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COURT OF APPEALS DECISION DATED AND RELEASED February 7, 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. 95-0963-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
KERRY TUCKER,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Walworth County: MICHAEL S. GIBBS, Judge. Affirmed.
NETTESHEIM, J. Kerry
Tucker appeals from a judgment reciting convictions for endangering safety by
use of a dangerous weapon, endangering safety by intoxicated use of a dangerous
weapon, resisting an officer and disorderly conduct pursuant to §§
941.20(1)(a), 941.20(1)(b), 946.41(1) and 947.01, Stats., respectively.
The conviction followed a jury trial.
Tucker also appeals from an order denying postconviction relief. We affirm the judgment and the order.
FACTS
Although the sufficiency
of the evidence is not at issue, we briefly state the facts which support the
jury's guilty verdicts. At about three
o'clock on the morning of May 15, 1993, Deputy William Mortlock of the Walworth
County Sheriff's Department was dispatched to the Lake Ivanhoe subdivision in
response to a citizen complaint of shots being fired. As he searched the area, Mortlock observed a person later
identified as Tucker yelling into a squad car occupied by a Town of Bloomfield
police officer.
As Mortlock neared
Tucker, he observed a strong odor of intoxicants on Tucker's person. In response to Mortlock's questioning,
Tucker denied that he had fired any shots and he gave Mortlock permission to
search two nearby vehicles which Tucker identified as his. The search of the first vehicle produced
nothing unusual. The second vehicle was
locked. Mortlock asked Tucker to unlock
the vehicle, and Tucker responded that he would have to get the keys. Tucker then entered a nearby residence
through the front door while Mortlock positioned himself at the screen door.
Tucker then reappeared
in a hallway. At this time, Mortlock
observed Tucker holding a knife.
Mortlock drew his weapon. He
instructed Tucker to drop the knife.
Tucker, however, continued to advance toward Mortlock with the
knife. He also raised the knife from a
downward to an upward pointing position.
Again Mortlock told Tucker to drop the knife, and again Tucker continued
his advance toward Mortlock with the knife.
Mortlock then gave Tucker a final warning, telling him that if he did
not drop the knife, Mortlock would shoot him.
Tucker dropped the knife in response.
Mortlock and other officers then subdued Tucker.
Mortlock then left
Tucker in the custody of the other officers and entered the residence. There he encountered a woman named Barbara
Marshall. She stated that Tucker was
shooting prior to the officer's arrival.
Marshall told Mortlock that the gun was in an upstairs bedroom, and she
led Mortlock to the room where Mortlock discovered a handgun and ammunition.
When Mortlock exited the
residence, he observed Tucker struggling with two other officers. Tucker was yelling and screaming profanities
at the officers and trying to lift his feet against a squad car to push away
from the officers. Mortlock sprayed
Tucker with a mace-like substance in the course of subduing him.
Tucker was then
transported to a nearby hospital.
During the transport and at the hospital, Tucker was advised of his Miranda
rights. In response to questioning, he
variously denied and admitted involvement in the shooting. An analysis of Tucker's blood sample taken
at the hospital produced a blood alcohol concentration of .206%.
Tucker raises a host of
appellate issues. We will recite
additional facts as they become relevant to the particular discussion. However, we make a preliminary observation
about the structure of Tucker's appellate arguments. In the introductory portions of his brief-in-chief which address
the facts and the procedural history of this case, Tucker strays into argument
without citation to supporting legal authority. We stress that our decision covers only those issues which we are
able to discern in the argument portion of Tucker's brief.
PRIOR INCONSISTENT STATEMENT
Tucker argues that the
trial court improperly precluded him from introducing a prior inconsistent
statement by Mortlock through his cross-examination of Ray McKee, another
police officer who was present during the event.
During his testimony,
Mortlock denied that Tucker had said that he needed a knife to open the door of
the locked car. On cross-examination of
McKee, Tucker's counsel asked whether McKee had reviewed his written report
before testifying. McKee replied, “I
haven't seen it for months.” Tucker's
counsel then asked McKee whether Mortlock had told McKee that Tucker said he
needed a screwdriver to open the locked vehicle. The State objected on hearsay grounds. The trial court sustained the objection.[1] Tucker appeals this ruling, contending that
the evidence was admissible as a prior inconsistent statement by Mortlock.
We reject Tucker's
challenge on three separate grounds.
First, we hold that the issue is waived because Tucker did not proffer
his prior inconsistent statement argument in the trial court. On its face, the question called for McKee
to testify to the statement of another—clearly raising a possible hearsay
problem. When the trial court sustained
the objection, Tucker never alerted the trial court that the evidence might be admissible
as a prior inconsistent statement by Mortlock.
Had Tucker done so, and pointed out to the trial court that a prior
inconsistent statement is not hearsay, see § 908.01(4)(a)1, Stats., nor an exception to the hearsay
rule, see §§ 908.03, 908.04, 908.045, Stats.,
the State might very well have withdrawn its objection or the trial court might
have changed its ruling.
We acknowledge that
ordinarily a party proffering evidence is not required, on a threshold basis,
to demonstrate why the evidence is admissible.
Rather, the admissibility of proffered evidence is placed at issue by
the opposing party registering an objection.
Under the facts of this case, however, the question facially called for
a hearsay answer. Under such
circumstances, we conclude that it was Tucker's obligation to alert the trial
court that the answer sought was an admissible, nonhearsay, prior inconsistent
statement. We hold that Tucker has
waived this issue.
Second, even if we are
wrong in the foregoing waiver analysis, waiver exists on a further
front—Tucker's failure to make an offer of proof. Following the trial court's ruling, Tucker never made an offer of
proof as to what Mortlock's answer to the question would have been. He could easily have done so by: (1) stating
the answer which he expected McKee would give, (2) asking Mckee to answer the
question as an offer of proof, or (3) submitting McKee's written report if it
truly contained the inconsistent statement which the questions suggested.
Before we as an
appellate court may find error in a trial court's ruling excluding evidence,
the party suffering the adverse ruling must make an offer of proof revealing
the substance of the rejected evidence unless such is apparent from the
questions asked. Section 901.03(1)(b), Stats.; see also State v.
Echols, 175 Wis.2d 653, 679, 499 N.W.2d 631, 639, cert. denied,
114 S. Ct. 246 (1993). An offer of
proof need not be syllogistically perfect, but it ought to enable a reviewing
court to act with reasonable confidence that the evidentiary hypothesis can be
sustained and is not merely an enthusiastic advocate's overstated
assumption. State v. Padilla,
110 Wis.2d 414, 430, 329 N.W.2d 263, 271-72 (Ct. App. 1982).[2]
Here, while the question
assumed that Mortlock may have told McKee that Tucker needed a
screwdriver to open the locked vehicle, we cannot say that such represented
anything more than trial counsel's hope that such a favorable answer
would be forthcoming. Before we would
reverse a conviction and remand for a new trial, we must be given some degree
of assurance that evidence favorable to Tucker would be forthcoming. We have not been given that assurance in
this case.
Third, assuming that
waiver did not occur and that the trial court ruling was wrong, we hold that
any error was harmless. Assuming that
Tucker needed some type of device (be it a screwdriver or a knife) to gain
entry to the locked vehicle, the gravamen of the endangering safety charges lay
not in his reason for possessing the knife, but rather in the manner in
which he brandished it after obtaining possession. The rejected evidence would not have
materially impacted on either the evidence which formed the basis for the
convictions or on Mortlock's credibility.
Assuming that the trial court erred, such did not affect any of Tucker's
substantial rights. As such, the error
was harmless. See § 805.18(2), Stats.
EVIDENCE OF TUCKER'S PRIOR COMPLAINT
By a pretrial motion in
limine ruling, the trial court granted the State's request to bar Tucker from
presenting evidence that he had previously filed a complaint through the NAACP
against the Walworth County Sheriff's Department as a result of the events in
this case. The trial court ruled that
the evidence was irrelevant pursuant to §§ 904.01 and 904.02, Stats.
A motion in limine
ruling is an evidentiary ruling. Such
rulings are addressed to the trial court's discretion and we will not upset
such a ruling if it has a reasonable basis and was made in accordance with
accepted legal standards and the facts of record. State v. Pharr, 115 Wis.2d 334, 342, 340 N.W.2d
498, 501 (1983).
Tucker contends that
evidence about his complaint against the sheriff's department would have
“demonstrate[d] that the police had a grudge against the defendant for filing a
complaint against them.” However, the
events leading to the charges in this case occurred before Tucker filed
his complaint. The nature of, and
motives for, the officers' actions could not possibly have been influenced by
Tucker's later action. Tucker was
entitled to fully explore those actions and motives at the trial, and he did
so.
The trial court chose to
limit the evidence to the facts bearing on the events alleged in the complaint,
not on later collateral action taken by the participants which risked taking
the jury into prejudicial, confusing and irrelevant matters. Such evidence would have little or no
“tendency to make the existence of any fact that is of consequence to the determination
of the action more probable or less probable.” Section 904.01, Stats.
(emphasis added). We affirm the court's
ruling.
PRIOR CONDUCT OF A STATE'S WITNESS
Also by a pretrial
ruling, the trial court granted the State's further motion in limine to bar
evidence that a State's witness, Thomas Hogan, had himself been issued a
municipal ordinance citation for discharging a firearm the day before the
events pertaining to this case. Tucker
contends that evidence about this incident would have revealed bias or
prejudice on the part of Hogan as a witness in this case.
Again, we bear in mind
our discretionary standard of review and the limited circumstances under which
we may reverse such a ruling. See
Pharr, 115 Wis.2d at 342, 340 N.W.2d at 501.
Hogan was the person who
initially heard the shots and who phoned in the complaint to the Town of
Bloomfield Police Department. The day
before this incident, he and another were shooting at birds and were cited under
a local ordinance for discharging a firearm within municipal limits. Tucker contended that the issuance of the
citation was relevant to show a continuing dispute between the families living
on the block, including Tucker and Hogan.
In addition, Tucker argues that evidence showed that Hogan received a
concession in exchange for his testimony.
We observe, however,
that the only evidence which the trial court barred was that relating to the
issuance of the citation. Otherwise,
the court permitted Tucker to fully explore the relationship between Hogan and
Tucker and the events surrounding Hogan's discharge of a firearm. None of this evidence suggested that Hogan
received a municipal citation, rather than a criminal charge, in exchange for
his testimony in this case. We affirm
the trial court's discretionary determination.
INEFFECTIVE ASSISTANCE OF COUNSEL
Tucker was successively
represented by three different attorneys at the trial level. He alleges that all three rendered
ineffective assistance of counsel. We
will not recite in detail the test for ineffective assistance of counsel. Suffice it to say that Tucker must establish
that counsel was both ineffective and that such failing was prejudicial. See Strickland v. Washington,
466 U.S. 668 (1984); State v. Machner, 92 Wis.2d 797, 285 N.W.2d
905 (Ct. App. 1979).
A.
Motion to Suppress the Gun
Tucker first argues that
his counsel was ineffective for failing to bring a pretrial motion to suppress
evidence of the gun found by Mortlock in the bedroom of the residence. However, Tucker's argument on this issue
rests principally on Marshall's testimony at the trial that her consent
to the search was the result of Mortlock's threat to ransack the residence if
she did not consent to the search.
However, the testimony of trial counsel at the Machner
hearing was that Marshall never made such a representation prior to the
trial. Instead, Marshall represented to
trial counsel that she had consented to the search—a version in keeping with
that reported by Mortlock. The trial
court found this testimony credible.
A lawyer's performance
must be based on the information which the lawyer then knew, or reasonably
should be held to have known, at the time of the challenged performance. Tucker's argument expands the data base for
this inquiry to different and contrary testimony presented at the trial. As the trial court aptly noted, a lawyer's
performance is not measured from this perspective.
B. Motion Challenging Tucker's Detention or
Arrest
Next, Tucker contends
that trial counsel was ineffective for failing to challenge his initial
detention or arrest. From his framing
of the issue, it appears that Tucker believes that his formal arrest was
preceded by some kind of lesser form of custody, perhaps akin to a temporary
detention. However, we agree with the
trial court that no such lesser form of custody preceded Tucker's arrest. Prior to Tucker brandishing the weapon,
Tucker was not detained. To the
contrary, the evidence showed that when the officers approached the area, it
was Tucker who engaged them—not vice versa.
As to a possible motion
challenging probable cause to arrest, trial counsel testified that such a
motion would have been futile. The
trial court agreed and so do we. The
evidence overwhelmingly bears out why.
Mortlock had previously detected the odor of intoxicants on Tucker's
person. Tucker came out of the
residence possessing a knife, advancing toward Mortlock. Mortlock told Tucker to drop the
weapon. Tucker refused this instruction
and, instead, raised the knife from a downward pointing position to an upward
position and continued his advance toward Mortlock. Mortlock followed with another warning, which Tucker again
ignored, still continuing his advance.
Only after Mortlock issued a third warning coupled with a threat to
shoot Tucker did Tucker drop the knife.
A motion challenging the grounds for Tucker's arrest in the face of
these facts would have been futile and frivolous.
C. Miranda/Goodchild Hearing
Next, Tucker contends
that his trial counsel was ineffective for failing to challenge the
admissibility of certain statements he made to McKee. However, as he develops this argument, Tucker seems more to
contend that the trial court was under a sua sponte duty to conduct such a
hearing rather than that his counsel was ineffective for failing to bring a
motion challenging the admissibility of his statements. In either event, we reject both cloudy
arguments.
First, Tucker cites to
no law (and we know of none) which holds that a trial court is under a sua
sponte duty to conduct a Miranda/Goodchild hearing on its own
motion.[3] Second, any such motion would have been
futile because the information known to trial counsel established that Tucker's
statements were made after he had been advised of his Miranda
rights by McKee. Moreover, we see
nothing in the record which demonstrates that Tucker's statements were
otherwise involuntary.
D.
Motion For Continuance or Mistrial
Next, Tucker contends
that his trial counsel was ineffective for failing to move for a continuance or
a mistrial when some police reports were belatedly produced during the
trial. Trial counsel had previously
filed a discovery demand and certain materials were produced by the State. However, these materials did not include the
reports produced midtrial.
We first observe that
the trial court distinctly recalled that trial counsel did ask for a
continuance, although that request was
not memorialized on the record.
More importantly, trial
counsel testified that the belatedly produced reports did not contain any new
information. The trial court adopted
this testimony and Tucker's appellate briefs do not dispute this finding.[4] Instead, Tucker's appellate argument seems
to be that because the materials were belatedly produced, counsel was
ineffective per se for failing to seek a continuance or a mistrial. That is not the law.
E.
Tucker's Conduct at the Hospital
Next, Tucker contends
that his trial counsel was ineffective for failing to object to certain
testimony about his unruly behavior at the hospital. He contends that this evidence was inadmissible because the
disorderly conduct charge pertained only to Tucker's behavior at the scene of
the residence—not at the hospital.
However, this issue was never raised in the trial court. We deem it waived.
Alternatively,
addressing the issue on the merits, we find no error. The evidence was part of the entire sequence of events under
inquiry. The evidence was certainly
relevant on the question of Tucker's alleged intoxication, an element of one of
the endangering safety charges.
Moreover, we have
examined the final arguments presented to the jury. The prosecutor carefully limited the disorderly conduct charge to
the events at the residence. In fact,
she did not even allude to the events at the hospital when speaking to the jury
about this charge. Thus, the jury was
properly schooled that Tucker's actions at the residence were the basis for the
charge.
This does not mean,
however, that the other conduct by Tucker was off limits as to this
inquiry. If Tucker's conduct at the
hospital assisted the jury in determining whether he was disorderly at the
residence, the jury was entitled to consider such evidence. The important inquiry here is whether the
jury properly understood the situs of Tucker's alleged disorderly conduct. Based on our examination of the final
argument, we are satisfied that the jury was properly directed on this matter.
F.
Failure to Object to Portions of Expert Testimony
Next, Tucker contends
that his trial counsel was ineffective for failing to object to certain
testimony by Monty Lutz, the State's firearms expert. This testimony impeached the conclusions of an expert hired by
the defense, but who did not testify.
Prior to testifying, Lutz had been provided a report filed by the
defense expert.
Trial counsel testified
at the Machner hearing that he did not object because this
allowed him to get the substance of the defense expert's conclusions before the
jury via Lutz's testimony. This was a
matter of tactics and strategy. The
supreme court has stated that it disapproves of postconviction counsel
second-guessing trial counsel's considered selection of trial tactics or the
exercise of a professional judgment in the face of alternatives that have been
weighed by trial counsel. State
v. Felton, 110 Wis.2d 485, 502, 329 N.W.2d 161, 169 (1983). Trial counsel is free, after considered
judgment, to select a particular tactic among available alternatives. See id. The tactic selected need not be the one that
in hindsight looks best to a reviewing court or postconviction counsel. Id. In this instance, we respect counsel's tactical decision as to
the manner by which the conclusions or findings of the defense expert were
conveyed to the jury.
PROSECUTOR'S FINAL ARGUMENT
Next, Tucker contends
that the prosecutor made an improper final argument.[5] Specifically, Tucker contends that the
prosecutor blurred the distinction between the crimes of resisting an officer
and disorderly conduct. Without
citation to the record, Tucker contends that “the jury was in effect told that
if they found the defendant guilty of disorderly conduct then they also had to
find him guilty of resisting, and vice versa.”
If an act forms the
basis for a crime under more than one statutory provision, the State may
proceed under any or all such provisions.
Section 939.65, Stats. Thus, if it is Tucker's contention that the
two crimes improperly overlapped, we reject that argument.
However, we also observe
that the prosecutor told the jury that Tucker crossed the line between
disorderly conduct and resisting when he began resisting the officers. The prosecutor told the jury that Tucker had
been disorderly by shooting the gun, yelling and screaming at the officers at
four o'clock in the morning and by waking the neighbors, and that Tucker did
not resist an officer until he was actually arrested. Thus, we conclude that the jury was properly focused when
considering these two charges. We also
observe that the trial court instructed the jury that it was to consider each
charge separately and that each count charged a separate count.
Based on our examination
of the entire record, we conclude that the prosecutor did not make an improper
argument. As such, trial counsel was
not ineffective for failing to object to portions of the prosecutor's final
argument.
MARSHALL AS A STATE'S WITNESS
Next, Tucker contends
that the State's calling of Marshall as a witness was improper because it
allowed the State an opportunity to introduce Marshall's prior inconsistent
statements. This issue is waived. Tucker did not raise this issue in the trial
court. Therefore, we have no trial
court ruling to review.
CONCLUSION
We reject all of
Tucker's appellate arguments, including his further request for a new trial in
the interests of justice. We affirm the
judgment and the postconviction order.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[1] In a follow-up question, Tucker's counsel asked McKee whether he had any reason to believe that Tucker went into the home to get something other than a key to open the locked vehicle. The State objected to the form of the question. Again, the trial court sustained the objection.
[2] An offer of proof can also sometimes serve another salutary purpose—prompting the trial court to rethink its ruling.
[3] Tucker seems to concede this point on appeal when he states, “If the defendant chooses not to object to admissions of a statement, the better practice should be for the trial court to take an affirmative waiver from defendant and counsel.” (Emphasis added.)