PUBLISHED OPINION
Case No.: 95-1831-CR
†Petition for
Review Filed
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
CHARLES BARNES,
Defendant-Appellant.†
Submitted on Briefs: May 13, 1996
Oral Argument: ----
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: June 25, 1996
Opinion Filed: June 25, 1996
Source of APPEAL Appeal
from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Milwaukee
(If "Special", JUDGE: VICTOR MANIAN
so indicate)
JUDGES: WEDEMEYER,
P.J., SULLIVAN and FINE, JJ.
Concurred: ----
Dissented: ----
Appellant
ATTORNEYSFor
the defendant-appellant the cause was submitted on the briefs of Richard L.
Zaffiro of Milwaukee.
Respondent
ATTORNEYSFor
the plaintiff-respondent the cause was submitted on the briefs of James E.
Doyle, attorney general and Diane M. Nicks, assistant attorney
general.
COURT OF APPEALS DECISION DATED AND RELEASED June 25, 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. 95-1831-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
CHARLES BARNES,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
VICTOR MANIAN, Judge. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Fine, JJ.
WEDEMEYER, P.J. Charles Barnes appeals from a judgment of
conviction after a jury trial for violating § 941.29(2), Stats., felon in possession of a
firearm.
Barnes claims two
instances of trial court error entitling him to either a new trial or
resentencing: (1) his
constitutional right to a fair trial was violated when the trial court allowed
the State to supply elements of the charged offense through the use of leading
questions suggesting answers to a child witness; and (2) the trial court
erroneously exercised its discretion in sentencing by penalizing him for
exercising his right to a jury trial.
Because the trial court
did not erroneously exercise its discretion regarding the manner in which the
child witness was questioned and because the trial court did not erroneously
exercise its sentencing discretion, we affirm.
I. BACKGROUND
On July 16, 1994,
Milwaukee Police Officer Donald Brown was dispatched to the area of 30th and
Clybourn Streets in the City of Milwaukee because of a report of a man with a
gun. This report emanated from an
observation made by ten-year-old Lourdes Correa. Brown interviewed Correa. She described the possessor of the gun as a
bald-headed black male, six feet two inches tall, 200 pounds, wearing a tank top
and beige pants. After interviewing
Correa, Brown observed an individual who matched this description. The individual was identified as Barnes. Barnes was accompanied by a juvenile, Oliver
Cathey. After brief questioning about
the gun and a pat-down of Barnes, both men were released.
Shortly thereafter,
Brown observed Cathey back in the same general area where he had originally
been stopped. Suspicious of Cathey's
activities, Brown stopped him intending to perform a pat-down for the missing
gun. Cathey told Brown that Barnes had
given him the gun the police officer was looking for but that Cathey had
returned the gun to Barnes. Brown then
searched the immediate area, located the gun, observed Barnes close by, and
arrested both him and Cathey. At Barnes's
trial the State presented three witnesses:
Brown, Correa and Cathey. Cathey
had already received one year juvenile probation for possessing a handgun as a
result of this incident. The jury
convicted Barnes of the charge and he now appeals.
II. DISCUSSION
A. Leading questions.
Barnes claims the trial
court erred in allowing the State to direct leading questions to a ten-year-old
child witness, which suggested answers crucial to proving the State's
case. The trial court allowed the
questions because of the age of the witness.
Standard of Review
Whether a challenged
question is truly leading and suggestive, and whether the circumstances justify
a leading and suggestive question is a matter of trial court judicial
discretion. State v. Sarinske,
91 Wis.2d 14, 46, 280 N.W.2d 725, 740 (1979).
We will not reverse a discretionary determination as long as the trial
court considered the relevant facts, applied the proper law, and reached a
rational determination. State v.
Pittman, 174 Wis.2d 255, 268, 496 N.W.2d 74, 79-80, cert. denied,
510 U.S. 845 (1993).
Legal Framework
Although the practice of
allowing leading or suggestive questions to be directed to child witnesses is
well recognized, there are no reported cases in Wisconsin that directly address
this very sensitive area of concern.[1] Accordingly, we provide a brief look at the
legal framework relevant to leading questions.
Section 906.11(3), Stats., provides: “Leading questions should not be used on the
direct examination of a witness except as may be necessary to develop the
witness's testimony.” This provision is
a subsection of § 906.11, Stats.,
entitled “Mode and order of interrogation and presentation,” which also
provides:
(1) Control by judge. The judge shall exercise reasonable control
over the mode and order of interrogating witnesses and presenting evidence so
as to (a) make the interrogation and presentation effective for the
ascertainment of the truth, (b) avoid needless consumption of time, and
(c) protect witnesses from harassment or undue embarrassment.
Generally speaking,
three bases are given for discouraging the use of leading questions on direct
examination:
[F]irst,
that the witness is presumed to have a bias in favor of the party calling him;
secondly, that the party calling a witness, knowing what that witness may
prove, might by leading bring out only that portion of the witness' story
favorable to his own case; and thirdly, that a witness intending to be entirely
fair and honest might assent to a leading question which did not express his
real meaning.
G.
Stephen Denroche, Leading Questions, 6 Crim
L.Q. 21, 22 (1963).
The fourth circuit
stated the concern behind leading questions even more succinctly in United
States v. Durham, 319 F.2d 590, 592 (4th Cir. 1963), explaining
that: “The evil to be avoided is that
of supplying a false memory for the witness.”
See also 3 Jack B.
Weinstein Et Al., Weinstein's
Evidence ¶ 611-76-84 (1995). The
suggestive nature of the interrogatory has no stock form.[2] “The tenor of the desired reply can be
suggested in any number of ways, as, for example, by the form of the question,
by emphasis on certain words, by the tone of the questioner or his non-verbal
conduct, or by the inclusion of facts still in controversy.” 3 Weinstein
Et Al., ¶ 611-77, 78.
In spite of the
amorphous form of the guarded-against “evil” usage of the leading question, it
is not altogether forbidden under our statute, the Federal Rules § 611(c)
or the Model Code of Evidence Rule 105(g).
There are occasions when leading questions may be not only necessary,
but desirable. Instances when leading
questions have been allowed include:
when the witness is immature, timid or frightened; when the testimony
relates to introductory or undisputed matter; when the witness's recollection
is exhausted; when the witness is in such a physical or mental condition that
he or she ought to be spared the effort of responding in extended answers; or
when the witness is called to disprove prior testimony of another witness. See 3 Weinstein Et Al., ¶ 611, 79, 80.[3] Moreover, when § 906.11(3), Stats., is applied to a child witness,
an exception to the undesirability of leading questions on direct examination
has been historically recognized.
Judicial Council Committee's Note, § 906.11(3), Wis. Rules of
Evidence, 59 Wis.2d R191, Federal Rule of Evidence 611(c), Notes of Advisory
Committee (1972); United States v. Castro-Romero, 964 F.2d
942, 943-44 (9th Cir. 1992). Thus,
there exists a rationale for placing the application of § 906.11(3), Stats., in the discretionary authority
of the trial court.
Analysis
Having reviewed the
relevant legal framework, we now examine Barnes's claim to determine whether
the trial court erred in allowing the State to ask leading questions of
ten-year-old Correa. Barnes argues that
the leading nature of these questions supplied the element of identification
and that without that element, the State's case would have failed. We affirm the trial court for three reasons:
(1) the trial court did not erroneously exercise its discretion in
concluding that because of Correa's age, it would allow the leading questions;
(2) the record demonstrates that Correa was a timid and frightened
witness, and because of this (and her young age), the leading questions were necessary
to develop her testimony; and (3) there is no evidence that the leading
questions supplied a false memory.
From a form standpoint,
it appears that defense counsel decided the State's questions were just too
leading and suggestive and finally objected to the form of the questions. From a substantive standpoint, because of
the lack of exactitude at the trial level, it is impossible to ascertain
precisely what questions trial counsel felt were objectionable for the purposes
of possible appeal. Thus, we could
dispose of this issue by applying waiver, see § 901.03(1)(a), Stats., but eschew this approach to
help enunciate and amplify the principals of § 906.11(3), Stats.
When defense counsel
objected to the form of the questions, the trial court acknowledged the leading
nature of the questions but overruled the objection because of Correa's age,
stating that the methodology was “appropriate.” The trial court's reasoning is consistent with the recognized
exception of allowing leading questions during direct examination of a child
witness, and hence was not an erroneous exercise of discretion. We acknowledge Barnes's concern that
“infancy is not an open door to leading questions.” Nevertheless, directing such questions to a child witness has
become a well recognized exception to the prohibition on using leading
questions during direct examination. See
Castro-Romero, 964 F.2d at 943-44. The young age of the witness often makes it necessary to use
leading questions in order to develop their testimony.
Although Correa's age
was the only factor the trial court explicitly referred to in its ruling, we
infer from the ruling, and the record as a whole, that the trial court based
its decision on the fact that under the circumstances of the case, the leading
questions were necessary in order to develop Correa's testimony. From a reading of the direct examination of
Correa by the State, it is not unreasonable to conclude that the series of
questions was used by the State to develop a child witness's testimony, rather
than to supply a false memory.[4]
In addition, it is
undisputed that Correa was subpoenaed as a witness, but failed to appear resulting
in the trial court issuing a bench warrant for her appearance. When she was brought to court, in response
to the court's inquiry, she indicated that she was “a little” nervous. It is evident from the record that Correa
was not a willing witness nor comfortable in her role in testifying as to what
she observed. These additional facts,
together with her young age, further support the trial court's ruling to allow
the questions because they demonstrate that Correa was immature, timid and
frightened.
In reviewing this issue,
we note that the trial court is in the best position to evaluate the
circumstances under which the ten-year-old was testifying. Barnes's trial counsel originally objected
to certain questions relating to Correa's conversations with Officer Brown
because she said she didn't remember what happened; yet with a little
reasonable prodding by the trial court she was able to respond, and the State
was able to develop observations made by Correa at the crime scene. When trial counsel again objected, this time
for improper form, the trial court having had the opportunity to assess the
circumstances under which Correa observed the criminal activity and her
reluctance to appear in court, concluded that the exception to the rule of
discouraging leading question should appropriately prevail.
Barnes further argues
that allowing the leading questions improperly denied him substantial
constitutional rights to confrontation, due process and a fair trial. We are not persuaded. In State v. Williamson, 84
Wis.2d 370, 380, 267 N.W.2d 337, 342 (1978), our supreme court declared that
the impropriety of allowing a leading question to stand has constitutional
implications only if prejudicial. Based
on the record, we conclude that allowing the leading questions did not
prejudice Barnes. When the testimony of
Cathey, Officer Brown's crime scene investigation testimony, and Correa's
unobjected to testimony is viewed in its totality, even in the absence of the
challenged leading questions, the jury verdict could not have been
otherwise. Cathey's testimony alone was
sufficient to secure a conviction.
Cathey testified that Barnes had a gun on the date, time and place in
question, and that Cathey took the gun from Barnes at Barnes's request to hide
it so the police would not find it.
Accordingly, we reject Barnes's claim.
B. Sentencing.
Barnes also claims that
the trial court erroneously exercised its sentencing discretion when it
sentenced him to an eighteen-month prison term, to be served consecutively to an
unrelated prison term. Barnes asserts
the trial court utilized an unreasonable or unjustifiable basis for the
sentence it imposed when it considered the inconvenience two youthful witnesses
and the system itself had been put through when he exercised his right to a
jury trial. Thus, he claims he is
entitled to resentencing without consideration of those factors.[5] We conclude that the trial court properly
exercised its sentencing discretion.
Standard of Review
Sentencing is a function
of trial court discretion. State v.
Harris, 119 Wis.2d 612, 622, 350 N.W.2d 633, 638 (1984). We are reluctant to interfere with a trial
court's sentence because it has a great advantage in considering the relevant
factors and the demeanor of the defendant.
Id. There is a
presumption that a trial court acted reasonably when sentencing. Id. Thus, to demonstrate an erroneous exercise of sentencing
discretion, the defendant must show some unreasonable or unjustifiable basis in
the record for the sentence imposed. State v.
Echols, 175 Wis.2d 653, 681-82, 499 N.W.2d 631, 640, cert. denied,
510 U.S. 889 (1993).
Analysis
When sentencing, the
trial court must consider the following three factors: (1) the gravity of the offense; (2) the
character and rehabilitative needs of the offender; and (3) the need for
protection of the public. State
v. Sarabia, 118 Wis.2d 655, 673, 348 N.W.2d 527, 537 (1984). The significance of each factor, however, in
the total sentencing process lies solely within the sentencing court's
discretion as demonstrated by the record.
State v. Patino, 177 Wis.2d 348, 385, 502 N.W.2d 601, 616
(Ct. App. 1993).
When considering the
three primary factors, the sentencing court may also take into account: the
vicious and aggravated nature of the crime; the past record of criminal
offenses; any history of undesirable behavior patterns; the defendant's
personality, character and social traits; the results of a presentence
investigation; the degree of the defendant's culpability; the defendant's
demeanor at trial; the defendant's age, educational background and employment
record; the defendant's remorse, repentance and cooperativeness; the
defendant's need for rehabilitative control; the right of the public; and the
length of pretrial detention. State v.
Borrell, 167 Wis.2d 749, 773-74, 482 N.W.2d 883, 892 (1992).
From our review of the
sentencing transcript, we are satisfied that the trial court properly exercised
its discretion in sentencing Barnes.
The trial court noted the type of offense committed by Barnes involved a
gun, a juvenile companion, and the consumption of alcohol. The occurrence itself took place in a
neighborhood setting affecting a ten-year-old girl and her two young friends
who observed the sequence of events.
Lastly, the trial court observed that Barnes has “many unmet needs, both
academic, social and personal referring specifically to his drug and alcoholic
dependency and low IQ.” Although Barnes
claims he received a consecutive rather than a concurrent sentence for
exercising his right to a jury trial, we reject this assertion because on two
separate occasions during the sentencing, the trial court assured Barnes that
his sentence would not be made more severe for electing to go to trial. In the context of the entire sentencing
process, we find nothing to support Barnes's claim that the consecutive
sentence imposed was unreasonable or unjustified.
By the Court.—Judgment
affirmed.
[1] Proper v. State, 85 Wis. 615, 627, 55 N.W. 1035, 1039 (1893) and Hardtke v. State, 67 Wis. 552, 554, 30 N.W. 723, 724 (1886), are occasionally referenced during discussions on this subject, but neither decision offers much assistance as to how a trial court exercises its discretion when confronted with the problem, and both cases were decided long before the present version of § 906.11, Stats., was enacted. See Sup. Ct. Order, 59 Wis.2d R1, R185 (1973).
[2] To say that a leading question is easily identified if a question only calls for a “yes” or “no” answer is to unreasonably reduce the problem to simplicitude. W. H. Enfield, Direct Examination of Witnesses, 15 Ark. L. Rev. 32, 35 (1960); 3 John H. Wigmore, Evidence, § 772, 780 (Chadbourn rev. ed. 1970).
[3] See also Jordan v. State, 93 Wis.2d 449, 472, 287 N.W.2d 509, 519 (1980); Rausch v. Buisse, 33 Wis.2d 154, 169, 146 N.W.2d 801, 809 (1966).
Q. You say your name is
Lourdes?
A. Lourdes.
....
Q. All right. I want to have
you think about July 16th of 1994.
Do you remember that day?
A. Yes.
Q. Okay. On that day, were you on a porch with some
friends of
yours?
A. Yes.
Q. Was that a porch or
house, was that at 3015 West
Clybourn?
A. Yes.
Q. Did you see something
while you were on that porch around 5:00 p.m. or so in
the evening, or late afternoon?
A. Yes.
Q. What did you see?
A. I saw a man with a gun
running.
Q. Okay. You saw a man with a gun doing what?
A. He was running down the
street.
Q. Do you remember what this
man looked like?
A. No.
Q. Was he tall or short?
A. I don't remember.
Q. Do you remember what you
told the police?
A. No.
Q. Do you remember talking
to the police?
A. Yes.
Q. Do you remember talking
to an Officer Brown that you saw standing out in the
hallway a few minutes ago?
A. Yes.
Q. And do you remember
telling him what you had seen?
A. No.
Q. You don't remember
talking to him? What was this man
doing with the gun?
A. He was--
(Defense
Counsel): Your Honor, I'm going to object to that question, because the
witness already answered she doesn't remember.
The
Court: She said she saw a man walking with a gun, so I think the question
is proper. Overruled.
The
question is, what was the man doing with the gun?
The Witness: He was pointing
The Court: What?
....
The Witness: Pointing it
straight.
(District Attorney):
Q. Who was he pointing at?
A. At a lady.
....
Q. Okay. Were you there when the police came?
A. Yes
....
Q. Do you remember what kind
of shirt the man you saw with the gun had on?
A. Yes.
Q. What kind of shirt was
it?
A. Tank top.
....
Q. Do you remember if he had
hair or if he was bald?
A. No.
Q. Do you remember telling
the police he was bald?
A. No. Yes.
Q. So you told the police he
was bald?
A. Yes.
Q. Do you remember telling
police that he was tall?
(Defense
Counsel): ..., I'm going to object to the form of the questions as excessively
leading on direct examination.
The
Court: Leading, but she's only ten years old, so I think that's
appropriate to lead a child witness....
(District Attorney):
Q. Do you remember telling
police he was like six feet tall?
A. Yes.
Q. Okay. And do you remember telling them that he had
a beige pants and a tank top on?
A. Yes.
Q. Do you see the person in
court that you saw with the gun?
A. Yes.
....
Q. Can you tell me what he
has on today?
A. Orange.
[5] Barnes points to the
following statement of the trial court to support his claim he was sentenced
for improper factors:
A
young Cathey, the juvenile, had to come down and testify. The young ten-year
old girl, who appeared to this court to be very frightened when she was on the
witness stand, had to come down and testify.
Police
officer spent a couple of days down here in a trial that would otherwise have
been unnecessary.
So, I have to take all those factors into consideration, and obviously, the time it took to pick a jury....