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COURT OF APPEALS DECISION DATED AND RELEASED June 19, 1996 |
NOTICE |
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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. 95-0630-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JOSEPH C. FREY,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Winnebago County: BRUCE SCHMIDT, Judge. Affirmed.
Before Anderson, P.J.,
Brown and Nettesheim, JJ.
PER
CURIAM. Joseph C. Frey appeals from a judgment convicting him
of four counts of first-degree sexual assault by use or threat of use of a dangerous
weapon, one count of armed burglary and one count of false imprisonment, and
from an order denying his motion for postconviction relief. We affirm.
Frey was charged with
the aforementioned crimes as a result of an attack upon Maren L. on February 9,
1991, in the city of Oshkosh. Frey
raises a number of challenges to his conviction: (1) the failure of the State to preserve potentially exculpatory
evidence from destruction; (2) the admission of other acts evidence; (3) the
sufficiency of the evidence of false imprisonment; (4) an erroneous jury
instruction and/or ineffective assistance of counsel relating to the armed
burglary charge; and (5) the severity of his sentence.
DESTROYED EVIDENCE
Before trial, Frey moved
to dismiss the charges against him on the grounds that the State had destroyed
potentially exculpatory evidence, i.e., pubic hair taken during a combing from
the victim after the assault. A
defendant's motion to dismiss the charges against him or her on the ground of
lost evidence is subject to the tests set forth in State v. Greenwold,
189 Wis.2d 59, 525 N.W.2d 294 (Ct. App. 1994).
A defendant's due process rights are violated if the police: (1) failed to preserve evidence that is
apparently exculpatory; or (2) acted in bad faith by failing to preserve
evidence which is potentially exculpatory.
Id. at 67, 525 N.W.2d at 297. To show bad faith, a defendant must demonstrate that the police
acted with "official animus or made a conscious effort to suppress
exculpatory evidence." Id.
at 69, 525 N.W.2d at 298. We
independently review whether the trial court erred in applying the
constitutional standard to the facts it found.
Id. at 66, 525 N.W.2d at 296‑97.
At the hearing on the
motion, Detective Quant testified that he received three hairs from a combing
of Maren's pubic hair and that the hairs were submitted to the state crime
laboratory for comparison with standards of her pubic hair. The hairs were returned to Quant in August
1991 without comparison because the victim's standards were inadequate for
testing. Quant gave the hairs to
Detective Charley, the officer in charge of the Oshkosh police department
evidence room. In December 1993, Quant
asked Charley for the combings so they could be sent for further crime lab
analysis and discovered that they had been destroyed in October 1992 along with
Maren's bed linens, clothing and the sexual assault evidence kit consisting of
blood, saliva and hair standards. Quant
did not authorize the destruction.
The state crime
laboratory analyst involved in the case, Marie Varriale, testified that she
received the three hairs in 1991 but did not analyze them because the
laboratory's procedure was to first test unknown hairs against the standards
from the individual from whom they were taken.
Because Maren's hair standards were inadequate for testing, the three
hairs went unanalyzed. Because the
three hairs were ultimately destroyed, Varriale did not have an opportunity to
compare them with standards from Frey to determine the likelihood that they
came from him. She testified that
various swabs from Maren tested negative for the presence of sperm or semen.
Charley acknowledged
that his initials appeared on the department's records showing the evidence was
destroyed in October 1992, although he did not recall the incident. Charley guessed that he had received some
instruction which he interpreted to mean that the Frey case was closed.[1] However, the department's central record
file did not contain any evidence showing that Charley had been instructed to
destroy the evidence in this case.
The court found that the
hairs had some exculpatory value because Varriale testified that if they had
been compared with Frey's hairs, it would have been possible to eliminate him
as the donor of the hairs.
Nevertheless, the court was not convinced that the three hairs possessed
apparent exculpatory value because their exculpatory value was not apparent to
police. The court found no evidence of
bad faith on the part of the State and deemed destruction of the evidence
inadvertent. Therefore, under Greenwold,
Frey's due process rights were not violated by destruction of the evidence.
The trial court's
findings that the hairs were potentially, rather than apparently, exculpatory
and that their destruction was inadvertent are not clearly erroneous. Section 805.17(2), Stats.[2] Numerous federal cases have held that where
negligence is the cause of destruction of evidence, such cannot support a
showing of bad faith. Greenwold,
189 Wis.2d at 69, 525 N.W.2d at 297-98.
Because Frey did not establish that the hairs were either (1) apparently
exculpatory or (2) potentially exculpatory and destroyed as a result of the
State's bad faith, the trial court did not err in denying his motion to
dismiss.
OTHER ACTS EVIDENCE
Frey challenges the
trial court's decision to admit evidence of sexual assaults involving Cynthia
F. and Judith W. He argues that the
evidence was not necessary to prove identity and that it was insufficiently
near in time, place and circumstance to constitute an imprint under State
v. Kuntz, 160 Wis.2d 722, 746, 467 N.W.2d 531, 540 (1991). Frey also argues that the other acts
evidence was not reliable because his conviction for assaulting Cynthia was
reversed.
We will affirm the trial
court's decision to admit evidence if the court properly exercised its
discretion. State v. Webster,
156 Wis.2d 510, 514, 458 N.W.2d 373, 374-75 (Ct. App. 1990). In exercising its discretion, the trial
court must apply accepted legal standards to the facts of record and use a
rational process to reach a reasonable conclusion. See id. at 515, 458 N.W.2d at 375. We conclude the trial court did so.
Although § 904.04(2), Stats., specifically excludes evidence of other acts when such evidence is
offered "to prove the character of a person in order to show that he [or
she] acted in conformity therewith," State v. Shillcutt, 116
Wis.2d 227, 236, 341 N.W.2d 716, 720 (Ct. App. 1983), aff'd, 119 Wis.2d
788, 350 N.W.2d 686 (1984), it does not bar evidence which is "offered for
other purposes, such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident." Section 904.04(2).
When the trial court
must decide whether to admit other acts evidence, it is required to use a
two-pronged analysis. First, the trial
court must consider whether the proposed evidence fits within one of the exceptions
stated in § 904.04(2), Stats. Second, the trial court must exercise its
discretion to resolve whether the prejudice resulting from the other acts
evidence outweighs its probative value.
State v. Fishnick, 127 Wis.2d 247, 254, 378 N.W.2d 272, 276
(1985). The relevancy of the other acts
evidence is a threshold question that is implicit in the two-pronged
analysis. The trial court must decide
if there is a logical or rational connection between the other acts evidence
and any fact that is of consequence to the determination of the action being
tried. See State v.
Alsteen, 108 Wis.2d 723, 729-30, 324 N.W.2d 426, 429 (1982).
"To be admissible
for purposes of identity, the other-acts evidence should have such a
concurrence of common features and so many points of similarity with the crime
charged that it "can reasonably be said that the other acts and the
present act constitute the imprint of the defendant." Kuntz, 160 Wis.2d at 746, 467
N.W.2d at 540. The threshold measure
for similarity is nearness in time, place and circumstance to the charged
crime. Id. at 746-47, 467
N.W.2d at 540. Whether there is a
concurrence of common features is generally within the trial court's
discretion. Id. at 747,
467 N.W.2d at 540.
Cynthia was assaulted in
her Green Bay home on January 31, 1991.
Frey forced his way into the home, woke Cynthia and sexually assaulted
her by first having oral and then vaginal sex with her. During the assault, Frey was conversational,
preoccupied with time and threatened Cynthia with further harm if she reported
the assault to the police. On
February 19, 1991, approximately ten days after the attack on Maren, Frey
forcibly entered the home of Judith W., woke and sexually assaulted her by
first having oral and then vaginal sex with her. Frey threatened further harm if she reported the attack to the
police. During the assault, Frey was
conversational with Judith.
The court found that
while the crimes were not identical, there were similarities which far
outweighed the dissimilarities. All
three assaults (Maren, Cynthia and Judith) resulted from forcible entry into
the victims' residences in the early morning hours while the victims were
sleeping. The attacker first had oral
and then vaginal sex with the victim and threatened the victim with further
harm if she reported the assault to the police. The court found that all three of the attacks occurred within a
twenty-day time period in areas that Frey frequented, notwithstanding that Green
Bay and Oshkosh are separated by some miles.
The court found that the other acts evidence was relevant to identity[3]
and that its probative value exceeded the danger of unfair prejudice.
We agree with the trial
court that there were sufficient similarities to admit the attacks on Judith
and Cynthia as other acts evidence relevant to the identity of Maren's
attacker. There was a concurrence of
common features and sufficient points of similarity with the charged crime such
that Frey's imprint was revealed. The
incidents occurred near in time, reasonably near in place and under
circumstances that made them relevant to the identity of Maren's attacker and
the charged crime. That the Cynthia F.
conviction was reversed does not preclude its use as other acts evidence. Cf. Day v. State, 92
Wis.2d 392, 403, 284 N.W.2d 666, 672 (1979) (conviction not necessary to be
admissible as other acts evidence).
Frey also argues that
the other acts evidence was prejudicial.
However, nearly all evidence operates to the prejudice of the party
against whom it is offered. State
v. Johnson, 184 Wis.2d 324, 340, 516 N.W.2d 463, 468 (Ct. App.
1994). The test is whether the
prejudice of relevant evidence is fair or unfair. Id. The
trial court determined that the evidence, while prejudicial, was probative on
the question of identity. Additionally,
the trial court's use of a cautionary instruction ameliorated the prejudicial
effect of the other acts evidence. Shillcutt,
116 Wis.2d at 238, 341 N.W.2d at 721.
We assume the jury heeded the curative instruction. See In re D.S.P., 157
Wis.2d 106, 117, 458 N.W.2d 823, 828 (Ct. App. 1990), aff'd, 166 Wis.2d
464, 480 N.W.2d 234 (1992). Such
instructions go far "to cure any adverse effect attendant with the
admission of the [other acts] evidence."
Fishnick, 127 Wis.2d at 262, 378 N.W.2d at 280.
Our independent review
of the record supports the trial court's discretionary decision to admit the
evidence. In light of the multiple
points of congruence between the charged crime and the other acts, the trial
court had a rational basis for concluding that the other acts evidence was
relevant to the issue of identity. Kuntz,
160 Wis.2d at 747, 467 N.W.2d at 540.
FALSE IMPRISONMENT
Frey challenges the
sufficiency of the evidence that he falsely imprisoned Maren contrary to
§ 940.30, Stats. Upon a challenge to the sufficiency of the
evidence to support a jury's verdict, we may not substitute our judgment for
that of the jury "unless the evidence, viewed most favorably to the state
and the conviction, is so lacking in probative value and force" that no
reasonable jury "could have found guilt beyond a reasonable
doubt." State v. Poellinger,
153 Wis.2d 493, 507, 451 N.W.2d 752, 757-58 (1990). We will uphold the verdict if any possibility exists that the
jury could have drawn the inference of guilt from the evidence. See id. at 507, 451
N.W.2d at 758. It is the jury's
province to fairly resolve conflicts in the testimony, weigh the evidence and draw
reasonable inferences from the facts. See
id. at 506, 451 N.W.2d at 757.
We must accept the reasonable inferences drawn from the evidence by the
jury. Id. at 507, 451
N.W.2d at 757. If more than one
reasonable inference can be drawn from the evidence, the reviewing court must
adopt the inference which supports the conviction. State v. Hamilton, 120 Wis.2d 532, 541, 356 N.W.2d
169, 173-74 (1984).
A defendant confines or
restrains another when the defendant deprives that person of freedom of movement
or compels that person to remain where that person does not wish to
remain. Wis J I—Criminal 1275 (1990). A person is not confined or restrained if the person knew
imprisonment could have been avoided by taking reasonable action. Id. The confinement or restraint must be intentional on the part of
the defendant and without the authority of the victim. Id.
Frey argues that Maren
was restrained for the short period of time during which she was sexually
assaulted. Maren testified that Frey
entered her bedroom, pushed her down and forced her to perform various sex
acts. During that time, the defendant
either straddled her, exhibited superior physical strength or made threats
while armed. We conclude that the
evidence in this case is sufficient to satisfy the elements of false
imprisonment. When viewed in
combination, the circumstances of this case indicate that Frey confined or
restrained Maren, deprived her of freedom of movement and that she was unable
to take reasonable action to avoid the restraint.
CHALLENGE
TO ARMED BURGLARY
Frey seeks reversal of
his conviction for armed burglary because the jury instruction did not require
the jury to find beyond a reasonable doubt that Frey was armed prior to or
during the burglary and did not define "armed." Frey is correct that the jury was instructed
on unarmed burglary. At the
postconviction motion hearing, the court noted that it had held two preliminary
jury instruction conferences and a formal conference on the record and that
Frey did not object to the unarmed burglary instruction the court gave. Frey concedes as much on appeal.
Failure to object at the
jury instruction conference waives any error in the proposed instruction. See § 805.13(3), Stats.
We do not "have the power to find that unobjected-to errors go to
the integrity of the fact-finding process ...." State v. Schumacher, 144 Wis.2d 388, 409, 424
N.W.2d 672, 680 (1988). Although we are
precluded from addressing Frey's claim that the unarmed burglary instruction
was error, we do have broad discretionary power of reversal under
§ 752.35, Stats., if we are
satisfied that the real controversy was not fully tried or there was a
miscarriage of justice. State v.
Smith, 170 Wis.2d 701, 714 n.5, 490 N.W.2d 40, 46 (Ct. App. 1992), cert.
denied, 507 U.S. 1035 (1993). We
may also review an alleged error in jury instructions under an ineffective
assistance of counsel claim. Id.
Under § 752.35, Stats., we may reverse and order a new
trial if the real controversy has not been fully tried or if it is probable
that justice has for any reason miscarried.
Vollmer v. Luety, 156 Wis.2d 1, 16, 456 N.W.2d 797, 804
(1990). When the real controversy has
not been fully tried, we may exercise our power of discretionary reversal
without finding that it is probable that a different result would occur on
retrial. Id. In contrast, in order to reverse on the
grounds that justice has miscarried, we must first find a substantial
probability of a different result on retrial.
Id.
We decline to exercise
our authority under § 752.35, Stats.,
because we conclude that the real controversy, i.e., whether Frey was armed
during the burglary, was tried. Furthermore, it is substantially improbable
that a different result would occur on retrial (i.e., acquittal) if a second
jury was instructed regarding the armed element of burglary. Therefore, justice did not miscarry.
The jury was advised at
the outset that Frey was charged with having sexual intercourse with Maren
without her consent by use or threat of use of a dangerous weapon, i.e., a
knife. The jury was also informed that
Frey was charged with burglary "while armed with a dangerous weapon"
arising out of the same incident. Maren
testified that her assailant brandished a knife and threatened her with
it. The jury was instructed that the burglary
occurred with the intent to commit a felony on the premises. The underlying felony was a sexual assault
with the use or threat of use of a knife.
The jury was also instructed on the armed element of the sexual assault
charge.
In order to find Frey
guilty of first-degree sexual assault contrary to § 940.225(1)(b), Stats., the jury had to find that he
used or threatened to use a dangerous weapon.
In their closing arguments, the prosecutor and defense counsel referred
to evidence that Maren's assailant possessed a knife. The armed burglary verdict stated that the defendant had to have
been armed. Under all of these
circumstances, we conclude that the real controversy—whether Frey was armed
during the burglary—was before the jury.
We also conclude that justice has not miscarried because we are unable
to conclude that a different result would occur on retrial, i.e., acquittal of
armed burglary.
The foregoing reasoning
also precludes a conclusion that trial counsel was ineffective for not having
sought an armed burglary instruction or objecting to the unarmed burglary
instruction. To establish a claim of
ineffective assistance of counsel, a defendant must show that counsel's
performance was deficient and that it prejudiced the defense. Strickland v. Washington, 466
U.S. 668, 687 (1984). We need not
address whether counsel's performance was deficient if we can conclude that
counsel's performance did not prejudice the defendant. State v. Moats, 156 Wis.2d 74,
101, 457 N.W.2d 299, 311 (1990).
Whether counsel's performance prejudiced the defendant is a question of
law which we review de novo. Id. A defendant is prejudiced if he or she can
show that there is a reasonable probability that but for counsel's
unprofessional errors, the result of the proceeding would have been different. State v. Johnson, 153 Wis.2d
121, 129, 449 N.W.2d 845, 848 (1990). A
reasonable probability is a probability sufficient to undermine confidence in
the outcome. Id. In applying this principle, reviewing courts
are instructed to consider the totality of the evidence before the trier of
fact. Id. at 129-30, 449
N.W.2d at 848-49.
We have already
concluded that had the jury been instructed on armed burglary, it is not
reasonably probable that Frey would have been acquitted on the charge. For this reason, there was no prejudice to
Frey as a result of trial counsel's failure to assure a proper jury instruction
on armed burglary.
SENTENCING
Finally, Frey challenges
the severity of his sentence. The trial
court sentenced Frey to the maximum consecutive sentences on each offense. In particular, he complains that the court
did not articulate a rationale for giving consecutive sentences on the four
counts of first-degree sexual assault for which he was convicted.
We review whether the
trial court misused its sentencing discretion.
State v. J.E.B., 161 Wis.2d 655, 661, 469 N.W.2d 192, 195
(Ct. App. 1991), cert. denied, 503 U.S. 940 (1992). We presume that the trial court acted
reasonably, and the defendant must show that the trial court relied upon an
unreasonable or unjustifiable basis for its sentence. Id. The
weight given to each of the sentencing factors is within the sentencing judge's
discretion. Id. at 662,
469 N.W.2d at 195. Public policy
strongly disfavors appellate courts interfering with the sentencing discretion
of the trial court. State v.
Teynor, 141 Wis.2d 187, 219, 414 N.W.2d 76, 88 (Ct. App. 1987). We conclude that the trial court properly
exercised its discretion in sentencing Frey and that its sentence does not
shock public sentiment. See id.
The primary factors to
be considered by the trial court in imposing a sentence are the gravity of the
offense, the offender's character and the need to protect the public. State v. Borrell, 167 Wis.2d
749, 773, 482 N.W.2d 883, 892 (1992).
Frey concedes that the court properly considered the seriousness of the
offenses and his prior criminal record.
The court also considered Frey's history of criminal activity, drug and
alcohol abuse, and the fact that he showed no remorse. The court found that the public required
protection from Frey. The court
expressed serious concern that Frey would continue to commit violent crimes if
not incarcerated for a substantial period of time. The trial court considered the appropriate factors and weighed
them in its discretion.
As with the length of
the sentence, whether sentences shall be served consecutively or concurrently
is entrusted to the trial court's discretion.
See State v. Hamm, 146 Wis.2d 130, 156, 430 N.W.2d
584, 596 (Ct. App. 1988). "[T]he
factors that apply to the length of sentence also apply to whether sentences
will run consecutively." State
v. Anderson, 163 Wis.2d 342, 350-51, 471 N.W.2d 279, 282 (Ct. App.
1991). The trial court's rationale for
imposing the maximum penalties also supports its decision that the sentences be
served consecutively. We do not see any
misuse of discretion.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[2] Frey has not claimed that the hairs would have exonerated him. Therefore, their exculpatory value was only potential, necessitating proof of bad faith on the part of the police in destroying the evidence.
[3] The court made this finding notwithstanding Frey's earlier argument that identity would not be an issue because Maren identified him in a lineup. The fact that Frey would not stipulate to identity and that a notice of alibi had been filed indicated to the trial court that identity would be an issue at trial.