence may
not survive the balancing test, another witness's may. A blanket ruling, while expedient and
consistent, fails to show a consideration of the proper factors with respect to
each witness, and thus, is an erroneous exercise of discretion. See McCleary v. State,
49 Wis.2d 263, 277-78, 182 N.W.2d 512, 520 (1971) (concluding the failure to
consider proper factors is an erroneous exercise of discretion). Further, an individualized ruling is even
more paramount in a case such as this where there is a paucity of physical
evidence connecting the defendants to the crime, thereby placing the
credibility of each witness's testimony in the spotlight of the jury's
consideration.
In short, we conclude
the trial court erroneously exercised its discretion in excluding evidence of
Robertson's prior convictions. We need
not reverse Smith's judgment of conviction, however, if this error was harmless.
B. Harmless Error
Analysis.
Not all errors require
reversal. The test is “whether there is
a reasonable possibility that the error contributed to the conviction.” State v. Dyess, 124 Wis.2d
525, 543, 370 N.W.2d 222, 231-32 (1985).
If the test is met, reversal and a new trial are required. Id. at 543, 370 N.W.2d at
232. The burden of proving that there
is no reasonable possibility that the error contributed to the conviction is
“on the beneficiary of the error.” State
v. Sanchez, 201 Wis.2d 219, 231, 548 N.W.2d 69, 74 (1996). In this case, that burden falls on the
State.
Whether the exclusion of
the evidence was harmless was the key issue at oral argument to this
court. The State argued that any error
in excluding Robertson's prior conviction record was harmless because “her
credibility was tested to the limit” based on the inconsistent statements she
made about the events surrounding Craig's shooting. Thus, the State argued that the jury, in reaching its verdict,
had already considered Robertson's credibility.
Smith's counsel
countered, arguing that the credibility of Robertson's testimony was the
“linchpin” of the State's case against Smith and Jackson. Counsel stated, “Without Myrtle Robertson's
testimony, there is no link at all between the co‑defendants and the
crime. Her credibility was the
issue in the case.” Hence, Smith argues
that if the jurors had been presented with the fact that Robertson was a
convicted criminal, this would have prodded them away from believing her
testimony concerning the homicide.
We do not know how the
jury in this case appraised Robertson's testimony, nor do we know what effect,
if any, knowledge of Robertson's criminal record would have had on the
jury. This was a case premised on
circumstantial evidence. We agree with
Smith that Robertson's testimony seemed to be the “linchpin” connecting him and
Jackson to the homicide. Indeed,
Robertson's testimony on the guns and the co-defendants' allegedly
incriminating statements about the shooting provided strong circumstantial evidence
of their involvement in Craig's homicide.
We cannot divine what the jury would have concluded about Smith's guilt
or innocence if it had rejected the veracity of Robertson's testimony in light
of her criminal record. Nor can we
determine how the jury would have viewed the remaining circumstantial evidence
if it had rejected Robertson's testimony.
As was once astutely written, “Circumstantial evidence is a very tricky
thing ...; it may seem to point very straight to one thing, but if you shift
your own point of view a little, you may find it pointing in an equally
uncompromising manner to something entirely different.”[5]
Given the circumstantial
nature of the State's case against Smith and the “crucial and controlling
feature” of Robertson's testimony, we cannot “be sure that the error did not
contribute to the guilty verdict.” Dyess,
124 Wis.2d at 547, 370 N.W.2d at 233.
The State failed to meet its burden that there is no reasonable
possibility that the error contributed to the conviction. See Sanchez,
201 Wis.2d at 231, 548 N.W.2d at 74.
The error was not harmless.
III.
Summary.
In short, the trial
court erroneously exercised its discretion in excluding evidence of Robertson's
prior convictions. Further, this error
was not harmless. Accordingly, we must
reverse both the judgment of conviction and the order denying postconviction
relief and remand the matter for a new trial.
By the Court.—Judgment
and order reversed and cause remanded for a new trial.
[1] Smith raises four other issues on appeal that we do not discuss because we reverse on other grounds. See State v. Dwyer, 181 Wis.2d 826, 830, 512 N.W.2d 233, 234 (Ct. App. 1994) (only dispositive issue need be addressed) (citation omitted).
[2]
Rule 906.09, Stats. (1993-94), provides:
Impeachment by evidence of
conviction of crime. (1) General rule. For the
purpose of attacking the credibility of a witness, evidence that the witness
has been convicted of a crime 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 may be excluded if its probative value is substantially outweighed by
the danger of unfair prejudice.
(3) Admissibility of conviction. No
question inquiring with respect to conviction of a crime, nor introduction of
evidence with respect thereto shall be permitted until the judge determines
pursuant to s. 901.04 whether the evidence should be excluded.
(4) Juvenile adjudications. Evidence of
juvenile adjudications is not admissible under this rule.
(5) Pendency of appeal. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.
[3] One commentator has opined that “the `unfair prejudice' specified in the rule refers to the danger that the jury might use the evidence for something other than assessing the witness'[s] credibility.” Daniel D. Blinka, Wisconsin Evidence § 609.1 at 312 (West's Wisconsin Practice Series, Vol. 7, 1991).