COURT OF APPEALS DECISION DATED AND RELEASED June 6, 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, Stats. |
This opinion is subject to
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No. 94-1992-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
RUBEN F. HERRERA,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: JEFFREY A. WAGNER, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER CURIAM. Ruben Herrera appeals from a judgment of
conviction for first-degree intentional homicide while armed with a dangerous
weapon, party to the crime, following a jury trial. He also appeals from the denial of his postconviction motion to
modify his sentence. Herrera argues
that the trial court erred by admitting hearsay testimony. He also argues that the trial court erred by
failing to articulate the basis for its determination of his date of parole
eligibility. We affirm.
The essential facts are
undisputed. Herrera killed Mandy Clark
when he fired four shots from the car in which he was riding at a parked car in
which Clark was sitting. Three of the
shots struck the car and one of them pierced the car and struck Clark. Herrera admitted that he fired the shots but
denied that he intended to kill anyone.
He claimed that he only intended to scare the occupants. At Herrera's request, the trial court
instructed the jury on the lesser-included offense of first-degree reckless
homicide, but the jury found Herrera guilty of first-degree intentional
homicide.
At the trial, the State
called Anthony Juarez to testify about a conversation between Herrera and
Thomas Redmond at Juarez's home that Juarez previously had told police he had
overheard four days after the shooting.
Juarez testified that he remembered overhearing their conversation about
the shooting from the next room, that he recognized their respective voices and
heard Redmond ask Herrera whether he was scared, that he remembered giving a
statement to the police about what Herrera had said, and that he remembered
speaking with the prosecutor and Milwaukee Police Detective James Cesar just
before testifying. He claimed, however,
that he could not recall Herrera's statement, or even his own conversation with
the prosecutor and Cesar. He also
claimed that the police had told him about the Redmond/Herrera conversation and
that he (Juarez) had been “just filling in the blanks.”
The State then called
Milwaukee Police Detectives James Cesar and Michael Lewandowski. First, Cesar testified that shortly before
Juarez took the stand, Juarez acknowledged hearing Herrera's statement but that
“[h]e couldn't say those things in front of the defendant.” Next, Lewandowski testified that Juarez
previously had told police that, from a separate room in his house, he heard
Redmond ask Herrera whether he was scared and Herrera responded, “fuck the
bitch, she shouldn't have been in the car anyway,” and that “Juice should have
got it and that BoDog was close and he should have got it too,” and that “the
bullet was meant” for one of two men in the car.
Herrera first argues
that Juarez's account of his (Herrera's) alleged statement was inadmissible
hearsay because Juarez overheard Herrera's statement from another room and that
the statement was not to him (Juarez) but to Redmond. We disagree.
A trial court's decision
to admit or exclude hearsay evidence is discretionary and will be upheld absent
an erroneous exercise of discretion. State v. Patino, 177 Wis.2d
348, 362, 502 N.W.2d 601, 606 (Ct. App. 1993).
Herrera's claim that the trial court's ruling deprived him of his right
of confrontation, however, is subject to our independent review. See State v. Turner, 136
Wis.2d 333, 344, 401 N.W.2d 827, 832-833 (1987) (appellate courts independently
apply constitutional principles).
Herrera contends that,
under Patino, for a hearsay statement to be admissible it must be
one uttered in the “presence” of the witness.
Herrera is wrong. Although Patino
refers to an admissible hearsay statement made in the “presence and overheard
by” a witness, id. at 363, 502 N.W.2d at 607, it says nothing to
suggest that a hearsay statement would be inadmissible simply because the
witness overheard the statement from another room or location. Herrera has offered no authority for such a
proposition and nothing logically supports such a principle.
In this case the trial
court admitted the hearsay statement as an “adoptive admission” under §
908.01(4)(b)2, Stats. The trial court was wrong. An “adoptive admission” refers to a
defendant's apparent acceptance of or agreement with the statement made by some
other person. State v. Marshall,
113 Wis.2d 643, 651-652, 335 N.W.2d 612, 616 (1983). In the instant case, however, we are dealing with the defendant's
own statement. Nevertheless, this
statement clearly was admissible under § 908.01(4)(b)1, Stats., providing that a statement by a
party opponent is not hearsay. “If the
trial court's decision is supportable by the record, we will not reverse even
though the [trial] court may have given the wrong reason or no reason at all.” Patino, 177 Wis.2d at 362, 502
N.W.2d at 606.
Herrera also argues that
admission of the evidence “violated his due process right to a fair trial
because the jury was not given a proper foundation to judge the veracity of Mr.
Juarez's testimony as offered in Detective Lewandowski's testimony.” Herrera contends, therefore, “that Due
Process requires a trial court to perform an analysis similar to one done in
Confrontation Clause cases” so that “the trial court could have had some
measure as it related to the reliability of the evidence.” We conclude, however, that “[b]ecause the
statement is properly viewed as [Herrera's] own, there can be no confrontation
clause issue since [Herrera] cannot claim that he was denied the opportunity to
confront himself.” See Patino,
177 Wis.2d at 373, 502 N.W.2d at 611.
As an alternative to a
new trial, Herrera seeks resentencing.
He argues that the trial court failed to articulate the basis for
setting his parole eligibility date of January 1, 2045. He maintains that the trial court “failed to
give proper consideration to all of the sentencing factors” and, instead,
“focused exclusively on the gravity of the offense” and did not consider his
character, his rehabilitative needs, and the public's protection. We disagree.
In reviewing a challenge
to a sentence, it is “presume[d] that the trial court acted reasonably, and the
defendant has the burden to show some unreasonable or unjustifiable basis in
the record for the sentence.” Patino,
177 Wis.2d at 384, 502 N.W.2d at 616. A
sentencing court must consider “the gravity of the offense, the character of
the offender, and the need to protect the public.” Id. at 385, 502 N.W.2d at 616. The weight given to each sentencing factor
is within the trial court's discretion.
Id. Further, a
trial court “must articulate the basis for the sentence imposed on the facts of
the record” to permit meaningful appellate review. State v. Echols, 175 Wis.2d 653, 682, 499 N.W.2d
631, 640, cert. denied, 114 S. Ct. 246 (1993). These same principles apply in reviewing a
trial court's determination of a parole eligibility date for a defendant
convicted of first-degree intentional homicide. State v. Borrell, 167 Wis.2d 749, 774, 482 N.W.2d
883, 892 (1992).
Although the trial court's comments were
somewhat vague and attenuated in some respects, the trial court did address the
required criteria and did articulate the basis for its decision. First, as Herrera concedes, the trial court
emphasized the gravity of the offense.
In doing so, the trial court had the benefit not only of learning the
details of the crime during the trial, but listening to the eloquent and
compelling comments of the victim's grandmother, Ms. Mamie Clark, at the
sentencing hearing.
Next, contrary to
Herrera's assertion, the trial court considered his character. The prosecutor and defense attorney
commented at length on Herrera's background.
The trial court noted positive aspects about Herrera and his family,
based on information in Herrera's sentencing memorandum, presentence report,
and citizen letters on his behalf, as well as negative aspects including
Herrera's association with gangs and guns, and his unwillingness to take
advantage of constructive programs and services. Finally, contrary to Herrera's claim, the trial court considered
the public's protection and emphasized that “there is a message to be sent” to
those who would become involved with guns and gangs:
And
the reason for the punishment is to make sure that other individuals who
perhaps may think of doing something like this may stop for a moment and not
pull the trigger because that will save that person's life and another victim's
life. And that's very important not
only as a specific deterrent to [Herrera] but a general deterrent to others.
Accordingly,
we conclude that the trial court considered the required sentencing/parole
eligibility criteria and sufficiently articulated the basis for its decision.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.