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COURT OF APPEALS DECISION DATED AND RELEASED August 16, 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(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. 94-2440-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
ARMANDO M. TIA,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Kenosha County:
BRUCE E. SCHROEDER, Judge. Affirmed.
Before Anderson, P.J.,
Brown and Nettesheim, JJ.
PER
CURIAM. Armando M. Tia appeals from a judgment
convicting him of second-degree recklessly endangering safety while using a
weapon contrary to §§ 941.30(2) and 939.63, Stats., and possession of a firearm as a felon contrary to
§ 941.29(1)(b), Stats. We affirm.
The criminal complaint
alleged that on June 14, 1992, Tia and his girlfriend, Pearl Levine, were
involved in a confrontation with Mark Levine, Pearl's cousin. Tia pulled a handgun from the waistband of
his pants and said "I'm going to shoot you, I'm going to shoot you"
to Mark. Tia then pursued Mark, pointing
the handgun at him. When he reached
Mark, Tia swung the handgun at his head and struck him in the neck area. At that point, the handgun discharged into
the ceiling. Tia and Pearl fled. Police located an expended nine-millimeter
cartridge in the apartment where the confrontation occurred.
Prior to trial, the
State moved the trial court in limine to admit a recording of a telephone call
made by Pearl (Levine) Tia[1]
to a 911 dispatcher on November 11, 1993, during an altercation. Pearl told the dispatcher that Tia had a
nine-millimeter handgun which he kept loaded.
Being aware that the defense would claim that Mark, not Tia, fired the
nine-millimeter handgun in June 1992, the State argued that possession of the
handgun would be at issue and the November 1993 911 call tended to establish
that Tia had such a handgun in June 1992.
The State advised that Pearl was in Texas and unavailable to testify,
but argued that her statement to the 911 dispatcher was an excited utterance
and therefore admissible as an exception to hearsay under § 908.03(2), Stats.
Tia objected to the
evidence on several grounds. First, the
charged crimes and the 911 telephone call occurred approximately seventeen
months apart. Second, Pearl's statement
was not sufficiently credible and should not constitute an excited
utterance. Finally, the tape was highly
prejudicial, particularly since a search of Tia's residence nine days after the
911 call did not yield a weapon. The
trial court withheld a ruling on the pretrial motion.
At trial, Detective
Thomas Blaziewske testified on cross-examination by Tia's counsel that the
November 1993 search of Tia's residence did not locate a nine-millimeter
handgun.[2] In response, the State sought permission to
play the tape of Pearl's 911 telephone call.
Tia objected on confrontation grounds.
The trial court found that by inquiring regarding the November 1993
search of his residence, Tia opened the door on the question of handgun
possession. The trial court listened to
the tape and found that Pearl was "agitated, upset and
concerned." The trial court
concluded that her demeanor supported its determination that she made an
excited utterance.
After admitting the tape
into evidence, the trial court granted Tia's request for a cautionary
instruction advising the jury that the tape was being introduced to demonstrate
whether Tia had a nine-millimeter handgun in November 1993 and that he was not
on trial for any matters relating to the November 1993 altercation. The parties then stipulated to playing the
series of 911 telephone calls from that date, starting with a call from Tia,
followed by a call from Pearl and a final call from Tia.
Whether to admit
evidence is within the trial court's discretion and we will uphold the trial
court's determination if it is supportable by the record. State v Patino, 177 Wis.2d
348, 362, 502 N.W.2d 601, 606 (Ct. App. 1993).
The first inquiry is whether the evidence fits within a recognized
hearsay exception. If it does, the
implications for the confrontation clause must be considered. State v. Bauer, 109 Wis.2d
204, 215, 325 N.W.2d 857, 863 (1982).
The trial court
correctly concluded that the statement Pearl made to the 911 dispatcher
constituted an excited utterance under § 908.03(2), Stats.[3] This exception to the hearsay rule "is
based in the spontaneity of the statements and the stress of the incident which
endow the statements with the requisite trustworthiness necessary to overcome
the general rule against admitting hearsay evidence." State v. Moats, 156 Wis.2d 74,
97, 457 N.W.2d 299, 309 (1990). Excited
utterances are not excluded as hearsay, regardless of the availability of the
maker of the statement, if the statement relates "to a startling event or
condition made while the declarant was under the stress of excitement caused by
the event or condition." Section
908.03(2).
Tia claims that his
right of confrontation was violated because Pearl's unavailability to testify
at trial was never established by the State or inquired into by the trial
court. The premise of Tia's argument is
flawed. In White v. Illinois,
502 U.S. 346 (1992), the Supreme Court held that "where proffered hearsay
has sufficient guarantees of reliability to come within a firmly rooted
exception to the hearsay rule, the Confrontation Clause is satisfied." Id. at 356. The excited utterance exception to the
hearsay rule, § 908.03(2), Stats.,
has been held to be firmly rooted for confrontation purposes. Patino, 177 Wis.2d at 373-74,
502 N.W.2d at 611. Because Pearl's
statements to the 911 dispatcher fall within a firmly rooted exception to the
hearsay rule, the trial court need not have inquired and the State need not
have shown that she was unavailable to testify at trial. See White, 502 U.S. at
357.
In his reply brief, Tia
argues that unusual circumstances warranted exclusion of the 911 tape. See State v. Hickman,
182 Wis.2d 318, 328-29, 513 N.W.2d 657, 662 (Ct. App. 1994). In particular, he claims that he did not
have an opportunity to challenge the reliability of Pearl's statements. However, Tia offers no facts suggesting that
Pearl was incapable of making the statement to the 911 dispatcher or that there
is some other reason her statement is suspect.
A firmly rooted hearsay exception is deemed to have sufficient guarantees
of reliability and "adversarial testing can be expected to add little to
its reliability." White,
502 U.S. at 357. Tia has not shown the
existence of an unusual circumstance which would have warranted exclusion of
the 911 tape.
Tia also argues that the
tape was too remote to have probative value and the trial court erroneously
balanced the tape's probative value against its prejudicial effect. The tape was probative. Tia denies he possessed a handgun on June
14, 1992, and the 911 tape counters that defense. It was for the jury to decide whether Tia had a nine-millimeter
handgun in November 1993 and, if so, whether this made it more likely that he
had a nine-millimeter handgun in June 1992.
Section 904.03, Stats., requires the trial court to
consider whether relevant evidence is unfairly prejudicial. State v. Mordica, 168 Wis.2d
593, 605, 484 N.W.2d 352, 357 (Ct. App. 1992).
Unfair prejudice cannot be equated with unfavorable evidence. Id. "Rather, unfair prejudice results where the proffered
evidence, if introduced, would have a tendency to influence the outcome by
improper means ...." Id.
We discern no unfair
prejudice to Tia. The jury was
cautioned that it could consider the tape only on the issue of Tia's possession
of a nine-millimeter handgun and that the tape was not evidence of Tia's
character upon which it could base a guilty verdict. We presume the jury followed the court's instruction. State v. Grande, 169 Wis.2d
422, 436, 485 N.W.2d 282, 286 (Ct. App. 1992).
Additionally, the trial court admitted Tia's contemporaneous 911 calls
in which he denied having a gun.[4] This ameliorated any unfair prejudice.
Finally, the evidence
was not too remote. "Evidence is
irrelevant on remoteness grounds if `the elapsed time is so great as to
negative all rational or logical connection between the fact sought to be
proved and the remote evidence offered in proof thereof.'" State v. Oberlander, 149
Wis.2d 132, 143, 438 N.W.2d 580, 584 (1989) (quoted source omitted). The passage of seventeen months between the
time of the charged offenses, when Tia allegedly brandished a nine-millimeter
handgun, and Pearl's November 1993 911 call reporting that Tia had a
nine-millimeter handgun, is not so long as to sever all rational or logical
connection between the allegations.
We discern no misuse of
the trial court's discretion in admitting the 911 tape into evidence. The Confrontation Clause was satisfied, and
the trial court properly balanced the probative value of the tape against the
danger of unfair prejudice.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Pearl Levine and Tia were married after the June 1992 incident charged in the criminal complaint.
[2] The search was not conducted before November 1993 because the detective did not know where Tia could be found between June 1992 and November 1993.