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COURT OF APPEALS DECISION DATED AND RELEASED September 28, 1995 |
NOTICE |
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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, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No.
94-1345-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
LINDELL JOE,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for La Crosse County:
DENNIS G. MONTABON, Judge. Affirmed.
Before Eich, C.J.,
Gartzke, P.J., and Sundby, J.
GARTZKE, P.J. The State charged Lindell Joe with sexual
assault, § 940.225(3), Stats.,
false imprisonment, § 940.30, Stats.,
and battery, § 940.19(1), Stats. A jury found him not guilty on the sexual
assault charge but guilty on false imprisonment and battery.
Joe appeals from the
judgment of conviction. He asserts that
the trial court erred by excluding "other acts" evidence showing the
complainant's motive to fabricate the charges against him. He also asserts that the trial court erred
by excluding tape recorded messages that complainant made which also showed her
motive to fabricate and which could, he claims, only be appreciated after
hearing the tone of her voice and other verbal nuances. We conclude that if the court erred by
excluding the "other acts" evidence, the error was harmless. We further conclude that the court erred in
excluding the taped messages, but that the error was harmless. We therefore affirm.
1. Evidence
It is undisputed that on
July 18, 1994, Joe and the complaining witness, Amy, had sexual intercourse in
his university dormitory room. Other
than that, few facts are undisputed.
Joe claims the intercourse was consensual, and Amy later attacked
him. Amy claims he forced her to have
intercourse and battered and detained her.
The date Joe and Amy
broke off their relationship is critical to the factual version of each and to
the relevance of the evidence. He
contends he terminated their relationship on July 10, a week before the alleged
assault. He contends that her breaking
into his room on that day when another woman, Jody, was with him, and her
telephone messages to him later that day, are evidence of her motive to falsify
the charges against him in retaliation for his having rejected her. She contends that they did not break up
until July 18, the day she claims he committed the charged crimes.
Before the trial, Joe
sought leave to present "other acts evidence" of the July 10 incident
when Amy discovered Joe with Jody and broke into his room. He proposed to introduce that evidence
through his own testimony and that of Jody for the purpose of showing Amy's
motive to "get back at him for his actions prior to the 18th" by
fabricating the criminal charges. The
trial court ruled that the evidence was inadmissible under § 906.08(2), Stats., because specific instances of a
conduct of a witness to attack the witness's credibility may not be proved by
extrinsic evidence,[1] but that Joe
could cross-examine Amy regarding the incident. The court ruled that Amy could be questioned regarding her motive
but such testimony by other witnesses was inadmissible.
During the hearing on
his pretrial motion, Joe also sought leave to put in evidence the tape recorded
messages he claims Amy left on his telephone answering machine in his dormitory
room. He contended that she left the
messages on July 10, "right after" she broke into his room while Jody
was with him, and that the content of the messages disclosed her extreme
distress over the termination of their relationship. The trial court ruled that
the tape itself was inadmissible as extrinsic evidence which could not be used
to attack Amy's credibility under § 906.08(2), Stats., but that she could be cross-examined regarding the
tape.
At trial, Amy testified
that at 2:00 a.m. on July 18, after a night out with her friends, she arrived
at Joe's dormitory and went to his room to end her relationship with him. Her decision upset him. When she walked out of the building, he
followed her, crying and asking her to return to his room. About 2:45 a.m., she did return. They both undressed and laid on the divided
bed in Joe's room, but she wanted no sexual intercourse. He nevertheless had intercourse with her
without her consent. At some point he
slapped her, hit her with his fists, picked her up by her neck, pulled her
hair, and forced her to stay in his room until about 5:00 a.m. Amy denied that on July 10 Joe broke off
their relationship. She admitted that
she became upset about a week earlier when she found Joe in bed with Jody L. She told Jody she "wanted to kick her
ass." She testified that by July
18 she and Joe "had resolved that situation." She believed that incident occurred about
2:00 a.m. on July 10.
Joe testified that on
July 10, he was in bed with Jody when Amy broke into his room, through the
window. That same day he terminated his
relationship with Amy. He testified
without objection that also on July 10 Amy called and left emotional messages
on his answering machine, pleading that he talk to her and spend time with her.
Joe testified that on
July 18 Amy wanted to see him. He did
not want to see her but she came anyway.
He let her into the dormitory and they went to his room where they
argued about Jody. Amy
"stormed" out of his room and left the building. He thought he should check on her. He went to the front lobby and saw Amy standing
and crying outside the door. He told
her to calm down, and they returned to his room where they had
intercourse. They later argued, mostly
about Jody. The telephone rang. When he picked up the telephone she
"attacked" him. They
struggled, he slapped her and he told her to leave. She left, crying. He
denied having detained her.
Joe's counsel recalled
Amy. She admitted that she had called
Joe "plenty of times and left messages" but she denied calling him on
July 10 and between July 10 and July 18.
She said that any messages she left on his answering machine would have
been before July 7.
Jody testified that on
July 10 about mid-day when she was in Joe's room, the light on his answering
machine flashed and she "heard Amy on the telephone and the answering
machine." The court prevented Jody
from testifying to what she heard Amy say.
She also testified that earlier that day, about 4:00 a.m., Amy had
called, Joe had spoken to her, and Jody had heard Amy yelling at him.
The trial court then
rejected Joe's renewed attempt to play the tape for the jury. The court had heard the tape. The court ruled the tape could not be played
to impeach Amy, since it was not a prior inconsistent statement. She had already admitted that she made the
taped statements but claimed she made them at a time different from July 9 or
July 10. The court reasoned that the
issue was when Amy made the taped statements.
Since the tape itself did not disclose the date and time called, it must
be excluded.
Because the issues
involve the trial court's evidentiary rulings, our review is limited to whether
the court erroneously exercised its discretion. See State v. Kuntz, 160 Wis.2d 722, 745, 467
N.W.2d 531, 540 (1991). A trial court
generally properly exercises its discretion when making an evidentiary ruling
when it bases its ruling in accordance with accepted legal standards and the
facts of record. Id.
2. Extrinsic Evidence
The trial court made an
error of law and therefore erroneously exercised its discretion when it ruled
that extrinsic evidence of Amy's conduct on July 10 was inadmissible under
§ 906.08(2), Stats. Section 906.08(2) does not apply. "[E]xtrinsic evidence may be used to
prove that a witness has a motive to testify falsely." State v. Williamson, 84 Wis.2d
370, 383, 267 N.W.2d 337, 343 (1978).
3. Other Acts Evidence
The trial court failed
to undertake the appropriate analysis to determine whether testimony should be
admitted regarding the July 10 incident to show Amy's possible motive to
falsely charge Joe. Section 904.04(2), Stats., controls the admissibility of
other acts evidence. It provides,
Evidence
of other acts, 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.
When other acts evidence
is offered, the trial court should make a three-step analysis. The first is to determine whether the
evidence is relevant. If it is
relevant, the court next determines whether it is admissible under
§ 904.04(2), Stats. If the evidence is admissible under that
rule, the court should determine whether its probative value is substantially
outweighed by the danger of unfair prejudice or confusion of the issues or by
other considerations, as provided in § 904.03, Stats. State v.
Kaster, 148 Wis.2d 789, 795-96, 436 N.W.2d 891, 894 (Ct. App. 1989).
Other acts evidence
probative of a complainant's motive to make a false accusation is
relevant. State v. Johnson,
184 Wis.2d 324, 338, 516 N.W.2d 463, 467 (Ct. App. 1994). Other acts evidence is admissible to show
that the alleged victim had a motive for falsely accusing the defendant. Section 904.04(2), Stats., specifically allows evidence of other acts for the
purpose of establishing motive. While
the prosecutor asserted she was unfairly prejudiced by not having had the
opportunity to have an expert examine the tape for tampering, no other
consideration appears present to justify a finding that the danger of unfair
prejudice outweighed the probative value of the taped messages. We need not, however, pursue this analysis. If error occurred, it was harmless.
Error is harmless if no
reasonable possibility exists that the error contributed to the
conviction. State v. Dyess,
124 Wis.2d 525, 543, 370 N.W.2d 222, 231-32 (1985). Applying that test, we are satisfied that if the court erred, the
error was harmless. The jury heard the
other acts testimony. Joe testified
regarding the July 10 incident. So did
Amy.
Jody, the third person
present at the July 10 incident, was not questioned regarding it, and no offer
was made to prove what she would have testified to. We cannot predicate harm or prejudice on excluded evidence not of
record and not covered by an offer of proof.
Section 901.03(1)(b), Stats.
4. Recorded Messages Ruling
The trial court's
rationale for its ruling that the jury would not hear the recorded messages was
that Amy's credibility could not be attacked by extrinsic evidence of specific
conduct under § 906.08(2), Stats. The tape of Amy's telephone calls is
extrinsic evidence, because it was not obtained by cross-examination of
Amy. State v. Sonnenberg,
117 Wis.2d 159, 168, 344 N.W.2d 95, 99-100 (1984). But Joe offered the tape to show that Amy had a motive to bring
false charges against him. Extrinsic
evidence may be used to prove motive to testify falsely. State v. Williamson, 84 Wis.2d
at 383, 267 N.W.2d at 343. The court
erroneously exercised its discretion in excluding the tape on extrinsic
evidence grounds.
The trial court also
reasoned that the taped messages were inadmissible because the issue was when
Amy made them, not whether she made them, and Joe and Amy disputed whether she
made the statements on July 10. The
tape itself does not disclose the date or the time. It was, however, for the jury to determine whether the recording
occurred on July 10. Like the trial
court, we have listened to the tape. At
least one of the recorded messages discloses that it was made after a
"fight" between Joe and Amy.
The jury could reasonably have inferred from the taped message that it
was, as Joe claimed, made immediately after the July 10 incident.
The decision not to let
the jury hear the tape was harmless error under the Dyess
test. First, as we have said, Joe
testified to its content. Second, the
tone and content of the taped message disclose no vindictiveness, desire for
revenge or even anger.[2] Excluding numerous vulgar interjections, the
tone is sadness and the content is coaxing for a resumed relationship. The interjections are made so routinely as
to indicate they are used for emphasis, like exclamation marks. The tone and content do not tend to
substantiate Joe's claim that the tape is relevant to his claim that Amy was
motivated to falsely accuse him of crimes.
Because the jury's failure to hear the tape could not have contributed
to Joe's convictions, the court's error in excluding it was harmless. State v. Dyess, 124 Wis.2d at
547, 370 N.W.2d at 233.
Our disposition of the
issues regarding the tape makes it unnecessary for us to decide whether, as the
State claims, admission of the tape would have been unfairly prejudicial
because the tape was "surprise" evidence which violated a pretrial order
requiring disclosure of, among other things, recorded statements concerning the
charged offenses.
5. Conclusion
Because whatever errors
the trial court made were harmless, we affirm the judgment of conviction.
By the Court.--Judgment
affirmed.
Not recommended for
publication in the official reports.
[1] Section
906.08(2), Stats., provides
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness's credibility, other than conviction of crimes as provided in s. 906.09, may not be proved by extrinsic evidence. They may, however, subject to s. 972.11(2), if probative of truthfulness or untruthfulness and not remote in time, be inquired into on cross-examination of the witness or on cross-examination of a witness who testifies to his or her character for truthfulness or untruthfulness.