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COURT OF
APPEALS DECISION DATED AND
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6, 1996 |
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This opinion is subject to further editing. If published, the official version will appear in the bound
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No. 95-0147-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
JOSEPH
GILMORE,
Defendant-Appellant.
APPEAL
from a judgment and an order of the circuit court for Iowa County: JAMES P. FIEDLER, Judge. Affirmed.
Before
Gartzke, P.J., Dykman and Sundby, JJ.
GARTZKE,
P.J. Joseph Gilmore appeals from a
judgment of conviction for arson, § 943.02(1)(a), Stats., and obstructing an officer, § 946.41(1), Stats., and from an order denying his
postconviction motion. The first issue
is whether Gilmore should have a new trial because the trial court excluded
evidence regarding the credibility of the principal witness for the State. We conclude the court properly excluded the
evidence. The second issue is whether
the court's error in responding to the jury's question on the obstruction
charge was harmless. We conclude that
it was. We therefore affirm.
I. FACTS
On
March 30, 1991, Joseph and Florence Gilmore leased a house. Dixie Nangle, also known as Kille Nagle, the
daughter of Florence Gilmore, wrote a check to cover the first month's rent and
security deposit. Joseph and Florence
moved into the house. Ms. Nagle's
account contained no funds to cover her check.
On April 20, 1991, the landlord gave the Gilmores notice to quit or pay
the rent within five days. The next
day, April 21, 1991, a fire occurred at the home, and six months later Joseph
was charged with arson. Ms. Nagle, the
State's only witness directly linking Gilmore with the alleged arson, testified
that he admitted to her that he had intentionally set the fire.
II. EVIDENTIARY ISSUE
Gilmore
moved the court for
an Order allowing the defendant to impeach the State's
principal witness, Kelly [sic] Nagle, concerning prior bad acts for which she
was involved but for which she was not charged including defrauding her
Worker's Compensation insurance company ....
See sec. 906.08(2), Stats.; State v. Boehm, 127 Wis.2d
351, 358, 379 N.W.2d 874 (Ct. App. 1985).
Section
906.08(2), Stats., provides in
pertinent part that "[s]pecific instances of the conduct of a witness, for
the purpose of attacking or supporting the witness's credibility, ... may not
be proved by extrinsic evidence. They
may, however, ... if probative of truthfulness or untruthfulness and not remote
in time, be inquired into on cross-examination of the witness ...." The Boehm court held that it
was proper to cross-examine a criminal defendant about a previous fraud she had
committed. Boehm, 127
Wis.2d at 358, 379 N.W.2d at 878.
At
the motion hearing, Gilmore's counsel stated he proposed to call Judy Jarchow,
an employee of the worker's compensation insurance carrier, to prove that she
had been involved in an insurance fraud.
The trial court denied the motion.
As an offer of proof, counsel submitted a letter by an investigator who
had interviewed Jarchow. According to
the letter, Jarchow told the investigator that Ms. Nagle's worker's
compensation claim was for a leg injury.
Medical personnel did not understand why her wound was not healing. They eventually cultured the substance in
the wound, found that it was fecal material and found that the fecal material
matched that of Ms. Nagle. From that
point on, Ms. Jarchow denied Ms. Nagle's claim.[1]
The
trial court properly denied Gilmore's proposal to show Nagle's fraud through
witness Jarchow. Gilmore did not argue
that he proposed to cross-examine Ms. Nagle regarding her insurance fraud. Rather, he proposed to show through Ms.
Jarchow that Nagle had defrauded the worker's compensation carrier. While the Boehm court held
that it is proper to cross-examine a defendant about the defendant's previous
fraud, the court did not validate direct or cross-examination of a third person
about a fraud the defendant committed.
Gilmore
contends on appeal that the trial court based its ruling on the State's
objection to using confidential medical reports to establish Nagle's
fraud. That was not the case. The prosecutor referred to Gilmore's
proposal as one to admit other acts evidence under § 904.04(2), Stats.
The trial court disabused the prosecutor of that misunderstanding by stating
that the proposal was concerned with § 906.08(2), Stats. The ensuing
discussion between counsel and the court pertained to the hearsay exception in
§ 908.03(6m), Stats., on
health care provider records. However,
the basic question remained: whether
Gilmore could attack Ms. Nagle's credibility under § 906.08(2) through the
testimony of Ms. Jarchow. That was not
possible. For that reason, we need not
discuss the admissibility of the insurance company's medical records pertaining
to Nagle.
If,
however, the trial court indeed based its ruling on the medical records issue,
we may affirm the ruling on a different basis.
State v. Holt, 128 Wis.2d 110, 124, 382 N.W.2d 679, 687
(Ct. App. 1985). Gilmore concedes on
appeal that § 906.08(2), Stats.,
prohibited him from impeaching Nagle's credibility with Jarchow's testimony.
Notwithstanding
his concession, Gilmore argues the trial court's ruling precluded him from
cross-examining Nagle about her worker's compensation claim. Because Gilmore did not advise the court
that he wished to pursue that line of inquiry, and he made no offer of proof,
he may not predicate error on the ruling.
Section 901.03(1)(b), Stats.
Gilmore
argues the trial court's ruling precluded him from examining Jarchow's
reputation for truthfulness, a proposed inquiry contained in his offer of
proof. We agree with the State that
Gilmore waived this issue because he never made a separate motion to admit the
evidence, or a separate argument on the admissibility of it, and never asked
the circuit court to make a separate ruling on its admissibility. His motion in limine did not raise this
potential line of inquiry to Jarchow.
Once the court denied Gilmore's motion to impeach Nagle, it was
incumbent upon Gilmore to ask for a separate ruling on whether he could examine
Jarchow with respect to Nagle's reputation for truthfulness. His failure to do so, and to argue the
matter separately to the court, prevented the court from correcting its error,
if error it was. He cannot raise it
now.
III. CONSTITUTIONAL ERROR
During
its deliberations the jury sent a note to the trial court inquiring, "Can
obstructing an officer mean physically obstructing [sic] officer and lying to
the officer?" Gilmore and his
counsel were not present. The court
returned the note to the jury with "Yes" written on the same
page. The State concedes that the trial
court erred but contends the error was harmless.
Constitutional
error is harmless only if an appellate court may declare itself satisfied
beyond a reasonable doubt that the error did not contribute to the
conviction. State v. Burton,
112 Wis.2d 560, 570-71, 334 N.W.2d 263, 268 (1983). The Burton court applied that test to the very type
of constitutional error before us: a
communication outside the presence of a defendant and defendant's counsel
between the court and a jury during its deliberations. We are satisfied, beyond a reasonable doubt,
that the constitutional error did not contribute to Gilmore's conviction.
Gilmore
asserts that he would have objected to the response to the jury's question
because it permitted the jury to reach its verdict without being unanimous by
allowing some jurors to find he had physically obstructed an officer while the
others would have found that he lied to an officer. Gilmore is wrong.
No
evidence was presented that Gilmore had physically obstructed an officer. It is unreasonable to infer that any juror
believed that Gilmore had physically obstructed an officer. Evidence was presented that he had lied to
an officer, and that was the only evidence supporting the verdict on
obstruction.
No
reasonable juror could have found that Gilmore had physically obstructed an
officer, and all the jurors heard testimony that he had lied. The jury was instructed that all twelve had
to unanimously agree before a verdict could be returned. Jurors are presumed to follow their
instructions, and because the jury convicted Gilmore of obstructing in the
complete absence of physical obstruction evidence, they must have agreed that
he was guilty of obstructing for having lied.
See State v. Pitsch, 124 Wis.2d 628, 644-45 n.8,
369 N.W.2d 711, 720 (1985) (jury presumed to follow instructions). The constitutional error could not have had
any effect on Gilmore's conviction for obstruction.
IV. CONCLUSION
We
conclude that the judgment of conviction and the order denying postconviction
relief must be affirmed.
By
the Court.—Judgment and order
affirmed.
Not
recommended for publication in the official reports.