COURT OF APPEALS DECISION DATED AND RELEASED October 4, 1995 |
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. 95-1724-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
PATRICK CHAMBERS,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Kenosha County: BARBARA A. KLUKA, Judge. Affirmed.
BROWN, J. Patrick
Chambers appeals his convictions for criminal trespass and disorderly
conduct. His sole claim is that the
trial court erred when it failed to declare a mistrial after two separate
witnesses provided inadmissible testimony concerning his past behavior, thereby
prejudicing his defense. We affirm.
The charges against
Chambers arise out of an incident at Karen Van Hierseele's home during the
early morning hours of November 1, 1994.
That evening she was startled by sounds at her window. She called to her son Paul Van Hierseele,
who grabbed his gun and ran outside to find the source while she called the
police.
Once outside, Paul
recognized Chambers's car which was parked nearby. He then came across Chambers and confronted him at the front
door. By that time, Paul's sister
Andrea Van Hierseele, who was Chambers's girlfriend, had also come to the front
door. An argument erupted after Paul
and Andrea told Chambers to go away.
But after some pushing and shoving, Chambers made his way through the
front door and vestibule. The police
then arrived and took control of the scene.
As grounds for his
appeal, Chambers points to two passages during the trial testimony. The first concerns Paul's response to
questions about why he reacted that evening:
Q:Just with respect to that
evening, sir, why were you upset when you ran outside?
A:Because I had a feeling it
was him, and we have had problems with him before and threats.
Q:Okay. What—
Defense
Attorney:Now, Your Honor, I
will object and move to strike.
The Court: Granted.
Next,
Chambers also objected when Karen testified about her feelings that evening.
Q:How long were you upset by
this incident, Mrs. Van Hierseele?
A:Well I know I was quite upset even when the police came I — I —I
was shaking a lot. I — you know, I
didn't — I was just very afraid.
Q:Okay. What were you afraid
of?
A:I was afraid that he was
going to hurt her again.
Defense
Attorney:Objection. Move to
strike.
The
Witness:I'm sorry.
The
Court:Motion granted. The
testimony —
Defense
Attorney:Your Honor, at this point I'm going to move for a
mistrial. This is the second time this
has happened.
The
Court:Noted. I'll let you
argue it outside of the jury's presence.
Soon
thereafter, the court heard Chambers's arguments.
There the trial court,
although holding off on its ultimate ruling until the end of trial, temporarily
denied Chambers's request. The court
reasoned:
Andrea Van Hierseele testified that she
was not afraid of Mr. Chambers on this particular evening, and while the jury
should not have heard the testimony[, “]I was afraid he was going to hurt her
again,[”] I don't think it is so prejudicial that it will impact on the jury so
completely that they cannot properly consider the two crimes with which he is
charged and the elements of those crimes, which is basically the
disturbance/disorderly conduct/breach of peace type scenario.
Chambers
now challenges the trial court's decision not to grant his mistrial motion.
Whether to grant a
mistrial is a discretionary decision for the trial court. See Haskins v. State, 97
Wis.2d 408, 419-20, 294 N.W.2d 25, 33 (1980).
The decision will not be reversed unless there has been a clear misuse
of discretion. Id. We look to see if the trial court based its
ruling on the facts within the record and applied the appropriate legal
standards, and to determine if there was a rational basis for the decision. See Hartung v. Hartung,
102 Wis.2d 58, 66, 306 N.W.2d 16, 20 (1981).
Chambers's theory, both
here and before the trial court, is that these prosecution witnesses
deliberately provided this inadmissible testimony to prejudice the defendant
and ensure a conviction.[1] To bolster the argument, he adds that these
witnesses had been warned by the prosecutor about making references to
Chambers's past.[2] He claims that the witnesses' inadmissible
testimony had a “devastating impact” on the defense. Although Chambers argued to the jury that he had Andrea's consent
to enter the house, he believes that the jury's focus was shifted to how Paul
and Karen felt about Chambers and to how he was a dangerous person.
We disagree. Even after acknowledging that this evidence
was found to be inadmissible and potentially prejudicial, the jury had heard
evidence from all three of the Van Hierseeles.
Although the jury had to resolve a conflict over whether Andrea signaled
to Chambers that he could enter the property, it had ample evidence to reach
the conclusion it did. Besides, if the
jury was somehow affected and concluded that Paul and Karen feared Chambers
because of past run-ins, this would not have had any direct bearing on his
defense that Andrea told him that he could stay on the property.
Chambers nonetheless
contends that the State acknowledged that the testimony provided by Paul and
Karen was extremely damaging since it asked the court to consider giving the
cautionary jury instruction used when “other acts” evidence is presented. Still, appellate analysis involves a
question of whether the trial court acted reasonably. Here, the trial court's refusal to give the instruction was based
on a concern that it “would only highlight the testimony.” We believe that this is a reasonable
rationale. We cannot say that the risk
of negative jury bias was so great that the trial court acted irrationally when
it concluded that saying nothing to the jury was the best way to address
Chambers's concern.
By the Court.—Judgment
affirmed.
This decision will not
be published. See Rule 809.23(1)(b)4, Stats.
[1] He specifically uses the term “evidentiary harpoon.” While we were unable to find this term within any Wisconsin cases, we recognize that other jurisdictions rely on this terminology. See, e.g., United States v. Hooks, 780 F.2d 1526, 1535 n.3 (10th Cir.) (collecting cases), cert. denied, 475 U.S. 1128 (1986).
[2]
Before trial, the prosecutor noted during a discussion about
sequestering witnesses:
Just for the court's information, [and Defense counsel's information], I did warn my witnesses — the defendant was on probation for another incident — not to mention that fact and not — so that the jury would find out unfairly about any prior convictions.