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COURT OF APPEALS DECISION DATED AND RELEASED October 16, 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. 95-2402-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
PAUL PRICE,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Racine County:
DENNIS J. BARRY, Judge. Affirmed.
Before Brown, Nettesheim
and Snyder, JJ.
PER
CURIAM. Paul Price appeals from a judgment of conviction of
first-degree intentional homicide. He
argues that the jury panel failed to fairly represent a cross-section of the
community, that the victim's toxicology report should have been admitted as
evidence, that he was not timely provided discovery of a witness' statement,
that a biased police investigator should have recused himself, that the
evidence was insufficient, and that his 2035 parole eligibility date renders
his sentence excessive. We reject his
claims and affirm the judgment.
Price is
African-American. At trial he objected
to the jury panel because of the fifty persons drawn, there were no Hispanics
and only one African- American. He
argues that the trial court should have dismissed the panel and selected a new
one.
The issue is
inadequately developed in Price's appellate brief and we need not address
it. See State v. Pettit,
171 Wis.2d 627, 646, 492 N.W.2d 633, 642 (Ct. App. 1992) (we will not address
arguments inadequately briefed and which lack citation to proper legal
authority). However, the issue was
fully developed at trial with testimony from the district court administrator
and jury clerk and an examination of the composition of other jury panels in
the county. It is sufficient to say
that we have reviewed the record and conclude that Price failed to establish a
prima facie violation of the fair cross-section requirement. See Duren v. Missouri,
439 U.S. 357, 364 (1979).[1] There was no evidence that the jury panel
was unfairly or unreasonably underrepresented by African-Americans or Hispanics
or that there was any means of systematic exclusion of those groups.[2]
Price's theory of
defense was self-defense. He sought to
admit toxicology evidence that revealed that the victim, Williams Collins, had
cocaine metabolite in his blood. Price
argues that evidence that Collins was "on cocaine" would explain
Collins' behavior and demeanor just prior to the shooting. Collins was shot outside a liquor
store. Price testified that during a
verbal exchange with Collins at the liquor store, Collins lunged at him.
Evidentiary rulings,
particularly relevancy determinations, are left to the discretion of the trial
court and will not be upset on appeal unless the court erroneously exercised
its discretion. Shawn B.N. v.
State, 173 Wis.2d 343, 366-67, 497 N.W.2d 141, 149 (Ct. App.
1992). We will affirm the trial court's
discretionary ruling if it is supported by a logical rationale, is based on
facts of record and involves no error of law.
Id. at 367, 497 N.W.2d at 149.
The relevancy of the
presence of the cocaine metabolite was explored through the voir dire
examination of three medical experts.
The toxicology expert pointed out that there was no active cocaine found
in Collins' blood. He testified that
based on the level of the metabolite found, Collins ingested cocaine a minimum
of twenty hours before his death. The
shooting occurred three hours and nineteen minutes before death. The expert opined that Collins did not have
cocaine in his blood and was not in the "crashing phase" of coming
off cocaine when he was shot.
The trial court found
that based on the experts' testimony there was no basis from which it could be
determined that the presence of the metabolite had an effect on the victim's
behavior. Relevancy is a function of
whether the evidence tends to make the existence of a material fact more or
less probable than it would be without the evidence. See State v. Denny, 120 Wis.2d 614, 623, 357
N.W.2d 12, 16 (Ct. App. 1984). The
metabolite level did not prove anything material to Collins' behavior. Collins' use of cocaine was remote in time
to the shooting and was not sufficiently linked to the moment of the
crime. We conclude that the trial court
properly exercised its discretion in excluding the evidence.
On the first day of
trial, Price informed the court that as part of pretrial discovery, he had
not been provided with the written statement of witness Joseph Gordon. Price contends that his right to due process
was violated by the discovery violation.
We conclude that Price was not prejudiced by what may or may not have
been late discovery.
First, Price was
provided a copy of Gordon's statement on the first day of trial. Section 971.24(1), Stats., requiring the production of a witness' statement, is
satisfied if the statement is provided before the witness' testimony. Second, as the trial court noted, the
defense was aware of Gordon as a potential witness because he had been subpoenaed
by the prosecution for the preliminary hearing. Gordon had not appeared at the preliminary hearing and on the
record Gordon's name had been mentioned for the issuance of a bench warrant. Third, Price was provided an opportunity to
interview Gordon before his testimony given on the third day of trial. Price was provided with Gordon's address and
given approval to interview him. The
trial court fashioned an appropriate remedy to allow Price to interview
Gordon. Moreover, Gordon's testimony
was equivocal and did not directly implicate Price. He testified that he saw a black male shoot another black male at
the liquor store. He had told police he
did not know what the shooter looked like.
He was unable to pick out the shooter from a photo lineup. Thus, neither Gordon's testimony nor his
statement was exculpatory evidence and delay in receipt did not prejudice
Price.
Price argues that police
detective Arthel Howell should have recused himself from participation in the
investigation because he was related to the victim. He seeks an opportunity to investigate further what exact
prejudice may have resulted from Howell's participation and the appearance of
impropriety. We summarily reject this
claim. There is no basis in law for
requiring an investigator's recusal.
The investigator testified that he was remotely related to the victim
and that his supervisor gave approval for him to continue working on the
case. Price cross-examined Howell about
the relationship. He had the
opportunity to explore possible bias that may have affected Howell's
investigation. A further fishing
expedition is not warranted.
We turn to the
sufficiency of the evidence. Our review
of the sufficiency of the evidence is to determine whether the evidence, viewed
most favorably to the State and the conviction, is so insufficient in probative
value and force that it can be said as a matter of law that no trier of fact,
acting reasonably, could have found guilt beyond a reasonable doubt. State v. Ray, 166 Wis.2d 855,
861, 481 N.W.2d 288, 291 (Ct. App. 1992).
We must accept the reasonable inferences drawn from the evidence by the
jury. See State v.
Poellinger, 153 Wis.2d 493, 506-07, 451 N.W.2d 752, 757-58 (1990).
Price relies on the
testimony of persons unable to identify him as the shooter to demonstrate that
the evidence was insufficient. Here,
two witnesses identified Price as the shooter.
Even though the credibility of those two witnesses was subject to doubt
because of one's intoxication and the other's numerous prior convictions,
credibility is a matter for the jury.
It is for the jury, not this court, to resolve conflicts in
testimony and determine the credibility of witnesses. See State v. Fettig, 172 Wis.2d 428, 448,
493 N.W.2d 254, 262 (Ct. App. 1992).
Price himself admitted
to shooting Collins. Intent cannot be
disputed when seven shots were fired into the victim's abdomen. See State v. Kramar, 149
Wis.2d 767, 793, 440 N.W.2d 317, 328 (1989) ("when one intentionally
points a loaded gun at a vital part of the body of another and discharges it,
it cannot be said that [the person] did not intend the natural, usual, and
ordinary consequences."). There
was sufficient evidence from which the jury could reject Price's claim of
self-defense.
Price was given the mandatory
life sentence and his parole eligibility date was set for 2035. He argues that because he had no prior
criminal record, the selected parole eligibility date renders the sentence
excessive. The issue was not raised
before the trial court and is not properly before us. See State v. Barksdale, 160 Wis.2d 284, 291,
466 N.W.2d 198, 201 (Ct. App. 1991). Spannuth
v. State, 70 Wis.2d 362, 365, 234 N.W.2d 79, 81 (1975), repeats the
"frequently stated requirement that when sentences are challenged as excessive
under the facts or as being the result of an abuse of discretion, no
consideration can be given by this court unless a motion raising such error is
made to the trial court; compelling circumstances being an exception to the
requirement."[3]
We do conclude, however,
that the record demonstrates that the sentencing court properly exercised its
discretion in setting Price's parole eligibility date. A sentencing court sets the parole
eligibility date using the same discretionary balancing of factors that govern
the imposition of a prison sentence. State
v. Borrell, 167 Wis.2d 749, 764, 482 N.W.2d 883, 888 (1992). Likewise, we follow the same standard of
appellate review applicable to sentences, including the presumption that the
sentencing court acted reasonably. Id.
at 781-82, 482 N.W.2d at 895.
The primary factors to
be considered are the gravity of the offense, the character of the
offender and the need to protect the public.
State v. J.E.B., 161 Wis.2d 655, 662, 469 N.W.2d 192,
195 (Ct. App. 1991), cert. denied, 503 U.S. 940 (1992). The weight to be given each factor is a
determination particularly within the wide discretion of the sentencing
court. Id.
The sentencing court's
rationale reflects consideration of these factors. We cannot conclude that the court focused too heavily on the
nature of the crime to the exclusion of Price's rehabilitative needs. The court found that Price's rehabilitative
needs and protection of the public required substantial confinement.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1]In order to establish a prima
facie violation of the fair-cross-section requirement, the defendant must show
(1) that the group alleged to be excluded is a "distinctive" group in
the community; (2) that the representation of this group in venires from which
juries are selected is not fair and reasonable in relation to the number of
such persons in the community; and (3) that this underrepresentation is due to
systematic exclusion of the group in the jury-selection process.
Duren v. Missouri, 439 U.S. 357, 364 (1979).
[2] The census showed a 7.6% African-American population in the community and the jury pool from which the jury panel was selected was made up of 6.3% African-Americans. Greater numerical disparities have withstood challenge. See State v. Pruitt, 95 Wis.2d 69, 78, 289 N.W.2d 343, 347 (Ct. App. 1980) (a panel comprised of 12.7% of the distinct group where the general population consisted of 25% of that group was not unfair or unreasonable). "The jury pool need not be a statistical mirror of the community." Id.