COURT OF APPEALS DECISION DATED AND FILED May 27, 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 III |
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State of Plaintiff-Respondent, v. Juan Roberto
Nieto, Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before
¶1 PER CURIAM. Juan Nieto appeals an order denying his postconviction motion after being convicted as party to the crimes of kidnapping, attempted first-degree intentional homicide, and three counts of second-degree sexual assault with the use of force. Nieto alleges multiple circuit court errors. We reject his arguments and affirm.
BACKGROUND
¶2 The State charged Nieto with kidnapping, sexually assaulting,
and attempting to kill Jessica W. by setting her on fire, as party to the crimes
with Gregario Morales. Jessica testified
that, while leaving a bar in
¶3 Jessica described the two men to police, and she worked with an artist to create composite sketches of the men. The morning after the incident, Nieto and Morales, who worked together, both came to work hung over and both reported sick and left work early. Within a couple days, their supervisor, Richard Binish, saw the police sketches on television. Binish recognized the persons depicted in the sketches as Morales and Nieto and contacted police.
¶4 On his own initiative, Binish obtained soda bottles discarded
by Morales for police to conduct DNA testing.[1] The DNA matched a previously unidentified
sample that had been obtained from Jessica.
Police obtained a warrant for Morales’s arrest and found him in
¶5 A jury found Nieto guilty on all charges. Nieto filed a motion for postconviction relief, asserting multiple claims. As relevant here, Nieto claimed: he had a videotape of a news interview given by Morales after Nieto’s trial in which Morales admitted lying at Nieto’s trial; Jessica’s in-court identification of Nieto should have been suppressed because she had seen him in court and his picture in a newspaper before trial; the testimony of Nieto’s identification expert was unduly limited; Binish should not have been allowed to give a lay opinion regarding whether the police composite sketch looked like Nieto; the court erroneously excluded evidence of a similar crime in New Mexico that occurred shortly after the crimes at issue here; and the district attorney knowingly allowed Morales to give perjured testimony. The trial court denied the postconviction motion.
DISCUSSION
I. News Interview Videotape
¶6 In his postconviction motion, Nieto alleged:
New evidence has been provided by Mr. Morales to a television reporter at Fox 11 that he lied during the testimony at Mr. Nieto’s trial. This information casts extreme doubt upon the veracity of Mr. Morales’ testimony, which was at the heart of the case against Mr. Nieto.
At the postconviction hearing, Nieto called Morales as a witness. However, Morales refused to testify without an attorney present. Nieto’s counsel requested that the issue be held open so counsel could perform research on whether Morales could be required to testify and the admissibility of the videotaped interview. The court gave counsel time to research and brief the issue.
¶7 Nieto’s counsel filed a letter brief to the circuit court opining that Morales had the right to an attorney. Counsel suggested the following procedure. He requested that the court inform Morales of his options, appoint an attorney for Morales if necessary, and that Morales then be called to testify. If Morales invoked his Fifth Amendment right, counsel requested that the videotaped interview be admitted under Wis. Stat. § 908.045(4)[2] as a “statement against interest of an unavailable declarant.” Alternatively, he suggested the State could offer Morales immunity to testify. The court denied the motion.
¶8 Nieto claims we should remand in the interest of justice for the circuit court to employ his recommended procedure. Nieto concedes the court could not make a ruling on the admissibility of the videotaped interview without knowing its contents. He argues we should require the court to follow his recommended procedures so he can enter the videotaped interview into evidence.
¶9 We reject Nieto’s argument.
Nieto does not argue the court erred by failing to implement his
recommended procedures. He also cites no
authority permitting us to order the circuit court to follow his procedures or
to otherwise remand in the interest of justice under these circumstances.[3] His argument is inadequately developed.
¶10 Even if we had the power to remand as Nieto requests, we would
not do so. Despite any obstacles to
admitting the videotaped interview into evidence, Nieto never entered the
videotaped interview into the record with an offer of proof. We therefore have no idea what testimony, if
any, Morales recanted. We only have
Nieto’s vague allegations. A party
cannot complain about the exclusion of evidence unless an offer of proof is
made advising the court in sufficient detail the nature of the evidence to be
presented. See
¶11 Further, because recantations involve an admission that a
witness lied under oath, they are inherently unreliable. State v. Mayo, 217
II. Victim Identification
¶12 Nieto claims the court erred by failing to suppress Jessica’s
in-court identification of him as one of her attackers. Nieto argues police were required to perform
a photo array under State v. Dubose, 2005 WI 126, 285
¶13 When reviewing a court’s decision on a motion to suppress
evidence, we apply a two-step standard of review. See
¶14 In Dubose, our supreme court adopted standards for the
admissibility of out-of-court show up identifications. See
Dubose,
285
¶15 Relying on Dubose, Nieto argues “a show up or media identification of Nieto’s eventual photograph was unnecessary” and that police procedures implicitly conveyed to Jessica that Nieto was guilty. He argues “the identification of Nieto by [Jessica] occurred as a result of media information, an artist’s sketch, and a potential courthouse identification of Mr. Nieto in jail garb. Obviously said procedures violate the dictates of State v. Dubose.” Before trial, Jessica had seen Nieto’s photograph in a newspaper and she had seen him at a prior court hearing. Nieto contends Dubose required police to use an objective, reliable identification procedure such as a photo array.
¶16 Nieto misreads Dubose. Dubose addresses show up
identification admissibility. Hibl,
290
III. Expert Testimony
¶17 Nieto claims the court erroneously limited the testimony of his identification expert, Dr. Lawrence White. Nieto argues that while White was allowed to testify generically regarding problems with misidentification of criminal suspects, he was not allowed to make any specific references to the circumstances in Nieto’s case.
¶18 We review the court’s ruling on the scope of permissible expert
testimony for an erroneous exercise of discretion. See
¶19 In Hampton, our supreme court upheld a trial court’s exercise of
discretion when limiting expert testimony regarding witness
identification. See Hampton, 92
¶20 The court’s ruling on expert testimony here was similar to that in Hampton and Wilson. After hearing testimony from Dr. White during an offer of proof, the court determined which aspects of White’s testimony would be helpful to the jury. The court permitted White to testify about the effects of stress, post-event information, and length of exposure on witness identification. Considering Hampton and Wilson, the court decided not to permit White to testify in such a way as to suggest an opinion on Jessica’s credibility. This was a proper exercise of the court’s discretion.
IV. Binish’s Identification
¶21 Nieto also challenges Binish’s testimony that he recognized Morales and Nieto from the composite sketches. Nieto contends Binish should only have been allowed to testify that the sketches looked similar to Morales and Nieto. He argues Binish’s testimony was beyond the scope of lay witness opinion testimony permitted under Wis. Stat. §§ 907.01 and 907.02 and should have been excluded by the circuit court.
¶22 Whether to permit lay opinion testimony is a discretionary
determination for the circuit court. Vonch
v. American Standard Ins. Co., 151
If the witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences which are rationally based on the perception of the witness and helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue.
¶23 The court properly exercised its discretion when permitting Binish’s testimony. As the circuit court noted, Binish was familiar with both men because he worked with them on a daily basis. The testimony also explained why Binish contacted police and ultimately obtained a DNA sample from Morales. See Wis. Stat. § 907.01. With a proper foundation established for Binish’s testimony, the court properly concluded Binish’s testimony was admissible. The testimony was rationally based on Binish’s perceptions and helped the jury understand his other testimony. See Wis. Stat. § 907.01.
V.
¶24 Nieto claims the circuit court erroneously prevented him from
presenting evidence of another crime where a woman was raped and set on fire in
New Mexico twelve days after the incident here.
Nieto relied on the fact that the
¶25 To introduce evidence that a third party committed a crime,
there must be a “legitimate tendency” that the third person could have
committed the crime. State
v. Denny, 120
¶26 Whether to admit evidence of the
VI. Morales’s Testimony
¶27 Finally, Nieto claims the court erred by not declaring a mistrial after Morales gave “potentially perjurious” testimony. He relies on the fact that Morales’s version of events described himself as the truck’s passenger, whereas Jessica identified Nieto as the passenger. Nieto also relies on comments made by the prosecutor after Morales’s testimony suggesting he believed Morales was switching his and Nieto’s roles and that Morales may have perjured himself. The prosecutor subsequently qualified his reference to perjury as a bad choice of words. The circuit court declined to grant a mistrial, stating “I’m not satisfied that there is any indication that Mr. Morales perjured himself. I think it is for the trier of fact to determine [whose] story about what happened [is] more credible here.”
¶28 Whether to grant a mistrial lies within the sound discretion of
the circuit court. State v. Bunch, 191
¶29 Nieto focuses on whether the district attorney knowingly put Morales on the witness stand to give perjured testimony. He emphasizes that Morales’s testimony was different from Jessica’s and asserts one of them must be lying.
¶30 We reject Nieto’s claim.
Nieto’s argument avoids addressing the dispositive inquiry of whether
the alleged perjury was sufficiently prejudicial to grant a new trial. Instead, he focuses on the discrepancy
between Jessica’s and Morales’s testimony about who did what. The jury heard both versions of events, and
it was the jury’s role to resolve issues of credibility.
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] Binish testified he was frustrated with the lack of police action on his tip, which prompted him to implement a plan to obtain Morales’s DNA with the soda bottles.
[2] All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[3] Nieto does not attempt to rely on Wis. Stat. § 752.35, which permits this court to grant a new trial in the interest of justice if the real controversy has not been fully tried or if for any reason justice has miscarried.
[4] Generally,
the reliability of a witness’s in-court identification of a defendant is a
question for the jury, though the circuit court may, in its discretion, exclude
the evidence under Wis. Stat. § 904.03
if its probative value is “substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.” See
[5] Wisconsin Stat. § 907.02 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
[6] Nieto asserts an additional claim, which is that if any individual circuit court error does not rise to the level of prejudicial error, the accumulation of error justifies a new trial. Because we conclude the court did not err, there is no need to address this argument.