COURT OF APPEALS DECISION DATED AND RELEASED JANUARY 17, 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(1), Stats. |
This opinion is subject to
further editing. If published, the
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No. 95-2147-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DARRELL W. HOWSDEN,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Taylor County:
DOUGLAS T. FOX, Judge. Affirmed.
CANE, P.J. Darrell Howsden appeals a judgment
convicting him of mistreating an animal in violation of § 951.02, Stats., and endangering another's
safety by use of a dangerous weapon in violation of § 941.20(1)(a), Stats.
Howsden contends: (1) the evidence may be sufficient for the jury to
convict him of one of the charges, but not both; (2) the trial court erred
by excluding the testimony of the defense expert witness; (3) the prosecutor
continually raising the issue of ownership and trespass constituted unfair
prosecution and reversible error; and (4) the prosecution was discriminatory,
selective or retaliatory requiring dismissal of the complaint. This court rejects these contentions and
affirms the convictions.
From his home, Howsden
had observed a hunter walking quickly down a road located between his
properties and became concerned about his wife who was working outside in the
area. He armed himself with a .410
gauge shotgun and, after finding his wife, told her to notify the sheriff's
department of the trespasser. After
Howsden located the hunter, he heard two rifle shots and heard a rifle slug
strike a tree about twenty to twenty-five feet from him. He then saw two dogs running toward him on a
walking trail and shot one of the dogs, wounding it in the head area. One of the hunters, David Jankee, was in the
immediate area when Howsden shot the dog and testified that he was in Howsden's
direct line of fire.
First, Howsden argues
that it was impossible to shoot down at the dog and also shoot in a direct line
of fire at Jankee, who was standing on a hill somewhere between ten to twenty
feet above the dog and forty yards away.
He reasons therefore that it is inconsistent to find him guilty of both
counts as the evidence indicates that he fired either at the dog or Jankee, but
not both.
Howsden acknowledges
that the standard to be applied by this court when reviewing the sufficiency of
evidence is set forth in State v. Poellinger, 153 Wis.2d 493, 507,
451 N.W.2d 752, 757-58 (1990), which provides:
[A]n
appellate court may not substitute its judgment for that of the trier of fact
unless the evidence, viewed most favorably to the state and the conviction, is
so lacking in probative value and force that no trier of fact, acting
reasonably, could have found guilt beyond a reasonable doubt. ...
If any possibility exists that the trier of fact could have drawn the
appropriate inferences from the evidence adduced at trial to find the requisite
guilt, an appellate court may not overturn a verdict even if it believes that
the trier of fact should not have found guilt based on the evidence before it.
Additionally, when an
appellate court is presented with a record of facts that supports more than one
inference, the reviewing court must accept and follow the inference drawn by
the trier of fact unless the evidence on which the inference is based is incredible
as a matter of law. Id.
at 507, 451 N.W.2d at 757.
Here, the evidence is
overwhelming that Howsden mistreated an animal by intentionally shooting the
dog. Jankee testified that he observed
Howsden armed with a shotgun and yelled to him, "Don't shoot our
dogs." Howsden responded,
"Well, we can shoot any dog that's on our property." Jankee then observed Howsden shoot at and
miss the first dog, but then shoot the second dog, wounding it while Jankee was
in the direct line of fire. Howsden
also told the investigating officer that he shot the dog because it was on his
property. This evidence is sufficient
to support the jury's guilt finding on the mistreating an animal charge.
The evidence also
supports the jury's finding that Jankee was endangered at the time of the
shooting. Howsden shot in Jankee's
direction, and the investigator's testimony established that the shot would
easily more than carry the distance of forty yards. Additionally, the investigator testified that if the shotgun is
held loosely against the shoulder as the trigger is pulled, the end of the
barrel would have a tendency to rise causing some of the pellets to also rise
as in an arc and go into the area where Jankee was standing. Given this testimony, the jury could
reasonably infer that Jankee's life was endangered when Howsden shot the dog
while Jankee was standing in the path of fire.
It is for the jury to determine the credibility of the witnesses, and
this court cannot say it was unreasonable to believe the State's witnesses.
Next, Howsden contends the trial court erred
by excluding the testimony of his expert witness who had violated the court's
sequestration order. Apparently, the
expert entered the courtroom during Howsden's testimony and remained there for
approximately fifteen minutes before his presence was discovered. Defense counsel had delegated to Mrs.
Howsden the responsibility of notifying this expert not to attend the court
proceeding because of the sequestration order.
However, the expert entered and remained in the courtroom without the
Howsdens' or counsel's knowledge. Only
after the expert had testified for the defense and in the middle of the State's
cross-examination did the State discover that the witness had been present
during Howsden's testimony. The trial
court then, after arguments from both counsel, struck the expert's testimony
and excluded further testimony of this witness.
Howsden argues that
although it is within the trial court's discretion as to whether a witness who
has violated the sequestration order is permitted to testify, Nyberg v.
State, 75 Wis.2d 400, 409-10, 249 N.W.2d 524, 528-29 (1977), it was
inappropriate in this case to exclude the witness's testimony because Howsden
had not participated in the violation and the State was not prejudiced. This court is not persuaded.
The ultimate question is
whether the trial court reasonably exercised its discretion by excluding the
expert's testimony. The trial court
accepted the State's argument that it was prejudiced because the expert heard
Howsden testify as to what the shot pattern from the shotgun would have been at
thirty-five yards, and that the expert may have been influenced to shape his
testimony to conform with Howsden's testimony.
The trial court also reasoned that it was the defense's obligation to
police its witness to ensure no violation of the sequestration order and the
defense had failed in that respect.
This court cannot say this was an unreasonable exercise of discretion.
Howsden next contends
the prosecution unfairly tried this case by continually making reference to
trespass issues throughout the trial in violation of the trial court's order
prohibiting testimony on this subject.
The trial court addressed Howsden's argument on this issue after trial
by stating:
[T]he trespass and these related issues
was something that I had ordered precluded not so much because I was concerned
about inflammatory or prejudicial evidence coming before the jury; it was my concern that unless I kept a very
tight rein on the parties, that I was going to end up trying a case that dealt
with property lines and property rights and trespass issues that were simply
not related to this case. My concern
was to keep the evidence restricted to the issues at hand.
I did have some concerns, as I indicated during the trial, about getting
into that, and I cut people off and scolded counsel at different points during
the trial. But the point is, it was
not—my concern was not that if the word "trespass" were mentioned
or that these issues were gotten into
that that was somehow going to taint the proceedings or inflame the jury; my concern was one of managing that trial
efficiently.
So, therefore, I don't think, to the extent
that references were made to that, first of all, they were a relatively
minuscule part of the evidence, and secondly, I did not then nor do I now have
concerns that somehow references to that tainted the proceedings or prejudiced
the jury. My concern was then strictly
one of economy of time and not confusing issues, and I don't see that issues
were confused.
This
court will generally defer to the trial court's observations as to whether the
defense has been unfairly prejudiced by the evidence. The trial court is present during the trial and has the greater
opportunity to observe whether its orders had been violated and, if so, the
effect of that violation on the jury.
The trial court's explanation is reasonable, and this court will not
disturb its conclusions on this issue.
Finally, Howsden
contends the prosecution was selective, discriminatory or retaliatory. In essence, Howsden argues that the hunters
admittedly trespassed on his posted property, but only the hunter who fired
into the woods near Howsden was charged by the DNR for shooting from a
roadway. He also contends that this
conviction could now be used against him as a challenge to his credibility in
his litigation against the Town of Maplehurst, suggesting that this was one of
the motives for this criminal prosecution.
These allegations claim that the district attorney's decision to
prosecute was based on an improper motive.
In State v.
Annala, 168 Wis.2d 453, 472-73, 484 N.W.2d 138, 146 (1992), the supreme
court pointed out that the district attorney is afforded great discretion in
determining whether to initiate prosecution in a particular case and that few
limits are imposed upon the district attorney's prosecutorial discretion. It also recognized that the conscious
exercise of some selectivity in enforcement is not in itself a constitutional
violation so long as the selection was not deliberately based upon an
unjustifiable standard such as race, religion or other arbitrary
classification. Id. Only where there has been an aura of
discrimination are the courts to check the prosecutor's charging decision. Id. Here, Howsden does not suggest the district attorney prosecuted
him upon some meritless charge nor does he suggest that discrimination played a
part in the charging decision. As the
Supreme Court reminded us in Annala:
When probable cause exists for prosecution,
the court should not consider the subjective motivations of the district
attorney in making his charging decision, except to determine whether a
discriminatory basis was involved. On
numerous occasions, we have explained that in general the district attorney is
answerable to the people of the state and not to the courts or the legislature
as to the manner in which he nor she exercises prosecutorial discretion. Political review through the electoral
process is sufficient to ensure proper application of prosecutorial
discretion. If this court placed the
nondiscriminatory subjective motivations of the district attorney under
scrutiny with respect to the charging decision, it would likely create an
enormous amount of litigation challenging prosecutorial discretion that has
little or nothing to do with the defendant's guilt or innocence.
Id. at
473-74, 484 N.W.2d at 146-47 (citations omitted).
Accordingly, this court
need not proceed further to address the district attorney's nondiscriminatory
subjective motivation for prosecution in this case. The judgment is therefore affirmed.
By the Court.—Judgment
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)4, Stats.