COURT OF APPEALS DECISION DATED AND RELEASED September 12, 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. |
Nos. 94-3260-CR
94-3261-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
TERRON NAPPER,
Defendant-Appellant,
WILLIAM NAPPER,
Defendant.
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STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
WILLIAM NAPPER,
Defendant-Appellant.
APPEAL from judgments
and orders of the circuit court for Milwaukee County: LEE E. WELLS, Judge. Affirmed.
Before Fine and
Schudson, JJ., and Michael T. Sullivan, Reserve Judge.
SULLIVAN, J. William Napper and his cousin, Terron
Napper, appeal from their judgments of convictions, after a jury trial, for
first-degree intentional homicide while armed, attempted first-degree
intentional homicide while armed, and armed burglary—all as a party to a
crime. In their appeals, which this
court consolidated, the Nappers raise several issues involving alleged trial
court error in: (1) admitting evidence of the Nappers' prior drug dealing
and of a burglary in their home on the day of the offenses and providing an
allegedly erroneous jury instruction on the use the drug dealing evidence to
show motive or intent; (2) denying their motion for a new trial based on
their claims of ineffective assistance of trial counsel; (3) failing to
order a new trial when it was discovered post-verdict that a juror recognized a
defense character witness; and (4) failing to order an in camera review
of the post-trial psychiatric records of a victim and the State's only
eyewitness.[1] This author rejects the Nappers'
arguments and would affirm the judgments and orders. The joint concurring opinion in this case also affirms the
judgments of convictions and orders denying postconviction relief. See concurrence, slip op. at 1.[2]
I.
Background.
The Nappers were
convicted of crimes related to the shootings of Kenneth Dunlap and Hattie Smith
in the pre-dawn hours of September 5, 1992.
Dunlap and Smith were sleeping in their bedroom when two gunmen entered
their apartment and shot them both at close range. Dunlap died, but Smith survived, suffering severe gunshot wounds
to her face, arm, and hand. Smith
pretended to be dead until her assailants left, and then walked downstairs to
her neighbor's apartment, who in turn called 911. A firefighter arrived, began treating her, and asked Smith who
shot her. Unable to speak because she
was shot through her mouth, Smith responded by spelling out “Mack” on the
floor. She later testified that “Mack”
was the nickname of William Napper, who, along with his cousin Terron, had
periodically sold drugs to Dunlap. The
police arrested the Nappers and the State charged them with the shootings. They were tried together.
At trial, Smith's
eyewitness testimony was central to the prosecution's case. She testified that the sound of gunshots
woke her and that she saw her assailants.
She testified that she recognized them as William and Terron
Napper. Further, she stated that at the
time of the shootings, she had known the Nappers for about nine months. In addition, evidence was introduced that
Smith identified the Nappers as the assailants in a photo lineup the day after
the shooting. She then identified the
Nappers at trial. She also claimed to
have recognized their voices and to have heard one refer to the other as “Six,”
Terron's nickname. Finally, although
hospital records indicated that Smith had suffered some hearing loss, neither
of the Nappers' trial counsel called into question her testimony about what she
heard.
The trial court also
allowed the prosecution to present evidence of a burglary at the Nappers'
apartment several hours before the shooting, ruling that it was relevant to
show motive and intent. The trial court
also admitted evidence of William's drug dealing—both to show a basis for the
Nappers' relationship with the victims and to show motive and intent. A jury found the Nappers guilty on all
counts.
During the
postconviction proceedings, one of the jurors testified that she had not been
familiar with defense witness Cottrell Allen's name during the voir dire but
had vaguely recognized him when he testified.
The trial court rejected the Nappers' claim that they were entitled to a
new trial based on juror misconduct.
The trial court also rejected the Nappers motion for an in camera
review of Smith's post-trial psychiatric records from treatment she received “a
couple months” after the trial. The
Nappers alleged that Smith had been having flashbacks of the shooting incident
for which she was receiving psychiatric treatment. Accordingly, they sought review of any of her post-trial records
dealing with these flashbacks of the shootings. Finally, they argued they were entitled to a new trial based on
their trial counsels' alleged ineffective assistance of counsel in failing to
raise the issue of Smith's hearing loss.
The trial court concluded that their respective counsels were not
deficient, nor were the Nappers prejudiced.
Both Nappers appeal from both the judgments and the orders denying their
motions for postconviction relief.
II.
Analysis.
A. Evidentiary rulings
and instruction.
The Nappers argue that
the trial court improperly admitted evidence that the residence he and William
shared may have been burglarized several hours prior to the shooting of Dunlap
and Smith. Terron claims that the
evidence was irrelevant and inadmissible because whether a burglary occurred
was not proven and a connection between the alleged burglary and the shootings
was “pure speculation” resulting in unfair prejudice.
Rule
904.01, Stats., defines “relevant
evidence” as “evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” See State v. Migliorino, 170 Wis.2d 576,
593, 489 N.W.2d 678, 685 (Ct. App. 1992).
All relevant evidence is generally admissible. Rule 904.02, Stats.
“A trial court possesses great discretion in determining whether to
admit or exclude evidence. We will
reverse such a determination only if the trial court erroneously exercises its
discretion.” State v. Morgan,
195 Wis.2d 388, 416, 536 N.W.2d 425, 435 (Ct. App. 1995) (citation
omitted). Thus, if the trial court
applies the relevant law to the applicable facts and reaches a reasoned
conclusion, the trial court has properly exercised its discretion. Id.
The trial court admitted
the burglary evidence as relevant to motive and possibly intent. It also determined that the evidence was
relevant for describing the attitude and mood of the defendants. Indeed, the trial court concluded that this
evidence supported the prosecution's general theory that the Nappers shot
Dunlap and Smith thinking they had committed the burglary. Since it is clear that the trial court
articulated its reasons for admitting the evidence, the question then before us
is whether there was a reasonable basis for this decision. It is not a question of “whether this court,
ruling initially on the admissibility of the evidence, would have permitted it
to come in, but whether the trial court exercised its discretion in accordance
with accepted legal standards and in accordance with the facts of record.” State v. Wollman, 86 Wis.2d
459, 464, 273 N.W.2d 225, 228 (1979).
The State summarized the
evidence to support its retaliation theory as follows:
The record shows that the burglary took
place about 1:00 a.m. on the morning that Dunlap and Smith were shot and that
the downstairs neighbor, Sandra Scott, told William and Terron about the
burglary when they returned home about 2:00 a.m. Scott testified that they were very upset. Scott further testified that she heard them
go down into the basement and they talked down there after she went back to bed
about 2:30 or 2:45 a.m. Officer Charles
Grimm testified that he and his partner responded to a call from Scott about a
possible burglary that evening and inspected the residence of William and
Terron and determined it had been ransacked, but that many valuable items had
not been taken. Hattie Smith testified
that she and Kenneth Dunlap knew William and Terron and that Kenneth would
purchase cocaine from them. She further
testified that William and Terron shot Dunlap and her about daybreak on that
same morning.
Indeed,
the record shows that the evidence of the burglary was intended primarily to
show motive. Given the circumstances
and timing of the burglary and the relationship of the parties, the trial court
could properly conclude that evidence of the burglary was relevant to show that
the shootings were in retaliation for the burglary. Although motive is not an element of any crime, it is an
evidentiary circumstance entitled to as much weight as the fact finder deems
appropriate. State v. Berby,
81 Wis.2d 677, 686, 260 N.W.2d 798, 803 (1978). Thus, the burglary evidence was relevant because it has a
tendency to make the existence of a fact that is of consequence, namely motive,
more probable than it would be without the evidence. See Migliorino, 170 Wis.2d at 593, 489
N.W.2d at 685. The trial court properly
exercised its discretion in admitting evidence of the burglary.
The Nappers also argue
that the trial court should not have admitted evidence of their drug
dealing. Both argue that even if it was
proper to admit the evidence as relevant to the relationship between the
parties, the trial court erred in instructing the jury that they could consider
the evidence as relevant to motive and intent.
Evidence of other acts
such as the drug dealing in this case is not admissible to prove character
flaws in the defendant but can be used for other purposes such as proving
motive, intent, or identity. See
Rule 904.04(2), Stats.
In determining whether to admit evidence of other acts, the trial court
must not only find the evidence relevant but must also examine whether it
should be excluded because the danger of unfair prejudice substantially
outweighs its probative value. State
v. Clark, 179 Wis.2d 484, 491, 507 N.W.2d 172, 174 (Ct. App.
1993). As discussed above, the
prosecution's theory was that the shootings were in retaliation for a
drug-related burglary. We have already
ruled that from the evidence, a jury could reasonably make such an
inference. The evidence of drug dealing
was relevant and indeed central to this theory.
The question then before
us is whether the evidence was so prejudicial that it should not have been admitted. When dealing with evidence of other acts,
“prejudice refers to the potential harm in a jury concluding that, because an
actor committed one bad act, he necessarily committed the crime charged.” State v. Roberson, 157 Wis.2d
447, 456, 459 N.W.2d 611, 614 (Ct. App. 1990). We conclude that any prejudicial effects that could exist were
adequately addressed by the trial court's limiting instructions:
Evidence has been received regarding
other conduct of the defendants for which the defendants are not on trial. ...
You may not consider this evidence to conclude tha [sic] the defendant
[sic] have a certain character or a certain character trait and that the
defendants acted in conformity with this trait or character. ...
You may consider this evidence only for the purposes I have described,
giving it the weight you determine it deserves. It is not to be used to conclude that a defendant is a bad person
or for that reason is guilty of the offense charged.
Thus,
we conclude that the admission of the evidence of drug dealing was well within
the bounds of the court's discretion, and further, that the charge reasonably
and adequately explained the law to the jury.
See State v. Amos, 153 Wis.2d 257, 278, 450 N.W.2d
503, 511 (Ct. App. 1989) (trial court's presentation of jury instruction will
not be reversed absent an erroneous exercise of discretion such as inadequately
stating the applicable law).
Terron makes a separate
argument that the trial court erroneously exercised its discretion by failing
to give a limiting instruction cautioning the jury not to use the evidence of
William's drug dealing against Terron.
Terron, however, failed to request the instruction and did not object
that the proposed instructions were incomplete. He has thus waived any claim of error on appeal. See § 805.13(3), Stats.; State v. Schumacher,
144 Wis.2d 388, 409, 424 N.W.2d 672, 680 (1988).
B. Juror misconduct.
The Nappers next argue
that a juror committed misconduct by failing to inform the parties during voir
dire that she knew a witness. The trial
court found that the juror did not recognize the name of the witness during
voir dire, and that there was no proof that she failed to disclose her
knowledge of a witness. The trial court
also found that the juror was not biased against the Nappers and that her
knowledge of the witness was “extremely slight, played no role in her decision
as a juror ... and would not affect or change the outcome ... in any way
whatsoever.” We agree.
We utilize a two-part
test when analyzing questions of alleged juror misconduct. The movant must show:
“(1) that the juror incorrectly or
incompletely responded to a material question on voir dire; and if so, (2) that
it is more probable than not that under the facts and circumstances surrounding
the particular case, the juror was biased against the moving party.”
State
v. Messelt, 185 Wis.2d 254, 268, 518 N.W.2d 232, 238 (1994)
(citation omitted).
The trial court's
finding that the juror was not biased against the Nappers was not clearly erroneous. She testified that she did not recognize the
witness's name during voir dire. She
testified that her knowledge of the witness was slight, that she did not know
him personally, and that she had no opinion of him. The witness testified on the Nappers' behalf, and the trial court
concluded that his testimony was insignificant. Given these findings, we cannot conclude that the trial court
erred by denying the Nappers' motion for a new trial based on alleged juror
misconduct.
C. Ineffective assistance
of counsel.
The Nappers next argue
that they received ineffective assistance of trial counsel when their attorneys
failed to raise the issue of Smith's hearing loss to impeach her testimony
about what she heard after the shooting.
The trial court rejected this argument, as do we.
A defendant's right to
counsel includes the right to effective assistance of counsel. See generally Strickland v.
Washington, 466 U.S. 668, 687 (1984).
There are two necessary elements for an ineffective assistance of counsel
claim, “deficient performance by counsel and prejudice to the defendant.” State v. Hubert, 181 Wis.2d
333, 339, 510 N.W.2d 799, 801 (Ct. App. 1993).
The burden of establishing these two elements is on the defendant. State v. Sanchez, 201 Wis.2d
219, 232, 548 N.W.2d 69, 74 (1996).
When reviewing an ineffective assistance of counsel claim, this court
pays deference to the trial court's findings of fact. State v. Schambow, 176 Wis.2d 286, 301, 500 N.W.2d
362, 368 (Ct. App. 1993). With respect
to the performance elements, we operate with a “strong presumption that
counsel's conduct falls within the wide range of reasonable professional
assistance.” Strickland,
466 U.S. at 689. The final
determination of whether counsel's perform-ance was deficient and whether there
was prejudice are questions of law that we will review independently. Schambow, 176 Wis.2d at 301,
500 N.W.2d at 368. If we conclude that
the defendant was not prejudiced, we need not address whether the performance
of trial counsel was deficient. State
v. Kuhn, 178 Wis.2d 428, 438, 504 N.W.2d 405, 410 (Ct. App. 1993).
Terron's counsel
testified at the postconviction hearing that she reviewed all 117 pages of
Smith's medical records, but did not notice the check mark on “hearing
loss.” Further, she stated that if she
had seen the mark, she would have attempted to attack Smith's credibility using
this information. She did testify,
however, that she had not noticed Smith's hearing problem during her testimony
at the preliminary hearing, the hearings on the motions in limine, or at
trial.
William's counsel
testified at the postconviction hearing that he did see the reference to
Smith's hearing loss before trial, but that he did not believe Smith had a
hearing problem. He testified that the
evidence at trial showed that she could hear at the time of the shooting. Further, her testimony at trial revealed no
otic problems; thus, counsel testified that he thought it would be foolish to
contend Smith could not hear.
The trial court
concluded that neither counsel was deficient in failing to raise the issue of
Smith's hearing loss because it was a good strategic decision not to raise this
issue given Smith's performance at trial.
This author agrees that neither counsel was deficient. The evidence at trial, including a treating
firefighter's testimony that Smith was responsive to his questions when he
found her after the shooting and Smith's performance at trial that showed no otic
problems, support the trial court's conclusion that neither counsel was
deficient. For the same reasons, we
conclude that the failure to bring this information to the jury's attention did
not render the verdict unreliable.
Thus, this author concludes that neither of the Nappers has shown the
necessary deficient performance or prejudice; hence, their ineffective
assistance of counsel claims fail.
D. In
Camera review of psychiatric records.
Finally, the Nappers
argue that they are constitutionally entitled to have the trial court review
Smith's post-trial psychiatric records otherwise privileged under Rule 905.04(2), Stats.[3] Although Smith's treatment took place months
after the trial,[4] they claim
that the records may contain material evidence that will require a new
trial. Thus, this issue implicates
concerns over the Nappers' access to privileged information as well as concerns
over whether the records are newly discovered evidence which may warrant a new
trial. See State v.
Behnke, No. 95-1970, slip op. at 9 (Wis. Ct. App. June 12, 1996) (ordered published July 29,
1996).
When dealing with
privileged information such as a victim's mental health records at the
pre-trial and trial stages, a trial court may conduct an in camera
review of the records and release to the defense any exculpatory
information. See Pennsylvania
v. Ritchie, 480 U.S. 39, 58 (1987); State v. Shiffra, 175
Wis.2d 600, 605, 499 N.W.2d 719, 721 (Ct. App. 1993). This approach strikes a balance between the defendant's right to
present a complete defense and the state's interest in protecting the
confidentiality rights of its citizens.
Shiffra, 175 Wis.2d at 605, 499 N.W.2d at 721. “To be entitled to an in camera
inspection, the defendant must make a preliminary showing that the sought-after
evidence is material to his or her defense.”
Id. Whether a
defendant has made the requisite preliminary showing for an in camera
review is a question of law that we review de novo. State v. Munoz, 200 Wis.2d
391, 395, 546 N.W.2d 570, 572 (Ct. App. 1996).
The issue in this case,
however, involves the right of a defendant to an in camera review of
records created months after the trial.
A different panel of this court recently stated that to trigger an in
camera review in such a case:
The requirements are that the evidence
must have come to the moving party's knowledge after trial, the party must not
have been negligent in seeking to discover it, the evidence must be material,
it must not be cumulative and it must be reasonably probable that a different
result would be reached on a new trial.
Behnke, No.
95-1970, slip op. at 9. Further, the
defendant must still meet “the threshold Shiffra test that the
sought-after evidence is relevant and may be necessary to a fair determination
of guilt or innocence.” Id.
This author concludes
that the Nappers fail to meet even the threshold Shiffra test,
much less whether this information would lead to a different result at
trial. The Nappers allege that Smith's
records may impinge on Smith's credibility, but they do not articulate exactly
how. The mere fact that her treatment
related to the shooting, about which she testified and for which the defendants
were convicted, does not in itself entitle the defendants to an in camera
review of her post-trial mental health records.
Quoting Shiffra,
the defendants claim Smith's trauma “might affect both her ability to
accurately perceive events and her ability to relate the truth,” thus entitling
them to an in camera review. See
Shiffra, 175 Wis.2d at 612, 499 N.W.2d at 724. The Nappers, however, fail to sufficiently
articulate how the records will call her identification testimony into
question. There is no indication that
Smith developed mental health problems that affected her ability to relate the
truth about who shot her. From the day
of the shooting, Smith identified William and Terron Napper as her
assailants. She testified the same at
trial. Her flashbacks began after the
trial was over. That something in the
records of her treatment for those flashbacks could possibly make her testimony
less credible is speculating on “mere possibilities” and does not satisfy the Shiffra
test. See Munoz,
200 Wis.2d at 397, 546 N.W.2d at 573.
The trial court correctly denied the request for an in camera
review of Smith's post-trial psychiatric records. Behnke, No. 95-1970, slip op. at 9-10.
III.
Summary.
In short, we reject all
of the Nappers' arguments. The
judgments of convictions and the orders denying their motions for
postconviction relief are affirmed.
By the Court.—Judgments
and orders affirmed.
Not recommended for
publication in the official reports.
Nos. 94-3260-CR (C)
94-3261-CR (C)
SCHUDSON, J. (concurring). Although
I agree with the lead opinion's conclusions, I write separately to note some of
my differences with the lead opinion's analysis.
I conclude that
counsels' failure to introduce evidence of Smith's hearing loss was deficient
performance. I also conclude, however,
that in light of the substantial evidence of Smith's ability to hear and in
light of Smith's testimony specifying the voices and words she heard, counsels'
deficient performance was not prejudicial; that is, it did not render “the
result of the trial unreliable or the proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S.
364, 372 (1993).
I also offer a somewhat
different analysis regarding Smith's treatment records. The Nappers argue that “[g]iven the evidence
of [Smith's] hallucinations about this incident soon after the trial,” an in
camera inspection was required to determine whether the records “contain
relevant, exculpatory information.” If,
in fact, the Nappers had offered the trial court any evidence that Smith
suffered “hallucinations about this incident soon after the trial,” I would
agree that an in camera inspection would be required. That Smith's symptoms and treatment came
after the trial, factors of apparent importance to the lead opinion, would be
far less significant than the possibility that Smith testified inaccurately as
a result of hallucinations she may have been suffering at the time she
testified. The record, however, belies
the Nappers' claim.
The evidence at the
hearing on the Nappers' postconviction motion provides no support for the
Nappers' assertion that Smith “was suffering from what were in effect
hallucinations about this incident.”
Smith testified that she sought treatment because she “started having flashbacks
about what happened, looking in the mirror, seeing my face like this, thinking
about looking over, seeing Dunlap like he was.” She also testified that she received post-trial treatment not for
hallucination, but rather, for “[h]aving flashbacks from what happened to me,
what they did to me, what I went through.”
Nothing in Smith's testimony or other evidence in the hearing even hints
of any inaccuracy in Smith's memory or testimony. Therefore, I agree that the trial court did not err in denying an
in camera inspection of Smith's treatment records.
I am authorized to state
that Judge Ralph Adam Fine joins in this concurring opinion.
[1] On February 14, 1995, this court granted the Nappers' motion to consolidate their appeals “for all purposes.” On March 29, 1995, this court granted their motion to file separate appellate briefs, but to consider the arguments made in each brief in conjunction with each other. Although some of the arguments made in one brief may appear inconsistent with those raised in the other brief, pursuant to our earlier order, we consider these issues in tandem.
[2] To avoid any confusion on the part of the parties, the analyses invoked by the concurring opinion should be considered the majority when they conflict with that of the lead author.
[3] Rule 905.04(2), Stats., provides:
(2) General rule of privilege. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made or information obtained or disseminated for purposes of diagnosis or treatment of the patient's physical, mental or emotional condition, among the patient, the patient's physician, the patient's registered nurse, the patient's chiropractor, the patient's psychologist, the patient's social worker, the patient's marriage and family therapist, the patient's professional counselor or persons, including members of the patient's family, who are participating in the diagnosis or treatment under the direction of the physician, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist or professional counselor.