COURT OF APPEALS DECISION DATED AND RELEASED December 23, 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. 96-0379-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
State of Wisconsin,
Plaintiff-Respondent,
v.
Bobby Chambers,
Defendant-Appellant,
Clarence Chambers,
Defendant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
PATRICIA D. McMAHON, Judge. Affirmed.
Before Wedemeyer, P.J.,
Schudson and Curley, JJ.
PER CURIAM. Bobby Chambers appeals from a judgment
entered after a jury found him guilty of armed robbery as party to a crime
contrary to §§ 943.32(1)(b) & (2) and 939.05, Stats. He claims that
the trial court erred: (1) when it
admitted evidence of monetary consideration extended to the victim by a third
party; (2) when it admitted a statement attributed to Chambers regarding
intent to commit a “stickup” in the past; and (3) when it bound Chambers
over for trial without sufficient evidence to show probable cause that a felony
had been committed. Because admission
of the “monetary consideration” evidence was harmless error, because Chambers
waived his right to challenge the introduction of the stickup evidence by
failing to object at trial, and because he waived his right to challenge the
bindover decision by not seeking an interlocutory appeal prior to trial, we
affirm the judgment.
I. BACKGROUND
On April 19, 1995,
Chambers and his brother Clarence Chambers, drove to Milwaukee from Chicago and
went to the home of Eddie and Yvette Martin.
Bobby and Clarence went into the bedroom where Eddie was lying on the
bed. Clarence asked Bobby to
leave. Bobby complied and stood outside
the bedroom door. Clarence then
threatened to shoot Eddie unless he gave Clarence his money. Eddie turned $60 over to Clarence who, in
turn, gave the money to Bobby. The
brothers then left the residence and returned to Chicago.
A short time later, both
brothers were charged with armed robbery, party to a crime. This appeal relates only to Bobby's
conviction. Bobby was tried before a
jury. One of the State's witnesses,
Officer William Gorman, testified about conversations he had with Eddie where
Eddie reported that he received bribe offers from a woman he believed to be
Bobby's girlfriend. The woman offered
Eddie $500 if he would drop the charges.
Gorman also testified regarding a $200 money order that Eddie received
from this woman. Eddie did not cash the
money order. He turned it over to the
police. Bobby objected to the
introduction of the money order and Gorman's testimony regarding the money
order, citing hearsay rules. The trial
court received the money order into evidence over Bobby's objection, but did
strike Gorman's testimony that the money order “was supposedly sent to [Bobby]
so that he would drop the charges and prosecution of this case.”
Eddie and Yvette Martin
also testified for the State. Both
testified that months before this incident, one of the defendants asked if they
knew of someone who the defendants could stick up. Yvette testified that the defendants actually tried to stickup a
friend of the Martins at the Martins' residence. Although Bobby had filed a motion in limine requesting that the
stickup evidence be excluded, he failed to make a contemporaneous objection to
this evidence during the trial. The
jury convicted Bobby. He now appeals.
II. DISCUSSION
A. Evidentiary
Issues.
Bobby raises two
evidentiary objections: (1) that
the money order and Gorman's testimony regarding it should be excluded because
it constituted inadmissible hearsay, it was irrelevant and, even if relevant,
should be excluded pursuant to § 904.03, Stats.;
and (2) that the Martins should not have been allowed to testify regarding
the prior stickup because it was inadmissible Whitty evidence.[1]
An appellate court
reviews a trial court's evidentiary rulings according to the erroneous exercise
of discretion standard. See State v.
Pharr, 115 Wis.2d 334, 342, 340 N.W.2d 498, 501 (1983); State v.
Alsteen, 108 Wis.2d 723, 727, 324 N.W.2d 426, 428 (1982). If a trial court applies the proper law to
the established facts, we will not find a misuse of discretion if there is any
reasonable basis for the trial court's ruling.
Id. Moreover, even
if the trial court erred in allowing the evidence to be introduced, we will not
reverse the judgment if the introduction constituted harmless error. State v. Dyess, 124 Wis.2d
525, 543, 370 N.W.2d 222, 231 (1985).
We address first the
money order and Gorman's testimony regarding it. The State argues that the trial court did not err in admitting
this evidence since it was not hearsay because it was not offered to prove the
truth of the matter. Rather, it was
offered to give a full context to Gorman's actions and to show what the officer
did in response to receipt of the money order.
We conclude that its introduction was harmless because Eddie also
testified that he received phone calls from Bobby's girlfriend, that she
offered him money if he would drop the charges, and that he received a money
order from her. Bobby did not and does
not object to Eddie's testimony. Given
this testimony, there is no reasonable possibility of a different result if
Gorman's testimony would have been excluded.[2] See id.
We next address Bobby's
claim that the stickup evidence should have been excluded. As noted, Bobby filed motions in limine
requesting this evidence be excluded.
The trial court did not rule on the motions prior to trial. Instead, it took the motions under
advisement. When Eddie and Yvette
testified regarding the prior stickup at trial, Bobby failed to make a
contemporaneous objection to signal the trial court that he still objected to
the introduction of this evidence.
Accordingly, we conclude that Bobby waived his right to appeal this
issue. Section 901.03(1)(a), Stats.; State v. Gove,
148 Wis.2d 936, 940-41, 437 N.W.2d 218, 220 (1989) (party must make timely
objection to preserve issue for appeal).
We conclude that Bobby's motion in limine objection was insufficient to
satisfy the timely objection requirement because he failed to object when the
questionable testimony was elicited at trial.
B. Bindover
Decision.
Bobby claimed in his
brief-in-chief that the trial court erred in binding him over for trial because
the State failed to present sufficient facts at the preliminary hearing to show
probable cause. The State replied that
Bobby waived this argument by failing to bring an interlocutory appeal prior to
trial. See State v. Webb,
160 Wis.2d 622, 628, 467 N.W.2d 108, 110, cert. denied, 502 U.S.
889 (1991). Bobby concedes in his reply
brief that his failure to seek an interlocutory appeal prior to trial prevents
him from pursuing this issue in this appeal.
We agree the issue was waived and, therefore, decline to address the
merits of it.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[2] Because we have concluded that the introduction of this evidence constituted harmless error, we need not address the additional grounds on which Bobby alleges this evidence was erroneously admitted. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663, 665 (1938) (only dispositive issues need be addressed).