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COURT OF APPEALS DECISION DATED AND RELEASED October
18, 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
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No. 94-2686-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
ANNE
M. EGGLESTON,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Walworth County: JAMES L. CARLSON, Judge. Affirmed.
Before
Brown, Nettesheim and Snyder, JJ.
PER
CURIAM. Anne M. Eggleston appeals from
a judgment convicting her of first-degree reckless homicide in the death of her
three-year-old son.[1] We reject Eggleston's claims that the
prosecutor engaged in misconduct, that the evidence was insufficient to support
the conviction and that the trial court erred in admitting other acts evidence. We affirm the judgment of conviction.
SUFFICIENCY OF THE
EVIDENCE
The
jury found Eggleston guilty of first-degree reckless homicide[2]
of her son, Joshua, contrary to § 940.02(1), Stats.[3] Eggleston argues that the evidence was
insufficient to support this verdict.
Upon
a challenge to the sufficiency of the evidence to support a jury's verdict, we
may not substitute our judgment for that of the jury "unless the evidence,
viewed most favorably to the state and the conviction, is so lacking in
probative value and force" that no reasonable jury "could have found
guilt beyond a reasonable doubt." State
v. Poellinger, 153 Wis.2d 493, 507, 451 N.W.2d 752, 757-58 (1990). We will uphold the verdict if any
possibility exists that the jury could have drawn the inference of guilt from
the evidence. See id.
at 507, 451 N.W.2d at 758. It is the
jury's province to fairly resolve conflicts in the testimony, weigh the
evidence and draw reasonable inferences from the facts. See id. at 506, 451
N.W.2d at 757. If more than one
inference can be drawn from the evidence, the inference which supports the
jury's finding must be followed unless the testimony was incredible as a matter
of law. State v. Witkowski,
143 Wis.2d 216, 223, 420 N.W.2d 420, 423 (Ct. App. 1988).
Eggleston
claims that there was insufficient medical evidence that Joshua died due to
asphyxiation. We disagree. Dr. Jeffrey Jentzen, medical examiner for
Milwaukee County and a forensic pathologist, testified that the autopsy
revealed external trauma including scratches on Joshua's cheek, a tear on the
underside of his upper lip and bruising on the inner side of his lower
lip. An internal examination revealed
hemorrhaging on the larynx. Jentzen
further testified that the injuries to Joshua's mouth and larynx, which had
occurred recently, were typical of asphyxiation victims. Jentzen opined that Joshua died of asphyxia
by suffocation or strangulation, and ruled out other causes of death.[4] He opined that Joshua would have died four
to six minutes after his oxygen was cut off.
Eggleston
claims Jentzen's opinion regarding cause of death is undermined because he did
not know that Joshua's lip injuries occurred while he was playing with his
sister. Social worker Kim Steen
testified that just prior to his death, Joshua received a blunt trauma to his
mouth and lips when his sister threw a book at him. Steen saw that Joshua had a scratch across his nose the day
before he died, but she did not recall seeing that he had an injured lip. The extent to which Steen's testimony undermined
Jentzen's opinions was for the jury to decide.
A reasonable jury might not agree that Steen's testimony explained all
or even some of Joshua's injuries.
Eggleston
also argues that her conduct could not have caused Joshua's death. At trial, Eggleston admitted holding
Joshua's head against a pillow for fifteen seconds to muffle his crying so he
would not wake a baby sleeping nearby.
Dr. Garry Peterson testified that fifteen seconds against a pillow would
not have asphyxiated Joshua.
The
jury was not required to accept Eggleston's testimony that she held Joshua's
face to the pillow for only fifteen seconds.
Eggleston's mother-in-law, Ida McDermott, testified that Eggleston
told her that she held Joshua's face to the pillow for "a few minutes until
he quit breathing and crying." In
a taped interview on March 18, 1993, Eggleston told Captain Richard Meinel of
the Lake Geneva Police Department that she held Joshua's face to the pillow for
between one and five minutes.
Jentzen
testified regarding the cause of Joshua's death and Eggleston admitted to
McDermott that she held Joshua's face to the pillow for a few minutes until he
stopped breathing and crying. Viewing
the evidence most favorably to the State and the conviction, we cannot conclude
that the evidence is so lacking in probative value that no reasonable jury
could have convicted Eggleston of first-degree reckless homicide. To the extent that there were conflicts in
the testimony, it was the jury's province to assess the credibility of the
witnesses, weigh the evidence and draw reasonable inferences from it. See Poellinger, 153
Wis.2d at 506-07, 451 N.W.2d at 757-58.
We defer to the jury's inference that Eggleston committed this crime.
OTHER
ACTS EVIDENCE
Eggleston
challenges the trial court's decision to admit evidence that she abused Joshua
and made derogatory comments about his resemblance to his father. Eggleston also argues that the trial court
did not give a curative instruction at the time such evidence came in.[5]
In
a motion in limine, the State moved the trial court to permit evidence that
Eggleston had reported to the Walworth County Department of Human Services that
when Joshua was a month old, she picked him up and shook him roughly because he
would not stop crying. The State also
sought to introduce evidence that in January 1990, Eggleston told the
Department that she had been kicked out of her home by her husband, Scott
Eggleston, because she handled the children roughly. The State also wanted to present Scott's testimony that in April
1990, he took Joshua to the emergency room because the defendant had bruised
his back and forehead. Finally, the
State sought to present testimony from relatives that the defendant had
tripped, shoved and demeaned Joshua and demonstrated a dislike for him.
The
trial court applied § 904.04(2), Stats.,
and concluded that the evidence was relevant to show motive and intent to kill,
the latter being an element of the first-degree intentional homicide charge
against Eggleston. The trial court also
found that the other acts evidence was not so remote as to be devoid of
probative value. The trial court also
considered the danger of unfair prejudice to Eggleston and excluded as unduly
prejudicial one prior act involving the placement of rat poison where a child
could reach it. The rest of the State's
other acts evidence was admitted.
We
will affirm the trial court's decision to admit evidence if the court properly
exercised its discretion. State
v. Webster, 156 Wis.2d 510, 514, 458 N.W.2d 373, 374-75 (Ct. App.
1990). In exercising its discretion,
the trial court must apply accepted legal standards to the facts of record and,
demonstrating a rational process, it must reach a reasonable conclusion. Id. at 515, 458 N.W.2d at
375.
Section
904.04(2), Stats., specifically
excludes evidence of other crimes or acts when such evidence is offered
"to prove the character of a person in order to show that the person acted
in conformity therewith." See
State v. Shillcutt, 116 Wis.2d 227, 236, 341 N.W.2d 716, 720 (Ct.
App. 1983), aff'd, 119 Wis.2d 788, 350 N.W.2d 686 (1984). However, the statute does not bar evidence
which is "offered for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident." Section
904.04(2). We need only determine that
the other acts evidence was relevant to one of the purposes enumerated in
§ 904.04(2) in order to uphold the trial court's discretionary decision to
admit the evidence. See State v.
Speer, 176 Wis.2d 1101, 1114, 501 N.W.2d 429, 433 (1993).
We agree with the trial
court that evidence of Eggleston's previous conduct toward Joshua and her other
children was relevant to her motive[6]
and intent to kill Joshua, tended to rebut the common perception of a loving
mother-child relationship and was not unfairly prejudicial. Evidence that Eggleston had behaved
inappropriately with Joshua also tended to rebut her contention that she was
only trying to calm Joshua when she held his face to the pillow.
The
trial court properly exercised its discretion in admitting this evidence. It determined that the evidence fell within
one of the exceptions enumerated in § 904.04(2), Stats., and then assessed whether it was more probative than
prejudicial. See Shillcutt,
116 Wis.2d at 235, 341 N.W.2d at 719.
Eggleston
complains that the trial court did not give a cautionary instruction after
testimony regarding each item of other acts evidence. Eggleston's theory that an instruction was required in the middle
of a witness's testimony is not supported by citation to legal authority. The record indicates that at the conclusion
of testimony by each witness who provided other acts evidence, the trial court
instructed the jury that the evidence could be considered only with regard to
motive and intent and could not be used to conclude that Eggleston was a bad
person and therefore guilty of the charged crime. The court's use of a cautionary instruction ameliorated any
prejudicial effect of the other acts evidence.
See id. at 238, 341 N.W.2d at 721.
PROSECUTORIAL
MISCONDUCT
Finally,
Eggleston alleges numerous incidents of prosecutorial misconduct which she
claims interfered with her right to a fair trial. She cites the following instances: (1) the prosecutor's statement in the jury's presence that he
would waive the State's peremptory strikes, (2) the proximity of the
prosecutor's table to the jury, (3) the prosecutor's pretrial release of
information to a defense witness, and (4) the prosecutor's alleged enjoyment of
defense counsel's frustration in being unable to locate a witness. We conclude that none of these instances,
either separately or together, operated to deprive Eggleston of a fair trial.
Eggleston
first argues that the prosecutor improperly stated that he would waive the
State's peremptory challenges after the parties became aware that an
insufficient number of jurors had been seated to allow for seven strikes by
each side. After the trial court stated
its intention to strike the jury, the prosecutor asked to discuss the matter in
chambers. The trial court did not
respond, and the parties continued to discuss in front of the potential jurors
the fact that if each side exercised all of its strikes there would not be an
alternate juror. At that point, the prosecutor
offered to dispense with two of the seven strikes available to him. Defense counsel then asked the judge to move
the discussion into chambers.
Thereafter, the parties went to chambers, and the status of peremptory
strikes was discussed further.
On
appeal, Eggleston argues that the prosecutor's "public announcement that
he would forego his peremptory strikes" cast Eggleston "in a bad
light since she would be construed as using her strikes to eliminate
jurors." At the postconviction
motion hearing, the trial court rejected this claim and questioned whether the
jury knew what was going on.
We
see no misconduct on the part of the prosecutor. He asked to continue the peremptory strike discussion in
chambers. That the trial court did not
immediately grant the request cannot be attributed to the prosecutor. Additionally, we do not discern any
prejudice to Eggleston. The trial court
doubted the potential jurors understood what was happening. This finding is not clearly erroneous.
Next,
Eggleston argues that the prosecutor's table was positioned so that he could
"blow kisses" to the jury, thereby placing Eggleston at a
disadvantage. At the beginning of the
second day of trial, defense counsel objected that the prosecutor's table was
facing the jury from the middle of the courtroom. Defense counsel inquired why the defense was not also facing the
jury. The trial court found that the
defense table was actually closer to the jury and that the jurors' ability to
see the defense table depended on which way they were looking. At the postconviction motion hearing, the
prosecutor testified that he moved his table because the defense table was
blocking his view of the jury.
Eggleston has not demonstrated on this record that the prosecutor
exploited his proximity to the jury.
Eggleston
next claims that the prosecutor acted inappropriately when he furnished Judith
Saynor, the mother of Eggleston's fiance, Christopher Saynor, with a letter
from Eggleston.[7] During trial, the prosecutor advised the
court that Eggleston had given him a letter written by Eggleston from the
Walworth County jail to an ex-boyfriend.
The prosecutor gave the letter to Judith because she had expressed a
concern that Eggleston was trying to manipulate her son and the letter seemed
relevant to her concern. The prosecutor
acknowledged that the letter might make Christopher less sympathetic to
Eggleston.
Christopher
testified at the mid-trial hearing on this matter that he intended to testify
truthfully in the case even though someone had attempted to influence his
testimony. The trial court found that
the prosecutor did not act improperly when he forwarded the letter to Judith
and that the letter itself would not influence Christopher's putative
testimony. At the postconviction motion
hearing, the trial court stood upon the record previously made on this
controversy.
We
assume arguendo that the prosecutor's conduct was improper. However, we conclude the conduct was not
prejudicial because Christopher stated that the incident would not influence
his testimony, and he later testified in a manner which was favorable to
Eggleston.[8]
Finally,
Eggleston complains that the prosecutor seemed satisfied when the defense was
unable to locate Rachael Eggleston, one of her children, to testify at
trial.
At
the postconviction motion hearing, the prosecutor testified that Rachael left
the building sometime after the trial court signed the defense's subpoena for
her. The prosecutor recalled that Scott
and/or his mother, McDermott, were concerned that Rachael was being subpoenaed in
the middle of the trial and left the courthouse with her. The prosecutor saw them in the hallway
before they left. Afterward, the
prosecutor spoke with defense counsel, who was having difficulty locating
Rachael. Defense counsel testified that
when the prosecutor informed him that Rachael had left the courthouse, the
prosecutor smiled and apparently thought the situation was funny. The
prosecutor did not recall laughing or joking when he spoke with defense counsel
about Rachael leaving the courthouse.
Notwithstanding the defense's difficulty in serving Rachael with the
subpoena, trial counsel testified at the postconviction motion hearing that he
subsequently decided not to call her as a witness.[9]
The
entire "Rachael" incident occurred outside of the jury's
presence. Eggleston has not shown that
this incident had any bearing on the outcome of the trial.
By
the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.
[1] Eggleston's
notice of appeal states that she appeals only from the judgment of
conviction. Eggleston filed a
postconviction motion which was heard and denied by the trial court, and on
appeal she raises issues determined on postconviction motion. Eggleston's failure to designate the
postconviction order in her notice of appeal does not deprive this court of
jurisdiction to review issues raised on postconviction motion. See Northridge Bank v.
Community Eye Care Ctr., 94 Wis.2d 201, 203, 287 N.W.2d 810, 811
(1980).
[2] Eggleston had
been charged with first-degree intentional homicide contrary to
§ 940.01(1), Stats.
[3] Section
940.02(1), Stats., states:
Whoever recklessly causes the death of another human
being under circumstances which show utter disregard for human life is guilty
of a Class B felony.
[4] Jentzen
specifically rejected the suggestion that Joshua died from sudden infant death
syndrome (SIDS) because he was not in the age group for that type of death and
the autopsy results were not consistent with that type of death.
[6] Although motive
is not an element of any crime, see State v. Brecht, 143
Wis.2d 297, 320, 421 N.W.2d 96, 105
(1988), "[m]atters going to motive ... are inextricably caught up with and
bear upon considerations of intent,"
State v. Johnson, 121 Wis.2d 237, 253, 358 N.W.2d 824, 832
(Ct. App. 1984).
[8] Christopher
testified that Eggleston was a good mother to the children from her marriage to
Scott and the daughter from their relationship. He also testified that she seemed to love Joshua, he did not see
her abuse the children and she did not say cruel things to or about Joshua. Christopher resisted the prosecutor's
attempt on cross-examination to portray Eggleston as less than an ideal mother.