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COURT OF APPEALS DECISION DATED AND RELEASED October 22, 1996 |
NOTICE |
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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. 95-3247-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
State of Wisconsin,
Plaintiff-Respondent,
v.
Robert E. Bickham,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
JEFFREY A. KREMERS, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER CURIAM. Robert E. Bickham appeals from a judgment
of conviction entered after a jury found him guilty of possession with intent
to deliver a controlled substance (cocaine), second or subsequent offense, as
party to a crime, and failure to pay the controlled substance tax as party to a
crime, contrary to §§ 161.16(2)(b)(1), 161.41(1m)(cm)(3), 161.48, 939.05,
139.87(1)&(2), 139.88(2), 139.89, and 139.95, Stats.
Bickham claims
that: (1) the trial court
erroneously exercised its discretion when it limited the use of certain
photographs which were admitted into evidence; (2) the trial court
erroneously exercised its discretion when it excluded certain cross-examination
of Detective Dennis Gardner; (3) the trial court erroneously exercised its
discretion when it precluded Bickham from eliciting testimony that a third
person (Anthony Bean) committed the crimes attributed to Bickham; (4) the
drug stamp law violates his constitutional right against self-incrimination;
and (5) the drug stamp law subjects him to double jeopardy in violation of
his constitutional rights. Because the
trial court's limitation on the photographic evidence was harmless error;
because the exclusion of the cross-examination questioning was harmless error;
because the trial court did not erroneously exercise its discretion in
excluding the third party evidence; and because Bickham waived his right to
raise the constitutional violations, we affirm.
I. BACKGROUND
On the night of January
30, 1995, a large group of police officers proceeded to a Milwaukee home to
execute a no-knock search warrant for suspected narcotics at a suspected drug
house. The house was a two-story,
single-family building with a porch on the second-story in the back of the
home.
Detective Edwin Bonilla
was positioned at the rear of the home.
Bonilla testified that he was approximately twenty-five feet to the east
of the house with a view of the second-story porch. Bonilla said that after the officers entered the front door of
the home, Bonilla heard a lot of running and commands being given for the
occupants to get down on the ground. At
this point, Bonilla indicated that he saw a man come out onto the second-story
porch and toss multiple objects off the porch.
Bonilla shined his flashlight on the man and ordered him not to
move. The man complied.
Bonilla said no one else
was on the porch and that he continued to shine his flashlight on the man until
Officer Willie Brantley stepped onto the porch and arrested the man. Bonilla testified that the man was wearing
dark clothing, including a black leather jacket and something that reflected
light around his neck. Bonilla
indicated that he observed the man's profile, including hair style, stature and
weight.
Subsequently, Bonilla
entered the home and identified the man being held by Brantley as the person
observed on the porch. This man, later
identified as Bickham, was wearing a black leather jacket and a gold chain
around his neck. The tossed items were
recovered from the ground. These items
included three bags containing rock cocaine and two envelopes containing
marijuana. As a result, Bickham was
charged with possession with intent to deliver and violation of the drug stamp
law.[1]
Bickham's defense at
trial was mistaken identity. He
admitted being at the house during the search.
He admitted going out onto the porch, but he denied that he tossed
anything off of the porch. He
introduced into evidence photographs depicting the backside of the house from
different vantage points. He attempted
to elicit testimony from Detective Bonilla that Bonilla was located at the same
position as shown in one of the photos, which was taken twenty-five feet from
the home. This photo showed that very
little of the doorway to the porch could be observed from this distance. The trial court excluded this
cross-examination and admitted the photos for the limited purpose of showing
the relative locations of the buildings.
Bickham also attempted
to elicit from Detective Gardner that two months after the incident, he had
asked witness Latrice Braggs if she knew who owned the drugs. Bickham wanted to use this information to
demonstrate that at least one detective was not convinced that Bickham was the
perpetrator of the January 30 incident.
The trial court excluded this questioning on hearsay grounds.
Bickham also tried to
introduce evidence that another individual, Anthony Bean, who was present in
the drug house on January 30, was arrested five weeks later at a drug
house near the one involved in this case.
This information was intended to show that Bean, rather than Bickham,
should have been charged with the drug offenses arising out of the January 30
incident. The trial court excluded this
testimony.
The jury convicted
Bickham of possession with intent to deliver cocaine and the drug stamp
violations. Judgment was entered. Bickham now appeals.
II. DISCUSSION
A. Evidentiary
Issues.
In reviewing a trial
court's decision concerning the admission or exclusion of evidence, we apply
the discretionary standard of review. State v.
Oberlander, 149 Wis.2d 132, 140-41, 438 N.W.2d 580, 583 (1989). That is, we will uphold the trial court's
ruling unless it erroneously exercised its discretion. Id. A trial court properly exercises its discretion if it applied the
proper law to the relevant facts and reached a rational conclusion. Id. Moreover, even if the trial court erroneously exercised its
discretion, we will not reverse if the error was harmless. State v. Dyess, 124
Wis.2d 525, 543, 370 N.W.2d 222, 231-32 (1985).
Bickham first claims the
trial court erred in limiting the purpose for which the photos were
introduced. The trial court limited the
admission to the purpose of showing the location of the buildings. Bickham wanted to use the photos to impeach
Bonilla's testimony regarding what Bonilla could actually see from the position
where he claimed he was standing. We
agree that the trial court should have allowed Bickham to use the photos to
impeach the detective's testimony.
Nonetheless, we conclude that the trial court's error was harmless. See Dyess, 124 Wis.2d
at 543, 370 N.W.2d at 231-32.
Our conclusion is based
on the following facts, which demonstrate that there is no reasonable
possibility that the trial court's limitation contributed to Bickham's
conviction. Bonilla testified that he
kept his flashlight shined on the man on the porch until another officer arrested
the man. Bonilla indicated that he then
went into the house, where the arresting officer was holding this man, who was
identified as Bickham. The arresting
officer identified Bickham as the man he arrested on the porch. Given this chain of events, Bonilla's
precise location and/or view of the porch is at best marginally relevant. Moreover, the photos were admitted and
available to the jury. The jurors were
not instructed as to how to use the photos.
Accordingly, the trial court's limitation on the use of the photos was
harmless beyond a reasonable doubt.
Bickham next claims the
trial court erred in excluding certain cross-examination of Detective
Gardner. Bickham attempted to examine
Gardner regarding a conversation he had in March of 1990 with Latrice Braggs,
who was one of Bickham's companions at the house when the search warrant was
executed. Bickham intended to show that
Gardner was still investigating the crimes with which Bickham was charged
because Gardner was uncertain as to whether the right man had been
arrested. The trial court sustained an
objection, on hearsay grounds, to the following question posed to Gardner: “And did you ask [Braggs] who owned the items
in question, the items and drugs that were found outside the location?”
We agree that Gardner
should have been allowed to answer this question. It does not call for hearsay because it merely asks Gardner
whether he asked Braggs a question, rather than asking Gardner what Braggs's
response was. Nevertheless, we conclude
that this error was harmless. See
Dyess, 124 Wis.2d at 543, 370 N.W.2d at 231-32.
The trial court's error
was harmless because Bickham was able to elicit this same information from
Braggs, who also testified at trial.
Therefore, Bickham was allowed to introduce into evidence the fact that
Gardner was still investigating the January 30 incident as late as
March. Accordingly, precluding Gardner
from answering this question was harmless error beyond a reasonable doubt.
Finally, Bickham claims
that the trial court erred in precluding him from asking a detective about
Anthony Bean. Bickham intended to show
that Bean, who was also present in the house on January 30, was arrested
five weeks later for possessing 110 grams of cocaine, two loaded weapons and
more than $4,300 in cash at a home two houses away from the home involved in
the instant case.
This evidence would be
admissible only to the extent that it would suggest that Bean, not Bickham,
committed the crimes with which Bickham was charged. Accordingly, in order to be admissible, this evidence must first
satisfy the “legitimate tendency” test set forth in State v. Denny,
120 Wis.2d 614, 625, 357 N.W.2d 12, 17 (Ct. App. 1984), which governs
evidence of third-party culpability.
This test requires the defendant to show that the proffered evidence
satisfies three factors linking the third party to the charged criminal
act. These factors include: (1) that the third party possessed
motive to commit the act; (2) that the third party had the opportunity to
commit the act; and (3) that there was a direct connection between the
third party and the charged criminal act.
Id.
We conclude that Bickham
failed to show that the evidence regarding Bean satisfied this test. There was no evidence that Bean was ever on
the second-story porch or that Bean was in possession of an illegal substance
on January 30. Accordingly, Bickham has
failed to show any “direct connection” between Bean and the crimes with which
Bickham was charged. We conclude,
therefore, that the trial court did not err in excluding this evidence.
B. Drug
Stamp/Constitutional Violations.
Bickham also claims that
his constitutional rights against self-incrimination and double jeopardy are
violated by the drug stamp law. Bickham
presents these arguments for the first time on appeal. We conclude, therefore, that he has waived
his right to raise these issues, and we decline to address them. See Wirth v. Ehly,
93 Wis.2d 433, 443-44, 287 N.W.2d 140, 145-46 (1980).
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.