COURT OF APPEALS DECISION DATED AND RELEASED JULY
5, 1995 |
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
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No. 95-0020-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT III
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
DANIEL
R. McBRIDE,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Shawano County: JAMES P. JANSEN, Judge. Affirmed.
Before
Cane, P.J., LaRocque and Myse, JJ.
PER
CURIAM. Daniel McBride appeals his
conviction of two counts of threatening to injure a public officer as a
repeater. The jury found him guilty of
sending threatening letters to two trial court judges in an attempt to
influence their sentencing decisions in two criminal cases. The prosecution relied to a large extent on
the testimony of a handwriting expert, who identified the handwriting as
McBride's. McBride argues that the
trial court erroneously excluded (1) lay witness testimony
differentiating McBride's handwriting with the handwriting on the threatening
letters, and (2) character evidence concerning McBride's nonviolent nature
under § 904.04(1)(a), Stats. We reject these arguments and therefore
affirm McBride's conviction.
McBride
has no basis to challenge the trial court's exclusion of lay witness
handwriting testimony. McBride objected
to the prosecution's attempt to introduce similar lay witness testimony. The trial court sustained his
objection. McBride's objection laid the
groundwork for the trial court's subsequent decision to exclude McBride's lay
witness handwriting testimony. As a
result, even if the trial court later erroneously excluded McBride's lay
witness handwriting testimony, McBride effectively invited the error by his
earlier objection to the prosecution's evidence. Litigants who invite trial court error have no basis to complain
of the error on appeal. See In
re Shawn B.N., 173 Wis.2d 343, 372, 497 N.W.2d 141, 152 (Ct. App.
1992). Moreover, as in other
evidentiary questions, the trial court had discretion to exclude this
evidence and could reasonably conclude, without erroneously exercising its
discretion, that handwriting analysis required a level of expertise that both
the prosecution's and McBride's lay witnesses lacked. See, e.g., State v. Pharr, 115 Wis.2d 334,
342, 340 N.W.2d 498, 501 (1983).
McBride
also has no basis to challenge the trial court's exclusion of character
evidence illustrating McBride's nonviolent nature. We are not persuaded it was error for the trial court to exclude
this evidence. A person's reputation
for nonviolence is irrelevant to a charge of using a "threat" of
violence to achieve a result. Although
this evidence may be relevant to whether a defendant may have actually
committed a violent act, the concern here is only whether the threat was made. Therefore, we cannot say this was an
unreasonable exercise of discretion to exclude this evidence.
Alternatively,
even if § 904.04(1)(a), Stats.,
authorized admission of this evidence, its exclusion was harmless error. Trial court error is harmless whenever the
State shows there is no reasonable possibility that the error affected the
trial's outcome. State v. Dyess,
124 Wis.2d 525, 543, 370 N.W.2d 222, 231-32 (1985). Here, the prosecution's expert handwriting and fingerprint
testimony was sufficiently persuasive to make the excluded character evidence
inconsequential in terms of the trial's outcome. By different means, both prosecution experts convincingly
identified McBride as the author of the threatening letters. No reasonable jury that rationally weighed
the evidence would have considered subjective testimony concerning
McBride's nonviolent nature sufficient to overcome the prosecution's persuasive
expert testimony concerning the physical evidence. As a result, the character evidence's exclusion had no reasonable
possibility of having affected the trial's outcome.
By
the Court.—Judgment
affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.