COURT OF APPEALS
DECISION
DATED AND FILED
December 11, 2007
David R. Schanker
Clerk of Court of Appeals
|
|
NOTICE
|
|
|
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
|
|
Appeal Nos.
|
|
|
STATE OF WISCONSIN
|
IN COURT OF
APPEALS
|
|
DISTRICT III
|
|
|
|
|
State of Wisconsin,
Plaintiff-Respondent,
v.
Everett J. Davis,
Defendant-Appellant.
|
|
|
|
|
|
|
|
APPEALS
from judgments and an order of the circuit court for Chippewa County: RODERICK
A. CAMERON, Judge. Affirmed.
Before Hoover,
P.J., Peterson and Brunner, JJ.
¶1 PER CURIAM. Everett Davis appeals
judgments of conviction and an order denying postconviction relief. Davis
was convicted of two misdemeanor counts of violating a restraining order, two
counts of stalking, two counts of felony bail jumping, and one count of
disorderly conduct. Davis argues he is
entitled to a new trial because: (1) a deputy was permitted to
render an irrelevant personal opinion, (2) when a witness read the conditions
of Davis’s bond to the jury, she mistakenly included conditions that had not
been ordered, and (3) the jury heard prejudicial testimony regarding two
charges that were dismissed on day two of the trial. We reject Davis’s arguments and affirm the judgments
and order.
BACKGROUND
¶2 Linda Davis separated from her husband, Everett Davis, and
obtained a restraining order against him in May 2005. Linda contacted police regarding alleged
violations of the restraining order on August 29 and September 4. Davis
was arrested and released on bond for both incidents. Police subsequently charged Davis with multiple offenses related to
contacting Linda in violation of the restraining order or the conditions of his
bond.
¶3 A jury trial initially proceeded on eleven charges. Two
charges were dismissed by the court on the second day of trial. The jury returned not guilty verdicts on two
other charges. Davis was ultimately found guilty of two
misdemeanor counts of violating a restraining order, two counts of stalking,
two counts of felony bail jumping, and one count of disorderly conduct. The court denied his postconviction motion
for a new trial.
DISCUSSION
¶4 Davis
challenges the admission of certain evidence at his jury trial. “We review a [trial] court’s decision to
admit or exclude evidence under an erroneous exercise of discretion standard.” Martindale v. Ripp, 2001 WI 113,
¶28, 246 Wis.
2d 67, 629 N.W.2d 698.
¶5 In order to appeal an evidentiary ruling, a party must first
object to the admission or exclusion at the trial court level. See State v. Edwards, 2002 WI App 66,
¶9, 251 Wis.
2d 651, 642 N.W.2d 537. If a party fails
to object at the trial court level, the party waives any objections to the
admissibility of the evidence. Id. The contemporaneous objection rule gives parties
and the trial judge notice of the issue and a fair opportunity to address the
objection thus eliminating the need for appeal.
State v. Huebner, 2000 WI 59, ¶12, 235 Wis. 2d 486, 611 N.W.2d 727. Therefore, a party must not simply object,
but must object on the proper ground. See State
v. Nelis, 2007 WI 58, ¶31, 300 Wis. 2d
415, 733 N.W.2d 619; State v. Mayer, 220 Wis. 2d 419, 429-30, 583
N.W.2d 430 (Ct. App. 1998).
¶6 Even if evidence is erroneously admitted, the error may be
harmless. Where there is a reasonable
possibility the error contributed to the outcome of the trial, the error is not
harmless. See State v. Moore, 2002
WI App 245, ¶16, 257 Wis.
2d 670, 653 N.W.2d 276. A reasonable
possibility is a possibility which is sufficient to undermine our confidence in
the outcome. See id.
¶7 Davis
first argues deputy Al Diede improperly rendered an irrelevant personal opinion
at trial. The prosecutor asked Diede, “[W]ere
you in your professional judgment rating this as a minor … incident…?” Davis
objected stating the question called for a legal conclusion. The prosecutor did not repeat the
question. Instead, the prosecutor asked Diede
if the case was “a run-of-the-mill case[.]”
Diede responded that the case concerned him and he believed the
situation was escalating. Davis did not object to
that question or to Diede’s answers to any questions on that subject.
¶8 Davis’s
objection to the earlier question does not extend to different questions and,
even if it did, the objection was not on the proper ground. See Mayer, 220 Wis. 2d at 429-30. He did not object on the ground that the
question asked for an irrelevant personal opinion. Rather, he objected solely on the ground that
the question asked for a legal conclusion.
Therefore, Davis
waived his objection to the admission of this evidence. Edwards, 251 Wis. 2d 651, ¶9.
¶9 Davis next argues that he is entitled to a new trial because Linda
testified Davis’s bond conditions included that he not possess any dangerous
weapons or consume alcoholic beverages or illegal drugs. These bond conditions were not actually
imposed on Davis.
However, when Linda was asked to read Davis’s bail bond
conditions for the jury, she mistakenly included them. Davis contends
the misreading of the bond conditions prejudiced him because the jury might
have believed that this meant a judge thought Davis was a dangerous person who should not
have weapons and that he had a problem with alcohol and drugs.
¶10 We reject this argument for two reasons. First, Davis
failed to object at trial and therefore waived any objection. Id. Second, even if this evidence was
improperly admitted, any potential error was harmless. The jury had already heard that Davis was prohibited from
possessing firearms. Linda’s son
testified that he had Davis’s firearms because Davis was not allowed to
possess them. Additionally, Linda’s
testimony regarding the bond conditions was minor in light of the total
evidence. The jury heard a variety of
testimony from multiple people regarding Davis’s
conduct in threatening and stalking his wife.
In light of all the other evidence, there is not a reasonable
possibility that this error contributed to the outcome of the trial.
¶11 Next, Davis
argues that he is entitled to a new trial because the jury heard evidence on two
charges that were ultimately dismissed. Davis was tried on eleven
counts. On the second day of trial, the
trial court dismissed a charge of stalking based on a prior domestic abuse
conviction and a related charge of bail jumping. The trial court did so because Davis had not been
convicted of domestic abuse before, but, rather, he had been convicted of
disorderly conduct. The trial court did
not believe this would support a charge of stalking with a prior domestic abuse
conviction. Davis argues he is entitled to a new trial
because evidence relating to the dismissed charges had been introduced prior to
the dismissal.
¶12 Davis
did not ask the court to strike the evidence related to the two dismissed
charges, he did not ask for a cautionary instruction, and he did not move for a
mistrial. Therefore, he has waived any
objection to the introduction of this evidence.
Id.
¶13 Nonetheless, Davis
argues this court may vacate the guilty verdict because “the case was
prejudicially joined for trial with another invalid charge.” In support of his argument, Davis
cites State v. McGuire, 204 Wis.
2d 372, 556 N.W.2d 111 (Ct. App. 1996).
However, without elaborating, the factual situation in McGuire
is different than his case, and Davis
does not explain how McGuire can be applied to his
case. Further, Davis never cites the test from McGuire
and does not apply the test to the facts of his case.
¶14 Even if we were to apply McGuire, Davis would have to demonstrate “compelling
prejudice” from the evidence related to the two dismissed counts. Id. at
381. We consider the following factors
to determine whether a defendant has shown “compelling prejudice”:
(1) whether the evidence introduced to
support the dismissed count is of such an inflammatory nature that it would
have tended to incite the jury to convict on the remaining count; (2) the
degree of overlap and similarity between the evidence pertaining to the
dismissed count and that pertaining to the remaining count; and (3) the
strength of the case on the remaining count.
Id. at 379-80.
¶15 In this case, the evidence related to the dismissed counts was
not inflammatory. Linda simply testified
that Davis had
been convicted of a domestic disorderly conduct in 2002 and the incident
involved physical conduct. She did not
describe the incident any further.
¶16 The second McGuire factor examines the degree
of “overlap and similarity of evidence on the two counts.” Id. at
382. In cases where the counts emanate
from similar facts, it is difficult for a defendant to show prejudicial
spillover. Id.
In this case, while the information admitted in Davis’s
case was only relevant to the dismissed charges, it paled by comparison to the
other evidence of Davis’s
conduct.
¶17 Finally, the strength of the case against Davis on the remaining charges was
overwhelming. The jury heard a wide range of testimony regarding Davis’s conduct in
threatening and stalking his wife. Linda
testified she moved out of her marital home to her son’s home in the city
because Bloomer police officers suggested she was safer in the city. She also testified that she moved around
because Davis
was continuously following her, she felt very scared, and felt safer in Bloomer
because if she called police they could get to her quicker.
¶18 The couple’s daughter, Krystalyn Lotts, testified that Davis
came to her house to pick up her brothers but got mad when she asked him to
leave after he began searching for Linda.
She also testified that he called multiple times despite being told he
was not supposed to call. Additionally,
she testified that he came to the house multiple times and got mad and yelled
at her if she would not allow him to talk to Linda.
¶19 The couple’s daughter-in-law, Sarah Davis, testified that Davis often came to her
house looking for Linda. Davis would get mad and
yell at her if she would not let him see Linda.
She also testified that on one occasion her husband had to prevent Davis from attempting to
find Linda. Sarah also testified that
she was a passenger in Linda’s car on September 2, when Davis appeared on the road behind them and
followed them to their destination.
Sarah stated that when Linda parked, Davis parked behind her blocking her vehicle
and said “Linda, come here.”
¶20 Linda also testified that Davis
approached her at a friend’s house and told her if they did not talk about the
divorce papers neither of them would make it to court. According to Linda, he grabbed her by the
shirt and tried to pull her down the steps of the friend’s home and told her
she needed a bullet in the head. Davis’s stepson testified that Davis called him to attempt to get his
firearms.
¶21 Finally, Davis
asks us to grant a new trial in the interests of justice because the real
controversy was not fully tried. We only
exercise our power of discretionary reversal in exceptional cases. Vollmer v. Luety, 156 Wis. 2d 1, 11, 13, 15,
456 N.W.2d 797 (1990). As stated above,
the evidence overwhelmingly supports the jury’s findings. This is not the type of exceptional case to
warrant a reversal.
By the Court.—Judgments and order
affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.