COURT OF APPEALS DECISION DATED AND RELEASED December 17, 1996 |
NOTICE |
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Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
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This opinion is subject to
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official version will appear in the bound volume of the Official Reports. |
Nos. 95-3475-CR & 95-3476-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
State of Wisconsin,
Plaintiff-Respondent,
v.
Nathaniel Whaley,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: JEFFREY A. WAGNER, Judge. Affirmed.
Before Wedemeyer, P.J.,
Schudson and Curley, JJ.
WEDEMEYER, P.J. Nathaniel Whaley appeals from a judgment
entered after a jury convicted him of multiple counts of abduction of a child,
while armed, and first-degree sexual assault, as well as one count each of
armed robbery, kidnapping and theft, contrary to §§ 948.30(2)(b),
939.63(2), 943.32(1)(b) & (2), 940.225(1)(b), 940.31(1)(b) and 943.20(1)(a)
& (3)(d)(2), Stats. He also appeals from a trial court order
denying his request for a new trial.
Whaley's contention is that the trial court erred because it improperly
handled the remand directions from this court and he contends that had the
trial court complied with this court's remand directions, he would have been
granted a new trial. Because the trial
court did not erroneously exercise its discretion, we affirm.
I. BACKGROUND
Whaley was originally
charged in two informations with sexual assault-related offenses involving four
different individuals. The informations
were joined for trial. Immediately
before trial, the prosecutor dismissed the counts relating to one of the
victims, Tameka P., because PEP A serology tests seemed to exclude Whaley as
Tameka's assailant.
At trial, Whaley
attempted to introduce evidence of his exclusion as Tameka's assailant to show
misidentification. The trial court
excluded the evidence as irrelevant because the charges relating to the assault
on Tameka were dismissed. Whaley was
convicted and he appealed to this court, claiming the evidence should not have
been excluded. We concluded that the
trial court had improperly denied Whaley an opportunity to present an offer of
proof and ruled:
We conclude that an evidentiary hearing is
necessary because the record is incomplete regarding the exact nature of the
serological evidence and the likelihood of multiple semen sources. Therefore, we reverse the judgment and
remand the matter to the trial court for further proceedings. Upon remand, the trial court shall conduct
an evidentiary hearing to determine if, under the circumstances, the evidence
excludes Whaley as Tameka's assailant.
If the evidence does so, Whaley is entitled to a new trial and admission
of the evidence. If the evidence is
ambiguous, the trial court shall evaluate the evidence to determine whether to
grant a new trial or to reinstate the original judgment of conviction.
On remand, the trial
court ordered Whaley to submit to DNA testing.
The trial court held a hearing and, based on the totality of the
evidence, determined that the evidence did not absolutely exclude Whaley as
Tameka's assailant. Accordingly, it
denied Whaley's request for a new trial and reinstated the judgment. Whaley now appeals.
II. DISCUSSION
The issue in this case
is whether the trial court erred in handling the remand. Whaley asserts the following errors: (1) the trial court exceeded the scope
of the remand order when it considered evidence in addition to the PEP A
serological test; (2) the trial court held a hearing simply to take an
offer of proof rather than conducting the “evidentiary hearing” ordered by this
court; and (3) the trial court should not have allowed DNA testing to be
performed, and that allowing the DNA results to be introduced at the remand
hearing was error because this evidence was inadmissible hearsay. We reject each of Whaley's arguments.
A. Exceeding
Scope of Remand Order.
Whaley first contends
that the trial court exceeded the scope of our remand order because it did not
limit its consideration to the PEP A test. Whaley argues that the only question to be resolved on remand was
whether the PEP A test excluded Whaley as Tameka's assailant and that this
question was resolved in his favor because there was only one semen
source. We are not persuaded.
Upon remand, a trial
court must exercise its discretion to take any actions as seen “wise and proper
under the circumstances” as long as these actions are not inconsistent with the
remand order of the appellate court. Lingott
v. Bihlmire, 38 Wis.2d 114, 129, 156 N.W.2d 439, 446-47 (1968). “It is true that on remand, the trial court
must not exceed the scope of the mandate.
As a practical matter, however, the trial judge must be allowed some
reasonable exercise of discretion in fulfilling the terms of the mandate.” Texacally Joint Venture v. King,
719 S.W.2d 652, 653 (Ct. App. Texas 1986) (citations omitted).
Because the trial court
is vested with such discretion, our review is limited to whether the trial
court erroneously exercised its discretion.
Village of Shorewood v. Steinberg, 174 Wis.2d 191,
204, 496 N.W.2d 57, 62 (1993).
Accordingly, we will not reverse if the record shows that discretion was
in fact exercised and we can perceive that a reasonable basis exists for the
trial court's actions. Prahl v.
Brosamle, 142 Wis.2d 658, 667, 420 N.W.2d 372, 376 (Ct. App. 1987).
We remanded Whaley's
initial appeal for further proceedings and instructed the trial court to
conduct a hearing to determine if the evidence excluded him as Tameka's
assailant. We also instructed the trial
court in the event the evidence was ambiguous:
the trial court should evaluate the evidence to determine whether a new
trial was warranted.
Upon reviewing the trial
court's actions on remand, we conclude that it acted within its
discretion. The trial court did not
exceed the scope of our order, nor did it take any actions inconsistent with
our order. Its actions were “wise and
proper under the circumstances.” Our
remand order is not as exceedingly narrow as Whaley attempts to make it. In rejecting Whaley's interpretation of our
mandate, we borrow a quote from another jurisdiction:
We
... reject[] efforts to construe our remand orders so narrowly as to prohibit a
trial court from considering matters relevant to the issues upon which further
proceedings are ordered that may not have been envisioned at the time of the
remand. So long as these matters are
not extraneous to the issues and purposes of the remand, they may be brought
into the remand hearing.
Cioffoletti v.
Ridgefield Planning & Zoning Comm'n, 599 A.2d 9, 13
(Conn. 1991) (citation omitted). Our
remand order instructed the trial court to consider the evidence and did not
limit the consideration to only the PEP A test or only the
question regarding the number of semen sources. Given the resources expended in trying Whaley, it was wise for
the trial court to consider all the evidence available to determine
whether Whaley was excluded as Tameka's assailant and the DNA evidence is
certainly not an extraneous matter. As
we stated in Whaley's initial appeal, if the evidence clearly excluded Whaley,
then it was highly relevant and Whaley should have been able to introduce it at
trial.
Therefore, it was not
only reasonable, but also very prudent of the trial court to review all
the evidence in order to make this determination not only because an absolute
exclusion would require a new trial, but also because an absolute exclusion may
mean that Whaley was not guilty of the crimes charged. Thus, the importance of the trial court's
determination regarding this evidence is of great consequence.
Based on the foregoing,
we cannot conclude that the trial court's actions were an erroneous exercise of
discretion. Consideration of evidence
in addition to the PEP A test was not inconsistent with our order and under the
circumstances certainly was reasonable.
B. Nature
of the Hearing.
Whaley next argues that
the trial court erred by holding a mere “offer of proof” hearing instead of an
evidentiary hearing subject to the rules of evidence. We are not persuaded.
Although our remand
order did use the term “evidentiary hearing,” the trial court is allowed some
discretion in how such a hearing is conducted.
See generally, Milenkovic v. State, 86 Wis.2d 272,
284, 272 N.W.2d 320, 326 (1978). Under
the facts presented here, we cannot conclude that the trial court erroneously
exercised its discretion regarding the type of hearing it conducted on remand.
The purpose of the
remand hearing was to determine a preliminary question regarding the
admissibility of evidence. In Whaley's
initial appeal, we concluded that the trial court had improperly denied Whaley
an opportunity to present an offer of proof regarding evidence that he was
excluded as Tameka's assailant. We
concluded in the earlier appeal that if evidence did absolutely exclude Whaley
as Tameka's assailant, then that evidence was relevant to the misidentification
issue. However, because the trial court
cut short Whaley's offer of proof, a determination could not be made regarding
whether this evidence absolutely excluded him.
Accordingly, the subject of the remand hearing was to make this
determination. In essence, it was an
offer of proof to determine whether this evidence was relevant. Under such circumstances, the rules of evidence
are necessarily relaxed. See
§§ 901.04(1) and 911.01(4), Stats.;
United States v. Matlock, 415 U.S. 164, 172-73 (1974) (the rules
of evidence normally applicable in criminal trials do not operate with full
force at hearings before the judge to determine the admissibility of evidence).
Given the purpose of the
hearing, we cannot conclude that the nature of the remand hearing held by the
trial court was an erroneous exercise of discretion.
C. DNA
Evidence.
Whaley also objects to
the fact that DNA testing was allowed to be performed and to the fact that the
DNA evidence was introduced at the hearing.
He argues it should not have been introduced because it was inadmissible
hearsay. We disagree.
Whaley first contends
that taking the DNA sample violated his Fourth Amendment rights. He claims that the blood was drawn without
justification or probable cause. We do
not agree. The purpose of the remand
hearing was to determine whether Whaley could be absolutely excluded as
Tameka's assailant. DNA testing
certainly could provide helpful information in order to resolve that issue and
the intrusion to Whaley was minor.
Moreover, we construe the trial court's order to draw the blood sample
to be the equivalent of a search warrant.
Accordingly, we conclude that probable cause did exist to draw the
sample, that the intrusion was justifiable, and, therefore, Whaley's Fourth
Amendment rights were not violated. Winston v.
Lee, 470 U.S. 753, 760 (1985) (bodily intrusions not unconstitutional
as long as the facts and circumstances show that the intrusion was
justifiable).
He next claims that the
DNA evidence was inadmissible hearsay.
Although his argument may have some merit if the report had been
admitted at trial without the proper witnesses, it does not have merit here. The DNA report was used during the remand
hearing which we have already determined was not bound by the rules of
evidence. Moreover, reliance on the
expert's report with regard to any preliminary examination is permitted by
statute. See
§ 970.03(12)(b), Stats. This hearing was a preliminary examination
to determine whether the evidence would be admissible. Accordingly, we see no error in allowing the
DNA evidence to be introduced at the remand hearing.
Whaley next argues that
a jury rather than the judge should have determined whether the DNA or the PEP
A test was more credible. Again, this
would be true if this evidence was being admitted at a trial. The trial court determined, however, that
the evidence was inadmissible. Hence,
the credibility and weight determinations are left to the trial court to
decide. Moreover, our remand order
directed the trial court to make such a determination when we instructed it to
decide this issue if the evidence was ambiguous. Although we agree with Whaley that the trial court apparently
confused certain facts when reviewing the evidence, our review of the record
leads us to conclude that the trial court reached the right result. Accordingly, we affirm. State v. Patricia A.M., 176
Wis.2d 542, 549, 500 N.W.2d 289, 292 (1993); see also State v.
Holt, 128 Wis.2d 110, 124, 382 N.W.2d 679, 687 (Ct. App. 1985) (if a
trial court reaches the proper result but for the wrong reason, it will be
affirmed).
Our review shows that at
best, the evidence as to whether Whaley was excluded was ambiguous. The PEP A test seemingly excluded him and
the DNA test included him as Tameka's assailant. Given these apparently conflicting tests, it was necessary to
review all the evidence to determine whether Whaley should be granted a new
trial. Because the trial court's
analysis in this regard is somewhat muddled, we search the record in order to
determine whether the trial court's determination should be affirmed. Prahl, 142 Wis.2d at 667, 420
N.W.2d at 376.
Our review demonstrates
that the DNA evidence includes Whaley to a great statistical probability. The PEP A test, on the other hand, only absolutely
excludes him if one assumes that no other bodily fluids contaminated Tameka's
underwear. Given these facts, together
with the other strong evidence introduced at trial to show Whaley's guilt
regarding the other crimes for which he was convicted, we agree that the proper
result was to deny his request for a new trial and reinstate the verdict.
Whaley's last contention
is that allowing the DNA evidence to be introduced at the hearing without the
proper witnesses denied him his constitutional rights to confront his accusers
and of due process. We reject this
argument. This evidence was not
introduced at a trial to prove Whaley's guilt.
It was presented at a preliminary hearing to determine whether certain
evidence was admissible. Under these
circumstances, we see no reason to conclude that Whaley's constitutional rights
were violated. See Matlock,
415 U.S. at 172-73 (defendant does not have a right to confront his accusers at
a preliminary admissibility hearing).
He did have the opportunity to cross-examine the expert witness who
rendered opinions based on the DNA report.
Given the nature of the proceeding, this was sufficient to satisfy his
rights.
By the Court.—Judgment
and order affirmed.
Not recommended for
publication in the official reports.
Nos.
95-3475-CR (D) & 95-3476-CR (D)
SCHUDSON, J. (dissenting). This
appeal presents two separate issues: (1) whether Whaley is
entitled to a new trial because the serological evidence from the state crime
laboratory excludes him as the assailant of a victim whose assaults originally
were alleged to have been committed by the perpetrator of the assaults for
which Whaley was convicted; and (2) whether additional serological
evidence, produced as the result of DNA testing of a blood sample drawn by
order of the trial court following this court's remand, also would be admissible
at Whaley's re-trial.
We addressed and
resolved the first issue in our decision on Whaley's first appeal. We held, “If the evidence [excludes Whaley
as Tameka's assailant], Whaley is entitled to a new trial and admission of the
evidence.” State v. Whaley,
Nos. 93-2700-CR & 93-2701-CR, unpublished summary op. at 5 (Wis. Ct. App.
Aug. 3, 1994). At the evidentiary
hearing following remand, Raymond E. Menard, the former Wisconsin State Crime
Laboratory biologist who had conducted the tests at issue, testified
unequivocally that the serological evidence excluded Whaley as Tameka's
assailant.[1] Thus, consistent with our earlier decision,
Whaley is entitled to a new trial with admission of this serological evidence.
The fact that the trial
court, on remand, ordered additional blood testing of Whaley does not alter the
analysis. As correctly quoted by the
majority, the concluding paragraph of our previous decision referred to “the
serological evidence” once and “the evidence” five times. Majority slip op. at 3 (emphasis
added). Without question, we were
concerned with the only serological evidence then in existence or at issue in
the case—the evidence from the state crime laboratory.
Whether the trial court had authority to
order additional testing, and whether those test results are admissible at
Whaley's retrial, present separate issues on which the State has offered the
stronger arguments. Thus, in a second
trial, a jury should have the opportunity to search for the truth, evaluating
what now emerge as two contradictory lines of serological evidence.[2]
[1] The State argues that Menard's testimony was not unequivocal. The record refutes the State's argument.
[2]
As was true when we first evaluated Whaley's appeal and reversed, the
trial court's confusion complicates the analysis of this case. As the State concedes:
Defendant correctly points out
that the trial court failed to enter detailed findings or conclusions either
with regard to the admissibility of the forensic evidence, including the
serology evidence, or with regard to whether defendant should be granted a new
trial.
Moreover,
the trial court appears to have confused the possibility of contamination
of the PEP A enzyme test of the panties (from foreign or unknown bodily
fluids), which cannot be excluded, and the possible “degradation” of the
material on the vaginal swab for purposes of serology testing. As defendant correctly states, Menard
explicitly denied that “degradation” of the sample could account for the
presence of foreign bands on the PEP A test of the panties.
Nor,
assuming that the evidence of defendant's exclusion as a whole was ambiguous,
did the trial court explain in detail its reasoning for denying a new
trial. Instead, the trial court
apparently let Menard's testimony and the documentary forensic report stand as
the basis for its decision, without substantial commentary.
(Citations omitted; emphasis in State's brief.)
The majority
acknowledges the deficiences in the trial court's analysis of this case on
remand, stating that it “agree[s] with Whaley that the trial court apparently
confused certain facts when reviewing the evidence,” see majority slip
op. at 10, and that “the trial court's analysis in this regard is somewhat
muddled.”