|
COURT OF
APPEALS DECISION DATED AND
RELEASED November
21, 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. 96-1073-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
RICHARD
L. MUNSON,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Grant County: JOHN R. WAGNER, Judge. Affirmed.
Before
Eich, C.J., Roggensack and Deininger, JJ.
DEININGER,
J. Richard Munson appeals from a judgment convicting him of
one count of first-degree sexual assault of a child and seven counts of
second-degree sexual assault of a child.
He claims that: 1) he
was improperly denied access to exculpatory evidence; 2) the
trial court allowed improper examination of witnesses by the State;
3) the trial court improperly joined all eight charges against him;
and 4) the charges against him were multiplicitous, in
violation of the Double Jeopardy Clause.
We reject the arguments and affirm the judgment.
BACKGROUND
Munson
was charged with one count of first-degree sexual assault of a child under the
age of thirteen, based on an incident of sexual intercourse with M.J., an
eleven-year-old boy. He was also
charged with seven counts of second-degree sexual assault of a child under the
age of sixteen based on a series of sexual contacts and acts of intercourse
with D.E., a fifteen-year-old boy. A
jury found him guilty of all eight counts.
Prior
to trial, Munson filed a motion to sever the first-degree charge from the seven
second-degree charges, a motion to obtain D.E.'s and M.J.'s school and social
services records, and a motion in limine to prevent the State from introducing
evidence concerning Munson's alleged past involvement in satanic activities.
The
trial court denied the motion to sever.
The court conducted an in camera review of the victims' school
and social services records and concluded that they contained no evidence
helpful to Munson. The trial court
therefore denied Munson's motion to obtain access to the records, but ruled
that Munson could ask the victims at trial if they were on juvenile supervision
and whether any promises had been made by police or social services in exchange
for their testimony. The trial court
substantially granted Munson's motion in limine by prohibiting the State
from referring to satanism or a curse, although the court allowed the State to
ask the victims if they were afraid of Munson.
Other
facts will be discussed below.
ANALYSIS
Exculpatory
Evidence
Munson
argues that by denying him access to the victims' school and social service
records, the trial court violated his right to discover exculpatory
evidence. Under the due process clause,
a defendant has a right to discover evidence which is exculpatory on the issues
of guilt or punishment. Brady v.
Maryland, 373 U.S. 83, 87 (1963); see State v. Shiffra,
175 Wis.2d 600, 605, 499 N.W.2d 719, 721 (Ct. App. 1993). However, the defendant's right to
exculpatory evidence does not entitle him or her to search the State's entire
file. United States v. Bagley,
473 U.S. 667, 675 (1985). Where, as
here, the defendant seeks discovery of information that is confidential under
statute,[1]
the defendant is entitled to an in camera review by the trial court of
the material sought. See Shiffra,
175 Wis.2d at 605, 499 N.W.2d at 721.
The in camera review of evidence "achieves the proper
balance between the defendant's rights and the state's interests in protection
of its citizens." Id.
Munson
has not included copies of the confidential materials in the appellate
record. Instead, he argues that because
the records "may have revealed issues of questionable veracity, of
unfound [sic] accusations made in the past, of troubling episodes and [of]
behavior which may apply to the credibility of the witnesses," we should
conclude that his due process rights were violated. (Emphasis added).
A
defendant appealing a criminal conviction has the duty to incorporate material
evidence into the appellate record. See
State v. Dietzen, 164 Wis.2d 205, 212, 474 N.W.2d 753, 756 (Ct.
App. 1991). To prevail on appeal,
Munson must demonstrate that the records were material to his defense. State v. Mainiero, 189 Wis.2d
80, 87, 525 N.W.2d 304, 307 (Ct. App. 1994).
We cannot review the constitutionality of the trial court's decision
without the materials which formed the basis for that decision. See State
v. Rushing, 197 Wis.2d 631, 643 n.3, 541 N.W.2d 155, 160 (Ct. App.
1995) (appellate review is limited to those portions of the record available to
the reviewing court); see also § 809.15, Stats., (either party may move to supplement the trial court
record on appeal). Further, Munson's speculations regarding the possible effect
of the records are insufficient to demonstrate that the records contained
information material to his defense. See,
e.g., State v. Davis, 95 Wis.2d 55, 60, 288 N.W.2d 870, 872
(Ct. App. 1980) ("[s]elf-serving assertions by a defendant based on mere
speculation cannot serve as the grounds for a finding of actual
prejudice.").
Munson
next argues that by denying him access to the victims' school and social
service records, the trial court violated his Sixth Amendment right to confront
his accusers. The right to effective
cross-examination is guaranteed by the Confrontation Clause. Davis v. Alaska, 415 U.S. 308,
315 (1974). However, the right is not
unlimited. It does "not include
the power to require the pretrial disclosure of any and all information that
might be useful in contradicting unfavorable testimony." Pennsylvania v. Ritchie, 480
U.S. 39, 53 (1987) (plurality opinion).
Again, without the records, we cannot review Munson's claim of error.
Munson
also argues that he was denied his right to cross-examination because the investigating
officers and social worker did not tape-record their interviews with D.E. He claims that a recording may have shown
evidence that D.E. was motivated to fabricate or exaggerate his allegations in
order to win favorable treatment from authorities regarding his
supervision. Munson failed to raise
this objection at the trial.
"Without an objection, even an error based upon an alleged
violation of a constitutional right may be waived." State v. Damon, 140 Wis.2d
297, 300, 409 N.W.2d 444, 446 (Ct. App. 1987).
We therefore decline to review the issue.
State's
Questions on Redirect Examination
Munson
argues that the trial court improperly allowed the State to ask D.E. and M.J.
at trial if they were afraid of Munson.
Munson challenges the victims' responses on the basis of relevance under
§ 904.02, Stats., and
prejudice under § 904.03, Stats.[2] At trial, Munson cross-examined D.E.
regarding his initial denial to investigators of any sexual contact with
Munson. The State sought to introduce
evidence that D.E. and M.J. believed that Munson had engaged in satanic
activities in the past and feared that he was capable of putting a curse on
them. The trial court ruled that the
State could ask the victims if they were afraid of Munson, but did not allow
the State to delve into Munson's alleged satanic practices, on the basis that
such questions would be unfairly prejudicial under § 904.03.
The
relevance and possible prejudicial effect of evidence under §§ 904.02 and
904.03, Stats., is a
discretionary determination by the trial court. State v. Alsteen, 108 Wis.2d 723, 727, 324 N.W.2d
426, 428 (1982).[3] We must uphold the trial court's
determination where the trial court has considered the facts of the case and
reasoned its way to a conclusion that is one a reasonable judge could reach and
is consistent with applicable law. Burkes
v. Hales, 165 Wis.2d 585, 590, 478 N.W.2d 37, 39 (Ct. App. 1991).
Evidence
is relevant if it has a tendency to make the existence of any fact that is of
consequence to the determination of the action more or less probable than
without the evidence. Section 904.01, Stats.
At issue was whether the victims' initial denials of sexual contact, as
opposed to their later claims, were truthful.
Evidence that the victims were afraid of Munson tends to make it more
likely that the initial denials were not truthful than without the testimony.
Even
relevant evidence, however, is not admissible if its probative value is
substantially outweighed by the danger of unfair prejudice. Section 904.03, Stats. Evidence is
not unfairly prejudicial simply because it is adverse to a party; rather,
evidence is unfairly prejudicial if it has an undue tendency to suggest a
decision on an improper basis. See
State v. DeSantis, 155 Wis.2d 774, 792, 456 N.W.2d 600, 608
(1990). The trial court carefully
circumscribed the State's questions and the witnesses' answers to avoid any
mention of curses or satanic activities.
Thus the State introduced evidence relevant to its contention that
D.E.'s initial denial was made out of fear without referring to evidence which
may have allowed the jury to make its determination on an improper basis. We conclude that the trial court's decision
was a reasonable one and thus a proper exercise of discretion.
Severance
Munson
argues that the trial court improperly denied his motion to sever the seven
second-degree charges involving D.E. from the one first-degree charge involving
M.J.
A
motion for severance is addressed to the trial court's discretion. State v. Hoffman, 106 Wis.2d
185, 209, 316 N.W.2d 143, 157 (1982).[4] We will reverse the trial court's
determination only where the defendant can establish that the joinder caused
"`substantial prejudice.'" State
v. Locke, 177 Wis.2d 590, 597, 502 N.W.2d 891, 894 (Ct. App. 1993)
(quoted source omitted).[5]
Generally,
where evidence on the charges would be admissible in separate trials, the risk
of prejudice will not be significant. State
v. Bettinger, 100 Wis.2d 691, 697, 303 N.W.2d 585, 588 (1981). Thus, courts have recognized that the test
for prejudicial joinder parallels the analysis of the admissibility of other
acts evidence under Whitty v. State, 34 Wis.2d 278, 149 N.W.2d
557 (1967), cert. denied, 390 U.S. 959 (1968). See Locke, 177 Wis.2d at 597, 502 N.W.2d at
894.
The trial court
concluded that evidence of sexual contact with either boy would be admissible
at a trial involving the other.
Evidence of other acts of misconduct may be offered to show, among other
things, motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake of accident. Section
904.04(2), Stats.; State v.
Plymesser, 172 Wis.2d 583, 591, 493 N.W.2d 367, 371 (1992). In Locke, 177 Wis.2d at
595-96, 502 N.W.2d at 894, the joined counts also involved sexual assaults
against different child victims, occurring two years apart. We held there that evidence of "each
episode was highly probative of Locke's intent, as well as a scheme or plan in
the other episode." Locke,
177 Wis.2d at 599, 502 N.W.2d at 895.
Here, where all of the assaults against D.E. took place within one year
of the assault against M.J., we cannot conclude the trial court's conclusion of
mutual admissibility was unreasonable.
Evidence
otherwise admissible under § 904.04(2), Stats.,
is still inadmissible, however, if the prejudicial effect of the evidence
substantially outweighs the probative value of the evidence.[6] Section 904.03, Stats.; State v. Friedrich, 135 Wis.2d 1, 19,
398 N.W.2d 763, 771 (1987). At the
motion hearing Munson objected to the denial of severance, arguing that had the
charges been severed, he would have objected to the testimony of D.E. in the trial
involving M.J. Munson did not state the
basis for his claim of prejudice or present any arguments that the prejudicial
effect of the evidence outweighed its probative value under § 904.03. As we have already noted, the evidence of
the assaults against each of the boys was highly probative on relevant issues
common to both. While this evidence of
"other acts" was certainly adverse to Munson, we cannot say that it
tended unduly to suggest guilt "on an improper basis." See State v. DeSantis,
155 Wis.2d 774, 792, 456 N.W.2d 600, 608 (1990).
We
will not reverse a discretionary determination by the trial court if the record
shows that discretion was exercised and we can perceive a reasonable basis for
the court's decision. Prahl v.
Brosamle, 142 Wis.2d 658, 667, 420 N.W.2d 372, 376 (Ct. App. 1987). We conclude that the trial court properly
exercised its discretion in denying the motion to sever.
Double
Jeopardy
Finally,
Munson contends that the seven convictions and sentences relating to D.E. were
multiplicitous and thus constituted double jeopardy. We review a claim of multiplicity de novo, owing no deference to
the trial court's conclusions of law. State
v. Bergeron, 162 Wis.2d 521, 534, 470 N.W.2d 322, 327 (Ct. App.
1991). There is a two-pronged test for
multiplicity: the first is "whether the charges are identical in law and
fact;" the second is "the legislative intent as to the allowable unit
of prosecution under the statute in question." Id. The
State concedes that the seven counts of second-degree sexual assault are
identical in law. Munson claims that
the counts were also identical in fact.
Charges
are not identical in fact if each count requires proof of a significant
evidentiary fact not required or pertinent to proof of the other counts. Id. at 534, 470 N.W.2d at
327. Each separate volitional act is a
basis for a separate charge, id. at 535, 470 N.W.2d at 327, and
separate punishment for each is appropriate.
Id. at 536, 470 N.W.2d at 328.
The
complaint charged Munson with seven counts of sexual assault of D.E. Four of the counts alleged that sexual
contact or intercourse occurred during four different time periods. The remaining three counts alleged that
sexual contact or intercourse occurred sometime between December 15, 1993, and
January 15, 1994, with one of the three counts more specifically alleging an
incident of intercourse between December 20 and 25, 1993. Each of the three counts alleged a different
type of act: anal intercourse, oral intercourse,
genital touching. Each count,
therefore, required proof of a significant evidentiary fact not required for
the other counts.
Munson
contends that because D.E.'s testimony was not credible, there was insufficient
evidence for a jury to find him guilty for seven separate acts. D.E. testified to seven separate instances of
sexual contact or intercourse with Munson.
Munson cross-examined D.E. extensively regarding his initial denial of
sexual contact with Munson as well as the extent to which his memory may have
been unclear regarding the dates and circumstances of those contacts.
The
jury is "the sole arbiter of the credibility of witnesses and alone is
charged with the duty of weighing the evidence." State v. Webster, 196 Wis.2d 308, 320, 538 N.W.2d
810, 815 (Ct. App. 1995). We will not
second-guess a jury's findings unless the evidence, when viewed most favorably
to the verdict, is so lacking in probative value that no jury could find guilt
beyond a reasonable doubt. Id.
at 320, 538 N.W.2d at 814. D.E.'s
testimony, if believed by the jury, was sufficient to allow a jury to find that
Munson engaged in each of the seven incidents of sexual contact charged.
The
second prong of the multiplicity test concerns legislative intent as to the
allowable unit of prosecution under the statute in question. Bergeron, 162 Wis.2d at 534,
470 N.W.2d at 327. We conclude that the
separate volitional acts of sexual contact or sexual intercourse are separately
prosecutable and separately punishable.
See id. at 535, 536, 470 N.W.2d at 327, 328; Harrell
v. State, 88 Wis.2d 546, 564, 277 N.W.2d 462, 469 (Ct. App. 1979). Munson offers no argument to the contrary.
We
therefore conclude that the seven charges involving D.E. and the resulting
convictions were not multiplicitous.[7]
By
the Court.—Judgment affirmed.
Not
recommended for publication in the official reports.
[2] In his brief, Munson also makes a general
argument, without citation to authority, that the State's questions violated
his constitutional right to a fair trial.
We decline to review the issue, however. Arguments unsupported by references to legal authority will not
be considered. State v. Martinez,
198 Wis.2d 222, 234 n.7, 542 N.W.2d 215, 221 (Ct. App. 1995).
[3] Munson suggests that we review the propriety
of the State's questions de novo, under the standard of review for
"constitutional facts." See
State v. Griffin, 131 Wis.2d 41, 62, 388 N.W.2d 535, 543 (1986), aff'd,
483 U.S. 868 (1987). However, Munson has not raised a constitutional issue; he
has raised an evidentiary one. The de
novo standard does not apply.
[4] Munson again argues on appeal that the
standard of review is the de novo standard applied to "constitutional
facts." See supra,
n.2. Munson has not referred us to any
legal authority indicating that a severance determination implicates
constitutional facts. See State
v. Pettit, 171 Wis.2d 627, 646, 492 N.W.2d 633, 642 (Ct. App. 1992)
(arguments unsupported by legal authority will not be considered).
[5] The first step in reviewing joinder is
determining whether the charges were properly joined under § 971.12(1), Stats.
State v. Locke, 177 Wis.2d 590, 596, 502 N.W.2d 891, 894
(Ct. App. 1993). Munson does not claim
that the charges were improperly joined initially. We thus address only the second step in reviewing joinder,
determining whether prejudice would result from a trial on the offenses as
joined. Section 971.12(3); see id.
at 597, 502 N.W.2d at 894.
[6] Munson argues that the trial court
erroneously exercised its discretion by not stating on the record that the
potential prejudice to Munson was outweighed by the public interest served by
the joinder under § 971.12(3). See
State v. Hoffman, 106 Wis.2d 185, 209, 316 N.W.2d 143, 157
(1982). In denying the motion to sever,
however, the trial court implicitly found that the potential prejudice did not
outweigh the public interest in joinder.
See State v. Locke, 177 Wis.2d 590, 598, 502 N.W.2d
891, 895 (Ct. App. 1993).
[7] Munson also argues that the existence of
Chapter 980, Stats., which
provides for the involuntary commitment of convicted sex-offenders after a
prison sentence who are found to be sexually violent persons, § 980.04 to
980.06, Stats., violates the
Double Jeopardy Clause by subjecting Munson to increased jeopardy for his
multiple convictions. Unless or until
Munson becomes subject to Chapter 980 proceedings, he lacks standing to raise
the issue. Moreover, the Wisconsin
Supreme Court has held that Chapter 980 does not violate the Double Jeopardy Clause.
State v. Carpenter, 197 Wis.2d 252, 272, 541 N.W.2d 105, 113
(1995), petition for cert. filed, No.95-8131 (U.S. Mar. 06, 1996).