|
COURT OF APPEALS DECISION DATED AND RELEASED July 26, 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. |
Nos. 94-1844-CR
94-2506-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DAVID L. KONS,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Winnebago County: BRUCE SCHMIDT, Judge. Affirmed.
Before Anderson, P.J.,
Nettesheim and Snyder, JJ.
PER
CURIAM. David L. Kons appeals from a judgment of
conviction of seven counts of delivery of a controlled substance and four
counts of failure to purchase tax stamps.
He also appeals from an order denying his motion for postconviction
relief. He argues that the jury was
improperly exposed to inadmissible evidence when video testimony was presented,
that audio tapes were improperly admitted into evidence and that the trial
court interfered with his right to substitute counsel.[1] We review Kons' arguments in the context of
whether the trial court properly denied a new trial in the interest of
justice. We conclude that there were no
errors supporting a new trial and affirm the judgment and the order.
Kons was convicted for
making sales of cocaine, either directly or as a party to a crime, to police
informants. The controlled buys were
contemporaneously monitored and recorded on audio tapes by virtue of a "body
wire" worn by the informants.
The case went to trial
on June 29, 1993. At the pretrial
conference held June 22, 1993, Kons raised the possibility of retaining
substitute trial counsel. In fact,
substitute counsel appeared and indicated his willingness to represent Kons if
the trial court granted a continuance to give substitute counsel time to
prepare for trial. The trial court
refused to adjourn the trial date.
On June 24, 1993,
testimony by three state crime lab experts was videotaped. At the start of that proceeding, there was
discussion about whether a substitution of counsel would be made. Trial counsel indicated that the
substitution would not occur. Trial
counsel also requested that the trial court require Kons to pay additional fees
incurred by counsel and some discussion was had on that point. In an effort to produce a video of the
testimony which would not require editing or interruption as it played to the
jury, there was discussion about potential objections to the experts'
testimony. The proposed testimony of
Leonard Hoehne was mentioned as a source of other acts evidence.[2] The parties agreed to avoid reference to the
other acts evidence and stipulated that the two exhibits regarding that
evidence would be admissible if the trial court ruled the other acts evidence
admissible.
Day three of the trial
transcript includes the entire text of the June 24 hearing. Kons submits that the entire video was
played for the jury, including the nontestimonial portions. Kons argues that the jury's exposure to the
unedited video subverts the fairness of his trial because the jury heard
discussion about other acts evidence which ultimately was not admitted by the
trial court.
We first note that no
specific objection was made at trial to the manner in which the video testimony
was shown to the jury. Also, Kons
concedes that his appellate challenges to the admissibility of the audio
tapes—that the trial court did not personally listen to the tapes prior to
ruling on their admissibility, that the trial court failed to rule on whether
the tapes should be excluded because of their highly prejudicial nature, and
that the tapes are of poor quality and not self-authenticating— were not raised
before the trial court. These claims
are deemed waived. See State
v. Salter, 118 Wis.2d 67, 79, 346 N.W.2d 318, 324 (Ct. App. 1984) (we
properly decline to review an issue on appeal when the appellant has failed to
give the trial court fair notice that it is raising a particular issue and
seeks a particular ruling). Therefore,
we review these claims under Kons' argument that he was entitled to a new trial
in the interest of justice.
We review a trial
court's order denying a postconviction motion for a new trial in the interest
of justice for an erroneous exercise of discretion. See State v. Harp, 150 Wis.2d 861, 873, 443
N.W.2d 38, 43 (Ct. App. 1989) (Harp I), overruled on other
grounds by State v. Camacho, 176 Wis.2d 860, 501 N.W.2d
(1993). Discretion is properly
exercised when the trial court employs a logical rationale based on appropriate
legal principles and facts of record. Id.
Where a defendant has
waived the right to review by failing to make a proper objection, the trial
court's authority to grant a new trial is comparable to our authority to grant
discretionary reversal under § 752.35, Stats. State v. Harp, 161 Wis.2d 773,
776, 469 N.W.2d 210, 211 (Ct. App. 1991) (Harp II). Thus, the trial court may grant a new trial
where the real controversy has not been fully tried or it is probable that
justice has for any reason miscarried.
A claim that the jury had before it testimony or evidence which had been
improperly admitted and that this material obscured a crucial issue tends to
fall under the "real controversy not fully tried" category. See State v. Schumacher,
144 Wis.2d 388, 400, 424 N.W.2d 672, 676 (1988). The trial court need not find a substantial likelihood of a
different result on retrial when it orders a new trial on the ground that the
real controversy was not fully tried. Harp
II, 161 Wis.2d at 775, 469 N.W.2d at 211. However, in order to reverse under the miscarriage of justice
category, the trial court must conclude that there would be a substantial
probability that a different result would be likely on retrial. Schumacher, 144 Wis.2d at
400-01, 424 N.W.2d at 676-77.
Having established the
applicable standard of review, we revisit Kons' claim that a new trial is
warranted because the nontestimonial portions of the June 24 video testimony
was not edited out when the video was played to the jury. The trial court found that the
nontestimonial portions were not played to the jury. Kons does not contend that the trial court's finding is clearly
erroneous. Section 805.17(2), Stats.
He submits that because the trial transcript contains the nontestimonial
portion of the hearing, it is obvious that the jury heard those
discussions. He argues that there was
no offer of proof to the contrary at the postconviction hearing. However, at the postconviction hearing there
was no challenge to the prosecution's assertion that only the testimonial
portion of the video was shown to the jury.
The trial court also noted that it would be highly unusual for the
discussion of counsel to have been shown to the jury. We note that the trial court was acutely aware that the jury was
not to hear extraneous matter and took precautions to that effect at the
June 24 proceeding. The trial
court's finding is not clearly erroneous and we need not address the issue
further. No prejudicial portions of the
video were displayed to the jury and there is no risk that the real controversy
was not tried.
Kons argues that a new
trial is warranted by the trial court's admission of the audio tapes of the
drug buys. He claims that the trial
court was obligated to conduct an in camera review of the audio tapes before ruling
on their admissibility and that its failure to do so resulted in the failure to
discover the poor quality of the tapes and the fact that they were not
self-authenticating with respect to the date, identity of voices and nature of
events recorded. He contends that the
trial court failed to consider whether the probative value of the tapes was
substantially outweighed by prejudice.
Although Wilson v.
State, 59 Wis.2d 269, 289, 208 N.W.2d 134, 145 (1973), holds that
"[a]s a matter of authentication, laying the foundation, and determining
relevancy, the court should always listen to the tapes to determine their
admissibility," that holding is limited to situations where a relevancy
objection is made. Before trial, Kons
objected to admission of the tapes during the prosecution's case-in-chief
because the requirements of § 968.30, Stats.,
requiring court authorization, had not been complied with. Kons concedes that the one party consent
tapes were admissible under § 968.29(3)(b), Stats. During trial,
Kons objected to admission of certain tapes for lack of adequate
foundation. The trial court found that
a sufficient foundation had been laid and Kons does not challenge that finding
on appeal. Thus, there was never a
relevancy objection to the tapes which might have required the trial court to
listen to the tapes before ruling on their admissibility.
Further, the trial court
was not obligated to review the tapes where it was not requested to do so. The same is true with respect to Kons'
contention that the trial court was required to determine if the prejudicial
effect of the tapes outweighed their probative value. Kons did not make an objection on that ground.
The quality of the tapes
goes to the weight of the evidence rather than their admissibility. Although Kons submits that the tapes are
inaudible in some parts, the appellate record does not support that
conclusion. There was no mention at
trial regarding inaudible portions. The
tapes are not part of the appellate record and Kons' claim of error fails. See State v. Smith, 55
Wis.2d 451, 459, 198 N.W.2d 588, 593 (1972) (it is the appellant's duty to see
that evidence material to the appeal is in the record).
In short, any claim of
error with respect to the admission of the audio tapes is without merit. The tapes were authenticated through the
testimony of witnesses. Nothing
prevented Kons from making a transcript of the tapes even though the trial
court chose not to have the tapes transcribed as they were played at trial. Admission of the tapes does not provide any
grounds to believe that justice has miscarried such that a new trial is
warranted.
Finally, we address
Kons' claim that the trial court interfered with his right to have counsel of
his choice. He contends that under State
v. Lomax, 146 Wis.2d 356, 361, 432 N.W.2d 89, 91 (1988), and State
v. Kazee, 146 Wis.2d 366, 371, 432 N.W.2d 93, 95 (1988), the trial
court was required to inquire of Kons the reasons for wanting substitute
counsel. We reject the notion that
because Kons sought to retain a different attorney, the trial court was
required to explore Kons' reasons. This
was not an instance like Lomax or Kazee where the
defendant expressed complaints about trial counsel and requested that trial
counsel be discharged. There was no
suggestion by Kons that his attorney was unable or unwilling to proceed or that
the attorney-client relationship had broken down. Here, Kons simply preferred to retain a new attorney and make a
substitution of counsel. The new
attorney would take Kons' case only if a continuance was available. The trial court did not deny Kons the right
to substitute counsel; in fact, it indicated that it would allow substitute
counsel. The trial court denied the
informal request for a continuance.
The granting or denial
of a continuance is within the discretion of the trial court. Phifer v. State, 64 Wis.2d 24,
30, 218 N.W.2d 354, 357 (1974). Where a
request for a continuance is associated with a request for the substitution of
trial counsel, the trial court should balance the following factors: the length
of delay requested; whether there is competent counsel presently available to
try the case; whether other continuances had been requested and received by the
defendant; the convenience or inconvenience to the parties, witnesses and the
court; whether the delay seems to be for legitimate or dilatory purposes; and
other relevant factors. Id.
at 31-32, 218 N.W.2d at 358. Kons does
not argue that the trial court erroneously exercised its discretion in light of
these factors.
At the pretrial conference
at which the continuance was requested, the trial court stated that the trial
was only one week away and that it would be difficult for the court to schedule
a new trial date. It also noted that
arrangements had been made for the taking of the video testimony of the
experts. Later the court considered the
fact that Kons' attorney was prepared to proceed. Supporting the trial court's decision is the fact that Kons did
not refuse to go forward with his presently retained attorney and he did not
appear to question that attorney's professional skills. See Phifer, 64 Wis.2d
at 32, 218 N.W.2d at 358. We conclude
that the trial court properly exercised its discretion in denying the
continuance.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Kons also argues that he was denied his right to the effective assistance of counsel. By an order of December 21, 1994, that portion of his brief arguing ineffective counsel was struck because trial counsel did not testify at the postconviction motion hearing. A prerequisite to appellate consideration of a claim of ineffective assistance of trial counsel is the preservation of the testimony of trial counsel. State v. Machner, 92 Wis.2d 797, 803-04, 285 N.W.2d 905, 908 (Ct. App. 1979). Therefore, we do not consider any arguments that fall under a claim of ineffective assistance of counsel.