COURT OF APPEALS DECISION DATED AND RELEASED March 14, 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. 95-0110-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JANE L. AUEL,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Grant County:
GEORGE S. CURRY, Judge. Affirmed.
Before Gartzke, P.J.,
Sundby and Vergeront, JJ.
PER
CURIAM. Jane Auel appeals from a judgment convicting her of
manufacturing more than 2500 grams of marijuana, § 161.41(1)(h)3, Stats., based on evidence that she grew
it in and around her home. The court
entered judgment pursuant to the jury's guilty verdict. The sole issue is whether the trial court
should have excluded from evidence a largely inaudible tape recording. We conclude that the trial court properly
allowed the jury to hear the tape, and therefore affirm.
Auel was a tenant in the
home of Gary Pope, a large-scale marijuana dealer. Pope obtained at least some of his marijuana from plants started
in his home and grown in his yard or nearby.
An acquaintance of
Pope's, Dan Schutte, was arrested on drug charges. In exchange for various
concessions he visited Auel while wearing a hidden microphone, which
transmitted to a police tape recorder.
At trial Schutte testified that Auel admitted during their conversation
that more than thirty of the marijuana plants growing on the premises were
hers. Schutte reported that Auel made a
number of other comments indicating that she participated in Pope's
enterprise. He also testified to
observing her on other occasions tending marijuana plants on the premises.
The State also offered into
evidence a tape recording of Schutte's conversation with Auel. The tape was largely inaudible, but did
confirm Auel's statement that more than thirty of the plants were hers. The trial court admitted it over Auel's
objection of unfair prejudice, because that one statement was both relevant and
audible, while nothing else on the tape appeared prejudicial. In her testimony, Auel admitted making the
statement about the plants, but asserted that she did so at Pope's request and
that it was not true. She denied any
other involvement in marijuana growing.
Pope supported Auel's story. He
testified that he told Auel to say that she grew the plants because Pope was
tired of receiving Schutte's horticultural advice. The jury evidently believed Schutte's version and disbelieved
Auel and Pope.
The trial court properly
admitted the tape. We agree with
federal decisions that admissibility of a partially inaudible tape is a matter
for the trial court's discretion. United
States v. Camargo, 908 F.2d 179, 183 (7th Cir. 1990). Auel admitted she made the inculpatory
statement heard on the tape. Nothing
else on the tape unfairly prejudiced her, and she did not testify nor offer
proof that any of the inaudible portions contained exculpatory material. As a result, the trial court reasonably
viewed the tape as trustworthy evidence.
By the Court.—
Judgment affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.