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COURT OF APPEALS DECISION DATED AND RELEASED February 11, 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. 96-2455-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
State of Wisconsin,
Plaintiff-Respondent,
v.
Thomas E. Richmond,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: ELSA C. LAMELAS, Judge. Affirmed.
WEDEMEYER, P.J.[1] Thomas E. Richmond appeals from a judgment
entered after a jury convicted him of carrying a concealed weapon, contrary to
§ 941.23, Stats. He also appeals from an order denying his
postconviction motion. He claims the
trial court erroneously exercised its discretion in handling questions posed by
the jury during its deliberations.
Because the trial court did not erroneously exercise its discretion in
responding to the jury's questions, this court affirms.
I. BACKGROUND
On June 22, 1995, the
police were summoned to Washington Park by the defendant's brother,
Tyrone. The defendant, Tyrone and
another brother, Jermaine, had agreed to meet at Washington Park to play
basketball. After the brothers arrived
at the park, Tyrone saw Terrell Thomas, with a gun. He became concerned because Terrell had threatened to shoot him
(Tyrone) on a prior occasion. Tyrone,
therefore, went to the police station to report what he observed. He then returned to the park with the
police.
Tyrone told the police
that Terrell was standing in a grassy area near the basketball court. Tyrone then ducked down in the police car to
avoid being seen. Officer Brown said
there were two individuals standing in the grassy area that Tyrone had pointed to. One was Terrell and the other was the
defendant. Brown observed the defendant
holding a tote bag. Two other police
officers who responded to the scene also observed the defendant holding the
tote bag. The officers found a weapon
in the bag and arrested the defendant for carrying a concealed weapon.
At trial, the three
police officers testified that each had observed the defendant actually holding
the tote bag. The defendant did not
testify, but both of his brothers did offer testimony. Tyrone testified that he did not see the
defendant near Terrell and he did not see the defendant holding the tote
bag. Jermaine testified that he did not
see the defendant holding the tote bag.
The case was sent to the
jury. The jury sent five questions to
the trial court during the deliberations.
The first asked: “Was Jermaine
at the North Basket or South Basket of the West Court at the time the Police
approached [the defendant]?” The second
asked: “What did Officer Kutz [sic] say, ‘I knew the gun was in the bag because
of past experience and the bag was opened’ or did [the defendant] give him the
information before the officer got to the bag?” The third asked: “We are
deadlocked. How long do we have to
deliberate?” The fourth asked: “Because the police report was read by
Officer Czvaca, is that evidence and can we get a copy [of] that
evidence?” The last question
asked: “Can we get a copy of the
transcript of the trial”.
The trial court
responded to the first two questions with the following instruction to the
jury:
With respect to each of these two notes I have
the same answer; and my answer is: You
must rely on your collective memory of what the testimony was during the trial
in order to resolve any issues of fact which have to be resolved here.
The trial court
responded to the remaining questions with the following instruction to the
jury:
And what I have to tell you is, it's much
too early to start thinking about being deadlocked. You took an oath to deliberate in good faith, to listen to the
testimony, and deliberate in good faith.
It's much too early to begin to think like that. You have to go back into the jury room and
deliberate in good faith. You can't
abandon opinions that you firmly stand by; on the other hand, you do have an
obligation to listen to the other jurors in the case with an open mind and try
to reach a verdict. That's your duty as
jurors. That's what I'm going to direct
you to do.
... The
police report itself was not admitted into evidence, therefore, it is not
evidence. You cannot get a copy of
that. What the police officer said on
the stand, his testimony, is evidence; and as I've already told you, you should
rely on your collective recollections of what that testimony was.... There is no existing transcript. I don't have a transcript to give you of the
trial.
The jury returned a
guilty verdict. Judgment was
entered. Richmond filed a
postconviction motion alleging that the trial court erred in responding to the
jury's questions. The trial court
denied the motion. Richmond now
appeals.
II. DISCUSSION
Richmond claims the
trial court erroneously exercised its discretion with respect to the answers it
provided to the questions posed by the jury during deliberations. This court rejects Richmond's claims.
The issue presented here
is a matter within the trial court's discretion and this court will not reverse
the judgment unless the trial court erroneously exercised its discretion. Kohlhoff v. State, 85 Wis.2d
148, 159, 270 N.W.2d 63, 68 (1978). If
the record demonstrates that the trial court examined the relevant facts,
applied the proper standard of law and used a rational process to reach a
reasonable conclusion, this court will not reverse a discretionary
determination. State v. Haskins,
139 Wis.2d 257, 268, 407 N.W.2d 309, 314 (Ct. App. 1987).
As a preliminary matter,
this court notes that at trial Richmond objected only to the trial court's
response to the first question—whether Jermaine was on the north basket or
south basket at the time the police arrived.
Because Richmond failed to object to any of the remaining questions, he
has waived his right to challenge the trial court's response to these
questions. State v. Peters,
166 Wis.2d 168, 174, 479 N.W.2d 198, 200 (Ct. App. 1991). Accordingly, this court addresses only the
jury's first question and the answer that the trial court provided.
When the jury submitted
the first question, the trial court conducted a conference with the attorneys. Richmond's attorney wanted the trial court
to tell the jury that Jermaine had testified that he was on the north
court. He argued that the testimony was
undisputed. The prosecutor argued that
the question should not be answered because the jury should be able to discern
an answer based on their collective memory of the testimony. The trial court determined that the answer
to this question was not undisputed and that some ambiguity existed in the
record as to where exactly Jermaine was at the time the police arrived. Therefore, the trial court decided to
instruct the jury to rely on its collective memory to reach a decision on that
issue.
The transcript does
reveal some ambiguity with respect to Jermaine's testimony regarding where he
was located at the time the police arrived.
Jermaine testified that when the police arrived, he went back over to
the other court on the northern end and started playing basketball. (Emphasis added.) This testimony implies that he was not on the north court when
the police arrived, but went over to the north court after the police
arrived. The trial court also explained
its reasons for not simply re-reading certain testimony in response to the
jury's question. The trial court
reasoned that the testimony would not provide a clear answer to the jury's
question and it would have been difficult to select “one portion of the
testimony as opposed to another portion of the testimony.” The trial court was concerned that attempting
to re-read testimony to the jury may mislead the jury.
The preferential
procedure is to re-read testimony to a jury that poses questions regarding
witnesses' testimony. See Kohlhoff,
85 Wis.2d at 159, 270 N.W.2d at 68.
Under the circumstances present in this case, however, the trial court's
response was not an erroneous exercise of discretion. The trial court reached a reasonable conclusion based on the
relevant facts and relevant law. It
decided to instruct the jury to rely on its collective memory to answer the
question because the record did not contain a clear answer to the jury's
question. This approach, although less
desirable than simply re-reading the relevant portions of the testimony at
issue, was not an erroneous exercise of discretion.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.