COURT OF APPEALS DECISION DATED AND RELEASED March 19, 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. 95-0920-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
FRANCISCO GUERRIDO,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
MAXINE A. WHITE, Judge. Affirmed.
Before Sullivan, Fine
and Schudson, JJ.
SCHUDSON, J. Francisco Guerrido appeals from the judgment
of conviction for first-degree reckless injury. He argues that the trial court made several evidentiary rulings
that denied him a fair trial. We
affirm.
In the early morning
hours of June 11, 1991, Theresa Lazu was seriously injured when an assailant
stabbed her in the chest with a knife outside her niece's apartment
building. When Milwaukee Police Officer
James Harpole arrived at the scene within one minute of the dispatch and asked
Lazu who had stabbed her, she responded, “Frankie, Frankie.” She subsequently told the police at the
scene, in the ambulance, and at the hospital that “Frankie” was her
ex-boyfriend, Francisco Guerrido.
Lazu testified that on
the morning before the attack, she had spoken with Guerrido and told him that
she was going to date another man, Barbaro Turcaz. She said that Guerrido told her that “if I wasn't his I wasn't
nobody's.” Later that day, Lazu and her
niece, Micky Cartagena, were driving back to Cartagena's apartment building
from a local tavern when Guerrido “jumped in front of the car” and then got in
the back seat of their car. Lazu
testified that she then took Cartagena home, drove around with Guerrido
attempting to purchase cocaine, and then returned to Cartagena's apartment
building where she parked the car.
Guerrido stayed in the car.
After unsuccessfully attempting to gain entry to Cartagena's apartment,
Lazu walked outside where Guerrido walked up to her, stabbed her, and ran
off. Lazu said she was screaming and
“pounding on the door to try to get somebody's attention” when first Turcaz and
then Cartagena came to her. Turcaz told
Cartagena to call the police and an ambulance.
Other than the victim
and the assailant, no witnesses observed the attack. Further, no physical evidence linked Guerrido or anyone else to
the crime. Cartagena, however, corroborated
Lazu's account of the earlier encounter with Guerrido and testified that “he
said he was going to get her before the night was over with.” She also described how Turcaz, who lived in
the same building, “was kicking the door in and saying she was bleeding and
everything, to call the police.” She
said she asked Lazu who had stabbed her and Lazu said, “Frankie.”
Guerrido's theory of
defense was that Turcaz stabbed Lazu, and that Lazu falsely accused him
(Guerrido) because she was afraid of Turcaz.
That theory was supported by several factors including Turcaz's
proximity to the crime scene, his violence against Lazu, and, as he expresses
it in his reply brief to this court, the “possib[ility] that Turcaz, awakening
to find that his girlfriend of some months had been out driving the streets
with her former boyfriend, reacted in an abusive jealous rage when she finally
came home well after midnight[.]”[1] Guerrido further supports his theory by
pointing to evidence undermining Lazu's credibility including: Lazu's two prior criminal convictions; the
fact that Lazu had a .16 blood alcohol content as well as cocaine in her system
when treated at the hospital after the assault; the fact that Lazu initially
lied to a detective about going with Guerrido to buy cocaine; and testimony
from Carmen Fontanez that Lazu told her that Turcaz, not Guerrido, had stabbed
her. Guerrido challenges several of the
trial court's evidentiary rulings relating primarily to the extent to which he
was allowed to impeach Lazu.
As this court recently
summarized:
The admission of evidence is a matter within
the trial court's discretion. We will
not disturb an evidentiary ruling where the trial court has exercised its
discretion in accordance with accepted legal standards and the facts of
record. Where the trial court fails to
adequately explain the reasons for its decision, we will independently review
the record to determine whether it provides a reasonable basis for the trial
court's discretionary ruling.
State
v. Clark, 179 Wis.2d 484, 490, 507 N.W.2d 172, 174 (Ct. App.
1993) (citations omitted).
Guerrido first argues
that the trial court erroneously exercised its discretion when, despite
allowing defense counsel to cross-examine Lazu about Turcaz's violent acts
against her, it did not allow the defense to elicit testimony from police
officers to impeach her responses.
Specifically, Guerrido sought to ask Lazu about events after the
stabbing—in July 1991 and October 1991, in which Turcaz allegedly abused
her. The trial court denied the State's
motion in limine to exclude such evidence and permitted defense counsel
to cross-examine Lazu about Turcaz's alleged violence against her.[2] Guerrido argues, however, that although
“defense counsel was allowed to cross-examine Lazu about her violent
relationship with Turcaz,” defense counsel “was prohibited from calling a
police officer to verify that certain of these assaults had occurred, or at
least that Lazu had made sworn statements to the police that they had
occurred.”[3]
Under cross-examination,
Lazu acknowledged that “probably” she had wanted to stay with Fontanez at one
time because Turcaz “was beating [her] up.”
At no point, however, did defense counsel question Lazu about statements
she gave police regarding any alleged incident. Trial counsel stated that he wanted to call police officers
because “I think she testified that there were no other acts of violence
against her when in fact she reports to the officers that there is a history of
abuse, and I think that that is if not prior inconsistent statement it can go
in as substantive evidence in this case.”
Before making its ruling, the trial court had the court reporter locate
Lazu's trial testimony and reviewed it.
The trial court then correctly concluded that the alleged inconsistency
was not present; that is, that Lazu had not testified “that there were no other
acts of violence against her,” as defense counsel had maintained. The trial court then stated:
[Y]ou
could have done anything you wanted on 10/91 with Lazu to put in the character
of Barbaro but you can't do it independently with a police witness. That is a collateral attack in this Court's
view and I'll deny the admission of it under 904.04 in the means that you are
offering at this point through the police witness given he state of the record.
Had defense counsel
confronted Lazu with questions regarding whether she had made statements to the
police about Turcaz's alleged assaults, then nothing under § 904.04, Stats., would have precluded the police
testimony. In this case, however, when
Lazu denied that “a short time after [she] got out of the hospital [Turcaz] hit
[her] with a baseball bat and threw [her] down the stairs,” and failed to
recall details of the October 1991 incident, the defense failed to ask her
about any statements she allegedly made to the police.[4] Under § 908.01(4)(a)1, Stats., before introducing Lazu's alleged
statements to the police to impeach her, the defense would have had to have
cross-examined her “concerning the statement,” not merely concerning the
alleged incident. Thus, we conclude
that the trial court properly allowed Guerrido to impeach Lazu by exposing
Turcaz's alleged violence against her, but also properly disallowed
introduction of police testimony regarding Lazu's alleged statements about
which she had not been cross-examined.
Guerrido next argues
that the trial court improperly prohibited the defense from further impeaching
Lazu by questioning her about hospitalizations for mental illness and alcohol
and drug abuse that allegedly occurred five years and two years before the
assault in this case. Defense counsel
made an offer of proof that: Lazu had
staged a suicide attempt in 1986 and had been admitted to the Milwaukee County
Mental Health Complex; she again was admitted to the Mental Health Complex for
a real suicide attempt in 1989; and on both occasions she had cocaine and
alcohol in her system. Counsel argued
that her mental health and alcohol/drug use were relevant to Lazu's
credibility.
The trial court,
however, concluded that the 1986 and 1989 events were “remote in time” and “not
related to the fact pattern” of the stabbing and, “on the basis of relevance
and prejudice,” the evidence would not be allowed. On appeal, Guerrido offers a limited, imprecise argument:
[A]ppellate counsel does not know if
defense counsel (or even GUERRIDO) sought to introduce evidence of Lazu's past
staged suicide attempts in an effort to infer [sic] that she might have knifed
herself or, in some other manner, staged this injury. The nature of the wounds was such—as was the corroborating
testimony—that this inference would strain credulity. However, it was certainly a fair issue to present to the jury in
terms of the victim's state of mind and mental stability at the time of the
attack, as it relates to identity and motive.
... [I]t is clear that Lazu was ”high” on both
alcohol and cocaine at the time of the stabbing.... The fact that her proclivity to intoxication (by drugs and/or
alcohol) was accompanied by mental imbalance (whether as cause or effect is
irrelevant) is a fair issue for the jury to consider.
Guerrido has offered
nothing to establish any error in the trial court ruling. There was no claim that the stabbing was a
suicide attempt; the issue was whether Guerrido or Turcaz stabbed Lazu. Although Lazu's credibility clearly was
crucial to resolution of that issue, Guerrido offered nothing to connect her
mental health hospitalizations of 1986 and 1989 to her credibility in
1991. True, as Guerrido argues, the
evidence could have shown Lazu's “proclivity to intoxication (by drugs and/or
alcohol),” but that would have added nothing given the undisputed evidence that
Lazu was under the influence of alcohol and cocaine at the time of the assault.
Finally, Guerrido argues
that the trial court improperly excluded portions of the videotaped testimony
of Carmen Fontanez.[5] Fontanez stated that Lazu told her that
Turcaz was the assailant. When Lazu
testified at trial, she acknowledged talking to Fontanez about the stabbing,
but denied that she had told her that Turcaz, not Guerrido, had committed the
assault.
On appeal, Guerrido
cites several portions of Fontanez's deposition testimony that, he maintains,
were improperly excluded. He offers no
specific argument in support of his contentions, however, except to “maintain[
] that each of the decisions to excise testimony by Ms. Fontanez was error,
which deprived the jury of valuable character evidence about the victim.” Despite Guerrido's failure to adequately
argue the basis for these claims of trial court error, we have carefully
reviewed the deposition, compared the admitted and excluded portions, and
evaluated the propriety of the trial court's rulings.
For the most part, the
excluded deposition testimony told of Fontanez's understanding of the length of
time Lazu and Turcaz had been living together and of Turcaz's violent acts
against Lazu. The duration of the
Lazu/Turcaz relationship was the subject of testimony by other witnesses,
giving rise to uncertainty about the exact duration of their time living
together. Further, as we have noted,
Turcaz's violence to Lazu, at least in general terms, was not disputed. Fontanez's excluded testimony on these
points added little and included nothing to establish the basis for her
understanding.
By contrast, however,
the trial court also excluded the following from the Fontanez deposition:
Q:How do you know [Lazu] stayed with
Barbaro?
A:Because a couple of weeks later he beat
her up with a bat and threw her down the stairs because she said she didn't
want to come to court.
....
Q:How do you know that, Ms. Fontanez?
A:Because
she had told me when she talked to me at the bar when I told her that why was
she—she had Frankie in jail? She says,
“Don't worry about it, I just won't show up in court.”
Clearly,
this testimony was relevant and admissible.
It provided a specific alleged statement by Lazu connecting the assault
to Turcaz's violence, and further connecting the alleged false allegation against
Guerrido to whether Lazu would ultimately testify against him. We agree with Guerrido that the trial court
erred in excluding this testimony.
We also agree with the
State, however, that this error was harmless.
An error in the exclusion of evidence is harmless unless “there is a
reasonable possibility that the error contributed to the conviction,” State
v. Dyess, 124 Wis.2d 525, 543, 370 N.W.2d 222, 231-232 (1985). The error in excluding this evidence was
harmless primarily because the excluded testimony was cumulative. First, it corresponded to admitted
testimony from Fontanez's deposition that also informed the jury that Lazu
allegedly had told Fontanez that she had falsely accused Guerrido.[6] Second, it merely added to the admitted
testimony that, in combination with other evidence, provided ample basis on
which the jury could have doubted Lazu's credibility had it chosen to do
so. The admitted evidence included not
only the other reference to Lazu's alleged admission to Fontanez, but also
Lazu's two prior convictions, her cocaine and alcohol abuse, her lie to police
about trying to buy cocaine with Guerrido, and her dubious inability to recall
Turcaz's violence against her.
We also conclude that
the error was harmless because, while there were no independent witnesses to
the assault, the State's evidence was strong.
As the State argues:
[T]he victim was on the verge of dying,
citizens and police had responded to aid the victim, and she must have known it
was safe for her to tell those present who actually stabbed her. Moreover, the defense theory makes no sense
when one takes into account the fact that Turcaz not only responded to the
victim's screams, but was alongside the victim pounding on the door of Micky
Cartagena (the victim's niece) calling for help seconds after the
stabbing. Presumably, if Turcaz were
the assailant, he would have fled the scene ....
The victim's immediate and unequivocal
identification of the appellant as her assailant seconds after he plunged a
knife into her serves as powerful proof that Turcaz was not the assailant. Had she not blurted out the appellant's name
immediately after the stabbing, the defense theory might have some
substance. The victim's excited utterances,
however, eliminate even the barest of possibilities that anyone other than the
appellant stabbed her.
Therefore,
although this portion of the excluded evidence should have been admitted, we
see no “reasonable possibility that the error contributed to the conviction.”[7]
By the Court.—Judgment
affirmed.
Not recommended for
publication in the official reports.
[1] The theory of defense was plausible. We reject the State's argument that Guerrido failed to lay an adequate foundation to show that a third party committed the offense. In State v. Denny, 120 Wis.2d 614, 357 N.W.2d 12 (Ct. App. 1984), we required that a defendant establish motive, opportunity, and a direct connection between the third party and the offense charged in order to offer a third party defense. Id. at 624, 357 N.W.2d at 17. Here, Guerrido did provide an adequate theory supporting motive, opportunity, and a direct connection between Guerrido and the stabbing.
[2] Guerrido takes
exception to the trial court's comment that Lazu's “answer must be accepted as
given in the record.” This comment,
however, must be placed in context.
Defense counsel had stated that he had police officers to testify only
about the alleged October incident, not the July incident. Regarding the July incident, defense counsel
had stated, “I would simply inquire into that on cross-examination and would
have to take whatever answer she gave me regarding that.” The trial court's comment specifically
related to the July incident. The trial
court went on, however, with additional remarks about the October incident for
which trial counsel stated he had police officers who could provide
testimony. The trial court stated:
On
October 14, 1991, there was an incident that involved Ms. Lazu and Turcaz. That may likewise may be inquired into and
her answers must be accepted, and if there is any rebuttal to her testimony
about those incidents, then you will have to call the appropriate witnesses or
have certified records to establish any further point.
Thus, we do not view the trial court rulings as ones that improperly foreclosed the defense from challenging Lazu's answers.
[3] Contrary to appellate counsel's implication, trial counsel never represented that any of Lazu's statements to the police were sworn statements.
[4] Referring specifically to the October incident, defense counsel only asked, “In fact you called the police after he did that, didn't you.” Lazu responded, “I don't remember that.”
[5] Fontanez had been deposed because of her unavailability for trial, due to her incarceration in another state.
[6] The trial court
admitted testimony from the deposition that included Fontanez's statement:
A:... [Lazu] told me, she says,
“The next time this mother fucker is going to kill me.” I said, “What do you mean, next time?” She said, “Well, you don't think that
Frankie did this to me, do you?” And I
says, “He didn't?” I said, “Who did
it?” She said, “Barbaro did.” I said, “Why did you say it was Frankie
then? You got him in jail. That's bad.” She told me, she said, “Barbaro told me to say it was he.”
Q:Okay.... Did she tell you when Barbaro told her to
say it was Frankie?
A:After he stabbed her she told me that he told her that he was supposed to say that it was Frankie.
[7] Guerrido also argues
that the trial court erred in the way it admitted the deposition. Instead of showing the videotape to the
jury, the trial court had surrogates read the deposition transcript. It did so, apparently, to more easily assure
the separation of the admissible and inadmissible portions and, possibly, to
prevent the jury from observing Fontanez's “jail garb.” Although Guerrido correctly contends that
showing a videotape offers a jury the opportunity to observe the demeanor of a
witness, in this case the defense did not object to the trial court's
surrogate/reading procedure. Thus,
Guerrido waived this issue.
Guerrido also contends that the trial court erred in allowing the prosecutor to interpose objections to some of the deposition questions for the first time at trial. Clearly, however, the law allows for certain objections either at the deposition or at the trial. See § 804.07(2) & (3)(c)1, Stats. Further, Guerrido has failed to indicate which objections by the prosecutor were otherwise waived. See id.