|
COURT OF
APPEALS DECISION DATED AND
RELEASED September
4, 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. 95-2134-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
JAMES
E. POWELL,
Defendant-Appellant.
APPEAL
from a judgment and an order of the circuit court for Kenosha County: ROBERT V. BAKER, Judge. Reversed and cause remanded.
Before
Anderson, P.J., Brown and Snyder, JJ.
SNYDER,
J. James
E. Powell appeals from a judgment of conviction and an order denying
postconviction relief. Powell was found
guilty as a party to the crime of robbery contrary to §§ 943.32(1)(b) and
939.05, Stats.[1] Powell claims that the trial court erred
by: (1) ruling on the number of prior
convictions which would be admissible without examining the record or
articulating which convictions were considered, (2) refusing to compel the
prosecution to disclose a witness' criminal record to defense counsel, and (3)
refusing to allow defense counsel to impeach a witness after the witness failed
to acknowledge the agreed-upon number of prior convictions. Because we conclude that the trial court
erroneously exercised its discretion and that the resulting error was
prejudicial, we reverse and remand for a new trial.
It
is undisputed that Tim Jackson and his brother, Michael Jackson, robbed a gas
station and then ran some distance to a car driven by Powell.[2] Police subsequently received an anonymous
phone call which focused the robbery investigation on the Jackson
brothers. They were questioned
separately by the police and both initially denied any involvement in the
robbery.
Michael
changed his initial denial of any involvement and stated that prior to the
robbery, “James [Powell] mentioned robbing someplace.” Based on Michael's statement, Powell was
questioned by police. Although he
admitted being with Tim and Michael on the night of the robbery, he claimed to
be unaware of either the plan to rob the store or the actual robbery. He told police that he first became aware of
the robbery while in the car on the way back to Tim and Michael's apartment
when Tim said they had just pulled a “caper.”
Tim
and Michael both testified for the State at Powell's trial. Tim testified that all three of them had
been drinking and using cocaine prior to the robbery. He testified that they had consumed approximately two cases of
beer in the six- to eight-hour period before the robbery. When questioned about the robbery, Tim
stated, “I couldn't say for 100 percent sure what exactly - what I said. So I definitely couldn't say what Michael or
James had said about this, about the situation.” He also admitted on cross-examination that he had difficulty
remembering what was going on around him and that the robbery itself was “spur
of the moment.”
When
asked directly whether Powell was aware of the robbery when he and Michael
returned to the car, Tim said, “At that particular moment, at that time, I
would say no ....” He also explained
that Powell parked on the street instead of pulling into the gas station
parking lot because his car had no reverse gear.
Michael's
testimony at trial also controverted the earlier statement he had given the
police, which had implicated Powell.
Michael testified on direct that he and Tim had talked about needing
money and he had said to his brother, “I know this store we can hit.” He further testified that while the three of
them were riding around in Powell's car, he and Tim told Powell to pull over
and wait. He also stated that even as
he and Tim walked into the store, “[W]e didn't know whether we were going to do
it or not.” He testified that at the
time of the earlier statement he had given the police implicating Powell, he
thought that Powell had turned them in and he wanted to get back at him.
Prior
to the testimony of Tim and Michael, a hearing was held to determine the
admissibility of any prior convictions for impeachment purposes. At that hearing, the prosecutor noted that
Tim had two Wisconsin convictions and acknowledged that “he also has contact in
Illinois.” However, the prosecutor did
not acknowledge that he possessed Tim's presentence report. Based on its questioning of Tim and his
admission of several Illinois battery convictions, the trial court concluded
that three convictions would be admitted for impeachment purposes.
Defense
counsel objected, stating that the absence of a record check or presentence
report made it impossible to determine the correct number of prior
convictions. The prosecutor then
admitted to having a copy of Tim's presentence report and conceded that it
listed “many offenses.” After the
prosecutor offered a verbal synopsis of the contents of the report, the trial
court stated that four prior convictions would be admissible. Tim objected to this, and the trial court
then unilaterally ruled that Tim had three prior convictions. Defense counsel objected and requested a
copy of the presentence report; the trial court denied that request.
When
Tim testified and was asked on direct examination how many prior convictions he
had, he responded, “Well, 2 or possibly 3.
All depends on how you look at it.”
Although defense counsel again requested a copy of the presentence
report in order to impeach the witness as to the nature of the prior
convictions, the trial court denied that request and instructed the jury that
“Mr. Jackson has 3 convictions.” No
further questioning regarding the number or nature of the prior convictions was
allowed. At the close of trial, the
jury returned a guilty verdict and this appeal followed.
A
trial court's determination about which convictions are admissible for
impeachment purposes is discretionary. State
v. Kuntz, 160 Wis.2d 722, 753, 467 N.W.2d 531, 543 (1991). However, the State concedes that the trial
court did not make an adequate record of how it determined that Tim should
admit to three prior convictions. A
proper exercise of discretion is the product of a rational mental process which
states the facts of record and the law relied upon. Hartung v. Hartung, 102 Wis.2d 58, 66, 306 N.W.2d
16, 20 (1981). Because the trial court
did not examine the presentence report and specify which convictions would be
admitted for impeachment purposes, it erroneously exercised its discretion.
Powell's
second claim of error rests upon the State's failure to disclose information in
its possession about the number and nature of Tim's out-of-state
convictions. He contends that this
thwarted the “legal process for impeaching a key prosecution witness by prior
convictions.”
This
issue is governed by § 971.25, Stats.,
which provides for the disclosure of the criminal record of a prosecution
witness.[3] The application of statutory requirements to
undisputed facts presents a question of law which this court reviews de novo. Sauer v. Reliance Ins. Co.,
152 Wis.2d 234, 240, 448 N.W.2d 256, 259 (Ct. App. 1989). Section 971.25(1), Stats., provides:
Disclosure of criminal record. (1) The district attorney shall disclose to the defendant,
upon demand, the criminal record of a prosecution witness which is known to the
district attorney.
The statute's plain language requires disclosure of the
criminal record of any prosecution witness.
The prosecutor had a copy of Tim's presentence report, but had not
disclosed that fact to either the trial court or defense counsel. When defense counsel specifically requested
that the State locate the presentence report, the prosecutor was required to
disclose the information in it which pertained to Tim's criminal record.
The
record shows that defense counsel made repeated attempts to obtain a copy of
the presentence report from the State.
We conclude that the trial court erred in not compelling the disclosure
of a witness' criminal record as mandated by § 971.25, Stats.
The
State contends that under Jones v. State, 69 Wis.2d 337, 349, 230
N.W.2d 677, 684‑85 (1975), the prosecution had no affirmative duty to
seek a criminal record from other states.
We agree, but note that Jones is not controlling in this
instance because the presentence report had already been completed and was in
the State's possession. The State also
argues that § 972.15(4), Stats.,
which provides that “the presentence investigation report shall be confidential
and shall not be made available to any person except upon specific
authorization of the court,” precludes any requirement that the report be
disclosed.
This
argument does not address the required disclosure. At issue is the criminal record of the witness, not the entire
contents of the presentence report. At
a minimum, the trial court had a responsibility to examine the contents of the
presentence report before issuing its ruling denying its disclosure. Had this occurred, the trial court could
then have determined how to make Tim's criminal conviction record available to
the defense. The trial court erred in
not examining the presentence report and in failing to compel disclosure of a
witness' criminal record.
Finally, Powell contends that the trial court
erred when it precluded impeachment questioning of Tim after he failed to
correctly state that he had three prior convictions. Section 906.09(1), Stats.,
allows for the use of prior convictions to impeach a witness.[4]
The
introduction of evidence with respect to prior convictions lies within the
discretion of the trial court. See
State v. Pitsch, 124 Wis.2d 628, 639, 369 N.W.2d 711, 717
(1985). It is also accepted that the
number of prior convictions is relevant evidence on the issue of
credibility. Nicholas v. State,
49 Wis.2d 683, 688, 183 N.W.2d 11, 14 (1971).
Prior
convictions are relevant evidence because the law presumes that one who has
been convicted of a crime is less likely to be truthful than one who has
not. Id. Prior convictions are also relevant because
of a presumption that the more often one has been convicted of a crime, the
less truthful he or she is presumed to be.
Id. If a witness
answers truthfully and accurately, no further inquiry is possible. Id. at 689, 183 N.W.2d at
14. However, an inaccurate or
incomplete answer allows the matter to be pursued, and the nature of past
convictions may be elicited. See
id.
Tim's
answer, “Well, 2 or possibly 3. All
depends on how you look at it,” was equivocal.
By not responding with the court-imposed number, three, Tim opened the
door to defense questioning about the nature of his past offenses. When defense counsel attempted to question
Tim with regard to his criminal record, the trial court foreclosed that by
expressly informing the jury that Tim had three prior convictions and by
prohibiting any further questions about the nature of those convictions. We conclude that this was error.
In
sum, we conclude that the trial court erred in determining the number of prior
convictions without examining the presentence report, in not compelling the
prosecution to disclose Tim's criminal record, and in denying Powell the right
to impeach a key prosecution witness.
The remaining issue is whether these errors were prejudicial.
The
State maintains that “the jury disbelieved some of Jackson's testimony because
they convicted the defendant.” The
State then argues that any errors which occurred were harmless because the jury
already had ample reason to doubt Tim's credibility. We disagree, concluding that the combination of errors which
occurred was not harmless.
An
error is not harmless if it has “affected the substantial rights of the party
seeking to reverse or set aside the judgment.”
See § 805.18(2), Stats. In this case, due to the conflicting
statements made by both Tim and Michael, the State's case against Powell was
largely circumstantial. Although Tim's
and Michael's trial testimony seemingly exonerated Powell, the jury also heard
testimony about earlier statements Michael had made which implicated
Powell. The case against Powell hinged
on the credibility of the Jackson brothers, the only witnesses who tied Powell
to the robbery. Had Powell been able to
impeach Tim with regard to his prior convictions, it is possible Powell could
have destroyed the admittedly shaky credibility of one of the State's key
witnesses.[5]
We
conclude that the trial court's ruling withholding Tim's criminal record and
precluding his impeachment with that record denied Powell the right to attack
the credibility of a key prosecution witness.
This was prejudicial error and requires reversal for a new trial.
By
the Court.—Judgment and order
reversed and cause remanded.
Not
recommended for publication in the official reports.
[3] This statute is
renumbered and amended by 1995 Wis. Act 387, § 31. The revisions are effective January 1, 1997, and do not affect
our analysis in this appeal.