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COURT OF APPEALS DECISION DATED AND RELEASED July 23, 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. 95-2364-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
BARRY HOWARD,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: MAXINE A. WHITE, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER CURIAM. Barry Howard appeals from a judgment
entered after a jury convicted him of one count of first-degree intentional
homicide, while armed, contrary to §§ 940.01, and 939.63, Stats.
He also appeals from an order denying his postconviction motions. Howard raises three issues for our
consideration: (1) whether the
trial court erred in excluding the testimony of two defense witnesses and the
partial testimony of a third witness; (2) whether the trial court erred in
admitting the testimony of three rebuttal witnesses; and (3) whether the
trial court erred in instructing the jury.
Because Howard failed to procure the timely presence of the two defense
witnesses whose testimony was excluded and because this testimony was
essentially cumulative; because the portion of the third witness's testimony
that was excluded was harmless; because any error in admitting the testimony of
rebuttal witnesses was harmless; and because the trial court did not
erroneously exercise its discretion in submitting the challenged jury
instruction, we affirm.
I. BACKGROUND
The facts are based on
the testimony adduced from various witnesses at trial. On May 14, 1994, Howard and the victim,
Lasonja Walker (who was also Howard's fiancee), engaged in an argument at a
tavern. Howard was jealous that Walker
was talking to another man. According
to Howard, he walked away from Walker, but Walker came over to him and
threatened to cut him and said that he might not be as lucky as he was before,
a reference to a previous incident when Walker had cut Howard with a
knife. Each left the tavern separately.
Later, Howard appeared
at Walker's apartment where he came to collect his belongings. Another confrontation ensued. Walker's neighbor, Betty Brown, testified
that Walker backed Howard into a closet and was standing in front of him, both
hands raised, holding two knives and a hanger.
According to Brown, Walker screamed that she was not going to let Howard
come up on her again with his gun.
Howard denied having his gun, and Brown did not find a gun when she
patted him down. Brown attempted to get
Walker to give her the knives, but Walker lunged at Howard and said “I'll kill
you.” Walker thrust the knife down
towards Howard, but Brown blocked the thrust and was eventually able to defuse
the situation.
Subsequently, Howard was
putting his belongings into his car when he heard Walker say “I'll kill you
mother fucker.” Howard then retrieved
his gun from his car and told Walker to stop.
She came at him and Howard testified that he thought she had a
knife. Howard testified that he fired
his gun without aiming. Brown testified
that she heard eight to ten shots.
Walker was shot six times.
Walker died as a result of the gunshots. Howard drove away.
Howard was charged with
first-degree intentional homicide while armed.
He admitted shooting Walker, but claimed he acted in self-defense. The case was tried to a jury, which
convicted him. He filed postconviction
motions alleging the same evidentiary errors he asserts in this appeal. The trial court denied the motions. He now appeals.
II. DISCUSSION
A. Exclusion
of Two Witnesses and a Portion of One Witness's Testimony.
Howard first claims the
trial court erred in excluding the testimony of two of his witnesses, Vera
Peterson and Cynthia Parks. He claims
both witnesses would have corroborated his testimony that Walker had made
threatening remarks to him at the tavern on the evening of the homicide. The trial court excluded these witnesses
from testifying because neither witness was produced prior to the close of
evidence in the case and because the testimony of each was essentially
cumulative.
Whether to admit or
exclude evidence rests within the sound discretion of the trial court and the
trial court's evidentiary decision will not be disturbed on appeal if the trial
court exercised its discretion in accordance with accepted legal standards and
the facts of record. State v.
Mordica, 168 Wis.2d 593, 602, 484 N.W.2d 352, 356 (Ct. App.
1992). In reviewing the circumstances
surrounding the exclusion of these two witnesses, we conclude that the trial
court did not erroneously exercise its discretion.
The record documents the
following. Howard finished presenting
his case, with the exception of these two witnesses, on the morning of October
7. Howard's counsel informed the court
that two of his witnesses had not yet shown up, explained to the court the
efforts that were made to procure their presence, and asked the court to issue
body attachments for these witnesses.
The State opposed the request, asserting that the defense was lax in
obtaining these witnesses's presence and that their testimony was largely
cumulative. The court agreed to adjourn
for two hours to allow the defense to produce Peterson, but ruled that Parks
would be excluded because her testimony was cumulative. Neither Peterson nor Parks appeared by 1:30 p.m. The trial court refused to grant another
adjournment and the defense rested its case.
After the State
presented its rebuttal case, the defense informed the trial court that Peterson
was located and available to testify.
Peterson was voir dired under oath regarding the defense efforts to
contact her. She testified that the
defense never contacted her after a subpoena was served on her in
mid-September. She explained that she
was playing Bingo in Green Bay at the time she should have been in court and
was unable to return to Milwaukee because of car trouble. After the voir dire, the trial court denied
Howard's motion to reopen the case and/or to introduce Peterson's testimony in
surrebuttal to the State's case. The
court denied the motion based on the inadequate effort of both the defense and
the witness to ensure that she be in court in a timely fashion and because her
testimony was only cumulative to testimony already received. Parks, however, never appeared.
Based on the record, we
cannot say that the trial court's decision to exclude Parks's and Peterson's
testimony was an erroneous exercise of discretion. Parks was never available to testify for the defense and,
accordingly, the trial court's decision to exclude her testimony is moot. With regard to Peterson, the record already
contained evidence regarding the fight at the tavern on the evening of the
homicide and evidence regarding the mutual threats Howard and Walker
exchanged. Given these facts, coupled
with Peterson's failure to make a timely appearance, we conclude that the trial
court's decision to exclude her as a witness was not an erroneous exercise of
discretion.
Howard also claims the
trial court erred in refusing to allow Denise Peterson to testify that Howard
had told Denise two weeks before the homicide that he was breaking off his
relationship with Walker, and that when Denise told Walker this, Walker said
“He ain't going nowhere.” He claims
that this statement was admissible under § 908.03(3), Stats., which is the existing mental or
emotional condition exception to the hearsay rule. Section 908.03(3) allows the introduction of: “A statement of the declarant's then
existing state of mind, emotion, sensation, or physical condition (such as
intent, plan, motive, design, mental feeling, pain, and bodily health), but not
including a statement of memory or belief to prove the fact remembered.” We agree with Howard that these statements
fall within § 908.03(3)'s exception to the hearsay rule as an out-of-court
statement of intent. Nonetheless, we
conclude that the trial court's error in excluding these statements was
harmless, State v. Dyess,
124 Wis.2d 525, 543, 370 N.W.2d 222, 231 (1985), because the testimony was
clearly cumulative. Moreover, because
of the cumulative nature of the testimony, the trial court could have properly
excluded these statements pursuant to § 904.03, Stats. Therefore, we
uphold the trial court's ruling. See
Kolpin v. Pioneer Power & Light Co., 162 Wis.2d 1, 30, 469
N.W.2d 595, 606 (1991) (appellate court will uphold decision vested in trial
court's discretion if there are any facts of record that support it); State
v. Holt, 128 Wis.2d 110, 124, 382 N.W.2d 679, 687 (Ct. App. 1985) (we
will affirm if trial court reaches proper result, albeit for the wrong reason).
B. Rebuttal
Witnesses.
Howard claims the trial
court erred in allowing the State to introduce three rebuttal witnesses: Ermia Redmond, Christine Steilen and Diane
Ellis. Howard contends that each witness's
testimony was inadmissible hearsay and that in calling these witnesses, the
prosecutor breached an agreement not to elicit certain testimony from these
witnesses.
Redmond testified that
between September 1991, and June 1992, Walker came to work with a bruised face
and she told Redmond that Howard had jumped on her and had beaten her, and
because of this, Walker was late for work.
The trial court admitted the statement under § 908.03(1) or (2), Stats., the present sense impression or
excited utterance exception to the hearsay rule. We conclude that any error committed in admitting this evidence
was harmless. Dyess, 124
Wis.2d at 543, 370 N.W.2d at 231. It
was undisputed at trial that Howard and Walker carried on a mutually abusive
relationship for years. Numerous
witnesses provided testimony with respect to threats made by both parties. Therefore, admitting this witness's
testimony that Walker had related one abusive incident to a co-worker years
prior to the homicide was harmless beyond a reasonable doubt.
Redmond also testified
that Walker told her about an incident in February 1994, involving an
altercation at a bar where Howard was angry about Walker's interactions with
another man. Redmond testified that
after the incident, Howard showed up at Walker's apartment, they argued some
more, and Howard fired a shot with his gun through Walker's bedroom door. The trial court admitted the statement under
§ 908.03(1) or (2), Stats. We again conclude that any error committed
in admitting this evidence was harmless.
See Dyess, 124 Wis.2d at 543, 370 N.W.2d at
231. When Howard testified, he related
the events relevant to the February 1994 event, including the fact that he was
angry about Walker dancing with another man, that he and Walker argued, and
that he fired a shot from his gun into the floor at Walker's apartment. Howard's admission, together with the
undisputed evidence that Howard and Walker's relationship was one of mutual
abuse, renders the admission of Redmond's testimony harmless error beyond a
reasonable doubt.
Steilen offered three
areas of testimony that Howard claims should not have been admitted: (1) she testified that Walker came to
work one day in the fall of 1993 with a bump over her eye, which was covered
heavily with makeup; (2) she testified that in February 1994, Walker came
to work upset and crying over a fight with Howard, that Howard had taken all
her money, held Walker down on the floor, and pulled the phone out of the wall;
and (3) she testified that Walker told her that Walker was tired of the
abuse and wanted to leave Howard. The
trial court admitted Steilen's testimony under the same hearsay exceptions as
noted above. We again conclude that any
error committed in admitting Steilen's testimony was harmless. See Dyess, 124 Wis.2d
at 543, 370 N.W.2d at 231. The record
is replete with admissible evidence as to the turbulent nature of Howard and
Walker's relationship and the mutual abuse. The challenged portions of Steilen's testimony simply provide
additional evidence of an abusive relationship. Accordingly, admitting Steilen's testimony was harmless beyond a
reasonable doubt.[1]
Ellis testified
regarding contact she had with Walker in the early morning hours of May 15,
1994, shortly before the homicide took place.
Ellis said that Walker told her that Howard had started an argument at
another tavern over another man and that Howard is “like Jekyll and Hyde.” Ellis testified that although Walker was
hysterical at first, she calmed down and did not make any threats against
Howard. The trial court admitted this
testimony under the same two hearsay objections as the other rebuttal
witnesses's testimony. We agree with
the trial court that this evidence was admissible under the excited utterance
exception to the hearsay rule, see § 908.03(2), Stats., because the statement relates
to a startling event—the argument that just occurred, Walker was under the
stress of excitement—apparently hysterical.
Accordingly, we reject Howard's claims with respect to each of the
rebuttal witnesses.
C. Jury
Instruction.
Finally, Howard objects
to the court charging the jury with Wis
J I—Criminal 815. He claims
this instruction should not have been given because there was no evidence that
he did anything unlawful to provoke the victim and that giving the instruction
impaired his theory of self-defense.
This instruction provides in pertinent part: “You should also consider whether the defendant provoked the
attack. A person who engages in
unlawful conduct of a type likely to provoke others to attack, and who does
provoke an attack, is not allowed to use or threaten force in self-defense
against that attack.”
In reviewing claimed
instructional errors, we note that a trial court has wide discretion as to
instructions. State v.
Lenarchick, 74 Wis.2d 425, 455, 247 N.W.2d 80, 96 (1976). In reviewing the record, we conclude that
even if the trial court erred in giving this instruction, it was harmless
error. See Dyess, 124 Wis.2d
at 543, 370 N.W.2d at 231. The jury was
free to disregard the instruction on the basis that Howard did not provoke an
attack. Further, there is overwhelming
evidence of intent in the record, including the fact that Howard shot Walker
six times, reloaded his gun after he discharged the round, pushed her body
aside, and left the scene without calling for help. We conclude, therefore, that even if it was error to give Wis J I—Criminal 815, there
is no reasonable possibility that the error contributed to the result in this
case. See Dyess,
124 Wis.2d at 543, 370 N.W.2d at 231.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.