COURT OF APPEALS DECISION DATED AND RELEASED JULY 12, 1995 |
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No.
94‑0572‑CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff‑Respondent,
v.
VERNON L. WALKER,
Defendant‑Appellant.
APPEAL
from a judgment and an order of the circuit court for Kenosha County: MARY KAY WAGNER‑MALLOY, Judge. Affirmed.
Before
Anderson, P.J., Nettesheim and Snyder, JJ.
ANDERSON,
P.J. Vernon L. Walker appeals from a judgment of
conviction of first-degree intentional homicide while armed, as party to a
crime, and from an order denying his motion for postconviction relief. Walker raises numerous issues on
appeal. He argues that the trial court
erred in failing to grant his motions in limine, in allowing the introduction
of bad acts testimony, in failing to define the scope of the alleged
conspiracy, in denying his motion to sever, in failing to grant a mistrial, in
restricting cross-examination of the State's witnesses, in failing to give
requested jury instructions and in denying his postconviction motion for a new
trial. Walker also contends that he was
denied effective assistance of trial counsel.
Because we conclude that the trial court did not erroneously exercise
its discretion and that Walker was not denied effective assistance of counsel,
we affirm.
The
criminal complaint alleged that Walker, LaShonda Mayhall and LaTonia Mayhall
feloniously and, in concert with others, intentionally caused the death of
Leroy Brantley. Brantley was a friend
of Miguel Adams. Adams was the father
of LaShonda's child. LaShonda felt that
Brantley was interfering in her relationship with Adams and told her sister,
LaTonia, that she wanted Brantley killed.
LaTonia said that Walker would take care of it.
Ronald
Walker, Vernon's stepbrother, told the police that Vernon said that he had gone
to Brantley's house and shot through the door.
Brantley was found by the police at his house where he had suffered a
gunshot wound to the abdomen. He
subsequently died.
A
jury trial was held, and the three defendants were tried jointly. Walker was subsequently found guilty. He filed a motion for postconviction relief
which the trial court later denied.
Walker appeals.
Motions in Limine
Walker
argues that the trial court erred in failing to grant his motion in limine
prohibiting the introduction of bullet trajectory testimony by a nonexpert
witness. Admission of evidence is a
matter of trial court discretion and will be sustained on appeal if it has a
reasonable basis and was made in accordance with accepted legal standards and
the facts of record. State v.
Jenkins, 168 Wis.2d 175, 186, 483 N.W.2d 262, 265 (Ct. App.), cert.
denied, 506 U.S. ___, 113 S. Ct. 608 (1992).
The
court admitted testimony and physical evidence relating to the trajectory of
the bullets as determined by members of the Kenosha police department. The trial court originally allowed the
evidence in consideration of the fact that an expert would be produced for questioning
concerning the techniques used by the officers. Later, the trial court ruled that the trajectory tape was
admissible, with liberal cross-examination allowed.
We
conclude that the court did not erroneously exercise its discretion when it
admitted the trajectory tape. Evidence
is relevant if it tends to make the existence of any fact that is of
consequence to the determination of actions more or less probable than it would
be without the evidence. Section
904.01, Stats. The tape was presented to supplement the
testimony of the officers on the facts of the crime scene and the positions of
the bullets and slugs that they found.
Although the trajectory of the shotgun rounds could not be
scientifically determined according to the expert, the tape represented only
the opinions and beliefs of the officers who were on site and had personal
knowledge of the position of the bullets and the position of the victim. See United States v. Allen,
10 F.3d 405, 414 (7th Cir. 1993).
The
decision to admit opinion evidence is within the discretion of the trial
court. Pattermann v. Pattermann,
173 Wis.2d 143, 152, 496 N.W.2d 613, 616 (Ct. App. 1992). Section 907.01, Stats., provides for the admission of lay opinion testimony
if the opinions or inferences are rationally based on the perceptions of the witnesses
and helpful to a clear understanding of the testimony. Here, the tape was clearly opinion evidence
intended to help the fact finder more easily understand the testimony of the
officers at the crime scene.
Additionally, the officers' testimony was rationally based on their
perceptions.
Concerns
of prejudice from this opinion testimony were alleviated by the court's
willingness to allow broad cross-examination so that the defense could show the
opinions to be unreliable on the issue of ballistics or due to the opinion
character of the testimony. In federal
cases, the Seventh Circuit has determined that nonexpert opinion testimony is
especially useful when there is cross-examination of the witnesses that allows
the trier of fact to determine the credibility of the witnesses' opinions. See Allen, 10 F.3d at
414. This cross-examination allowed the
defense to attack the weight, credibility and reliability of the evidence of
the trajectory tape and allowed the jury the information it needed to make its
decision.
Walker
also argues that a videotape of the route he took to the crime scene on the
night of the murder should have been excluded.
Demonstrative evidence is used simply to lend clarity and interest to
oral testimony. Anderson v. State,
66 Wis.2d 233, 248, 223 N.W.2d 879, 886-87 (1974). Illustrative exhibits may often properly and satisfactorily be
used in lieu of real evidence. Id.
at 248, 223 N.W.2d at 887. Where only
the generic characteristics of the item are significant, no objection would
appear to exist to the introduction of a substantially similar duplicate. Id. at 249, 223 N.W.2d at 887.
Walker
complains that the change of the conditions at the crime scene at the time of
the trial distorted the usefulness of the tape as an illustration of the facts
of the witness's testimony and therefore it was useless as evidence. However, when the court allowed the
admission of the route tape it also suggested that the defense had the
opportunity to question witnesses regarding any changes in the conditions that
existed at the time of the crime from that shown in the tape.
The
trial court did not err in allowing a videotape that illustrated the testimony
of a witness and that was clarified through cross-examination. Regardless, there is nothing to show that
the evidence presented in the tape prejudiced the decision against Walker.
Shotgun Evidence
Walker
argues that the “trial court erred in failing to grant [his] motion in limine
prohibiting the introduction of the shotgun as evidence without an adequate
foundation indicating that the weapon was actually used in the crime.” A witness testified that he and several
others had disposed of the shotgun in “the Pike River.” The police later retrieved the gun and had
it admitted into evidence as the murder weapon.
In
order for the trial court to admit physical evidence of the murder weapon,
without the availability of ballistic or forensic tests or experts, the State
had to show that there was a connection
between the defendant, the article and the charged offense. See Wold v. State, 57
Wis.2d 344, 352, 204 N.W.2d 482, 488 (1973).
If there is a connection, the court may admit the evidence and the jury
can decide the weight to be given to the evidence. Id.
The State
showed the connection and laid a foundation for the admission of the shotgun
evidence. Testimony from the store
clerk identified the shotgun as the one that Walker had purchased at a sporting
goods store in Kenosha. Testimony from
another witness showed that the shotgun that was thrown into the river was the
same gun recovered by the police in November 1990. We conclude that the facts presented were sufficient to allow the
jury to determine the validity of the connection.
Bad Acts Testimony
Walker
argues that the “court erred in allowing the introduction of bad acts testimony
against the co-defendant which prejudiced the defendant-appellant and erred in
denying the motion for mistrial made by the defendant-appellant on May 11,
1992.” He states that the court erred in
allowing the introduction of evidence against LaShonda relating to allegations
of a previous stabbing and a drive-by shooting.
The
decision whether to admit evidence is within the trial court's discretion. Jenkins, 168 Wis.2d at 186,
483 N.W.2d at 265. Section 904.04(2), Stats., provides:
Other crimes, wrongs, or acts. Evidence of
other crimes, wrongs, or acts is not admissible to prove the character of a
person in order to show that the person acted in conformity therewith. This subsection does not exclude the
evidence when offered for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.
Under
the circumstances of the present case, LaShonda's previous acts were necessary
for a full presentation of the State's case.
The jury needed to understand the circumstances leading up to and
surrounding the State's theory of conspiracy.
Therefore, the evidence was admissible.
See State v. Shillcutt, 116 Wis.2d 227, 236-37, 341
N.W.2d 716, 720 (Ct. App. 1983), aff'd, 119 Wis.2d 788, 350 N.W.2d 686
(1984).
We further
conclude that the introduction of evidence regarding LaShonda's previous
conduct did not prejudice Walker. The
trial court gave the following instruction to the jury:
Evidence has
been received regarding other conduct of the defendant, La[S]honda Mayhall for
which he is not on trial. Specifically
evidence has been received that the defendant stabbed a Mike or Miguel
Adams. If you find that this conduct
did occur, you should consider it only as--to present it in the context of the
case. You may not consider such
evidence to conclude that the defendant has a certain character or a certain
character trait and that the defendant acted in conformity with this trait or
character with respect to the offense charged in this case. You may consider this evidence only for the
purpose I have described, giving it the weight you determine it deserves. It is not to be used to conclude that the defendant
is a bad person and for that reason is guilty of the offense charged.
Prior to Adams's testimony concerning the stabbing, the
court stated: “The Court would like to
remind the jury once again, as we have done in the past, that these are three
separate trials and that you should adduce evidence as--or consider the
evidence as it is brought out in the trial as to each person
individually.” These instructions
prevented the introduction of LaShonda's prior conduct from prejudicing Walker.
Scope of Conspiracy
Walker
argues that the trial court never properly defined the scope of the alleged
conspiracy and, thus, denied Walker due process of law. Walker, however, cites no authority for this
argument in his principal brief.
Because Walker has failed to adequately brief this issue, we do not
consider it. See Vesely v.
Security First Nat'l Bank, 128 Wis.2d 246, 255 n.5, 381 N.W.2d 593, 598
(Ct. App. 1985).
Motion to Sever
Walker
contends that the trial court erred in denying his motion to sever his trial
from the trial of the codefendants.
Questions of severance are within the trial court's discretion. State v. Brown, 114 Wis.2d
554, 559, 338 N.W.2d 857, 860 (Ct. App. 1983).
Although a single trial may be desirable from the standpoint of economical
or efficient criminal procedure, the right of a defendant to a fair trial must
be the overriding consideration. Id. Under certain circumstances, a joint trial
might be unduly prejudicial to the interest of one or more of the
defendants. Id. In such a situation, the interests of
administrative efficiency must yield to the mandates of due process. Id.
The
defense made its motion to sever in the middle of the trial when LaShonda
decided to testify on her own behalf.
Walker contends that LaShonda's testimony was overwhelmingly
prejudicial. However, the testimony she
gave basically repeated the testimony of other witnesses; therefore, it is not
a grounds for severance. See Cranmore
v. State, 85 Wis.2d 722, 756, 271 N.W.2d 402, 419 (Ct. App. 1978).
The
mere fact that LaShonda was a codefendant testifying in a joint trial does not
automatically require that the trial be severed. See, e.g., United States v. Hutul, 416 F.2d 607,
620-21 (7th Cir. 1969), cert. denied, 396 U.S. 1007 (1970). It is only when the exercise of common sense
and sound judicial judgment leads to the conclusion that a defendant cannot
have a fair trial, as that term is understood in law, that a severance should
be granted. Id. We conclude that LaShonda's testimony had
minimal effect on Walker's case and was not prejudicial to him.
Mistrial
Walker
contends that the trial court erred by refusing to grant a mistrial after an
outburst by one of the members of the jury panel during jury selection. During jury selection, one of the jurors
accused the trial judge of being too lenient in a sentence that had been
imposed in an earlier murder case. He
was excused from service immediately, but the whole panel heard the outburst. The defense counsel moved to discharge the
jury panel, but the prosecution suggested that an instruction to disregard the
outburst and further questioning of the prospective panel of the effect of the
outburst might allow them to still find an impartial jury. The judge denied the defense's motion, but
was open to a new motion at the close of the jury selection. The defense did not renew its motion.
By
not objecting once the complete jury was selected, Walker waived his right to
raise this issue on appeal. See Wright
v. State, 46 Wis.2d 75, 90, 175 N.W.2d 646, 654 (1970). His counsel actively took part in the
questioning of prospective jurors and then did not object to their tainting
once jury selection was completed. Now,
after a lengthy trial, Walker claims that the results of the trial were
prejudiced by this initial outburst.
Once a jury has been impaneled, it is reasonable to conclude that
challenges to the array from which it has been picked are waived. Brown v. State, 58 Wis.2d 158,
171, 205 N.W.2d 566, 573 (1973). In
this situation, the trial court invited objection from the defense counsel at
the end of jury selection if they still felt the jury could not be
impartial. The defense did not
object. This is an issue that should
have been raised in the trial court, and not for the first time on appeal. See Brooks v. Hayes, 133
Wis.2d 228, 241, 395 N.W.2d 167, 172 (1986).
Restriction of Cross-Examination
Walker
argues that the court erred in failing to grant a mistrial because of the
restrictions on the cross-examination of Stacie Neal and other State's
witnesses. The scope of
cross-examination is within the trial court's discretion. State v. Olson, 179 Wis.2d
715, 722, 508 N.W.2d 616, 619 (Ct. App. 1993).
We will not overturn such a decision unless there was an erroneous
exercise of discretion. See Schultz
v. Darlington Mut. Ins. Co., 181 Wis.2d 646, 656, 511 N.W.2d 879, 883
(1994).
At trial,
Neal was permitted to testify concerning key witness Jerry Yarbrough's drug use
on the night in question. The court,
however, refused to allow the codefendants to cross-examine her regarding
Yarbrough's drug use on other occasions:
MR. WARD: Your
Honor, it's relevant for impeachment purposes because Jerry Yarbrough testified
under oath that he was not under the influence of any drugs even though he took
drugs all day, and therefore we should be allowed to go in and test that
through other witnesses who have seen him under the influence on other occasions
and see what this drug--what the drugs do to him and his ability to get around,
to know what he's doing, to function.
THE COURT: And I
said as far as that day Mr. Breitenbach can ask questions, and he--
MR. SFASCIOTTI:
In order to do that, Your Honor, is what we're getting at is someone
familiar with the previous declarant, we should be permitted to ask questions
as to their ability to observe the declarant's demeanor during such times as he
might have taken such substances.
MR. WARD: That's
the foundation that you have to lay down to give a lay opinion witness--or give
a lay opinion.
THE COURT: It's
not relevant.
We
conclude that Walker's trial counsel failed to preserve this issue for
appeal. Robert Sfasciotti, Walker's
trial attorney, did not request an offer of proof and none was given. The substance of Neal's testimony is not
apparent from the context in which the questions were asked; therefore, we
cannot conclude that the trial court erroneously exercised its discretion in
limiting cross-examination on the basis of relevancy. See State v. Echols, 175 Wis.2d 653, 679, 499
N.W.2d 631, 639, cert. denied, 510 U.S. ___, 114 S. Ct. 246 (1993).
We
do not address Walker's general accusations that the court erroneously
restricted the cross-examination of numerous other witnesses for the State
because of his failure to adequately brief these issues. See Vesely, 128 Wis.2d at 255
n.5, 381 N.W.2d at 598.
Jury Instructions
Walker
asserts that the trial court erred in failing to give Wis J I—Criminal 221 in order to “at least minimally repair
the damage that was done by the overzealous introduction of the stabbing and
drive by shooting evidence against LaShonda Mayhall.” Wis J I—Criminal
221 provides:
Evidence has
been received of a statement made by defendant (name). It may be used only in considering whether
defendant (name) is guilty or not guilty. It must not be used or considered in any way against defendant (name
other defendant).
The comment after Wis
J I—Criminal 221 indicates that this instruction applies in situations
where a statement is made by a nontestifying codefendant.
As
long as jury instructions fully and fairly inform the jury of the law
applicable to the particular case, the trial court has discretion in deciding
which instructions will be given. Farrell
v. John Deere Co., 151 Wis.2d 45, 60, 443 N.W.2d 50, 54 (Ct. App.
1989). Whether there are sufficient
facts to allow the giving of an instruction is a question of law which we
review de novo. Id. Additionally, a court errs when it fails to
give an instruction on an issue raised by the evidence. Lutz v. Shelby Mut. Ins. Co.,
70 Wis.2d 743, 750, 235 N.W.2d 426, 431 (1975).
We
reject Walker's argument. LaShonda
testified at trial; therefore, Wis J
I—Criminal 221, which is used in situations involving a nontestifying
codefendant, is inapplicable.
Although
Walker's subheading to this issue in his brief asserts that the trial court
erred in failing to give “Wisconsin Jury Instruction 1017 Or 1018 And The Trial
Court Erred In Giving Wisconsin Jury Instruction 245 Over [Walker's]
Objection,” no argument regarding these instructions appears within this
section in his principal brief. We therefore
do not consider these potential arguments.
See Vesely, 128 Wis.2d at 255 n.5, 381 N.W.2d at 598.
Ineffective Assistance of Counsel
Walker
argues that he was denied effective assistance of counsel because his trial
counsel failed to subpoena and obtain the presence of an expert on ballistic
trajectory and weapons to challenge the State's evidence. By failing to counter the evidence presented
in the videotape of the trajectory of the slugs according to the police
officer's opinion, Walker contends that the demonstrative evidence was not neutralized
and the jury's verdict was “probably inevitable.” Whether trial counsel provides effective assistance is a mixed
question of law and fact. State
v. Pitsch, 124 Wis.2d 628, 633-34, 369 N.W.2d 711, 714-15 (1985). We will not reverse the trial court's
underlying findings of what happened, unless they are clearly erroneous. Id. at 634, 369 N.W.2d at
714. Whether the counsel's performance
was deficient and prejudicial to Walker is a question of law which we review de
novo. Id. at 634, 369
N.W.2d at 715.
The
Supreme Court set forth a two-pronged test in Strickland v. Washington,
466 U.S. 668, 687 (1984), in order to determine whether there was ineffective
assistance of counsel:
First, the defendant must show that counsel's
performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must
show that the deficient performance prejudiced the defense. This requires showing that counsel's errors
were so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable. Unless a defendant
makes both showings, it cannot be said that the conviction or death sentence
resulted from a breakdown in the adversary process that renders the result
unreliable.
The Wisconsin Supreme Court has also developed a line of
cases which addresses the issue of whether trial counsel was ineffective. Trial counsel must act prudently and choose
tactics based upon a knowledge of all of the facts and available law. However, the supreme court has stated that
it “disapproves of postconviction counsel second-guessing the trial counsel's
considered selection of trial tactics or the exercise of a professional
judgment in the face of alternatives that have been weighed by trial
counsel.” State v. Felton,
110 Wis.2d 485, 502, 329 N.W.2d 161, 169 (1983).
Walker's
argument is unpersuasive. The fact that
Walker's trial counsel did not secure an independent ballistics expert to
testify was not deficient. The court
required that in order for the trajectory tape to be admissible, the State had
to produce an expert. Walker's counsel
was able to get in the evidence about the opinion and unscientific nature of
the evidence through cross-examination of this expert. Because we conclude that trial counsel's
performance was not deficient, we do not need to address the prejudice prong of
Strickland.
Denial of Postconviction Motion
Lastly,
Walker argues that his postconviction motion for a new trial should have been
granted because “the combined effect of all the trial errors clearly denied
[him] a fair trial.” Again, Walker's
brief is inadequate. He argues this
issue in a single sentence and cites no authority. We therefore will not consider his argument. See Vesely, 128 Wis.2d at 255
n.5, 381 N.W.2d at 598.
By
the Court.—Judgment and order
affirmed.
Not
recommended for publication in the official reports.