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. 94-1057-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
AARON K. CLAYBROOK,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Kenosha County: BRUCE E. SCHROEDER, Judge.
Affirmed.
Before Anderson, P.J.,
Nettesheim and Snyder, JJ.
PER CURIAM. Aaron K. Claybrook
appeals from a judgment convicting him of first-degree intentional homicide
while using a dangerous weapon as party to the crime, contrary to
§§ 940.01(1) and 939.05, Stats.,
and from an order denying his postconviction motion. 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
Reynaldo's wife, Debbie Ramos, were charged in the crime. Ward and Claybrook were tried and convicted
together; Debbie was tried and convicted separately.[1]
Several of the issues
Claybrook raises on appeal were also raised by Ward in his appeal, State
v. Ward, No. 93-2383-CR, unpublished slip op. (Wis. Ct. App. Nov. 15,
1995). To the extent that Claybrook
raises an issue which we have decided as part of Ward's appeal, we will
incorporate our analysis in Ward.
Claybrook argues that he
was denied a fair trial because gruesome photographs and videotapes were
admitted into evidence. As we held in Ward,
the trial court did not misuse its discretion in admitting this evidence.
Claybrook contends that
he was denied a fair trial because he was shackled at the ankles throughout
trial. As we held in Ward,
the trial court did not erroneously exercise its discretion when it required
the defendants to be shackled at trial.
A few additional
observations are required to dispose of Claybrook's argument. We noted that Ward did not point to any
evidence that the jury saw him shackled.
In contrast, Claybrook's postconviction motion included the affidavit of
trial counsel which stated that the jury had the opportunity to see Claybrook
in shackles and on occasion had a plain view of him in shackles. No evidentiary hearing was held on this
motion.
A record relating to the
jury's ability to view a defendant in shackles should be made before or during
trial, not after trial, so that the trial court has an opportunity to assess the
situation and determine what steps need to be taken to restrict the jury's view
of the shackles. Cf. State
v. Grinder, 190 Wis.2d 541, 551, 527 N.W.2d 326, 329 (1995). For this reason, we will not consider trial
counsel's affidavit.
Claybrook argues that
the trial court should have drawn the jury from another county due to pretrial
publicity. We rejected this argument in
Ward and do so here for the same reasons.
Claybrook contends that
he was prejudiced by being tried jointly with Ward, particularly in light of
evidence that Ward and Debbie were romantically involved. Claybrook contends that this evidence
applied only to Ward, was unduly prejudicial to him and would have been
inadmissible had he been tried separately.
As to the latter point, we disagree.
The relationship between Ward and Debbie was a fact which was necessary
to the State's theory of why the murder occurred and to place the murder in
context. Therefore, evidence of the
Ward-Ramos relationship would have been admissible had Claybrook been tried
separately. Claybrook's argument does
not persuade us that severance was warranted.
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) (severance is warranted when a line of evidence is
relevant and admissible as to only one defendant).
Claybrook challenges the
trial court's evidentiary rulings regarding Sherney Johnson, LaShonda Mayhall
and Anthony Parker. We rejected similar
challenges in Ward. In
addition to our analysis in Ward, we note that Claybrook did not
object to this testimony on confrontation grounds. A confrontation objection must be made with sufficient
particularity or it is waived. State
v. Gove, 148 Wis.2d 936, 940-41, 437 N.W.2d 218, 220 (1989).
Claybrook challenges an
evidentiary ruling regarding James Ward.
The trial court permitted James, Robert Ward's brother, to testify that
one day before the murder, he heard Debbie say to Claybrook that she wished she
could find someone to "bump her husband off." Claybrook argues that the admission of this
evidence violated his confrontation right.
We disagree.
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).
The trial court admitted
the statement as a statement by a coconspirator under § 908.01(4)(b)5, Stats.
To be admissible under this section, the co-conspirator's statement must
be made "during the course of and in furtherance of the
conspiracy." Id. "A defendant's right to confrontation
is not violated by admission of a co-conspirator's statement that passes muster
under Rule 908.01(4)(b)5, Stats." State
v. Whitaker, 167 Wis.2d 247, 264 n.10, 481 N.W.2d 649, 656 (Ct. App.
1992).[2]
Claybrook does not
persuasively argue that the trial court erroneously admitted Debbie's statement
through James's testimony. The trial
court found that a conspiracy was suggested by the evidence. Claybrook does not suggest this finding is
unsupported by the record.
Claybrook argues that
the trial court erred when it required him to appear before the jury wearing a
pair of cut-off blue jean shorts and a pair of Fila tennis shoes allegedly worn
by one of Reynaldo's assailants because the demonstration prejudicially
undermined the presumption of innocence.[3] The trial court ruled that the jury should
have an opportunity to observe Claybrook in the shorts and shoes to see if they
fit. While Claybrook's counsel questioned
the probative value of the demonstration, he focused his comments on the
logistics of the demonstration.
As an initial matter, we
conclude that this appellate argument is waived because Claybrook did not
object to the demonstration at trial. See
State v. Copening, 103 Wis.2d 564, 571, 309 N.W.2d 850, 853 (Ct.
App. 1981). Even if the issue were not
waived, we would conclude that the trial court properly exercised its
discretion in permitting this relevant presentation to the jury. See State v. Lindh, 161
Wis.2d 324, 348, 468 N.W.2d 168, 176 (1991) (the admission of evidence is
within the trial court's discretion).
There was testimony that Claybrook wore the shoes and shorts on the
night of the murder and that they were bloody when found. Claybrook's appearance before the jury in
the shoes and the shorts was probative on the question of whether they fit
him. We see no unfair prejudice because
the demonstration did not have "a tendency to influence the outcome [of
Claybrook's trial] by improper means." See State v. Mordica, 168 Wis.2d 593, 605,
484 N.W.2d 352, 357 (Ct. App. 1992).
Claybrook argues that he
did not personally waive his right to testify.
In so arguing, Claybrook claims that State v. Albright, 96
Wis.2d 122, 291 N.W.2d 487, cert. denied, 449 U.S. 957 (1980), should be
abandoned. The Albright
court recognized that while a defendant has a due process right to testify at
trial, that right does not fall within a category of fundamental rights
"which can only be waived in open court on the record by the
defendant." Id. at
130, 291 N.W.2d at 490-91. Although
Claybrook argues that Albright should no longer control, we
recently stated that Albright still governs in this area.
In State v. Wilson,
179 Wis.2d 660, 508 N.W.2d 44 (Ct. App. 1993), cert. denied, 513 U.S.
___, 115 S. Ct. 100 (1994), we refused to require trial courts "to
undertake an on-the-record colloquy with the defendant at the close of the
defense's case-in-chief concerning his or her right to testify." Id. at 672 n.3, 508 N.W.2d at
48; see also State v. Simpson, 185 Wis.2d 772, 779, 519
N.W.2d 662, 664 (Ct. App. 1994).
Under Albright,
"in the absence of the express disapproval of the defendant on the record
during the pretrial or trial proceedings, [counsel] may waive the defendant's
right to testify." Albright,
96 Wis.2d at 133, 291 N.W.2d at 492.
The record must reveal a knowing and voluntary waiver of the defendant's
right to testify. Wilson,
179 Wis.2d at 671-72, 508 N.W.2d at 48.
These requirements are met here.
After codefendant Ward
rested his case, the trial court asked Claybrook's counsel whether he had any
other evidence to present. He replied
he did not. Claybrook did not indicate
any objection or disagreement with counsel's statement. Claybrook's silence "is presumptive
evidence of a valid waiver, by his counsel, of his right to testify." See id. at 673, 508
N.W.2d at 49.
Claybrook argues that
the trial court erroneously circumscribed his cross-examination of a state
crime lab technician, Elaine Canales-Wilson, regarding fingernail
scrapings. Canales-Wilson testified
that fingernail scrapings were collected from the victim, but she did not
examine them. Counsel asked: "What can be found from fingernail
scrapings or samples?" The State
objected on relevancy grounds and because the answer required speculation. Claybrook's counsel argued that an answer to
the question would be relevant to show why the scrapings were not
analyzed. The trial court stated that
Claybrook could have pursued his own analysis of the fingernail scrapings with
the crime lab. After sustaining the
State's objection, the trial court instructed the jury at the State's request
"that both the Constitution and the Law provides that both the State and
the defense have identical rights to have evidence examined."
We conclude that the
trial court misused its discretion in precluding cross-examination with regard
to fingernail scrapings. See State
v. Echols, 175 Wis.2d 653, 677, 499 N.W.2d 631, 638, cert. denied,
510 U.S. ___, 114 S. Ct. 246 (1993).
Cross-examination may be limited by considerations of relevance and
materiality. Id. at 679,
499 N.W.2d at 639. Here, the trial
court erroneously limited Claybrook's cross-examination on a relevant matter,
that is, whether the murder investigation took into account all of the physical
evidence and what information can be gleaned from different kinds of evidence. Furthermore, counsel's inquiry regarding the
information to be gleaned from fingernail scrapings did not require the
technician to speculate. Rather, she
could have testified regarding the type of findings usually made from
fingernail scrapings, even though such findings were not made in this
case.
We also conclude that
the trial court misused its discretion in instructing the jury because the
instruction impermissibly suggested that Claybrook had the burden to have the
evidence examined to prove his innocence.
See State v. McCoy, 139 Wis.2d 291, 297, 407 N.W.2d
319, 322 (Ct. App. 1987), aff'd, 143 Wis.2d 274, 421 N.W.2d 107
(1988). The test for a jury instruction
is whether the overall meaning communicated by the instruction was a correct statement
of the law. See Betchkal v.
Willis, 127 Wis.2d 177, 188, 378 N.W.2d 684, 689 (1985). Here, the trial court's instruction
impermissibly shifted the burden of proof.[4]
Although we conclude
that the trial court erroneously precluded Claybrook from cross-examining the
state crime lab technician regarding fingernail scrapings and erroneously left
the jury with the impression that it was Claybrook's burden to prove his
innocence by having the physical evidence examined, we conclude that the errors
are harmless. An error is harmless if
there is no "reasonable possibility that the error contributed to the
conviction." State v. Dyess,
124 Wis.2d 525, 543, 370 N.W.2d 222, 231-32 (1985). The State has to meet this burden, id., at 543, 370
N.W.2d at 232, and we look to the totality of the record to determine whether
it is reasonably possible that the errors contributed to the conviction. See id. at 547, 370
N.W.2d at 233.
James testified that on
the evening of the murder, Claybrook told him that at midnight he would be
starting a new life because he was taking somebody out. James identified a pair of Fila shoes as
those worn by Claybrook that night.
James also stated that Claybrook was wearing a pair of blue jean shorts
that night. The next day, James
noticed that Claybrook had a black eye.
Earnest Ward testified that on the night of the murder, Claybrook told
him that at midnight he was going to Kenosha to kill someone. He also testified that Claybrook was wearing
shorts and Fila shoes. The next day,
Claybrook was not wearing the Fila shoes and had a black eye. A son of Debbie's testified that on the day
of the murder, he was in a car with his mother, Robert Ward and Claybrook, and
Claybrook stated he was going to kill someone that night.
A police detective
testified that he found the blood-covered Fila shoes in Debbie's car. Other police officers testified that they
found a bag with bloody blue jean material in it outside Janice Claybrook's
apartment.
A state crime lab
technician testified that the blood on the Fila shoes and the shorts was
consistent with Reynaldo's and not consistent with the blood of either Debbie,
Robert Ward or Claybrook. Another
expert testified that it was his opinion that impressions found at the crime
scene were made by the Fila shoes or shoes of the same size and tread
characteristics.
The totality of the
record indicates that the State presented sufficient evidence that Claybrook
was involved in Reynaldo's murder. The
shoes and shorts Claybrook was wearing on the night of the murder were found
with blood on them which was consistent with the victim's. The impressions of shoes like the ones he
owned were consistent with those found in the room where the murder
occurred. Finally, Claybrook told
several people on the night of the murder that he was going to kill someone
later that night and he had an injury the next day which was consistent with a
struggle. Based upon this evidence, we
conclude that there is no reasonable possibility that the trial court's
missteps regarding the fingernail scrapings contributed to Claybrook's
conviction.
Having found no
reversible error, we reject Claybrook's request for a new trial.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.