COURT OF APPEALS DECISION DATED AND RELEASED November 15, 1995 |
NOTICE |
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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 93-2383-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
ROBERT L. WARD,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Kenosha County:
BRUCE E. SCHROEDER, Judge. Affirmed.
Before Brown, Nettesheim
and Snyder, JJ.
PER
CURIAM. Robert L. Ward appeals from a judgment
convicting him of being party to the crime of first-degree intentional homicide
contrary to §§ 939.05 and 940.01(1), Stats. Ward raises numerous issues on appeal which
involve the trial court's exercise of its discretion. Because we conclude that the trial court did not erroneously
exercise its discretion, we affirm.
Reynaldo Ramos was
bludgeoned and stabbed to death in his bedroom late in the evening of June 1,
1992. Robert Ward, Aaron Claybrook and
Ramos's wife, Debbie Ramos, were charged in the crime. Ward and Claybrook were tried and convicted
together; Debbie was tried and convicted separately.[1] Further facts will be stated as we address
the appellate issues.
SHACKLES
Ward
challenges the trial court's refusal to remove his shackles in the
courtroom. Ward argued in the trial
court that shackles implied guilt, and security in the courtroom could be
assured by other means. The State
contended that Ward was a flight risk given the severity of the charge against
him and the lengthy sentence Debbie had already received. The State also had security concerns because
the courtroom would be crowded. The
State observed that because Ward would be seated at counsel table, the shackles
would not be particularly noticeable to the jury, and precautions could be
taken to minimize the jury's opportunity to see the shackles.
The trial court required
Ward to remain in shackles because he had been accused of a "very violent
criminal act," and in the absence of restraints the jurors would be
distracted by concerns for their safety in the crowded courtroom. The trial court did not want to risk the
possibility of disruptive behavior. The
trial court also considered that the jurors would know Ward was in custody and
would not be surprised to see him in shackles.
Ward argues that the
trial court's refusal to remove his shackles violates State v. Grinder,
190 Wis.2d 541, 527 N.W.2d 326 (1995).[2] In Grinder, defense counsel
claimed on the first day of trial that Grinder's appearance in shackles
compromised his right to a fair trial because shackles would lead the jurors to
believe that Grinder was dangerous and undermine the presumption of
innocence. Id. at 548,
527 N.W.2d at 329. The trial court
declined to interfere with the sheriff's procedures regarding shackles and
ruled that shackles were appropriate because Grinder was charged with extremely
violent crimes. The court gave counsel
the option of having counsel table draped in brown paper to shield the jurors
from the shackles. Id. at
548-49, 527 N.W.2d at 329.
The supreme court held
that the trial court erroneously exercised its discretion because it relied
primarily upon the sheriff's procedures rather than considering whether Grinder
actually posed a risk of violence or escape.
Id. at 551, 527 N.W.2d at 330. Notwithstanding this conclusion, the Grinder court
held that even if the trial court failed to weigh the specific need to restrain
Grinder, he was not prejudiced because "there [was] no evidence to
indicate that the jury either was aware of or actually saw him in shackles at
any point." Id.
Ward's shackles
challenge fails for the same reason because Ward points to no evidence that the
jury saw him shackled.[3] Also, Ward has not shown that he was
prejudiced by being shackled in the courtroom.
Further, while Ward complains in his supplemental brief that the trial
court completely discounted the impact on jurors of seeing a defendant in
shackles, he goes too far in suggesting that this was the only factor
considered by the trial court. The
trial court considered several appropriate factors, including the nature of the
charges against Ward, his background and possible security risks in the
courtroom. These are legitimate
concerns under Grinder. See
id. at 552, 527 N.W.2d at 330.
It is within the trial court's discretion to decide whether a defendant
should be shackled during trial as long as the trial court sets forth its
reasons justifying restraints. Id.
at 550-52, 527 N.W.2d at 329-30. The
trial court did so here.
JURY SELECTION
Ward
challenges the trial court's refusal to draw a jury from another county and
contends that the jury drawn from Kenosha County was not impartial because it
was exposed to pretrial publicity about the crime in the form of newspaper
articles and television reports. While
the trial court acknowledged that there had been "a good deal of publicity
in the case," it found that the reports regarding the case were
"news-based," did not editorialize regarding guilt or innocence and
were not devised to influence public opinion against Ward and Claybrook. The court also found that the State did not
generate publicity in the case and that none of the information appearing in
news reports had been suppressed.
Whether to change venue
is within the trial court's discretion.
Hoppe v. State, 74 Wis.2d 107, 110, 246 N.W.2d 122, 125
(1976).[4] The trial court should order a change of
venue if the defendant presents sufficient evidence that it is reasonably
likely a fair trial cannot be had. Id. In analyzing whether the trial court
properly exercised its discretion, we consider the proof offered of community
prejudice and whether that prejudice manifested itself in the jury selection
and the verdict. See id.
at 111, 246 N.W.2d at 125-26.
With regard to community
prejudice, Ward points to the fact that Debbie's trial, which was held several
weeks before the Ward/Claybrook joint trial, was covered in newspaper and
television reports, some of which identified Ward as Debbie's "married
boyfriend." Ward contends that
other reports evoked sympathy and concern for Debbie's daughter, Charika
Parker, a key witness for the State, and that a prosecutor's reference during
Debbie's trial to Ward's involvement in the murder was reported in a newspaper
with a sizeable circulation in Kenosha County.
Media coverage of
shocking crimes is likely to make prospective jurors aware of the general
nature of the crimes. See id.
at 112, 246 N.W.2d at 126.
"However, it has been repeatedly held that an informed jury is not
necessarily to be equated with a partial or biased jury and that mere
familiarity with specific facts will not, in itself, disqualify
jurors." Id. "[O]bjective, informational, and
noneditorial [reporting] ... is not to be considered prejudicial." Id.
We agree with the trial
court that the information available pretrial was information which ultimately
came into evidence at trial or would have been admissible. The newspaper articles offered by Ward to
support his claim of community prejudice were objective, informational and
noneditorial. Finally, although
Debbie's trial was held several weeks before the Ward/Claybrook trial, we do
not agree that the proximity of the two trials, in and of itself, required a
change of venue for Ward and Claybrook.
We further conclude that
community prejudice did not taint the jury selection process or the
verdict. Ward argues that sixteen of
the original twenty-nine jurors admitted that they had heard or read something
about his case. Ward further argues
that four of those jurors deliberated on the case (a fifth juror was dismissed
as an alternate). In particular, jurors
Johnson, Nielson and Burns recalled that:
(1) Reynaldo was beaten and stabbed in his home; (2) his
stepdaughter (Charika Parker) hid in the closet during the incident and
recognized an attacker's voice; (3) Debbie was convicted in Reynaldo's
death; and (4) a boyfriend was involved.
Ward argues that he was unable to remove from the jury all those jurors
who had knowledge or opinions regarding the crime, or who lived or once lived
in the neighborhood of the murder.
An individual can
qualify as an impartial juror if he or she "can lay aside his or her opinion
and render a verdict based on the evidence presented in court." State v. Sarinske, 91 Wis.2d
14, 33, 280 N.W.2d 725, 733-34 (1979).
"The mere expression of a predetermined opinion as to guilt during
the voir dire does not disqualify a juror per se." Id. at 33, 280 N.W.2d at
733. Of the specific jurors identified
by Ward as having been exposed to pretrial publicity, each juror denied having
formed an opinion about the case and agreed to put aside information gleaned
from the media in favor of evidence adduced at trial. Ward has not demonstrated that the jury was other than impartial.
Although Ward contends
that prejudice was likely to result if he was tried by jurors who lived in the
neighborhood of the murder and felt personally threatened by his conduct, Ward
did not ask those jurors whether they would be more likely to convict because
the crime occurred in their neighborhood.
Because this issue is not preserved for appellate review, we do not
address it further. See State
v. Kaster, 148 Wis.2d 789, 804-05, 436 N.W.2d 891, 897-98 (Ct. App.
1989) (we will not consider an issue where the record does not provide a
factual underpinning for the argument).
We conclude that the
trial court properly exercised its discretion in declining to draw a jury from
another county.
SEVERANCE
Ward
seeks review of the trial court's refusal to sever his trial from
Claybrook's. Although Ward sought
severance on the ground that he and Claybrook would present antagonistic defenses,
he declined to disclose his possible defenses so the trial court could evaluate
this claim. Instead, Ward argued that
evidence relating solely to Claybrook would prejudice him. The State argued that Ward's refusal to
reveal his defense precluded the trial court from concluding that Ward's
defense was antagonistic to Claybrook's.
The trial court declined to sever the trials because "mere finger
pointing is absolutely not sufficient to call for separate trials."
On appeal, Ward argues
that he should have been tried separately because the physical evidence was
heavily weighted against Claybrook. He
argues that the evidence against him was "largely circumstantial,"
while the evidence against Claybrook was "largely physical." Severance is within the trial court's
discretion. State v. Jennaro,
76 Wis.2d 499, 505, 251 N.W.2d 800, 803 (1977). We review whether the trial court properly exercised its
discretion at the time it was asked to do so.
See id. at 505‑06, 251 N.W.2d at 803.
At the time Ward brought
the severance motion, he did not provide the trial court with sufficient
information such that it could determine whether a body of evidence was
relevant only to Claybrook's guilt. See
State v. Patricia A.M., 168 Wis.2d 724, 732, 484 N.W.2d 380, 383
(Ct. App. 1992), rev'd on other grounds, 176 Wis.2d 542, 500 N.W.2d 289
(1993). Therefore, the trial court did
not err in declining to sever based on the showing Ward made pretrial.
The trial court's
reluctance to grant severance based upon an assertion that the defendants'
defenses would be antagonistic was born out at trial. Ward and Claybrook did not employ antagonistic defenses or engage
in finger pointing. In fact, during
closing argument, Ward's counsel pointedly told the jury that his comments
would be restricted to Ward. Each
defendant blamed Debbie for the murder, not his codefendant. Ward does not point us to those portions of
the record which substantiate that the concerns which motivated him to seek
severance manifested themselves at trial.[5] Based upon this record, we conclude that the
trial court properly exercised its discretion in denying Ward's motion to sever
his trial from Claybrook's.
EVIDENTIARY RULINGS
1. Photographs and Videotape
Reynaldo
suffered multiple, gruesome injuries.
Ward contends that he did not receive a fair trial because photographs
depicting Reynaldo's body and photographs and videotapes of the autopsy and
crime scene were admitted into evidence.
Ward objected to several
enlarged photographs and claimed that they were cumulative to a previously
shown videotape of the crime scene. The
State responded that certain photographs were enlarged by the medical examiner
to assist him in cataloging Reynaldo's injuries for the autopsy report because
the wounds were so numerous he could not count them during the autopsy. The medical examiner selected those
photographs which would assist him in testifying about the victim's injuries
and cause of death. The State also
contended that: (1) the jury needed to
see how Reynaldo was injured; (2) evidence of the extent of Reynaldo's injuries
supported the State's theory that at least two people beat him;
(3) Reynaldo's injuries reflected a struggle and Claybrook had a black eye
the day after the murder; and (4) Reynaldo's bedroom was wrecked, and
photographs of this supported the testimony of Debbie's daughter, Charika, that
she heard a commotion the night of the murder.
In ruling on Ward's
objections, the trial court noted that the State needed to reconstruct the
murder for the jury. While agreeing
that the photographs were gruesome, the trial court discounted Ward's argument
that they would make the jury more likely to convict. The trial court found that the probative value of the photographs
outweighed the danger of unfair prejudice.
The photographs were displayed to the jury and sent into the jury room
during deliberation.
Relevant evidence may be
excluded if its probative value is substantially outweighed by the danger of
unfair prejudice. See State
v. Lindh, 161 Wis.2d 324, 346-47, 468 N.W.2d 168, 175 (1991).[6] Whether to admit evidence is within the
trial court's discretion and we will uphold such rulings if they have a
reasonable basis. See id.
at 348-49, 468 N.W.2d at 176. It is
also discretionary with the trial court whether to display photographs to the
jury and allow the photographs to be sent to the jury room. State v. Thompson, 142 Wis.2d
821, 841, 419 N.W.2d 564, 571 (Ct. App. 1987).
We will uphold the trial court's decision unless it was "wholly
unreasonable or the only purpose of the photographs [was] to inflame and
prejudice the jury." Id.
We conclude that the
trial court properly exercised its discretion.
It considered the probative value of the evidence, the danger of unfair
prejudice and gave its reasons for its decision. The trial court correctly determined that the photographs would
permit the State to recreate the crime as accurately as possible and support
its theory that Reynaldo's injuries were caused by more than one person who
intended to kill him. The trial court's
rulings were reasonable.[7]
For the same reasons, we
reject Ward's challenge to the trial court's discretionary decision to admit a
videotape of the crime scene. Ward
argues that the videotape was cumulative.
The trial court ruled that the videotape would reconstruct the crime for
the jury and assist it in determining who committed it.
Ward also claimed that
he had an alibi which rendered the graphic photographs unnecessary. An alibi defense does not relieve the State
of its obligation to prove all the elements of a crime beyond a reasonable
doubt. See State v.
Plymesser, 172 Wis.2d 583, 594, 493 N.W.2d 367, 372 (1992). The photographs were admissible to support
an inference that the person or persons who severely beat Reynaldo intended to
kill him. See Sage v.
State, 87 Wis.2d 783, 787-90, 275 N.W.2d 705, 707-09 (1979).[8]
2. Sherney Johnson and LaShonda
Mayhall
The trial court
permitted Sherney Johnson and LaShonda Mayhall to testify regarding statements
Debbie made to them in the Kenosha County jail. In essence, Debbie admitted to Johnson and Mayhall that she
killed Reynaldo. Ward objected on the
ground that Mayhall's and Johnson's testimony would violate his Sixth Amendment
confrontation rights.
The trial court found
that Debbie was unavailable because she "[p]ersist[ed] in refusing to
testify concerning the subject matter of [her] statement despite an order of
the judge to do so." See
§ 908.04(1)(b), Stats.[9] The trial court then admitted Debbie's
statements to Johnson and Mayhall as exceptions to hearsay under
§ 908.045, Stats.[10]
A two-pronged approach
applies to determining whether hearsay evidence satisfies the Confrontation
Clause: "(1) the declarant
must be unavailable, and (2) the evidence must bear some indicia of
reliability." State v.
Patino, 177 Wis.2d 348, 372, 502 N.W.2d 601, 610-11 (Ct. App.
1993). If the evidence "has
sufficient guarantees of reliability to come within a firmly rooted exception
to the hearsay rule, the Confrontation Clause is satisfied." Id. (quoted source
omitted).
Statements against
interest under § 908.045(4), Stats.,
are firmly rooted exceptions to the hearsay rule. State v. Denny, 163 Wis.2d 352, 358, 471 N.W.2d
606, 609 (Ct. App. 1991). Debbie's
statements to Johnson and Mayhall were statements against interest because they
tended to subject her to criminal liability.
Section 908.045(4). Once Debbie
was unavailable to testify, the trial court need not have conducted an
independent inquiry into reliability because the evidence fell within a firmly
rooted hearsay exception. See Patino,
177 Wis.2d at 372-73, 502 N.W.2d at 611.
Ward argues that Johnson
and Mayhall were not trustworthy because they were inmates. Johnson and Mayhall gave essentially the
same testimony: Debbie admitted to them
on separate occasions that she was involved in the murder of her husband. Johnson's and Mayhall's criminal convictions
do not render their testimony inadmissible; rather, their criminal histories
were a factor the jury could consider in evaluating their credibility.
Finally, Debbie's
statements to Johnson and Mayhall were relevant. Ward told the police that he rode around in Racine with Debbie on
the night of the murder. Debbie told
Johnson and Mayhall that she killed her husband on that night. This tends to undermine Ward's contention
that he was uninvolved in the murder.
3. Anthony Parker
Ward challenges the
trial court's decision to permit Anthony Parker, the father of Debbie's
children, to testify that one year before the murder Debbie told him during a
telephone conversation that she wanted to kill Reynaldo because he had beaten
her, causing a miscarriage. Debbie also
allegedly told Anthony that she intended to kill Reynaldo to obtain insurance
proceeds and their house.
The trial court admitted
Anthony's testimony under § 908.03(3), Stats., as
a statement of the declarant's then-existing state of mind or emotion, that is,
Debbie's desire or intent to kill her husband.
The trial court also found that Debbie's statement to Anthony was
admissible under § 908.045(4), Stats.,
as a statement against interest. We
agree with the trial court's rulings on this question and conclude that Ward's
confrontation rights were not violated because §§ 908.03(3) and 908.045(4)
are firmly rooted hearsay exceptions. See
State v. Jackson, 187 Wis.2d 431, 435-37, 523 N.W.2d 126, 128-29
(Ct. App. 1994) (§908.03(3)); Denny, 163 Wis.2d at 358, 471
N.W.2d at 609 (§908.045(4)); Patino, 177 Wis.2d at 372-73, 502
N.W.2d at 611.
Ward also argues that
Debbie's statement to Anthony was uncorroborated and that parts of it were
untrue. However, Ward does not provide
any citation to the record for the latter claim. With regard to Ward's claim that the statement was
uncorroborated, Ward does not cite any authority for the proposition that the
statement must be corroborated in order to be trustworthy. Rather, its trustworthiness emanates from
the fact that it fits within a firmly rooted hearsay exception. See Jackson, 187 Wis.2d
at 435-37, 523 N.W.2d at 128-29.
Finally, Ward argues
that Debbie's statement to Anthony was a year old, had little or no probative
value and was unfairly prejudicial. We
disagree. Ward told police that he was
with Debbie on the night of the murder.
Debbie had previously expressed a desire to kill her husband. In this context, Debbie's statement had
probative value and was not unfairly prejudicial to Ward.
4. Earnest Ward/Karen Golden
Ward challenges the
trial court's decision to permit Earnest Ward, his brother,[11]
to testify that in the early evening hours of June 1, 1992, the night before
the murder, an intoxicated Claybrook told him that he was going to kill someone
that night[12] and invited
Earnest to join him. Earnest declined. Shortly thereafter, Earnest went to the home
of Karen Golden, Claybrook's sister, to tell her what Claybrook said to
him. Golden testified that Earnest told
her that Claybrook and Ward were going to kill Reynaldo.
Ward focuses his
appellate argument on Golden's testimony about what Earnest told her. Golden testified that Earnest told her that
Ward and Claybrook were going to Kenosha "to knock off Debbie's
husband." However, Earnest did not
tell the jury he identified Reynaldo as the intended victim when he spoke with
Golden. The State argued that Golden
was offering a prior inconsistent statement of Earnest's when she said he told
her Reynaldo was the intended victim.
The trial court agreed.
Prior inconsistent
statements are not hearsay. See § 908.01(4)(a)1,
Stats. Here, Claybrook told Earnest that he was going to kill someone
and Earnest relayed that information to Golden. Golden then testified that Earnest made a more specific statement
to her of Claybrook's and Ward's intentions.
Golden's testimony was inconsistent with Earnest's testimony as to what
Earnest told her. Therefore, it was
admissible.[13]
5. Officer Anderson
Finally,
Ward argues that the trial court improperly limited his
ability to present a defense when it refused to permit Kenosha police
officer Dennis Anderson to testify that he observed three individuals in
the area the morning after the murder.
The evidence was offered to counter the testimony of a neighbor, Roland
Loney, that he heard a commotion next door around the time of the murder and
saw two black men and one black woman in the area of the victim's house between
11:30 p.m. and 12:35 a.m.
Ward stated that
Anderson would testify that he saw a similarly configured trio in the area at
about 7:15 or 7:30 a.m. the following morning.
The individuals were not Debbie, Ward or Claybrook. The trial court excluded Anderson's
testimony as irrelevant because it was unlikely that seven hours after the
murder Loney and Anderson saw the same people near the victim's home.
Ward
makes much of the fact that Anderson saw two black men and a black woman near
the murder scene seven hours after the murder.
However, in this case, the passage of time between the two sightings
supports the trial court's discretionary decision to exclude Anderson's
testimony as irrelevant. See Lindh,
161 Wis.2d at 348-49, 468 N.W.2d at 176.
"Evidence is
irrelevant on remoteness grounds if `the elapsed time is so great as to
negative all rational or logical connection between the fact sought to be
proved and the remote evidence offered in the proof thereof.'" State v. Oberlander, 149
Wis.2d 132, 143, 438 N.W.2d 580, 584 (1989) (quoted source omitted). Loney's testimony pertained to the
approximate time of the murder.
Anderson's testimony pertained to a time period approximately seven
hours later. The latter testimony had
no rational or logical connection to the circumstances of the murder.
Because irrelevant
evidence was excluded, Ward was not deprived of his right to confrontation or
his right to present a defense. See
State v. Walker, 154 Wis.2d 158, 192, 453 N.W.2d 127, 141, cert.
denied, 498 U.S. 962 (1990).
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] We reversed Debbie's conviction in State v. Ramos, No. 93-2448-CR, unpublished slip op. (Wis. Ct. App. Aug. 10, 1994).
[2] We ordered supplemental briefs from the parties addressing State v. Grinder, 190 Wis.2d 541, 527 N.W.2d 326 (1995), which was decided after briefing concluded in this appeal.
[3] Ward argues that the record does not demonstrate that the trial court took steps to prevent the jurors from viewing the shackles. However, it is Ward's burden to demonstrate that the jury "was aware of or actually saw him in shackles at any point." See Grinder, 190 Wis.2d at 551, 527 N.W.2d at 330. Therefore, we do not address this argument.
[4] The trial court and the parties treated Ward's motion for a change of venire as a motion for a change of venue. Ward takes the same approach on appeal. Therefore, we apply the principles applicable to motions for change of venue.
[5] Ward also does not argue that his defense strategy changed as a result of the trial court's refusal to sever his trial from Claybrook's.
[7] While the trial court apparently rejected the premise that gruesome pictures can be unfairly prejudicial, it went on to exercise its discretion in ruling that the pictures' probative value outweighed their prejudicial effect.
[9] Debbie invoked her Fifth Amendment right not to testify at the Ward/Claybrook trial. Despite being granted immunity, she declined to testify. The trial court found her in contempt and ordered her jailed pending further contempt proceedings. Debbie never testified.
[10] Section 908.045(4), Stats., does not exclude as hearsay:
A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability or to render invalid a claim by the declarant against another or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in the declarant's position would not have made the statement unless the person believed it to be true.
[13] Earnest returned to testify as part of Ward's case. He stated that he never told Golden that Ward was going to be involved in the murder Claybrook mentioned or that Reynaldo was the intended victim. It was for the jury to resolve the conflicts in the testimony of Earnest and Golden. See Haskins v. State, 97 Wis.2d 408, 425, 294 N.W.2d 25, 36 (1980).