|
COURT OF APPEALS DECISION DATED AND RELEASED October 17, 1996 |
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
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-2528-CR
94-2529-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
THOMAS W. REIMANN,
Defendant-Appellant.
APPEAL from judgments
and orders of the circuit court for Dane County: DANIEL R. MOESER, Judge. Affirmed.
Before Eich, C.J.,
Vergeront, J., and Paul C. Gartzke, Reserve Judge.
EICH,
C.J. Thomas Reimann appeals from judgments convicting him of two
controlled substance violations and a weapon violation, and from orders denying
his postconviction motions and a motion to reopen a postconviction evidentiary
hearing.
He raises several
issues: (1) whether tape recordings of his telephone conversations with a
police informant were improperly admitted into evidence because (a) the statute
allowing one-party-consent conversations into evidence, enacted before trial
but after the recordings were made, cannot be applied retroactively and,
alternatively, (b) the recordings were not properly authenticated; (2) whether
the State's failure to turn over exculpatory evidence violated his due process
rights; (3) whether the trial court erroneously instructed the jury that it was
required to accept the testimony of one of the State's witnesses; (4) whether
the court erred in allowing the hearsay testimony of another State witness; and
(5) whether the court erred when it denied his request to reopen the
postconviction motion hearing.
We reject all his
arguments and affirm the judgments and orders.
Two cases are
consolidated on this appeal. In the
first, Reimann entered a plea of guilty to a charge of possession of a firearm
by a felon and to a charge of possession of Dilaudid, a controlled substance. He was charged after police officers, who
were serving an arrest warrant on him at a Madison motel, found pills in the
bathroom and a sawed-off shotgun under the bed. The second case, in which he was charged with delivery of heroin
(as a repeater), went to trial and was found guilty by the jury.
Through several
postconviction attorneys and several postconviction motions, he sought to
withdraw his plea to the firearm-possession charge and a new trial on the
heroin charge. The trial court
conducted three days of evidentiary hearings on the motions over a three-month
period in 1992. After the hearings,
Reimann, both pro se and through counsel, filed several briefs with the court,
as well as several other documents suggesting additional grounds for
relief. He also moved to reopen the
hearings to take additional evidence.
The trial court denied all Reimann's motions.
I. Admission of the Tape
Recordings
The primary witness at
Reimann's drug trial was Felipe Banuelos, a special agent employed by the
Division of Criminal Investigation of the Wisconsin Department of Justice. Banuelos, working undercover, met a man
named Robert Watson who was being held at the Dane County Jail on a charge of
obtaining a prescription by fraud.
Watson suggested Reimann as a possible subject for investigation and
offered to assist in the investigation.
In Banuelos's presence
and at his direction, Watson telephoned Reimann to arrange a drug
purchase. The call was
tape-recorded. Watson told Reimann that
his "buddy" wanted some morphine sulfate tablets, and Reimann
responded that he was going to have to take heroin instead. When informed that Watson's
"buddy" had $400 to spend, Reimann said: "[T]ell him I'll give
him four grams .... Maybe I can give him like five and you can get one for
yourself ..." They arranged to
meet later in the day.
Banuelos and Watson
drove to the agreed-upon location, where Reimann told them he wanted $230 for
the heroin. When Banuelos attempted to
hand him the money, he refused it, telling him to give it to Watson instead. Watson went to Reimann's car with the money
and returned moments later with a small package containing a "brown
substance"[1] and a
"little round ball." Banuelos
was wearing a recording device during his meeting with Reimann, and their
recorded conversations were allowed into evidence at the trial.
Reimann's theory of
defense was entrapment: he testified that, while he was a serious drug user, he
was not a seller, and had sold the heroin to Banuelos only because Watson told
him Banuelos was going to "hurt" him (Watson) unless he could come up
with some money to pay off a debt.
While Reimann concedes
the accuracy of the tape recordings (insofar as they are audible), he
challenges their admission on two grounds.
First, acknowledging the constitutionality of § 968.29(3)(b), Stats., which permits intercepted
communications to be introduced into evidence in drug prosecutions,[2]
he argues that the statute, which became effective after Banuelos's recordings
were made, cannot be retroactively applied to him. Alternatively, he argues that if § 968.29(3)(b) applies to the recordings in question, they
still were not admissible because they were not "authenticated," as
required by the statute.
Rather than directly
arguing that the statute is inapplicable on retroactivity grounds, Reimann
contends that his counsel was ineffective for not timely raising the
retroactivity issue during trial. We assume
he does so because he did not raise the issue in the trial court and is
familiar with the well-known rule that we generally will decline to entertain
such arguments. See State
v. Peters, 166 Wis.2d 168, 174, 479 N.W.2d 198, 200 (Ct. App.
1991). However he frames the argument,
we reject it.
Reimann correctly points
out that prior to the adoption of § 968.29(3)(b), Stats., tape recordings made with the consent of only one
party to a conversation were not admissible in evidence. State ex rel. Arnold v. County Court, 51
Wis.2d 434, 444, 187 N.W.2d 354, 359 (1971).
Section 968.29(3)(b), as we have said, amended the statute to render
such recordings admissible in controlled-substance cases under chapter 161; the
amendment became effective after Banuelos had made the recordings but before
the trial.
Whether a statute may be
applied retroactively is a question of law which we review independently, owing
no deference to the trial court's analysis.
Schulz v. Ystad, 155 Wis.2d 574, 596, 456 N.W.2d 312, 370
(1990). Generally, if a statute is
unclear in regard to its prospective or retroactive application, it is
considered to apply prospectively only.
Wipperfurth v. U-Haul Co., 98 Wis.2d 516, 522, 297 N.W.2d
65, 68 (Ct. App. 1980), aff'd, 101 Wis.2d 586, 304 N.W.2d 767
(1981). However, if a statute "is
remedial or procedural, rather than substantive in nature, it will be given
retroactive application unless there is a clearly expressed legislative intent
to the contrary or unless retroactive application will disturb contracts or
vested rights." City of
Madison v. Town of Madison, 127 Wis.2d 96, 102, 377 N.W.2d 221, 224
(Ct. App. 1985).
We discussed the
distinction between "procedural" and "substantive" laws in City
of Madison, 127 Wis.2d at 102, 377 N.W.2d at 224. If a statute "simply prescribes the
method—the `legal machinery'—used in enforcing a right or remedy," it is
considered to be procedural. Id.
(quoted source omitted). However, if a
law "creates, defines or regulates rights or obligations, it is
substantive—a change in the substantive law of the state." Id.
Reimann argues that,
prior to the adoption of § 968.29(3)(b), Stats.,
Wisconsin citizens had a substantive right to privacy in oral communications—a
right he says the supreme court recognized in Arnold—which was
abrogated by the enactment of the statute.
As a result, Reimann says, § 968.29(3)(b) cannot be retroactively
applied to him. We disagree. We believe the change wrought by the
enactment of subsection (b) was procedural, not substantive, and that Arnold
does not require a contrary result.
Prior to the addition of
subsection (b) to Section 968.29(3), Stats.,
one-party-consent communications were subject to interception by law
enforcement authorities and could be disclosed in court, subject only to the
general rules of evidence, if the interception had been authorized by the court
under procedures set forth in chapter 968.[3] Additionally, the "consenting"
party's testimony describing the contents of the conversation has always been
admissible independently of the admissibility of the recording of the
conversation. State v. Smith,
72 Wis.2d 711, 713-17, 242 N.W.2d 184, 185-87 (1976); State v. Maloney, 161 Wis.2d 127, 129-30, 467
N.W.2d 215, 216 (Ct. App. 1991); see also Rathbun v. United
States, 355 U.S. 107, 110 (1957) ("The communication itself is not
privileged, and one party may not force the other to secrecy merely by using a
telephone.").
Thus, a person in
Reimann's position had no way of knowing or ensuring that his conversations
with Watson would not be recorded and, if recorded, could not be used against
him in police investigations—and, if certain prerequisites were met, in a court
of law. In other words, he had no
substantive right of privacy in the contents of his conversations with
Watson. The adoption of
§ 968.29(3)(b), Stats.,
altered only the "legal machinery" through which intercepted
communications could be used in court proceedings.
In so concluding, we
reject Reimann's argument that Arnold recognized a substantive
right in such circumstances. Arnold, who was being prosecuted for bribery, sued
to prohibit the state from introducing into evidence tape-recordings of his
conversations obtained through the use of a hidden microphone. Arnold, 51 Wis.2d at 436, 187
N.W.2d at 355. The Arnold
court began its discussion by noting that the United States Supreme Court, in United
States v. White, 401 U.S. 745, 749 (1971), held that one does not have
a constitutionally protected expectation that a person with whom he or she is
communicating "will not then or later reveal the conversation to the
police."[4] Arnold, 51 Wis.2d at 438, 187
N.W.2d at 356. The court then concluded
that Arnold's conversations were privileged under Wisconsin statutes because
the interception had not been previously approved by the circuit court under §
968.29(3)(a), which, as we noted, supra note 3, was a condition of
admissibility. Arnold, 51 Wis.2d at 442, 187 N.W.2d at 358.
There is, therefore,
nothing in Arnold to suggest that the court based its conclusion
on a holding that Arnold had an expectation of privacy in the
conversations. The court held only that
because the interceptions had not been approved or authorized under applicable
provisions of chapter 968, Stats.,
they were not admissible in evidence. Arnold,
51 Wis.2d at 444, 187 N.W.2d at 359.[5]
Alternatively, Reimann
contends that because neither he nor Banuelos specifically testified that the
telephone recordings were "an accurate accounting of the conversation[s]
[they] purported to represent," they were not properly authenticated under
§ 968.29, Stats., and should not
have been admitted.
Section 968.29(3)(b), Stats., requires that a recording of an
intercepted conversation may be admitted in a felony drug prosecution
"only if the party who consented to the interception is available to
testify at the proceeding or if another witness is available to authenticate the
recording." Because Watson died
prior to the trial, admission had to be based on another witness's
"authenticat[ion]" of the tapes.
Whether
an item of evidence has been sufficiently authenticated is a decision resting
in the trial court's discretion. Zinda
v. Pavloski, 29 Wis.2d 640, 646, 139 N.W.2d 563, 566 (1966) (trial
court's determination that photographs were properly authenticated was well
within its discretion). "We will
not reverse a discretionary determination by the trial court if the record
shows that discretion was in fact exercised and we can perceive a reasonable
basis for the court's decision." Prahl
v. Brosamle, 142 Wis.2d 658, 667, 420 N.W.2d 372, 376 (Ct. App.
1987). "[W]here the record shows
that the trial court looked to and considered the facts of the case and
reasoned its way to a conclusion that is (a) one a reasonable judge could reach
and (b) consistent with applicable law, we will affirm the decision even if it
is not one with which we ourselves would agree." Burkes v. Hales, 165 Wis.2d 585, 590, 478 N.W.2d
37, 39 (Ct. App. 1991). Indeed, we will
not overturn a discretionary decision unless the trial court has erroneously
exercised its discretion. Id.
at 591, 478 N.W.2d at 39.
An item of evidence is
properly authenticated if there is "evidence sufficient to support a
finding that the matter in question is what its proponent claims." § 909.01, Stats. And its sufficiency in this regard may be
demonstrated by the "testimony of a witness with the knowledge that a
matter is what it is claimed to be."
§ 909.015(1).
Banuelos testified that
he directed Watson to telephone Reimann and that he was with Watson
continuously from the time the telephone conversation began through the
transaction in the parking lot. He was
familiar with Reimann's voice and was able to identify it on the tapes.[6] Banuelos took custody of the tapes
immediately following the conversations and he testified that they had not been
altered prior to trial. And, as we
noted above, Reimann himself conceded at trial that the tapes were accurate to
the extent the conversations were audible.
We are satisfied that is sufficient "authenticat[ion]" under
§ 968.29, Stats.[7]
II. Exculpatory Evidence
Reimann
next argues that his right to due process of law was violated when the prosecution
failed to turn over exculpatory evidence to him.
Prior to trial, the
prosecutor was ordered to turn over to Reimann any evidence relevant to
Reimann's claim that Watson may have been induced to assist the State in
gathering evidence against Reimann by promises of lenient treatment in another
case. The prosecutor produced a
document indicating that Department of Justice agents had discussed with Watson
giving him some consideration on the pending charge in return for his
assistance in the Reimann investigation.
Banuelos testified at trial, however, that no agreement was ever made
with Watson to that effect, and no promises or concessions were made to Watson
with respect to his pending case in exchange for his cooperation in Reimann's
case. According to Banuelos, he simply
told Watson that Watson's cooperation would be mentioned to the district
attorney.[8]
After the trial, Reimann
learned that the Department of Justice had prepared a draft agreement stating
that, in exchange for Watson's cooperation in Reimann's case, the Department
would not pursue—or assist other agencies in pursuing—federal charges against
him and, depending on the degree of his cooperation, might recommend to the
district attorney that his pending drug charge be dropped. The agreement was never finalized or signed
by any of the parties.
Though unsigned, Reimann
argues that the document was essential to his defense because it would have
cast doubt upon Banuelos's credibility and buttressed Reimann's entrapment
defense by showing that Watson had a substantial motive to pressure him into
selling the drugs to Banuelos. And he
contends that the State's failure to provide it prior to trial denied him due
process of law.
Whether a defendant has
been denied a constitutional right is a question of constitutional fact which
we review independently. State v.
Haste, 175 Wis.2d 1, 23, 500 N.W.2d 678, 687 (Ct. App. 1993). Under the Fourteenth Amendment, due process
is violated where the prosecution suppresses material evidence favorable to the
defendant. Brady v. Maryland,
373 U.S. 83, 87 (1963). Evidence is
material where "there exists a `reasonable probability' that had the
evidence been disclosed the result [of the proceeding] would have been
different." Wood v.
Bartholomew, 116 S. Ct. 7, 10 (1995) (citation omitted; quoted source
omitted). "A `reasonable
probability' is a probability sufficient to undermine confidence in the
outcome." United States v.
Bagley, 473 U.S. 667, 682 (1985) (quoted source omitted).
Banuelos testified that,
while he told Watson his cooperation would be made known to the district
attorney prosecuting the pending charge against him, he made no promises that
the charge would be dropped—or even that Watson's cooperation in the Reimann
case would result in a recommendation to this effect to the district
attorney. And he stated at the
postconviction hearing that although the contents of the document were
discussed with Watson, no agreement was ever finalized.
In other words, no such
agreement existed, and if it did not exist, we do not see how it could have
influenced Watson's actions. Indeed, as
the State suggests, if such a potential agreement had been dangled before
Watson but never consummated, it might more reasonably be considered as a disincentive
to Watson to assist the prosecution.
Nor do we see the
prosecution's failure to disclose the document to Reimann prior to trial as
raising a reasonable probability that, had disclosure been made, the outcome of
the trial would have been different.
Reimann simply has not persuaded us that he could have used the document
to impeach Banuelos's credibility to such an extent that the jury "[would]
have disbelieved everything [he] said"—or that the document would somehow
have bolstered his entrapment claim. He
has not shown a denial of due process.
III. Hearsay Statements
Reimann
next argues that Banuelos's testimony recounting various statements made to him
by Watson was inadmissible hearsay, and that its admission violated his
constitutional right to confront witnesses against him.
Banuelos testified that
when Watson returned with the heroin after giving Reimann the money, he had two
packages with him—Banuelos's "purchase" and a smaller
"ball," which he (Watson) said Reimann had given him "as a
favor" for bringing him a new customer.
Reimann objected on hearsay grounds and the trial court overruled the
objection, instructing the jury that it could not consider Watson's statement
for the truth of its content, but only to determine whether Watson had in fact
made the statement.[9]
Banuelos's testimony was
plainly inadmissible to show that the "ball" of heroin was in fact a
"favor" to Watson. See §
908.01(3), Stats., which defines
hearsay as an out-of-court statement "offered in evidence to prove the
truth of the matter asserted." As
indicated, however, trial court instructed the jury at the time of the
objection that statements made by Watson to Banuelos "should not be
accepted for the truth of what he said"; it made and remade that point to
the jury in its final instructions (as we discuss in Part IV of this
opinion). We presume that jurors follow
such admonitory instructions, State v. Lukensmeyer, 140 Wis.2d
92, 110, 409 N.W.2d 395, 403 (Ct. App. 1987), and Reimann has not persuaded us
that presumption should not apply here.[10]
IV. Jury Instructions
Reimann also argues that
his conviction should be reversed because the trial court erroneously
instructed the jury that it was required to accept Banuelos as a credible
witness, thus violating "his most fundamental rights to due
process."
The challenged
instruction relates to the court's ruling on the hearsay objection we have
discussed immediately above. Apparently
fearing that there might have been some confusion about its admonition to the
jury at the time it ruled on Reimann's objections to Banuelos's testimony about
what Watson had told him, the court decided to instruct the jury at some length
at the conclusion of the trial as to the distinction between taking Watson's
hearsay statement for the truth of its content, as opposed to considering it
only as evidence that the statement had been made. The court told the jury:
You
may not take any statements [attributed to Watson] to be the truth as to what
[he] said. In other words, if one of
the statements Mr. Watson said was that it was two o'clock, you may not accept
that as being truthful.
But
you may accept the fact that Mr. Watson made the statements that have come into
evidence, and you'll have to decide whether or not he made the statements. But you may not decide whether or not what
he said was true. That's a fine line
and a fine distinction that sometimes is difficult to understand.
In
other words, in this regard Mr. Banuelos and Mr. Reimann have testified to
certain things that Mr. Watson said.
You can't accept what they say Mr. Watson said as being truthful, but
you may decide or accept that Mr. Watson actually made the statements.
And you will have to accept the
credibility of Mr. Banuelos and Mr. Watson in determining those issues. You may consider the statements of Mr.
Watson, if you choose to do so, for whatever impact [they] had on the person or
persons he was making the statements to and for whatever happened as a result
of those statements or for any state of mind those statements may have had on
anyone hearing those statements.
(Emphasis
added.)
Reimann's argument
centers on the emphasized word "accept"; he claims that it tells the
jury, in effect, that Banuelos is a credible witness whose testimony the jury
must "accept." He did not
object to the instruction and therefore has not preserved the issue for
appeal. State v. Smith,
170 Wis.2d 701, 714 n.5, 490 N.W.2d 40, 46 (Ct. App. 1992), cert. denied,
507 U.S. 1035 (1993); State v. Schumacher, 144 Wis.2d 388, 416,
424 N.W.2d 672, 683 (1988).
He argues, however, that
because the claimed error affects his "fundamental [constitutional]
rights," it is the type of "plain error"—those errors that are
"so fundamental that a new trial or other relief must be granted even though
the action was not objected to at the time," State v. Wiese,
162 Wis.2d 507, 515, 469 N.W.2d 908, 911 (Ct. App. 1991)—that may be reviewed
in the absence of any objection in the trial court. The plain error rule applies when the trial court's evidentiary
ruling "constitutes a denial of `any fundamental constitutional right or a
substantial impairment of the right of fair trial.'" State v. Romero, 147 Wis.2d
264, 275-76 n.3, 432 N.W.2d 899, 904 (1988).
We do not consider the
court's misstatement as constituting plain error. As Reimann correctly points out in his brief, one of the jury's
function is to assess the credibility of the witnesses, State v. Hines,
173 Wis.2d 850, 861, 496 N.W.2d 720, 724 (Ct. App. 1993), and the trial court,
both at the time of Reimann's objection and later in its full instructions,
explained in detail that they were not to accept Watson's statements as
true. The court also instructed the
jurors that they were the sole judges of the credibility of the witnesses. And while the supreme court has stated that
a verdict may be "tainted" if the court's instructions are
"given in such a manner that a reasonable juror could misinterpret the
instructions to the detriment of a defendant's due process rights," State
v. McCoy, 143 Wis.2d 274, 289, 421 N.W.2d 107, 112 (1988), that is not
the case here. We do not believe that
reasonable jurors could have misinterpreted the court's instructions—even given
its misstatement (if indeed that was what it was, as opposed to the reporter's
typographical error, substituting "accept" for "assess")[11]—to
mean that they were barred from evaluating Banuelos's credibility regarding
Watson's statements. Even if it could
be said that use of the word "accept" was momentarily confusing to
the jurors, the trial court also instructed them a few minutes later that:
By
allowing testimony ... to be received over the objection of counsel, the court
is not indicating any opinion as to the weight of the evidence. You jurors are the judges of the credibility
of the witnesses and the weight of the evidence.
It is the duty of the jury to scrutinize and
weigh the testimony of witnesses and to determine the effect of the evidence as
a whole. You are the sole judges of the
credibility of the several witnesses and of the weight and credit to be given
to their testimony.
The
court went on to instruct the jurors as to how they were to assess the
"weight and credit" of the testimony of the several witnesses. We are satisfied that the trial court's
misstatement did not deny Reimann a fundamentally fair trial or impair his
right to due process of law.[12]
V. Motion to Reopen the Postconviction Hearing
Reimann's initial postconviction motions
sought a new trial in the heroin case based on the alleged improper withholding
of exculpatory evidence and improper admission of the tapes. After the hearing on the motions had been
completed, but before they had been decided by the trial court, Reimann
discharged his attorney and his new lawyer filed additional motions, including
a motion to reopen the evidentiary hearings based on "new" evidence
relating to: (1) a claim of ineffective
assistance of counsel in connection with his plea to the firearm charge;
(2) the admission of the tapes; and (3) the promises he claimed had been
made to Watson in exchange for his testimony.
The
trial court denied the request, concluding that the "tape recording"
and "exculpatory evidence" contentions were either simply a
"rehash[]" of Reimann's earlier arguments or were matters that would
not have altered any decisions made by the court or the jury in the course of
the proceedings; thus, they could be decided without further hearing. As for the plea-withdrawal motion, the court
concluded that the affidavit Reimann submitted in support of his request
provided an insufficient basis for further hearings. Reimann challenges those rulings on appeal.
Whether to reopen a
hearing for the taking of additional evidence lies within the sound discretion
of the trial court, Stivarius v. DiVall, 121 Wis.2d 145, 157, 358
N.W.2d 530, 536 (1984), and we discussed the rules that govern our review of
discretionary decisions in Part I, above.
Suffice it to say that we pay considerable deference to such decisions.
A. The Firearm Charge
At the hearing on
Reimann's motion to reopen the hearings, Reimann had filed an affidavit
stating, in essence, that he only pled to the charge to protect his former
wife, whose gun it was, and that he did not know she had previously admitted
owning the gun.[13]
Reimann argues that
further hearings were necessary to permit him to present evidence that his
trial counsel was ineffective in investigating the facts surrounding the plea,
and, as a result, his plea was not knowingly and voluntarily entered.
Reimann argues that he
pled to the firearm charge in order to protect his former wife—and
co-defendant—Cynthia Groholski, from being charged with possession of the
weapon, which was found under the bed in a motel room the two were
sharing. He asserts that he was
unaware, at the time of his plea, that Groholski had already admitted to
possession of the gun, and he states that the only reason he entered the plea
"was because [his attorney] informed [him] that [Groholski]'s lengthy and
extensive criminal record would guarantee that she would receive at least a 30
year sentence if/when she was convicted..."
The
trial court concluded that Reimann's allegations constituted inadequate grounds
to reopen the hearings, and we cannot say that is a conclusion a reasonable
judge could not reach, given the facts of record and the applicable law. See Burkes v. Hales,
165 Wis.2d at 590, 478 N.W.2d at 39.
A defendant claiming
ineffective assistance of counsel in the context of a guilty or no contest plea
must show that "there is a reasonable probability that, but for counsel's
errors, he would not have pleaded guilty and would have insisted on going to
trial." Hill v. Lockhart,
474 U.S. 52, 59 (1985) (footnote omitted).
In State v. Bentley, 201 Wis.2d 303, 312, 548 N.W.2d 50,
54 (1996), the defendant claimed ineffective assistance in connection with his
plea because counsel misinformed him that his minimum parole eligibility date
was two years less than cases such as
his actually required. The supreme
court upheld the trial court's decision not to hold an evidentiary hearing on
the motion, observing that Bentley "never explain[ed] how or why the
difference between ... minimum parole eligibility date[s] ... would have
affected his decision to plead guilty."
Id. at 316-17, 548 N.W.2d at 56. In particular, said the court, Bentley had failed to allege any
"special circumstances that might support the conclusion that he placed
particular emphasis on his parole eligibility in deciding whether to plead
guilty." Id. at 317,
548 N.W.2d at 56.
The same is true
here. Reimann has not referred us to
any evidence in the record to suggest that he placed a particular emphasis on
protecting Groholski when deciding whether to accept a plea agreement. Indeed, he has not even alleged that his
trial counsel was aware of the reasons he now claims warrant withdrawal of his
plea. We agree with the State that if
Reimann never told his lawyer that he was pleading only to protect his former
wife, "counsel ... could not have responded to it at all, let alone
responded to it ineffectively."
Finally, under the
circumstances surrounding the discovery of the gun in Reimann and Groholski's
room, and given her status as a co-defendant in the trial court, her admission
that she possessed the gun does not insulate Reimann from prosecution on the
same charge. See Curl v.
State, 40 Wis.2d 474, 483, 162 N.W.2d 77, 82 (1968) (when more than one
person may be said to have control over property, each may be in
"possession" of the property within the meaning of the criminal
code), cert. denied, 394 U.S. 1004 (1969). We conclude that the trial court properly exercised its
discretion in refusing to reopen the evidentiary hearing.
B. The "Exculpatory Evidence" Claim
Reimann also argued to
the trial court that further hearings were necessary to permit him to offer
testimony that, in addition to the unsigned "agreement," an agent of
the Department of Justice orally told Watson that, in exchange for his
cooperation in the Reimann investigation, the Department would "protect
him" from state and federal prosecution in this case and in his pending
case. He said this would have
contravened Banuelos's testimony that he made no such promises to Watson.
In denying the request,
the court, lumping together the exculpatory evidence and tape claims, stated
that there were two reasons for denying further hearings: (1) the issues had
already been raised and considered; and (2) even if considered anew, they
provide no reason to question either the court's earlier rulings or the jury's
verdict.[14]
The court's explanation,
while minimal, establishes that it exercised its discretion in denying this
request, and we cannot say the decision lacks a rational basis. Burkes, 165 Wis.2d at 590, 478
N.W.2d at 39. Beyond that, Reimann's
defense, as we have indicated above, was entrapment: that Banuelos had induced
him to commit a criminal offense—to sell the heroin to Banuelos—which he was not
otherwise disposed to commit. Proving
the defense is a two-step process.
First,
the defendant must prove ... that he or she was induced by law enforcement to
commit the crime. The state then bears
the burden of proving ... that the defendant had a prior disposition to commit
the crime.
State
v. Pence, 150 Wis.2d 759, 765, 442 N.W.2d 540, 543 (Ct. App.
1989) (citations omitted). It is a
subjective test that focuses on the defendant's state of mind which led to the
intent to commit the crime—that is, "whether the police conduct affected
or changed a particular defendant's state of mind." Id. at 765, 442 N.W.2d at
542-43.
The only acts of the
"police" that could form the basis for the defense would be the
alleged "promises" of leniency made to Watson by the Department of
Justice, and whether such promises were made to Watson seems to us to be
immaterial to Reimann's state of mind.
According to Reimann's own testimony, he sold the heroin to Banuelos not
because he wanted to see him receive lenient treatment from the police but
because Watson told him he owed Banuelos money and Banuelos would
"hurt" him if he was unable to pay it back. In that light it is difficult to see how a jury could reasonably believe
that it was the Department's purported promise to Watson that induced the
sale. They are apples and oranges. We see no error in the trial court's denial
of Reimann's request to reopen the hearing on this issue.
C. The Tape Recordings
Finally,
Reimann argues that the trial court should have reopened the hearing to permit
him to present evidence that his trial counsel was ineffective for failing to
make specific objections to use of the tape-recorded conversations at trial,
and that counsel had no strategic reasons for doing so. The trial court ruled that the tapes were
admissible, and we have affirmed that ruling.
Under those circumstances, Reimann's argument that he should be
permitted another chance to show counsel was ineffective for failing to keep them
out is unavailing.
By the Court.—Judgments
and orders affirmed.
Not recommended for
publication in the official reports.
[2] Section
968.29(3)(b), Stats., provides
that:
any person who has received ... any information concerning a wire, electronic or oral communication or evidence derived therefrom, may disclose the contents of that communication ... while ... [testifying] in any proceeding ... in which a person is accused of any act constituting a felony under ch. 161 [the controlled substance law], and only if the party who consented to the interception is available to testify at the proceeding or if another witness is available to authenticate the recording.
[3] Sections
968.28, 968.29 and 968.30, Stats.,
set forth the procedures for applying to the court for authority to intercept
wire, electronic or oral communications.
Section 968.29(3)(a) states:
Any
person who has received, by any means authorized by ss. 968.28 to 968.37 ...,
any information concerning a wire, electronic or oral communication ... may
disclose the contents of that communication ... while giving testimony ... in
any proceeding in any court ....
[4] In a more recent case, United States v. Caceres, 440 U.S. 741, 750 (1979), the Supreme Court confirmed that the Fourth Amendment does not protect against interception of a conversation with another party who has consented to the interception.
[5] Reimann
points to a passage in Arnold which he says demonstrates that the
Arnold court was indeed recognizing a substantive right to
privacy in his conversations:
The
American people are rightly jealous of their freedom of privacy and from
"bugging" by the police.
While the demands of our complex society require improved methods of
crime detection, they do not require that a citizen's right of privacy must be
indiscriminately invaded by electronic surveillance or may be invaded with the
consent of only one party to a wire or oral conversation having a privileged
character.
State ex rel. Arnold v. County
Court, 51 Wis.2d 434, 440, 187 N.W.2d 354, 357 (1971).
Taken in context—immediately following the court's statement that it was seeking to "discover[] the legislative intent" behind the electronics surveillance statute—it is apparent to us that the Arnold court's discussion of § 968.29, Stats., was, at most, a description of the sentiments prompting the legislature's enactment of the electronic surveillance statute. It did not establish any substantive privacy rights.
[6] A voice may be identified, whether heard firsthand or through a mechanical recording, "by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker." § 909.015(5), Stats.
[7] Reimann
contends that, absent Banuelos's specific testimony that he listened closely to
every word of Watson's conversations with him, the tapes could not be properly
authenticated because it is possible that Watson turned off the tape to
"coax[] incriminating statements from [him]" or "recorded new
statements over the words he actually uttered during the conversations to mask
the true context of Reimann's words."
We reject the argument.
First, Reimann never challenged the authenticity of the tapes on this basis in the trial court. Second, authenticity may be shown by circumstantial evidence, and the proponent of the evidence need not eliminate the possibility of alterations absolutely, but only as a reasonable possibility. United States v. Bright, 630 F.2d 804, 819 (5th Cir. 1980). Reimann has not persuaded us that the trial court erroneously exercised its discretion in determining that the tapes were sufficiently authenticated to be admissible in evidence.
[8] Banuelos's
testimony at trial regarding any promises made to Watson is as follows:
Q: And
what if any arrangements, agreements, or promises did you make with Mr. Watson
to get him to participate with you in th[e] investigation [of Reimann]?
A:
Well, actually, there w[ere] no promises made to Mr. Watson. The only thing I had mentioned to Mr. Watson
at the time that I interviewed him was that I would mention this to the
Assistant DA in Dane County and that maybe his assistance would be taken into
consideration at that time or later....
Toward the pending case that he had against him.
....
Q: All
right, that sort of came up in the discussions. You just didn't walk in and say, "Gee how would you like to
be a snitch?" and he said, "I can't wait?"
A: I
never used any pressure on Watson. He
wanted to do this.
Q:
Okay, he wanted to do this, right?
A:
Yeah. We never promised any chances of
him getting out of his pending charge.
Q: But
you did promise to go to the district attorney's office to tell them the
results of his cooperation, correct?
A: To
tell them what Watson had told me, and that he could be utilized and whether it
would be okay and --
Q: And by going to the district attorney, if
he's able to succeed in setting somebody up, you're going to recommend leniency
or a reduced sentence to the district attorney, correct?
A: We don't recommend. We just tell the assistant [district] attorney what the person has done. And I believe that the assistant district attorney decides from there.
[9] The
testimony was not specifically sought by the prosecutor. Banuelos was asked to "describe what it
was that [he] received from Mr. Watson" on the date in question. He responded that Watson gave him a plastic
"baggy" containing a "brown substance," and went on to
state: "The other little round ball of substance was—according to Mr.
Watson, was given to Mr. Watson as a return for the favor for—", at which
time the testimony was interrupted by Reimann's hearsay objection.
A
few minutes earlier, Banuelos—again in response to a general question—began to
testify as to what Watson said to him when he returned from meeting with
Reimann and Reimann interposed a hearsay objection. The prosecutor responded that the statement was not being offered
for its truth, but simply to explain what was happening, and the trial court
stated:
Let me
explain this to the jury, and it's sometimes difficult to understand.
What Mr. Watson may have said is hearsay and
cannot be considered by you for the truth [o]f what Mr. Watson is saying. In other words, you can't accept as true
what Mr. Watson is telling ... this witness.
But I am allowing it in to explain what happened, why the officer did whatever
[he] did next, to give you a complete picture of the scene. But you can't accept what Mr. Watson was
saying was true.
After
a few intervening questions, Banuelos gave his "brown substance"
answer and, in response to Reimann's hearsay objection, the trial court stated:
So the jury understands again, anything that Mr. Watson says to this witness is hearsay and should not be accepted for the truth of what he said.
[10] Reimann also claims that admission of Watson's statement via Banuelos's testimony violates the Confrontation Clause. We have held, however, that the evidence was properly admitted under the rules of evidence because, under the court's repeated instructions to the jury, it was not admitted for the truth of the statement. See Tennessee v. Street, 471 U.S. 409, 416-17 (1985) (right of confrontation not implicated where statement not admitted for its truth).
[11] In its memorandum decision on Reimann's second set of postconviction motions, the trial court noted that its "standard jury instruction in cases such as [this] contains a statement that the jury `will have to a[ss]ess the credibility of' those [witnesses] whose ... testimony is before it." The court went on to note that it was its intent to advise the jury to "`assess' Banuelos'[s] and Watson's credibility, rather than to `accept' it," and that it could not ascertain "[w]hether the Court mis-spoke or the transcript is inaccurate ...."
[12] Reimann, citing to Smuda v. Milwaukee County, 3 Wis.2d 473, 479, 89 N.W.2d 186, 189 (1958), argues that a correct instruction does not cure an incorrect instruction unless the jury is explicitly informed that the proper instruction is being given to correct the erroneous instruction. Smuda held that the trial court must expressly inform the jury that it is correcting an erroneous instruction where "the error was on a major point which in the particular circumstances seem[s] quite likely to have affected the result," but that explicit correction is not necessary where "the defect, in its context, could not have been prejudicial." Id. Because, as we recognize above, there is no reasonable probability that the court's misstatement affected the outcome of Reimann's trial, Smuda does not materially advance his position on appeal.
when
you put it in context, the issues raised today by the defense are rehashing of
a lot of the issues we have dealt with before.
They are different twists on a lot of the issues we have dealt with
before. That would be one category that
they would fall into.
The other category that they would fall into
would be that even if correct ... there's no showing that they would have
altered any decisions made by the Court in this case or any decisions the jury
made in this case....
[T]he
issue of the credibility of Watson is nothing new, the issue of ... Banuelos's
credibility is nothing new, the tape recording issue is not new.
And when you put it all together, the items being raised today don't change previously made decisions in this case.