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COURT OF APPEALS DECISION DATED AND RELEASED November
22, 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. 94-2498-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
CHARLES
A. BELL,
Defendant-Appellant.
APPEAL
from a judgment and an order of the circuit court for Rock County: J. R. LONG, Judge. Affirmed.
Before
Eich, C.J., Sundby and Vergeront, JJ.
VERGERONT,
J. Charles Bell was convicted of
delivery of cocaine within one thousand feet of a school;[1]
possession of cocaine with intent to deliver within one thousand feet of a
school;[2]
possession of tetrahydrocannabinols (THC) with intent to deliver within one
thousand feet of a school;[3]
and felony bailjumping.[4] The trial court sentenced Bell to five years
on each of the cocaine convictions, to be served consecutively, and three years
on the THC conviction, to be served concurrently with the first two
sentences. The court withheld sentence
on the bailjumping conviction and placed Bell on five years' probation consecutive
to any other sentence.
Bell
contends that he is entitled to a new trial because he was denied effective
assistance of counsel and because the trial court impermissibly limited
cross-examination of a witness in violation of his state and federal constitutional
rights to confrontation. He also
contends that punishment for the felony bailjumping charge constitutes double
jeopardy. Finally, he challenges his
sentence as excessive. We reject each
of these arguments and affirm.
BACKGROUND
The incident giving rise
to the drug charges occurred while Bell was released on a recognizance bond
after being charged with child abuse in violation of § 948.03(2)(b), Stats.[5] The drug charges and the bailjumping charge
were tried together.
Valerie
Herron was a witness for the State. She
testified that she was a dancer at a tavern where Bell was a customer one
afternoon. She did not remember having
seen him before. Bell asked her if she
did "cola" and she said she did not.
Bell put a dollar in the front of her costume and then later put a
rolled-up dollar in the back of her costume, telling her there was a surprise
for her in it. That was the only dollar
in the back of her costume. When she
returned to her dressing room she found, in the dollar stuck in the back of her
costume, a corner of a baggie with "white powdery stuff" in it. She gave the baggie to the manager, who gave
it to the owner.
The
owner gave the baggie to Greg Groves, a Town of Beloit fireman who was at the
tavern. Groves telephoned Town of
Beloit policeman Willis Abbeglen, who came to the tavern with another officer,
James Driscoll.
Driscoll
testified that after he and Abbeglen arrived at the tavern and Groves gave him
the baggie, he and Abbeglen asked Bell to step outside with them. Both Driscoll and Abbeglen testified that
Bell's right hand was clenched and they saw a plastic baggie sticking out from
Bell's right hand fingertips. Driscoll
testified that he asked what was in Bell's hand and Bell replied that it was
money. Driscoll asked to see it and
when Bell did not respond, a struggle ensued.
Both Driscoll and Abbeglen testified that during the struggle Bell put
his right hand under a table. Abbeglen
testified that as he grabbed Bell's arm, Bell gave a forward jerking motion
with his arm. When Abbeglen pulled
Bell's arm out from under the table and examined his right hand, he did not see
anything in his hand.
Driscoll
testified that he and Abbeglen then handcuffed Bell. As they were doing so, they saw a patron pick up a baggie from
the floor under the table and place it on the table. The baggie contained five smaller bags with white powder and five
more bags with a green leafy substance.
The owner testified that he also saw a patron retrieve a package of
white powder and put it on the table.
Driscoll
testified that later that evening jail personnel recovered a thumb scale and
$605 from Bell.
Driscoll
and Detective Orville Kreitzmann, Jr., with the Special Operations Bureau on
Drug Trafficking in the City of Beloit, both testified that scales of the type
retrieved from Bell are used to weigh amounts of drugs quickly.
Guang
Zhang of the Wisconsin State Crime Lab testified that the package of white
powder contained cocaine. Five of the
baggies retrieved by the patron from under the table contained cocaine; and the
five baggies of leafy green substance, similarly identified by Driscoll,
contained THC, the substance in marijuana.
Bell
testified in his defense. He disputed
the accounts of Herron, the owner, Driscoll and Abbeglen. According to Bell, he did not put any
cocaine in the dollar bill that he put in Herron's costume and did not bring
any cocaine or marijuana to the tavern that evening. He testified that he knew Herron and was having a sexual
relationship with her, and she might have set him up because her boyfriend was
upset over Bell's relationship with her.
He explained the thumb scale as follows:
This thing--this
thing right here is something that I have a mailman that--I have a friend
that's a mailman, and this right here was broke. He gave it to me, and Officer Kreitzmann, I believe that's his
name, he fixed it up to some kind of deal for it to be a scale or some sort--I
had this originally on my key ring you know.
Defense
counsel, in cross-examination and argument, focused on the number of persons
who had handled the baggie that Herron testified she found, other
chain-of-evidence issues, the lack of fingerprints tying Bell to any of the
baggies, the circumstantial nature of the evidence against him, and the
sufficiency of the evidence of intent to deliver rather than simply
possession.
The
jury found Bell guilty on all four counts.
Bell was sentenced to five years in prison on each of the two cocaine
convictions to be served consecutively.
On the THC charge, he was sentenced to three years to be served
concurrently with count two but consecutively to count one. Sentence was withheld on the felony
bailjumping conviction and Bell was placed on probation for five years,
consecutive to counts one and two.
Bell
moved for a new trial on the grounds that trial counsel was deficient for
failing to move to sever the felony bailjumping charge and failing to request a
cautionary instruction that the evidence on the bailjumping charge should not
be used to determine guilt on the drug charges. He also asserted that his Sixth Amendment right to confrontation
of witnesses was violated by the trial court's limitation of his counsel's
cross-examination of Driscoll. Bell's
motion also requested that the judgment of conviction on the bailjumping charge
be vacated on double jeopardy grounds.
After
an evidentiary hearing, the trial court denied Bell's motion. It concluded that no prejudice resulted from
trial counsel's failure to seek a severance and request a cautionary
instruction. It also concluded that
trial counsel had ample opportunity to cross-examine Driscoll, and that Bell
was not subject to double jeopardy.
Bell
also moved to modify his sentence. That
motion was denied.
INEFFECTIVE ASSISTANCE OF
COUNSEL
In order to prevail on a
claim for ineffective assistance of counsel, Bell has the burden of proving
that trial counsel's performance was deficient and that the deficient
performance prejudiced his defense. See
Strickland v. Washington, 466 U.S. 668, 687 (1984); State
v. Johnson, 153 Wis.2d 121, 127, 449 N.W.2d 845, 847-48 (1990). Prejudice occurs when there is a reasonable
probability that, but for counsel's errors, the result of the trial would have
been different. Strickland,
466 U.S. at 694. We reject an
ineffective assistance claim if the defendant fails to satisfy either
element. Johnson, 153
Wis.2d at 128, 449 N.W.2d at 848.
The
trial court's determinations of what the attorney did and did not do, and the
basis for the challenged conduct, are factual and will be upheld unless clearly
erroneous. Johnson, 153
Wis.2d at 127, 449 N.W.2d at 848. The
ultimate determinations of whether counsel's performance was deficient and
prejudicial to the defense are questions of law that this court reviews
independently. Id. at
128, 449 N.W.2d at 848.
Bell
asserts that his trial counsel was deficient because he failed to move the
court to sever the felony bailjumping charge from the drug charges and try that
charge separately. Alternatively, Bell
contends his trial counsel should have moved to strike the reference in the information
to child abuse[6] as the
predicate felony for the bailjumping charge, or requested the court to give Wis J I—Criminal 275, the
cautionary instruction relating to evidence of other acts. Reference to the charge of child abuse, Bell
contends, prejudiced his defense on the drug charges. We do not decide whether there was deficient performance because
we conclude that there is no reasonable probability that the outcome on the
drug charges would have been different had trial counsel taken the steps Bell
claims he should have taken.
There
was no evidence presented at trial concerning the child abuse charge except the
stipulation of facts agreed to by counsel and read to the jury by the
court. The stipulation avoided
referring to child abuse and instead described the charge simply as a felony:
That on October 28th, 1991, the defendant, Charles A.
Bell, had a personal recognizance bond that remained in full force and effect,
which bond had previously been set in a criminal case on October 8, 1991, in
the circuit court of Rock county. It is
further stipulated that said bond contained as a condition the condition that
the defendant was not to commit any crime.
It is further stipulated that the defendant was charged with a felony at
the time of his release on bond on October 8, 1991, and that felony charge was
still pending on October 28, 1991.
The
prosecutor did not mention to the jury that the prior felony charge was for
child abuse. The trial court did refer
to the child abuse charge when it read the information, which it did at the
beginning of voir dire, at the beginning of the trial and before
instructing the jury. The trial court
described count four as follows:
And a fourth charge that on the 28th day of October,
1991, at the Town of Beloit in Rock County, the defendant, Charles A. Bell,
having been charged with the commission of a felony, to wit: child abuse, and having been released from
custody pursuant to Chapter 969, to wit:
having signed a $5,000 recognizance bond on October 8, 1991, with the
condition he not commit any new crimes, did intentionally and feloniously fail
to comply with the terms of his bond, contrary to Section 946.49, subsection
(1), subsection (b) of the Wisconsin Statutes.
After
reading the information to the jury at the beginning of the trial, the court
instructed the jury that it could only consider evidence in reaching its
verdict, and that there are only two kinds of evidence: witness testimony and exhibits received into
evidence. After reading the information
to the jury when charging the jury, the court instructed that the information
was not evidence and did not raise any inference of guilt. Neither the jury instructions nor the
special verdict question on the felony bailjumping count referred to child
abuse.
Bell
contends that prejudice resulted from the reading of the information three
times to the jury, as demonstrated by the comments of one juror in voir dire. The court asked whether any juror felt he or
she could not be impartial. Juror Noll
answered that because she is a registered nurse, she is very uncomfortable with
drugs. Moreover, because she was abused
as a child, it would be difficult for her to listen to evidence of child
abuse. The court stated that it would
leave it up to her whether she could be impartial. Juror Noll then said that if child abuse was not dealt with in
detail, she could be impartial, but if there were any specific detail, she
"would have a real problem."
After the prosecutor stated that, "We aren't going into that [child
abuse] at all, Judge, in this case," Noll stated that she could be
unbiased.
Juror
Noll's comments are insufficient to persuade us that, had the information not
contained the words "child abuse," the outcome on the drug charges
would have been different. We reach
this conclusion in light of the prosecutor's response to Noll's statement, the
court's instructions to the jury, the lack of any evidence on child abuse
presented during the trial, and the strength of the evidence against Bell on
the drug charges. We have reviewed the
record carefully and, like the trial court, we are convinced that the jury
convicted Bell on the drug charges because it found his testimony incredible
and found the testimony of the State's witnesses credible.
RIGHT TO CROSS-EXAMINATION
Bell contends that his
state and federal constitutional rights of confrontation were violated because
the trial court sustained an objection to a question asked on cross-examination
of Officer Driscoll.[7] To resolve this argument, it is necessary to
consider Driscoll's testimony in more detail.
On
direct examination, Driscoll testified that jail personnel had recovered a thumb
scale from Bell and that he (Driscoll) had seen scales like that before. When the prosecutor asked whether, based on
his training and experience, he knew whether such scales are used in drug
transactions, Driscoll answered that they are used to weigh drug material. At that point defense counsel objected,
"unless [the prosecutor] is prepared to stipulate that he has expertise
for drug transactions or drug trafficking." The trial court overruled the objection and permitted the answer
to stand, saying that defense counsel could cross-examine on this point.
On
cross-examination, defense counsel questioned Driscoll at length about his
training and experience in drug enforcement.
With respect to the scale, this was the cross-examination:
Q Now,
you're saying that this scale is sometimes used in drug transactions?
A Yes,
sir.
Q Now,
is that scale an operable scale? Does
it work?
A It
appears to be a spring or a pointer missing.
Something's not here. I don't
know what it is.
Q Can
you indicate to the jury how that scale operates?
A There
should be a piece of metal here that you hold this thumb scale with and a
pointer that points to how much material that's clipped here would weigh.
Q So
that scale was retrieved from Mr. Bell; is that correct?
A Yes,
sir.
Q So
whatever was retrieved from him, when it was retrieved it's not even working,
is it?
A No,
sir.
Q Now,
is it your testimony here today that drug dealers normally have scales not
working?
A Norm
-- No.
Q Now,
do you -- Are you testifying here today that there is a connection between that
scale and the possession by Mr. Bell to indicate that he's in drug dealing?
[PROSECUTOR]:
Objection, Judge. Again, that is
for the jury to decide, not the officer or the witnesses, that determination.
[DEFENSE COUNSEL]: This is cross-examination.
THE COURT:
Just a minute.
[PROSECUTOR]:
Your Honor, it may be cross-examination --
THE COURT:
All right. Just a minute. I understand your position. The objection is sustained.
[DEFENSE COUNSEL]:
Q Is
it your testimony here today that if one has $600 or $605 on him, then that
means they're in -- involved in drug transactions?
A No,
sir.
Q So
there are a lot of people that may -- there are other people that may have $600
on them and also not in drug transactions; is that correct?
A Yes, sir.
Bell
argues that because the trial court sustained the objection to his counsel's
question on the connection of the thumb scale to Bell's alleged drug dealing,
he was deprived of the opportunity to cross-examine a key witness on a key
issue.
The
essential purpose of the confrontation clause is to secure for the opponent the
opportunity for cross-examination. Lindh,
161 Wis.2d at 346, 468 N.W.2d at 175.
The right to examine adverse witnesses is not absolute, however, because
the confrontation clause "guarantees an opportunity for effective
cross-examination, not cross-examination that is effective in whatever way, and
to whatever extent, the defendant might wish." Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per
curiam) (emphasis in original). As long
as the defendant is guaranteed the opportunity for effective cross-examination,
the trial court retains broad discretion in placing reasonable limits on
cross-examination. United States
v. Sasson, 62 F.3d 874, 882 (7th Cir. 1995).
Ordinarily
we review trial court rulings regarding the scope of cross-examination to
determine if there was an erroneous exercise of discretion. Lindh, 161 Wis.2d 348-49, 468
N.W.2d at 176. However, when
limitations directly implicate the constitutional right to confrontation, our
review is de novo. Sasson,
62 F.3d at 882. In considering a
constitutional challenge to a limitation on cross-examination, we must
therefore "distinguish between the core values of the confrontation right
and the more peripheral concerns that remain within the ambit of the trial
judge's discretion." Sasson,
62 F.3d at 882 (quoting United States v. Saunders, 973 F.2d 1354,
1358 (7th Cir. 1992), cert. denied, 113 S. Ct. 1026 (1993)).[8] We conclude the trial court's sustaining of
the objection to the question asked of Driscoll did not implicate Bell's
constitutionally-protected right of cross-examination.
Since
Driscoll testified on direct examination that, based on his experience, scales
of the type recovered from Bell were used to weigh drugs, Bell was entitled on
cross-examination to question Driscoll about the basis for this
observation. He was entitled to probe
Driscoll's experience in drug enforcement and with drug transactions, and he
was allowed to do so. He was also
entitled to question Driscoll about the operability of the scale recovered from
Bell in an effort to show that it could not function to weigh drugs. He was allowed to do so. But the question to which the prosecutor
objected asked something different. It
asked whether Driscoll thought there was a connection between Bell's possession
of the thumb scale and Bell's alleged drug dealing. Apparently the prosecutor thought Driscoll should not be
permitted to give his opinion as to whether Bell used the scale to weigh drugs
because that was for the jury to decide.
The trial court agreed.
Apparently Bell's trial counsel understood the objection was to the
question being phrased specifically in terms of Bell. His next question, with respect to the money recovered from Bell,
asked about the connection of that amount of money to drug transactions in
general, not to whether the money showed that Bell, in particular, sold
drugs.
The
objection sustained by the court did not prevent defense counsel from
questioning Driscoll further about the connection between the scales and drug
dealing in general, which defense counsel had already done. Bell does not explain why the single
question objected to was significant to his defense or what other questions or
areas of inquiry were foreclosed by the trial court's ruling. We fail to see how the ruling on this one
question limited in any significant way his opportunity to show weaknesses in
Driscoll's testimony that scales of this type are used to weigh drugs.[9]
DOUBLE JEOPARDY
Bell contends that the
prosecution for bailjumping constitutes double jeopardy because he had already
been prosecuted on the child abuse charge.
Both the United States and Wisconsin Constitutions[10]
protect against a second prosecution for the same offense after either
acquittal or conviction, and against multiple punishments for the same
offense. State v. Kurzawa,
180 Wis.2d 502, 515, 509 N.W.2d 712, 717, cert. denied, 114 S. Ct. 2712
(1994). Bell relies on United
States v. Dixon, 509 U.S. ___, 113 S. Ct. 2849 (1993), in arguing that
the subsequent prosecution for felony bailjumping is barred because he has
already been punished for the offense that occasioned the bond--felony child
abuse (reduced to misdemeanor battery).
We reject this argument and conclude that Bell was not subject to double
jeopardy.
Whether
a defendant's double jeopardy rights are violated is a question of law, which
we review de novo. State v.
Harris, 190 Wis.2d 719, 723, 528 N.W.2d 7, 8 (Ct. App. 1994).
In
Dixon, one of the respondents had been tried and convicted of
criminal contempt for violating a court order that he not commit any criminal
offense while released on bond. When he
was later prosecuted for possession of cocaine with intent to distribute, an
offense committed while he had been released on bond, he challenged the second
prosecution on double jeopardy grounds.
The court decided that the court order had incorporated the entire
criminal code and the drug offense that violated the court order was a
"species of lesser-included offense." Dixon, 509 U.S. at ___, 113 S. Ct. at 2857. Therefore, prosecution on the drug charge,
after prosecution on the criminal contempt charge, constituted double jeopardy. Id.
In
State v. Harris, we held that prosecution for bailjumping and for
possession of cocaine, where possession of cocaine is the offense committed
while released on bond, does not constitute double jeopardy. Harris, 190 Wis.2d at 724, 528
N.W.2d at 9. We applied the
"elements only" test of Blockburger v. United States,
284 U.S. 299 (1932), and concluded that the charge of bailjumping and the
charge of possession of cocaine each contained at least one element that the
other charge did not. Id. We decided that Dixon was not
controlling for several reasons, including the distinction that Dixon
involved successive prosecutions, whereas Harris faced a single prosecution
with multiple counts. Id.
at 725-26, 528 N.W.2d at 9.
Bell
apparently recognizes that under Harris, prosecutions on the
bailjumping charge and the drug charges do not subject him to double
jeopardy. However, he argues that
because the prosecution on the child abuse charge and the prosecution on the
bailjumping charge were successive prosecutions, Dixon applies to
prohibit the later prosecution on the bailjumping charge.
Dixon does not support Bell's position. The Dixon court concluded that
the subsequent prosecution of a drug charge was barred by double jeopardy
because of its determination that the drug charge was a lesser-included offense
of the violation of the court order prohibiting commission of any crime. The bailjumping charge against Bell is not a
lesser-included offense of the child abuse charge. Indeed, Bell does not even make this argument.
Since
the bailjumping charge is not a lesser-included offense of the child abuse
charge, we apply the Blockburger test to determine whether either
offense contains an element that the other does not. Kurzawa, 180 Wis.2d at 524, 509 N.W.2d at 721
(under Blockburger, the State cannot successively prosecute a
defendant for two offenses unless each offense necessarily requires proof of an
element the other does not; under Dixon, the State cannot
prosecute an offense whose elements are "incorporated" into elements
of an offense already prosecuted). The
elements of bailjumping as applicable to this case are: (1) the defendant has been arrested for, or
charged with, a felony; (2) the defendant has been released from custody on a
bond under conditions established by the trial court; and (3) the defendant has
intentionally failed to comply with the conditions of the bond. See § 946.49(1)(b), Stats.; State v. Dawson,
195 Wis.2d 161, 170-71, 536 N.W.2d 119, 122 (Ct. App. 1995). The elements of the child abuse charge
are: (1) the defendant caused bodily
harm; (2) to a person under the age of eighteen; and (3) the defendant
intentionally caused such harm. Section
948.03(2)(b), Stats.; Wis J I—Criminal 2109. Each of these offenses contains an element
not contained in the other, satisfying the Blockburger
"elements only" test.
When
the "elements only" test is satisfied, a presumption arises that
multiple punishments are allowed. Harris,
190 Wis.2d at 724, 528 N.W.2d at 8. The
defendant must prove a contrary legislative intent to overcome that
presumption. Id. at 724,
528 N.W.2d at 8-9. Bell has made no
argument and submitted no evidence of a contrary legislative intent. We conclude that the prosecution for
bailjumping after the prosecution for child abuse did not subject Bell to
double jeopardy.
SENTENCE MODIFICATION
Bell argues that his
sentence is unreasonably excessive and disproportionate to the crime he
committed. Bell characterizes the crime
as giving a small amount of cocaine to a dancer and having a small amount of
cocaine and THC on his person. He
points out that this is one incident, no sale was involved, and although the
offense occurred within 1,000 feet of a school, it did not occur in an area
frequented by children. Bell also notes
that the presentence report recommended five years on each of the cocaine
charges, to be served concurrently rather than consecutively. The sentence imposed by the court, Bell
asserts, will require him to serve at least six years in prison before he is
eligible for parole.[11]
Sentencing
is committed to the sound discretion of the trial court, and our review is
limited to determining whether there has been an erroneous exercise of that
discretion. McCleary v. State,
49 Wis.2d 263, 277, 182 N.W.2d 512, 519 (1971). An erroneous exercise of discretion is demonstrated when the
record shows that a decision was made without the underpinnings of explained
judicial reasoning; the sentence was
based on clearly improper factors; or when the record is so disproportionate as
to shock the conscience. State v.
Wickstrom, 118 Wis.2d 339, 354-55, 348 N.W.2d 183, 191 (Ct. App. 1984).
The
primary factors a court must consider in fashioning a sentence are the gravity
of the offense, the character of the offender and the need for public
protection. McCleary, 49
Wis.2d at 276, 182 N.W.2d at 519. The
court may also consider, among other things, the defendant's criminal record;
any history of undesirable behavior patterns; the defendant's personality,
character and social traits; the results of a presentence investigation; the
vicious or aggravated nature of the crime; degree of culpability; the
defendant's demeanor at trial; the defendant's age, educational background and
employment record; the defendant's remorse, repentance and cooperativeness; the
need for close rehabilitative control; the rights of the public; and length of
pretrial detention. State v.
Iglesias, 185 Wis.2d 117, 128, 517 N.W.2d 175, 178, cert. denied,
115 S. Ct. 641 (1994). The weight to be
given each factor is within the discretion of the trial court. Wickstrom, 118 Wis.2d at 355,
348 N.W.2d at 192.
Bell
concedes that the trial court gave its reasoning for the sentence imposed. The record also shows that the court
considered the three primary factors and other proper factors. It did not consider any improper factors.
Specifically,
the court went over with Bell the information in the presentence
report--including his past criminal record, his personal and social history,
and his alcohol and drug abuse problem--to make sure it was accurate. In imposing the sentence, the court
explained that it was considering the defendant's extensive prior criminal
history beginning when he was a juvenile; his age of twenty-eight years; his
limited education; his employment history, which the court said demonstrated
that he could be a good worker and support his family; his undesirable behavior
patterns, as demonstrated by his criminal record; his personalty, which the
court considered anti-social as demonstrated by his record; his lack of
character as demonstrated by his failure to change his conduct; the serious nature
of his crime, in that drug trafficking, in the court's view, is the most
serious problem our society faces; the fact that there was no doubt about his
guilt; his need for rehabilitation and treatment in a closed environment; and
the rights of the public to be protected from his criminal conduct. The court rejected probation because
confinement was necessary to protect the public from further criminal activity
by him; because the treatment he needed could be more effectively provided if
he were confined; and because of the serious nature of the crime.
We
conclude the sentence imposed by the court is not unreasonably excessive or
disproportionate to the crime committed.
The trial court could reasonably consider drug trafficking as a serious
crime. Bell was convicted of delivery
on one count and possession with intent to deliver on two other counts. That is fairly characterized as drug
trafficking, notwithstanding Bell's point that no sale, meaning drugs exchanged
for money, took place. The trial court
could also reasonably conclude that, given Bell's many prior convictions and
the failure of prior supervision and prior probations to bring about a change
in his behavior, a substantial prison term was needed both to protect the
public from continued criminal acts and to change Bell's behavior.
By
the Court.—Judgment and order
affirmed.
Not
recommended for publication in the official reports.
[5] The child abuse charge, a felony, was
subsequently amended to a charge of misdemeanor battery under § 940.19(1),
Stats., and Bell pleaded no
contest to that charge.
[6] While defense counsel did not file a motion
to modify the wording of the information, he did ask the court to omit
reference to child abuse when it read the information because the reference to
child abuse was prejudicial to Bell.
This occurred after the court had read the information the first time,
at the beginning of voir dire.
The prosecutor argued against the request and the court decided it would
read the information without any changes.
[7] The Sixth Amendment to the United States
Constitution guarantees the right of an accused in a criminal prosecution
"to be confronted with the witnesses against him." By virtue of the Fourteenth Amendment, that
right is applicable in criminal prosecutions by the State. Article I, section 7 of the Wisconsin
Constitution essentially provides the same right. See State v. Lindh, 161 Wis.2d 324, 346, 468
N.W.2d 168, 175 (1991).
[8] We do not understand State v. Lindh,
161 Wis.2d 324, 468 N.W.2d 168 (1991), to hold otherwise. The supreme court in Lindh
held that the trial court's decision not to permit evidence of sexual
misconduct allegations against the State's witness, a psychiatrist, was not an
erroneous exercise of discretion. Lindh,
161 Wis.2d at 362, 468 N.W.2d at 182.
We understand the court's holding to imply that the trial court's
decision did not implicate the core values of the confrontation right.
[9] Bell states in his brief that the trial court
"conceded" at the postconviction hearing that the question was a
proper one. We note that this is not
an accurate account of what the trial court said. The court stated that the objection "might have been to a
proper question." But the court
did not decide whether the question was proper because it concluded that Bell
had ample opportunity for cross-examination.
Because we have decided that the trial court's ruling did not implicate
Bell's right of cross-examination, we need not decide whether the ruling was an
erroneous exercise of discretion. We do
not understand Bell to be making the argument that, even if the ruling did not
violate his right to cross-examination, it was an erroneous exercise of
discretion that requires reversal.
[10] The Fifth Amendment to the United States
Constitution provides that no person may "be subject for the same offense
to be twice put in jeopardy of life or limb." Article I, section 8 of the Wisconsin Constitution provides that
no person "for the same offense may be put twice in jeopardy of
punishment."
[11] Section 161.41(1)(c)1, Stats., 1991-92, provides for a prison
sentence not to exceed five years.
Section 161.41(1m)(c)1, 1991-92, provides for a sentence not to exceed
five years. Section 161.41(1m)(h)1,
1991-92, provides for a sentence not to exceed three years. Section 161.49, Stats., provides for enhanced penalties for violations that
occur within 1,000 feet of a school.