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COURT OF APPEALS DECISION DATED AND RELEASED November 13, 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. 95-3265-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
MICHAEL E. NEAL,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Racine County: DENNIS J. FLYNN, Judge. Affirmed.
Before Brown, Nettesheim
and Snyder, JJ.
PER
CURIAM. Michael E. Neal appeals from a judgment of conviction
and an order denying his postconviction motion. He challenges an evidentiary ruling permitting rebuttal testimony
and seeks resentencing because a portion of the sentencing hearing was not
recorded when the court reporter's machine malfunctioned. We reject both challenges and affirm.
Neal was convicted as a
repeater of false imprisonment, battery, first-degree recklessly endangering
safety, child abuse, mistreatment of animals and second-degree recklessly
endangering safety arising out of a September 1993 incident at the home of
Retha Grandberry. Grandberry testified
that during an argument, Neal hit her, swung a butcher knife at her and her
son, cut her son in the face and the arm, cut her dog, and prevented her from
taking her son for medical treatment.
Neal testified that during the confrontation, he grabbed the knife from
Grandberry during a struggle and swung it to ward off the son who was
approaching with his own knife.[1] Neal admitted injuring the dog.
The evidentiary ruling
on appeal involves the State's response to evidence that Grandberry recanted a
1991 accusation that Neal battered her.
The defense referred to the recantation in its opening statement. On direct examination, Grandberry testified
that she was convicted of misdemeanor obstruction of justice as a result of the
1991 incident. On cross-examination,
Neal sought to impeach Grandberry with evidence that when she recanted her
battery accusation against Neal, she claimed that she had been injured in a
fight with another woman. Neal did not
mention the 1991 incident in his direct examination. However, on cross-examination he claimed that the 1991 incident
involved Grandberry and another woman and that he attempted to stop the fight
when he arrived at the scene. However,
Neal later testified that he told the police at the time that he had been
fighting with Grandberry.
In rebuttal, the State
offered the testimony of the arresting officer in the 1991 incident,
Richard Geller. Neal objected to
the testimony as relating to a collateral matter. While the trial court agreed that the officer's testimony would
be collateral, the court noted that Neal had raised the 1991 incident as part
of his strategy to impeach Grandberry.
The court ruled that the State had a right to rehabilitate
Grandberry.
Geller testified that he
responded to an incident at Grandberry's home in 1991. Grandberry was the victim, and Neal was
present. Neal did not tell him that a
third party had been involved in the altercation, and Geller did not inquire
whether a third party had been involved.
Neal argues that the
officer's testimony was inadmissible because it was extrinsic evidence of a
collateral matter. Section 906.08(2), Stats., prohibits proof by extrinsic
evidence of specific instances of a witness's conduct in order to attack or
support the witness's credibility. See
also McClelland v. State, 84 Wis.2d 145, 159, 267 N.W.2d 843,
849-50 (1978) (a witness may not be impeached by extrinsic evidence on a
collateral matter). Extrinsic evidence
is "testimony obtained by calling additional witnesses, as opposed to
evidence obtained by the cross-examination of a witness." State v. Sonnenberg, 117
Wis.2d 159, 168, 344 N.W.2d 95, 99 (1984).
The parties do not dispute that Geller's testimony was extrinsic
evidence of a collateral matter.[2]
Neal mentioned
Grandberry's recantation in his opening statement and elicited her testimony
about the incident during cross-examination.
Neal then testified that the incident did not occur as Grandberry
testified. In its discretion, a
trial court may permit the introduction of supportive evidence if
"the trial court believes that the nature of the evidence and the tone of
the examinations, when considered as a whole, are tantamount to an accusation
that a witness is lying ...." Cf.
State v. Anderson, 163 Wis.2d 342, 349, 471 N.W.2d 279, 281 (Ct.
App. 1991) (supportive character evidence admissible under these
circumstances). Geller's testimony was
offered to buttress Grandberry's version of the 1991 incident, which Neal put
before the jury and disputed in his testimony.
We conclude that the trial court properly exercised its discretion in
permitting Geller to testify.
Even if we were to
conclude that Geller's testimony should have been excluded under
§ 906.08(2), Stats., we
would conclude that admission of the testimony was harmless error. An error is harmless if there is no
reasonable probability that it contributed to the conviction. State v. Dyess, 124 Wis.2d
525, 543, 370 N.W.2d 222, 231-32 (1985).
Evidence of the 1991 incident was in the record by virtue of
Grandberry's and Neal's testimony.
Their versions conflicted.
Geller's testimony was cumulative, but harmlessly so in light of the
other evidence adduced at trial that Neal committed the crimes for which he was
convicted.
We turn to Neal's
challenge to his sentence. A portion of
the sentencing hearing was not transcribed because the battery failed in the
court reporter's machine. The machine
was repaired and the proceedings resumed.
The parties were then given a chance to recreate the record as they
wished. The prosecutor stated that he
had been reading from the presentence report to highlight Neal's prior violent
offenses. Neal did not offer any
supplement to the record.
At the postconviction
motion hearing on the question of the incomplete transcript, the court found
that between one and ten minutes of the prosecutor's discussion of the
presentence investigation report were missing.
The court found that neither party alleged that the missing portion of
the hearing contained arguably prejudicial error which would evade review in
the absence of a complete transcript.
Neal argues that he has
been denied his right to an appeal because the sentencing hearing was not fully
transcribed. A defendant must allege
that some error occurred during the unrecorded proceedings in order to make a
colorable claim of prejudice arising from an incomplete record. State v. Perry, 136 Wis.2d 92,
103, 401 N.W.2d 748, 753 (1987). Neal
has not made a specific claim of error other than to argue that a complete
record is required for appellate review.
In the absence of such an allegation, the trial court did not err in
declining to hold a new sentencing hearing.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.