COURT OF APPEALS DECISION DATED AND RELEASED December 3, 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
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No. 95-3410-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
SYED HASAN TURAB,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
ELSA C. LAMELAS, Judge. Affirmed.
Before Wedemeyer, P.J.,
Schudson and Curley, JJ.
PER
CURIAM. Syed Hasan Turab appeals from a judgment convicting him of
physical abuse of a child (intentional causation of bodily harm) following a
jury trial. Turab claims that the trial
court erred in several respects. First,
he argues a due process violation occurred when the trial court refused his
requested addition to the reasonable doubt standard jury instruction that would
have required the jury to find “guilt to a moral certainty.” Second, Turab argues that the trial court
should have admitted into evidence statements contained in his offer of proof. The evidence he sought to admit consisted of
alleged derogatory statements made to him by a Village of Fox Point police
officer not present at trial. Finally,
Turab argues the trial court should not have permitted the testimony of the
mother of the victim because he argues that it was both “incredible” and
contrary to the physical facts as she was 129 feet away from the events she
witnessed. Because we conclude the
trial court properly: (1) instructed the jury using the standard jury
instructions; (2) refused to admit the statements contained in the offer
of proof because the statements were irrelevant; and finally, (3) admitted
the testimony of the victim's mother because it was credible and consistent
with the physical facts, we affirm.
I. Background.
Turab's legal
difficulties began when he drove to a Village of Fox Point school to pick up
his children. Upon approaching the
school he witnessed some roughhousing between his nine-year-old son and another
older boy, later identified as twelve-year-old Jason D. Both boys were pushing and shoving each
other on school property. What happened
next was hotly disputed at trial. Turab
and his children testified that Turab quickly exited his car after he saw his
son being pushed into the driveway. He
approached the two boys, grabbed Jason D.'s coat and ordered him to drop a
piece of ice that he held in his hand.
Turab and his children also testified that Jason D. was never
struck by Turab or injured in any way.
Jason D. and his mother sharply contradicted the testimony given by
Turab and his family. Although agreeing
that Turab immediately exited his car and rushed over to the boys,
Jason D. and his mother testified that, upon reaching the boys, Turab
began choking Jason D. and then threw him to the ground, slapping and
punching his face several times. As a
result, they testified that the boy suffered some minor injuries and his
eyeglasses were broken. Jason D.'s
mother, who was also driving to the school to pick up her children, witnessed
much of the altercation between her son and Turab while stopped at a stoplight
some distance away. The last State's
witness at trial was a Village of Fox Point police officer who did not see the
altercation, but investigated the complaint.
In rebuttal, he testified to a statement given by Turab at the police
station after Turab was later summoned there by phone.
During the jury trial
the trial court denied Turab's attempt at introducing—by way of an offer of
proof—what he believed to be derogatory and insulting statements made to him by
a Village of Fox Point police officer absent from the trial. Turab contends that the trial court made
four errors in refusing to permit the statements' introduction through Turab's
testimony. First, Turab claims the
trial court erred by finding the police were not agents of the state as
contemplated in the hearsay exception codified in Rule 908.01(4)(b)4, Stats.,
thus ruling that the defense was required to subpoena police witnesses needed
for their case. Next, Turab contends
the trial court erred in its conclusion that the statements of the officer
contained in the offer of proof were irrelevant and consisted of inadmissible
hearsay. Last, he contests the trial court's conclusion that the defense was
not allowed to introduce the statements on the defense theory that the State had
opened the door to the subject matter by admitting Turab's police station
declarations.
Turab also challenges
the decision of the trial court to allow Jason D.'s mother to
testify. Turab contends her testimony
should not have been admitted because she claimed she saw the incident from a
distance of 129 feet; a distance, according to Turab, too far away to actually
see the events unfold, thereby rendering her testimony contrary to the physical
facts.
Finally, Turab argues
that the trial court committed an error requiring a new trial when it refused
to give his proposed jury instruction that would have required the jury to be
convinced of guilt to a moral certainty when contemplating the concept of
reasonable doubt. The jury found Turab
guilty and, after unsuccessfully seeking a new trial in a “Motion After
Verdict,” Turab brought this appeal.
II. Analysis.
Turab's first argument
deals with the trial court's refusal to give his special jury instruction. Turab had proposed a jury instruction which
sought to add the words, “the jury must be convinced to a moral certainty of
guilt in order to find him guilty” to the standard Wis J I—Criminal
140. Turab claims the failure to add
this clause is a due process violation requiring a new trial. He cites, however, no cases in support of
his position that a new trial is mandated when the phrase “convinced to a moral
certainty” is omitted. In fact, other
than claiming a due process argument, he fails to satisfactorily explain why
the standard instruction was erroneous.
He does cite a 1899 Wisconsin Supreme Court case, Emery v. State,
101 Wis. 627, 78 N.W. 145 (1899), in which the court used the words “moral
certainty” in defining reasonable doubt, see id. at 651,
78 N.W. at 152, but this case does not require Turab's proposed language in the
jury instructions. He also cites to a
United States Supreme Court case, Victor v. Nebraska, 511 U.S. 1,
127 L.Ed.2d 583 (1994), in which the appellant argued that it was reversible
error for the trial court to give an instruction using the language “to a moral
certainty” in defining reasonable doubt.
The Supreme Court concluded that the challenged instruction using the
phrase “to a moral certainty” in defining reasonable doubt was not a due
process violation, but only because it was saved by other surrounding language
found in the instruction. Id.
at ___, 127 L.Ed.2d at 596. Thus, these
cases lend no support to Turab's argument that failing to give his proposed
jury instruction is error.
The current standard
instruction, Wis J I—Criminal 140, has been in use for many years. The comments following the “reasonable
doubt” instruction note that this version was first published in 1962 and was
revised in 1983. For thirteen years
this instruction has successfully withstood appellate court scrutiny in
defining the concept of reasonable doubt.
“A trial court has broad discretion when instructing a jury, and if the
trial court's instructions accurately cover the law, [the Court of Appeals] will
not find error in the refusal to give an instruction proposed by one of the
parties, even where the proposed instruction is not erroneous.” See Plautz v. Time Ins. Co.,
189 Wis.2d 136, 151, 525 N.W.2d 342, 349 (Ct. App. 1994). Turab has supplied no solid authority or
arguments to establish why the standard jury instruction was insufficient. We conclude the trial court properly
exercised its discretion by refusing Turab's modified instruction.
Turab next argues that
the trial court erroneously exercised its discretion in excluding evidence contained
in an offer of proof that consisted of Turab's recollections of what a Fox
Point police officer who was not present at trial allegedly stated to Turab at
the time of his interview at the police station. Turab wished to introduce the absent officer's alleged pejorative
statements through several different legal vehicles. First, Turab believed he was not obligated to subpoena the
officer because, he contended, the officer was an agent of the State and his statement
was an exception to the hearsay rule pursuant to Rule 908.01(4)(b)1, Stats. In addition to concluding that, under Rule 908.01(4)(b)4, the missing
police officer's unrecorded statements to the defendant did not qualify for
admission, the trial court ruled that the content of the offer of proof was
irrelevant and contained impermissible hearsay.
With respect to Turab's
assertion that he was entitled to admit the offer of proof because the police
are agents of the State for purposes of the hearsay exception found in Rule 908.01(4)(b)4, the trial
court correctly determined that generally in criminal cases this exception is
not available against the state. See
2 McCormick on Evidence,
§ 259 at 168 (John W. Strong ed., 4th ed. 1992). We note, however, that the trial court did not have to reach this
issue, as the statements in question were not hearsay. Rule 908.01(3),
Stats., defines “hearsay” as “a
statement ... being offered in evidence to prove the truth of the matter
asserted.” In this instance, the police
officer's alleged statements were not being admitted to prove they were true,
but rather, to explore the bias and prejudice of the police. The trial court concluded similarly, “[I]f I
understand the defense's argument correctly, it's [the offer of proof] a
statement that would implicate the motivation in the bringing of this suit.” Thus, Turab's requested offer of proof, had
it survived the relevancy challenge, would have been admissible because it was
not hearsay.
Having determined the
statements were not hearsay, we turn to the other objections argued by the
State. Turab asserts, as the trial
court correctly deduced, that Turab wanted the alleged statements of the
missing police officer admitted because he wished to explore the bias and
prejudice of the police. Although Turab
has, as he has argued, the absolute right to explore the bias of a witness, he
failed to lay a foundation showing a nexus between the testifying officer and
the purported bias of the missing officer.
The fact that one officer may have made comments to Turab which he found
insulting does not render them automatically admissible. Turab has not shown that the officer making
the alleged offending statements played any relevant role in the investigation,
nor has he shown that this alleged bias or prejudice permeated the entire
department. Without such a foundation,
Turab did not show how the police officer's statements, if true, were relevant
to the jury's determination of his guilt.
While an officer's alleged discourteous and insulting statements might
warrant further investigation by the police and fire commission or other
supervisory body, Turab's alleged complaints were of little value to the jury
under these facts and circumstances.
Thus, the trial court correctly determined that this evidence was
irrelevant and would not assist the jury in reaching its determination. Rule 904.01,
Stats., defines relevant evidence
as: “[E]vidence having any tendency to make the existence of any fact that is
of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Turab's offer of proof fails this test. The evidence sought by Turab was irrelevant.
Turab maintains the
failure to allow the jury to hear his conversation with the absent police
officer is of constitutional proportions because he lost his right to a fair
trial. While Turab is entitled to a
fair trial, he has cited no cases which make the failure to introduce
irrelevant evidence a violation of a constitutional right; nor can he, because
there is no constitutional right to introduce irrelevant evidence. See, e.g., State v. Morgan,
195 Wis.2d 388, 432, 536 N.W.2d 425, 441‑42 (Ct. App. 1995); see also
Rule 904.02, Stats. (irrelevant evidence is not
admissible).
Further, we review
discretionary acts such as the exclusion evidence, “`only to determine whether
the trial court examined the facts of record, applied a proper legal standard,
and, using a rational process, reached a reasonable conclusion.'” State v. Pittman, 174 Wis.2d
255, 268, 496 N.W.2d 74, 79‑80 (citation omitted), cert. denied,
510 U.S. 845 (1993). The trial court,
although incorrectly determining that the statements were inadmissible hearsay,
correctly concluded that the statements sought by Turab were irrelevant. As such, the trial court properly exercised
its discretion.
Finally, Turab claims
the trial court should not have permitted the mother of the victim to testify,
because her testimony was contrary to the physical facts. Turab does not elaborate on exactly what
part of her testimony he considers “contrary to the physical facts.” What can be deduced from a reading of the
briefs and the record is that there is some question as to whether
Jason D.'s mother could have seen the events at a distance of 129
feet. This question goes to the
credibility of the testimony, not the admissibility of the testimony. As such, the jury is the ultimate arbiter of
conflicting evidence. Further, if Turab
is challenging the sufficiency of the evidence on this point, he presents
nothing that undermines the sufficiency of the evidence supporting the jury's
verdict. See State v.
Poellinger, 153 Wis.2d 493, 507, 451 N.W.2d 752, 757‑58
(1990). Ample evidence exists in this
case to support the jury's finding.
Accordingly, we affirm.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.