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COURT OF APPEALS DECISION DATED AND RELEASED January 7, 1997 |
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. 96-0590-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
KERNEY WRIGHT,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
MAXINE A. WHITE, Judge. Affirmed.
Before Fine, Schudson
and Curley, JJ.
PER
CURIAM. Kerney Wright appeals from a judgment of conviction
for battery and kidnapping. See
§§ 940.19(1) and 940.31(1)(b), Stats. He raises five issues. He claims:
(1) that the trial court erred in admitting into evidence out-of-court
statements of the victim under the excited-utterance hearsay exception; (2)
that the trial court erred in admitting into evidence the victim's testimony at
the preliminary hearing; (3) that the trial court erred in excluding Wright's
medical records; (4) that the verdict was not supported by the evidence; and
(5) that the sentence imposed was excessive.
We affirm.
Wright was charged with
battery, second-degree sexual assault and kidnapping in connection with a
dispute involving his girlfriend, the victim.
During the dispute, Wright tied up the victim and assaulted her. The victim was able to escape, went to a
neighbor's door, and the police were called.
The victim made statements to the police regarding Wright's involvement
in the crime while she was still very upset.
When the victim did not
appear at trial, the State introduced “excited utterance” hearsay testimony
through the police officer who was at the scene of the crime.[1] The State also introduced the victim's
testimony at the preliminary hearing.
During the trial, Wright sought to introduce his medical records. The trial court would not admit the records
into evidence. The jury convicted
Wright of kidnapping and battery but acquitted him of sexual assault.
Wright initially
contends that error occurred when the trial court allowed a police officer to
testify as to what the victim told him regarding the incident. Whether to admit evidence is within the
trial court's discretion and we will uphold the trial court's determination if
it is supportable by the record. State
v. Patino, 177 Wis.2d 348, 362, 502 N.W.2d 601, 606 (Ct. App.
1993). The first inquiry is whether the
evidence fits within a recognized hearsay exception. If it does, confrontation clause implications must be
considered. Id.
The trial court did not
err in allowing the police officer to testify as to what the victim told him
because the victim's declarations qualify as an exception to the hearsay rule,
namely, as an excited utterance under Rule
908.03(2), Stats. This exception to the hearsay rule “is based
in the spontaneity of the statements and the stress of the incident which endow
the statements with the requisite trustworthiness necessary to overcome the
general rule against admitting hearsay evidence.” State v. Moats, 156 Wis.2d 74, 97, 457 N.W.2d 299,
309 (1990). “Statements made by a
declarant will be admitted where indications are that he or she is still under
shock of injuries or other stress due to special circumstances.” Id.
The declarant was the
victim of a battery and was kidnapped by Wright. She was tied up, beaten and abused. After she was able to escape, a police officer arrived within
minutes to interview her. While crying
and still very upset, the victim told the police officer that her boyfriend,
Wright, had hit her several times, forced her to remove her clothes, tied her
up, sexually assaulted her, threw cold water on her, and put pieces of
insulation in her shirt. There was
hardly time for the victim to fabricate these declarations; therefore, the
trial court did not err in finding the “requisite indicia of trustworthiness
within this testimony.” Id.,
156 Wis.2d at 98, 457 N.W.2d at 310.
This testimony properly falls within the excited utterance exception to
the hearsay rule.
Wright also claims that
admission of this testimony violated his right of confrontation. He claims the State did not establish that
the victim was unavailable. White
v. Illinois, 502 U.S. 346 (1992), held that “where proffered hearsay
has sufficient guarantees of reliability to come within a firmly rooted
exception to the hearsay rule, the confrontation clause is satisfied.” Id., 502 U.S. at 356. The excited utterance exception to the
hearsay rule has been held to be “firmly rooted” for confrontation
purposes. Patino, 177
Wis.2d at 373-374, 502 N.W.2d at 611.
The State, therefore, was not required to show that the victim was unavailable
to testify at trial. See White,
502 U.S. at 357.[2]
We next consider
Wright's argument that the victim's preliminary hearing testimony is not
admissible under the former-testimony exception to the hearsay rule. Rule 908.045(1),
Stats., provides, in relevant
part:
Hearsay exceptions; declarant
unavailable. The following
are not excluded by the hearsay rule if the declarant is unavailable as a
witness:
(1) FORMER TESTIMONY. Testimony given as a witness at another
hearing of the same or a different proceeding, or in a deposition taken in
compliance with law in the course of another proceeding, at the instance of or
against a party with an opportunity to develop the testimony by direct, cross‑,
or redirect examination, with motive and interest similar to those of the party
against whom now offered.
As Rule 908.045(1) expressly
provides, the witness must be “unavailable.”
“Availability” is defined at Rule 908.04(1)(e),
Stats.:
Hearsay exceptions; declarant
unavailable; definition of unavailability.
(1) “Unavailability as a witness” includes situations in
which the declarant:
....
(e) Is absent from the hearing and the
proponent of the declarant's statement has been unable to procure the
declarant's attendance by process or other reasonable means.
The
trial court's decision to admit the former testimony rests within its sound
discretion. State v. Barksdale,
160 Wis.2d 284, 287, 466 N.W.2d 198, 199 (Ct. App. 1991). The trial court's decision in the present
case will not be reversed unless the court erroneously exercised its
discretion. Id.
The State demonstrated
that the victim was unavailable for trial. There is no dispute that the victim had been subpoenaed by the
State for trial. Further, the State
attempted to contact the victim in person and process servers were sent to three
locations where the prosecution thought the victim might go. The trial court's finding that the State
made a good-faith effort in attempting to produce the victim for trial, see State v. Nelson,
138 Wis.2d 418, 437, 406 N.W.2d 385, 393 (1987) (a witness's unavailability is
not demonstrated unless the prosecution has shown that it “made a good-faith
effort to obtain his presence at trial”), is not clearly erroneous. See Rule 805.17(2),
Stats., made applicable to
criminal proceedings by § 972.11(1), Stats.
We also conclude that
Wright's right to confront the victim was not compromised because of the
introduction into evidence of the victim's preliminary hearing testimony. Again, when evidence fits in a “firmly
rooted” hearsay exception, the confrontation clause is satisfied, reliability
can be inferred, and the evidence is generally admissible. State v. Jackson, 187 Wis.2d
431, 436-437, 523 N.W.2d 126, 129 (Ct. App. 1994). The former testimony exception to the hearsay rule is “firmly
rooted.” State v. Bauer,
109 Wis.2d 204, 216, 325 N.W.2d 857, 863-864 (Ct. App. 1982). Wright was not denied his constitutional
right to confrontation.
Wright also asserts that
the trial court erred in refusing to admit medical records offered by the
defense. Wright asserts, without
further explanation, that his medical records “were relevant to Mr. Wright's
prior testimony and would have corroborated the statements to which Mr. Wright
testified to.” He does not explain this
contention or develop his argument. “We
do not consider undeveloped arguments.”
State v. O'Connell, 179 Wis.2d 598, 609, 508 N.W.2d 23, 27
(Ct. App. 1993). Wright has not
demonstrated an erroneous exercise of trial court discretion.
Wright also argues that
the evidence was insufficient to support his convictions. Again, Wright does not develop his
argument. He also fails to cite any
authority in support of his position.
We decline to address this undeveloped argument as well. See State v. Shaffer, 96
Wis.2d 531, 545-546, 292 N.W.2d 370, 378 (Ct. App. 1980) (under § 809.19(1)(e)
proper appellate argument requires an argument containing the contention of the
party with citation of authorities and statutes).
Finally, Wright claims
that his sentence was so excessive as to shock the consciousness of the
public. Sentencing is a discretionary
act and this court presumes that the sentencing court acted reasonably. State v. Scherreiks, 153
Wis.2d 510, 517, 451 N.W.2d 759, 762 (Ct. App. 1989). “A strong policy exists against interference with the discretion
of a sentencing court.” Id. A sentence may be excessive when it shocks
the public sentiment and violates the judgment of reasonable people concerning
what is right and proper under the circumstances. State v. Spears, 147 Wis.2d 429, 446, 433 N.W.2d 595,
603 (Ct. App. 1988).
The sentence imposed
does not meet the shock-the-public-sentiment standard. The kidnapping conviction carried a maximum
sentence of forty years and the battery conviction carried a possible
additional term of nine months. The trial
court sentenced Wright to ten years for the kidnapping, far below the maximum,
and nine months for the battery in order to give Wright an opportunity for
rehabilitation. The trial court also
noted that Wright had a fairly extensive criminal record, that the crime was
extremely serious, and that it had an obligation to protect the public. The trial court considered the appropriate
sentencing factors. See State
v. Harris, 119 Wis.2d 612, 623, 350 N.W.2d 633, 639 (1984) (in imposing
a sentence, a trial court must consider:
(1) the gravity of the offense; (2) the character of the offender; and
(3) the need to protect the public).
The sentence was not excessive.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Rule 908.03(2), Stats., provides:
Hearsay exceptions; availability
of declarant immaterial. The following are not excluded
by the hearsay rule, even though the declarant is available as a witness:
....
(2) Excited Utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.