COURT OF APPEALS DECISION DATED AND FILED January 7, 2009 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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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. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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DISTRICT II |
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State of Plaintiff-Respondent, v. Hayes A. Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before Curley, P.J., Fine and Brennan, JJ.
¶1 FINE, J. Hayes A. Jackson appeals a judgment
entered after a jury found him guilty of armed robbery, see Wis.
Stat. § 943.32(2) (1993–94), felony murder, see Wis.
Stat. § 940.03 (1993–94), and burglary while armed with a dangerous
weapon, see Wis. Stat. § 943.10(2)(a) (1993–94),
all as a party to the crime and an habitual criminal, see Wis.
Stat. §§ 939.05, 939.62 (1993–94).[1] He also appeals an order denying his
postconviction motion for a new trial.[2]
I.
¶2
¶3 Peters lived in an apartment with Stauffer. Peters testified that
¶4 Peters testified that Jackson then hit him in the head with
the pistol, told him to lie down, and asked Peters where he kept his gun. Peters told
¶5 The police seized from the apartment: marijuana plants, grow lights, gardening tools, baggies, packages of marijuana, and cash. Peters admitted that he initially told the police that the robbers “came for money.” He explained at trial that he did not tell the police that the robbers stole two guns because he thought “we would get in trouble. I didn’t know Chris was going to die so I was basically trying to cover our butts.”
¶6 Officer David Boldus interviewed Peters several times. Boldus told the jury that the case involved “parallel investigation[s]”—a death investigation and a drug investigation. According to Boldus, the purpose of his first major interview with Peters was to investigate Stauffer’s death:
At that point we were obviously well aware of the drug related implications. Our concern was that he might be holding back some information, not knowing whether it was pertinent to the death investigation or as to whether it may have implications on himself. Our concern was to assure him that we needed to resolve the death end of it and that any problems he may be facing legally were going to be resolved based on what we had found in the residence, not on anything he would tell us.
Boldus testified that he interviewed Peters two more times because “it became apparent” that Peters “had left out … or altered various details that we needed to clear up.” According to Boldus, “[t]hroughout the series of interviews there were variations in his statements in regards to details such as what was taken. The initial statements were pocket change. It ultimately ended up to be the two guns that were taken from the residence.” Boldus told the jury that during the last interview, he again explained to Peters that his primary focus was the death investigation:
[Peters’s] particular concern was his own legal difficulties that he would be facing as a result of his, what was found in the apartment, and again, it was our position from the very first interview of him that what we had found regarding the drug related matters was going to result in his ultimately being arrested or charged or whatever, that his statements were needed to clarify and clear up the death investigation end of it and that they would not ever be used in regards to the drug prosecution because the more important issue was the death investigation.
Boldus testified
that the information Peters provided during the last interview was “consistent
with the physical evidence and other information [] developed” in the
case.
¶7
¶8 During summation, the prosecutor again commented that Peters had been arrested:
Does he come here trying to hide his tracks today? That’s what you have to ask yourselves. He comes here knowing that his friend has died. He comes here knowing that he has been ultimately arrested for the drug offenses. He comes here knowing that he has nothing to lose today and he’s trying to do what’s right. He’s trying to tell you what happened. He’s not trying to stick it to some innocent person.
¶9 As we have seen, the jury found Jackson guilty of armed robbery, felony murder, and burglary while armed with a dangerous weapon, all as a party to the crime and as an habitual criminal. Ultimately, the State decided not to charge Peters with any crimes.
II.
¶10 Jackson claims that he is entitled to a new trial in the
interest of justice because the State impermissibly bolstered Peters’s credibility
when at the trial: (1) the prosecutor
and Boldus implied that Peters would be prosecuted for the drugs found in his
apartment; and (2) Boldus testified that the information Peters gave during the
last interview was consistent with the evidence. As we have seen,
¶11 Under Wis. Stat. § 752.35, we may order a new trial in the interest
of justice if it appears from the Record that:
(1) the real controversy has not been fully tried; or (2) it is probable
that justice has for any reason miscarried and we can conclude that a new trial
would probably produce a different result.
Vollmer, 156
¶12 First, Jackson claims that the prosecutor’s opening and closing
statements and Boldus’s testimony that Peters would be or had been arrested implied
to the jury that Peters had no motive to lie because he was going to be
prosecuted for drug crimes.
¶13 No witness may render an opinion on the credibility of another
witness. State v. Haseltine, 120
¶14 The prosecutor and Boldus did not improperly express an opinion that Peters was truthful. Rather, as we have seen, they merely told the
jury that Peters would be or had been arrested. See State
v. Kaster, 148
¶15 Second,
Q Did he detail the events of [the crimes] to you on that last interview?
A On that particular interview he had, was able to supply some additional details that had come to memory as he had, as he had calmed down and had a chance to reflect on what occurred.
Q Was this consistent with the physical evidence and other information you developed?
A Yes.
Q Did you notice any particular inconsistencies?
A No.
¶16 Boldus’s testimony was not a comment on Peters’s credibility. It was, rather, the officer’s view that what Peters told him at that point jibed with what Boldus’s investigation had uncovered. This is different from an opinion that a witness is or was telling the truth, and it did not interfere with the jury’s ability to assess Peters’s credibility. This is not a Haseltine case.
¶17 In addition,
By the Court.—Judgment and order affirmed.
Publication in the official reports is not recommended.
[1]
[2]
In his postconviction motion,
[3] Wisconsin Stat. § 752.35 provides:
In an appeal to the court
of appeals, if it appears from the record that the real controversy has not
been fully tried, or that it is probable that justice has for any reason
miscarried, the court may reverse the judgment or order appealed from,
regardless of whether the proper motion or objection appears in the record and
may direct the entry of the proper judgment or remit the case to the trial
court for entry of the proper judgment or for a new trial, and direct the
making of such amendments in the pleadings and the adoption of such procedure
in that court, not inconsistent with statutes or rules, as are necessary to
accomplish the ends of justice.