PUBLISHED OPINION
Case No.: 95-0456-CR
Petition to
review filed
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
KENNETH A. DAVIS,
Defendant-Appellant.†
Submitted on Briefs: November 3, 1995
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: January 31, 1996
Opinion Filed: January
31, 1996
Source of APPEAL Appeal from a judgment
and an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Kenosha
(If
"Special", JUDGE: BRUCE E. SCHROEDER
so indicate)
JUDGES: Anderson, P.J., Brown and Snyder, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of the defendant-appellant, the cause was
submitted on the briefs of Donald T. Lang, assistant state public
defender.
Respondent
ATTORNEYSOn behalf of the plaintiff-respondent, the cause was
submitted on the brief of James E. Doyle, attorney general, and David
J. Becker, assistant attorney general.
COURT OF
APPEALS DECISION DATED AND
RELEASED January
31, 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. 95-0456-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
KENNETH
A. DAVIS,
Defendant-Appellant.
APPEAL
from a judgment and an order of the circuit court for Kenosha County: BRUCE E. SCHROEDER, Judge. Affirmed.
Before
Anderson, P.J., Brown and Snyder, JJ.
SNYDER,
J. Kenneth
A. Davis appeals from a judgment convicting him of threats to injure while
armed, contrary to §§ 943.30(1) and 939.63(1)(a), Stats., and from an order denying him postconviction
relief. On appeal, Davis contends
that: (1) his constitutional right to
be free from unreasonable searches was violated when the prosecution elicited
testimony from a police officer that Davis refused to consent to a chemical
test for intoxication, and (2) that a police officer impermissibly testified as
to the credibility of two prosecution witnesses. Because we conclude that the first issue is waived by Davis'
failure to object at trial and that the officer's statement related to the
witnesses' demeanors and not their credibility, we affirm.
This
case arose out of an incident that occurred at the home of Shana Craft, Davis'
cousin. Davis had agreed to stay with
Craft's nine children while she traveled to Chicago to pick up a car. A snowstorm interfered with Craft's return;
she arrived home in the evening approximately twenty-seven hours after her
departure. When Craft returned, she
told Davis that she would be unable to pay him for his baby sitting services.
Davis
remained at Craft's along with John Thomas, a friend of Craft's, who had come
to the house that afternoon while Davis was baby sitting. Throughout the evening, Davis made repeated
requests to be paid. When Craft
continued to refuse, Davis began to verbally threaten both Craft and Thomas.
Craft
and Thomas decided to go upstairs, hoping that Davis would “cool off.” A few minutes later Davis followed them,
entered Craft's bedroom and threatened them with two knives he had taken from
the kitchen. After Davis went back
downstairs, Craft and Thomas followed.
However, before rejoining Davis, Thomas suggested that Craft call the
police.[1] In order to leave without incident, Craft
told Davis that she was going to call her sister and ask her to bring the money
Craft owed Davis.
While
Craft was gone, Davis and Thomas continued to argue. Davis threatened Thomas with a knife, and during a struggle,
Thomas received two small puncture wounds on his arm and a minor wound to his
neck. When police arrived in response
to Craft's call, Davis was arrested.
After a jury found Davis guilty, he filed a motion for postconviction
relief.[2] When that motion was denied, this appeal
followed.
Davis
contends that eliciting testimony from a police officer that he refused to
submit to a chemical test for intoxication violated his constitutional right to
be free from unreasonable searches.
When Davis raised this issue in his motion for postconviction relief,
the trial court ruled that it was relevant to comment on a defendant's failure to
submit to a lawful search. Furthermore,
even if the search were deemed unlawful, Davis had waived his right of review
by failing to raise a contemporaneous objection to the testimony.[3]
Davis
now renews his claim of error, arguing his right to review is upheld by Odell
v. State, 90 Wis.2d 149, 279 N.W.2d 706 (1979) (per curiam). There, the court determined that appellate
review of a fundamental constitutional error was warranted even though there
had not been a contemporaneous objection.
Id. at 155, 279 N.W.2d at 709.
Subsequent
cases, however, have refined the holding of Odell. In State v. Boshcka, 178
Wis.2d 628, 642, 496 N.W.2d 627, 632
(Ct. App. 1992), this court stated, “[U]nobjected-to errors are
generally considered waived; and the rule applies to both evidentiary and
constitutional errors.” This holding is
in line with the well-settled rule that “[f]ailure to object to an error at
trial generally precludes a defendant from raising the issue on appeal.” State v. Edelburg, 129 Wis.2d
394, 400, 384 N.W.2d 724, 727 (Ct. App. 1986).
We
find well-defined support for this rule in Wainwright v. Sykes,
433 U.S. 72 (1977). There, the Court
recognized the desirability of applying the contemporaneous objection rule to
constitutional errors. The Court
reasoned:
A contemporaneous objection enables the record to be
made with respect to the constitutional claim when the recollections of
witnesses are freshest .... It enables
the judge who observed the demeanor of those witnesses to make the factual
determinations necessary for properly deciding the federal constitutional
question.
Id. at 88. In addition, a
contemporaneous objection may lead to the exclusion of evidence and thereby
contribute to finality in criminal litigation.
Id. For example,
the exclusion of the objected-to evidence may lead to the acquittal of the
defendant; if the defendant is subsequently convicted without the objected-to
evidence, there will be one less constitutional claim to assert
postconviction. Id. at 88‑89.
Finally,
and perhaps most importantly, enforcement of the rule encourages the parties to
view the trial as an event of significance that should be kept as error-free as
possible. Id. at 90. As the Court noted:
The failure ... to require compliance with a
contemporaneous-objection rule tends to detract from the perception of the
trial ... as a decisive and portentous event.
... Society's resources have
been concentrated at that time and place in order to decide ... the question of
guilt or innocence of one of its citizens.
Any procedural rule which encourages the result that those proceedings
be as free of error as possible is thoroughly desirable ....
Id. We conclude that the policy
reasons offered by the Supreme Court in Wainwright are sound,
leading us to adopt the contemporaneous objection rule outlined therein.
In
doing so, we repeat well-settled law that waiver is in the interest of proper
judicial administration, as witnessed by our above discussion. See Wirth v. Ehly, 93
Wis.2d 433, 443‑44, 287 N.W.2d 140, 145-46 (1980). We may, in our discretion, choose to address
an issue despite waiver if it is in the interests of justice that we do
so. See State v. Dyess,
124 Wis.2d 525, 536, 370 N.W.2d 222, 228 (1985). Here, we see no necessity for abandoning the policy reasons
behind the contemporaneous objection rule.
Davis has not presented us with sufficient reasons to convince us that
the integrity of the jury's verdict is clouded. We uphold the use of the contemporaneous objection rule here and
apply it.
Davis
next argues that a police officer witness improperly commented on the credibility
of two prosecution witnesses, and that this court should grant a new trial in
the interests of justice. See §
752.35, Stats.; see also Lorenz
v. Wolff, 45 Wis.2d 407, 414‑15, 173 N.W.2d 129, 132 (1970). This is a question of law; an appellate
court must decide questions of law independently of the trial court. See Ball v. District No. 4,
Area Bd., 117 Wis.2d 529, 537, 345 N.W.2d 389, 394 (1984).
A
police officer witness was asked to describe the demeanors of Craft and
Thomas. The officer responded:
Very cooperative.
They were not intoxicated from what I could tell. Gave very good statements and I found them
to be excellent witnesses.
Davis did not object.
He maintains that “defense counsel could not have reasonably anticipated
that a question concerning the demeanor of Mr. Thomas and Ms. Craft would
elicit an opinion assessing the quality of these two witnesses and their
statements.” He now contends that this
court should grant a new trial because the officer's statement put before the
jury “evidence not properly admitted.” See
§ 752.35, Stats.
Davis
further argues that the officer's statement improperly bolstered the
credibility of Craft and Thomas and is prohibited by the holdings of State
v. Haseltine, 120 Wis.2d 92, 352 N.W.2d 673 (Ct. App. 1984), and State
v. Romero, 147 Wis.2d 264, 432 N.W.2d 899 (1988). We disagree.
In
Haseltine, a new trial was ordered because a psychiatrist,
testifying as an expert witness, stated that in his opinion there was no doubt
that Haseltine's daughter was an incest victim. Haseltine, 120 Wis.2d at 95-96, 352 N.W.2d at 675‑76. The court reasoned that such a statement in
this context was an opinion that the daughter was telling the truth. Id. at 96, 352 N.W.2d at
676. The court further noted:
Haseltine's entire defense consisted of witnesses who
testified that the daughter was dishonest.
Under these circumstances, the psychiatrist's opinion, with its aura of
scientific reliability, creates too great a possibility that the jury abdicated
its fact-finding role to the psychiatrist and did not independently decide
Haseltine's guilt.
Id. Similarly, in Romero
the sole issue in the case was whether the complainant or the defendant was
telling the truth. Romero,
147 Wis.2d at 279, 432 N.W.2d at 905.
The supreme court noted that it was “a one-on-one battle of
credibility.” Id.
We
conclude that the officer's statement that Thomas and Craft gave very good
statements and were “excellent witnesses” was not a comment on their
credibility, but rather related to their demeanors. The officer's comments merely summarized his opinion of the
witnesses and did not unfairly taint the fact-finding process. The credibility of a witness is something a
lay juror can knowledgeably determine. Haseltine,
120 Wis.2d at 96, 352 N.W.2d at 676. We
find nothing in the record to suggest that the officer's comment would have
caused the jury to abdicate its fact-finding role.
By
the Court.—Judgment and order
affirmed.