No.
95-2134-CR
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v. ERRATA SHEET
JAMES E. POWELL,
Defendant-Appellant.
|
Marilyn
L. Graves Clerk
of Court of Appeals P.O.
Box 1688 Madison,
WI 53701-1688 |
Peg
Carlson Chief
Staff Attorney 119
Martin Luther King Blvd. Madison,
WI 53703 |
|
Court
of Appeals-District I 633
West Wisconsin Avenue Milwaukee,
WI 53203 |
Court
of Appeals-District II 2727
N. Grandview Blvd. Waukesha,
WI 53188-1672 |
|
Court
of Appeals-District III 740
Third Street Wausau,
WI 54403-5784 |
Court
of Appeals-District IV 119
Martin Luther King Blvd. Madison,
WI 53703 |
|
Jennifer
Krapf Administrative
Assistant 119
Martin Luther King Blvd. Madison,
WI 53703 |
Hon.
Robert V. Baker Kenosha
County Courthouse 912
- 56th Street Kenosha,
WI 53140 |
|
Robert
J. Jambois District
Attorney Kenosha
County Courthouse 912
- 56th Street Kenosha,
WI 53140 |
Charles
B. Vetzner Asst.
State Public Defender P.O.
Box 7862 Madison,
WI 53707-7862 |
|
William
C. Wolford Asst.
Attorney General P.O.
Box 7857 Madison,
WI 53707-7857 |
|
PLEASE TAKE NOTICE that
the attached opinion is to be substituted for above-captioned opinion which was
released on September 4, 1996.
Dated this 9th day of
October, 2005.
|
COURT OF APPEALS DECISION DATED AND RELEASED September 4, 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. 95-2134-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
JAMES
E. POWELL,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Kenosha County: ROBERT V. BAKER, Judge.
Reversed and cause remanded.
Before Anderson, P.J.,
Brown and Snyder, JJ.
SNYDER, J. James
E. Powell appeals from a judgment of conviction and an order denying
postconviction relief. Powell was found
guilty as a party to the crime of robbery contrary to §§ 943.32(1)(b) and
939.05, Stats.[1] Powell claims that the trial court erred
by: (1) ruling on the number of prior
convictions which would be admissible without examining the record or
articulating which convictions were considered, (2) refusing to compel the
prosecution to disclose a witness' criminal record to defense counsel, and (3)
refusing to allow defense counsel to impeach a witness after the witness failed
to acknowledge the agreed-upon number of prior convictions. Because we conclude that the trial court
erroneously exercised its discretion and that the resulting error was
prejudicial, we reverse and remand for a new trial.
It is undisputed that
Tim Jackson and his brother, Michael Jackson, robbed a gas station and then ran
some distance to a car driven by Powell.[2] Police subsequently received an anonymous
phone call which focused the robbery investigation on the Jackson
brothers. They were questioned
separately by the police and both initially denied any involvement in the
robbery.
Michael changed his
initial denial of any involvement and stated that prior to the robbery, “James
[Powell] mentioned robbing someplace.”
Based on Michael's statement, Powell was questioned by police. Although he admitted being with Tim and
Michael on the night of the robbery, he claimed to be unaware of either the
plan to rob the store or the actual robbery.
He told police that he first became aware of the robbery while in the
car on the way back to Tim and Michael's apartment when Tim said they had just
pulled a “caper.”
Tim and Michael both
testified for the State at Powell's trial.
Tim testified that all three of them had been drinking and using cocaine
prior to the robbery. He testified that
they had consumed approximately two cases of beer in the six- to eight-hour
period before the robbery. When
questioned about the robbery, Tim stated, “I couldn't say for 100 percent sure
what exactly - what I said. So I
definitely couldn't say what Michael or James had said about this, about the
situation.” He also admitted on
cross-examination that he had difficulty remembering what was going on around
him and that the robbery itself was “spur of the moment.”
When asked directly
whether Powell was aware of the robbery when he and Michael returned to the
car, Tim said, “At that particular moment, at that time, I would say no
....” He also explained that Powell
parked on the street instead of pulling into the gas station parking lot
because his car had no reverse gear.
Michael's testimony at
trial also controverted the earlier statement he had given the police, which
had implicated Powell. Michael
testified on direct that he and Tim had talked about needing money and he had
said to his brother, “I know this store we can hit.” He further testified that while the three of them were riding
around in Powell's car, he and Tim told Powell to pull over and wait. He also stated that even as he and Tim
walked into the store, “[W]e didn't know whether we were going to do it or
not.” He testified that at the time of
the earlier statement he had given the police implicating Powell, he thought
that Powell had turned them in and he wanted to get back at him.
Prior to the testimony
of Tim and Michael, a hearing was held to determine the admissibility of any
prior convictions for impeachment purposes.
At that hearing, the prosecutor noted that Tim had two Wisconsin
convictions and acknowledged that “he also has contact in Illinois.” However, the prosecutor did not acknowledge
that he possessed Tim's presentence report.
Based on its questioning of Tim and his admission of several Illinois
battery convictions, the trial court concluded that three convictions would be
admitted for impeachment purposes.
Defense counsel
objected, stating that the absence of a record check or presentence report made
it impossible to determine the correct number of prior convictions. The prosecutor then admitted to having a
copy of Tim's presentence report and conceded that it listed “many
offenses.” After the prosecutor offered
a verbal synopsis of the contents of the report, the trial court stated that
four prior convictions would be admissible.
Tim objected to this, and the trial court then unilaterally ruled that
Tim had three prior convictions.
Defense counsel objected and requested a copy of the presentence report;
the trial court denied that request.
When Tim testified and
was asked on direct examination how many prior convictions he had, he
responded, “Well, 2 or possibly 3. All
depends on how you look at it.”
Although defense counsel again requested a copy of the presentence
report in order to impeach the witness as to the nature of the prior
convictions, the trial court denied that request and instructed the jury that
“Mr. Jackson has 3 convictions.” No
further questioning regarding the number or nature of the prior convictions was
allowed. At the close of trial, the
jury returned a guilty verdict and this appeal followed.
A trial court's
determination about which convictions are admissible for impeachment purposes
is discretionary. State v. Kuntz,
160 Wis.2d 722, 753, 467 N.W.2d 531, 543 (1991). However, the State concedes that the trial court did not make an
adequate record of how it determined that Tim should admit to three prior
convictions. A proper exercise of
discretion is the product of a rational mental process which states the facts
of record and the law relied upon. Hartung
v. Hartung, 102 Wis.2d 58, 66, 306 N.W.2d 16, 20 (1981). Because the trial court did not examine the
presentence report and specify which convictions would be admitted for
impeachment purposes, it erroneously exercised its discretion.
Powell's second claim of
error rests upon the State's failure to disclose information in its possession
about the number and nature of Tim's out-of-state convictions. He contends that this thwarted the “legal
process for impeaching a key prosecution witness by prior convictions.”
This issue is governed
by § 971.25, Stats., which
provides for the disclosure of the criminal record of a prosecution witness.[3] The application of statutory requirements to
undisputed facts presents a question of law which this court reviews de
novo. Sauer v. Reliance Ins. Co.,
152 Wis.2d 234, 240, 448 N.W.2d 256, 259 (Ct. App. 1989). Section 971.25(1), Stats., provides:
Disclosure
of criminal record. (1) The district attorney shall disclose to
the defendant, upon demand, the criminal record of a prosecution witness which
is known to the district attorney.
The
statute's plain language requires disclosure of the criminal record of any
prosecution witness. The prosecutor had
a copy of Tim's presentence report, but had not disclosed that fact to either
the trial court or defense counsel.
When defense counsel specifically requested that the State locate the
presentence report, the prosecutor was required to disclose the information in
it which pertained to Tim's criminal record.
The record shows that
defense counsel made repeated attempts to obtain a copy of the presentence
report from the State. We conclude that
the trial court erred in not compelling the disclosure of a witness' criminal
record as mandated by § 971.25, Stats.
The State contends that
under Jones v. State, 69 Wis.2d 337, 349, 230 N.W.2d 677, 684‑85
(1975), the prosecution had no affirmative duty to seek a criminal record from
other states. We agree, but note that Jones
is not controlling in this instance because the presentence report had already
been completed and was in the State's possession. The State also argues that § 972.15(4), Stats., which provides that “the presentence investigation
report shall be confidential and shall not be made available to any person
except upon specific authorization of the court,” precludes any requirement
that the report be disclosed.
This argument does not
address the required disclosure. At
issue is the criminal record of the witness, not the entire contents of the
presentence report. At a minimum, the
trial court had a responsibility to examine the contents of the presentence
report before issuing its ruling denying its disclosure. Had this occurred, the trial court could
then have determined how to make Tim's criminal conviction record available to
the defense. The trial court erred in
not examining the presentence report and in failing to compel disclosure of a
witness' criminal record.
Finally, Powell contends that the trial court
erred when it precluded impeachment questioning of Tim after he failed to
correctly state that he had three prior convictions. Section 906.09(1), Stats.,
allows for the use of prior convictions to impeach a witness.[4]
The introduction of
evidence with respect to prior convictions lies within the discretion of the
trial court. See State v.
Pitsch, 124 Wis.2d 628, 639, 369 N.W.2d 711, 717 (1985). It is also accepted that the number of prior
convictions is relevant evidence on the issue of credibility. Nicholas v. State, 49 Wis.2d
683, 688, 183 N.W.2d 11, 14 (1971).
Prior convictions are
relevant evidence because the law presumes that one who has been convicted of a
crime is less likely to be truthful than one who has not. Id. Prior convictions are also relevant because of a presumption that
the more often one has been convicted of a crime, the less truthful he or she
is presumed to be. Id. If a witness answers truthfully and
accurately, no further inquiry is possible.
Id. at 689, 183 N.W.2d at 14. However, an inaccurate or incomplete answer allows the matter to
be pursued, and the nature of past convictions may be elicited. See id.
Tim's answer, “Well, 2
or possibly 3. All depends on how you
look at it,” was equivocal. By not
responding with the court-imposed number, three, Tim opened the door to defense
questioning about the nature of his past offenses. When defense counsel attempted to question Tim with regard to his
criminal record, the trial court foreclosed that by expressly informing the
jury that Tim had three prior convictions and by prohibiting any further
questions about the nature of those convictions. We conclude that this was error.
In sum, we conclude that
the trial court erred in determining the number of prior convictions without
examining the presentence report, in not compelling the prosecution to disclose
Tim's criminal record, and in denying Powell the right to impeach a key
prosecution witness. The remaining
issue is whether these errors were prejudicial.
The State maintains that
“the jury disbelieved some of Jackson's testimony because they convicted the
defendant.” The State then argues that
any errors which occurred were harmless because the jury already had ample
reason to doubt Tim's credibility. We
disagree, concluding that the combination of errors which occurred was not
harmless.
An error is not harmless
if it has “affected the substantial rights of the party seeking to reverse or
set aside the judgment.” See §
805.18(2), Stats. In this case, due to the conflicting
statements made by both Tim and Michael, the State's case against Powell was
largely circumstantial. Although Tim's
and Michael's trial testimony seemingly exonerated Powell, the jury also heard
testimony about earlier statements Michael had made which implicated
Powell. The case against Powell hinged
on the credibility of the Jackson brothers, the only witnesses who tied Powell
to the robbery. Had Powell been able to
impeach Tim with regard to his prior convictions, it is possible Powell could
have destroyed the admittedly shaky credibility of one of the State's key
witnesses.[5]
We conclude that the
trial court's ruling withholding Tim's criminal record and precluding his
impeachment with that record denied Powell the right to attack the credibility
of a key prosecution witness. This was prejudicial
error and requires reversal for a new trial.
By the Court.—Judgment
and order reversed and cause remanded.
Not recommended for
publication in the official reports.
[3] This statute is renumbered and amended by 1995 Wis. Act 387, § 31. The revisions are effective January 1, 1997, and do not affect our analysis in this appeal.