COURT OF APPEALS DECISION DATED AND RELEASED November 12, 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. 95-2860-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
LAMONT WILLIAMS,
Defendant-Appellant.
APPEAL from judgments
and an order of the circuit court for Milwaukee County: JEFFREY A. KREMERS, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Curley, JJ.
PER
CURIAM. Lamont Williams appeals from judgments of conviction for
four counts of armed robbery and one count of carrying a concealed weapon. He also appeals from an order denying his
motion for postconviction relief. He
raises several constitutional challenges to the jury selection procedure. He also challenges the trial court's ruling
that excluded a statement allegedly implicating another person as the
robber. Finally, he argues that he was
deprived of the right to present a defense because he was not allowed to
counter State testimony that his gait matched that of the alleged robber. Because Williams did not request that voir
dire be recorded, thereby depriving this court of the ability to review his
constitutional challenge to the jury selection procedure; because the trial
court properly exercised its discretion in excluding the proffered statement as
hearsay; and because Williams's offer of proof was insufficient for asserting
evidence to counter testimony that his gait matched the alleged armed robber;
we affirm.
I.
Background.
Police arrested Williams
for a series of armed robberies at fast-food restaurants throughout Milwaukee
County. In each case, the robber acted
alone, used a handgun, and ordered employees to empty the cash register. In some of the robberies, the robber
inquired about a safe and attempted to have employees turn over the
restaurants' surveillance video tapes.
Williams was arrested
after a victim of one of the robberies spotted him at a movie theater and
called the police. The police arrested
Williams, uncovering a concealed handgun.
The State charged him in the robberies and with carrying a concealed
weapon.
Williams's trial began
before the Hon. Victor Manian; however, two mistrials were declared during jury
selection. These aborted jury
selections were held on the record. The
selection of the actual jury that sat in Williams's trial before the Hon.
Jeffrey A. Kremers was not placed on the record because Williams's counsel did
not request it. See SCR
71.01(2)(f) (providing that reporting of procedures, such as jury selection, is
within trial court's discretion). Thus,
there is no transcript of these proceedings in the appellate record.
During his trial,
Williams attempted to introduce the testimony of Saleena Wilkerson, one of the
robbery victims, in an effort to show that someone other than he had committed
the robberies. Allegedly, Wilkerson had
received a telephone call at her restaurant and the caller admitted to being
the robber. Defense counsel established
that police had traced this call to Wilkerson's boyfriend's home. When Williams attempted to introduce the
caller's alleged statement, first through another restaurant employee and then
through Wilkerson, the State successfully objected on hearsay grounds.
Finally, one of the
robbery victims, a former dance instructor, testified that Williams was the
robber and that he was certain because of Williams's gait; that is, Williams's
way of walking matched that of the robber.
Williams sought to counter this testimony by introducing the testimony
of his mother and sister who he now argues would have stated that they were
familiar with his gait and that they had seen the videotape of the robbery and
the robber's gait did not match his.
The trial court excluded this testimony as irrelevant.
The jury convicted
Williams of four counts of armed robbery and the one count of carrying a
concealed weapon. Williams filed
postconviction motions seeking a new trial.
After evidentiary hearings, the trial court denied these motions. This appeal follows.
II.
Analysis.
Williams first argues
that he was denied equal protection and his state constitutional right to
appeal because his jury selection was not recorded. Essentially, his underlying argument is that the State violated
his rights by removing potential jurors based on race in contravention of Batson
v. Kentucky, 476 U.S. 79 (1986), and its progeny. At the postconviction motion, the trial
court ruled that because voir dire was not reported, it was impossible
to reconstruct the procedure used to strike the potential jurors.
We first note that
nothing in the statutes or case law mandates that voir dire be recorded;
although in most cases it is advisable to do so to prevent problems such as
those presented in this case. In State
v. Perry, 136 Wis.2d 92, 401 N.W.2d 748 (1987), the Wisconsin Supreme
Court set forth the procedure used to determine whether a defendant should be
granted a new trial based on an inadequate trial transcript. Using a methodology presented by this court
in State v. DeLeon, 127 Wis.2d 74, 377 N.W.2d 635 (Ct. App.
1985), the supreme court held that a defendant must first allege a facially
valid claim of error; the trial court must then attempt to reconstruct the
missing portions of the record; and if reconstruction is impossible, a new
trial is warranted. Perry,
136 Wis.2d at 101, 401 N.W.2d at 752; DeLeon, 127 Wis.2d at 80‑82,
377 N.W.2d at 638‑39.
The State argues that
the above procedure and remedy is inapplicable here because, unlike in Perry
and DeLeon, the lack of a transcript of voir dire was
Williams's “fault.” In both DeLeon
and Perry, the portions of the trial were recorded, but the court
reporter's notes were lost. Perry,
136 Wis.2d at 95‑96, 401 N.W.2d at 750; DeLeon, 127 Wis.2d
at 76, 377 N.W.2d at 636. As a result,
in those cases, the defendant was not responsible for the lack of an adequate
trial transcript.
Here, Williams's counsel
never requested that voir dire be recorded.
See SCR 71.01(2)(f) (discussing discretionary nature of reporting
jury selection). Thus, he was
responsible for the lack of a transcript on which his Batson
challenge could be based. We agree with
the State that the Perry-DeLeon remedy mandating a new trial is
inapplicable here.
Further, any claim that
Williams was denied effective assistance of counsel has been abandoned on
appeal. Although Williams raised this
issue in his postconviction motions, he has neither specifically raised nor
adequately argued this issue in his appellate brief. Accordingly, we deem this issue waived. State v. Whitaker, 167 Wis.2d 247, 259 n.5, 481
N.W.2d 649, 654 n.5 (Ct. App. 1992) (stating issue not briefed on appeal is
waived).
Williams next argues
that a new trial is required on two of the counts of armed robbery because the
trial court erroneously exercised its discretion by excluding testimony
allegedly showing that someone other than Williams admitted to being the
robber.
Williams attempted to
introduce the testimony of robbery victim Saleena Wilkerson, who received a
phone call at her restaurant shortly after her restaurant was robbed. The call was from a male who stated, “This
is the mother fucker who just robbed you.”
The police traced this call to Wilkerson's boyfriend's house;
Wilkerson's boyfriend had a male roommate.
Wilkerson's boyfriend told police that he had called Wilkerson's
restaurant several times the night the call was received. Also, Wilkerson initially thought that the
robber was her boyfriend's roommate and the jury heard evidence to that
effect. The trial court ruled that
Wilkerson could not testify as to what she heard in the telephone call because,
among other things, it was impermissible hearsay evidence.
“A trial court possesses
wide discretion in determining whether to admit or exclude evidence, and we
will reverse such determinations only upon an erroneous exercise of that
discretion.” State v. Evans,
187 Wis.2d 66, 77, 522 N.W.2d 554, 557 (Ct. App. 1994). “The trial court properly exercises its
discretion if its determination is made according to accepted legal standards
and if it is in accordance with the facts on the record.” Id.
The trial court properly
excluded this testimony. First, if the
declarant in the telephone call was Wilkerson's boyfriend's roommate, there has
been no showing that he was unavailable, a prerequisite for the admission of
his hearsay statement under Rule 908.045,
Stats.[1]
Second, if the declarant
was not the boyfriend's roommate, sufficient corroboration must be shown before
the statement could be admitted as a statement against interest. See Rule
908.045(4), Stats. The standard under Rule 908.045(4), Stats.,
is that there must be “corroboration sufficient to permit a reasonable person
to conclude, in light of all the facts and circumstances, that the statement
could be true.” State v. Anderson,
141 Wis.2d 653, 660, 416 N.W.2d 276, 279 (1987).
Here, Williams has
provided nothing that shows an unnamed, unknown person, other than her
boyfriend's roommate, was responsible for the robbery. There is nothing that corroborates the
truthfulness of the declarant's statement on the phone. Given the foregoing, the trial court
properly excluded this testimony. There
was no erroneous exercise of discretion.
Finally, Williams argues
that the trial court improperly excluded the testimony of his mother and sister
offered to refute the testimony of a State witness who stated that Williams's
gait, that is, the way that he walked, was the same as the man who robbed the
restaurant. The witness in question was
one of the robbery victims. He
testified that he had managed a dance studio and was very attentive to the way people
moved. He testified that he had
observed the way Williams walked at the preliminary hearing and that he
concluded his gait was the same as that of the robber of his restaurant.
Williams argues on
appeal that he attempted to introduce the testimony of his mother and sister
who would have stated that “the gait of the robbery as reproduced on videotape
was different than that of [Williams].”
The State argues that
Williams “did not make a sufficient offer of proof to show that the witnesses
would testify in the manner he now suggests on appeal.” (Underline omitted.) The State points to the following argument
by Williams's counsel at trial to suggest the insufficient offer of proof:
You have an individual
who has known him for a number of years, who has seen him, who has lived with
him who can give -- comment on specific particulars about how this person
moves, the particular construction of the face, the things that she sees or
didn't see. Clothing for example. And we're not talking about a stranger who
doesn't know him who's asked to compare.
We're talking about somebody who knows him intimately, who has a rare
opportunity to view that footage as many times as she wants to tell them why
she doesn't believe it's him. And I
think ‑‑ I think that's the same as if somebody were in the
store and said I'm not sure if it's him or I don't think it's him. But it goes a step further because she knows
who this person is. She knows the
particular she's looking for on this particular individual.
We agree with the State
that the above was not sufficient offer of proof to admit his mother's or
sister's testimony.
To review an alleged
trial court error of exclusion of evidence it is necessary that error be
self-evident from the nature of the evidence excluded ... or an offer of proof
by statement of counsel or in question and answer form must be recorded out of
the hearing of the jury whenever practicable.
The offer of proof need
not be stated with complete precision or in unnecessary detail but it should
state evidentiary hypotheses underpinned by a sufficient statement of facts to
warrant the conclusion or inference that the trier of fact is urged to adopt.
Milenkovic
v. State, 86 Wis.2d 272, 284, 272 N.W.2d 320, 326 (Ct. App.
1978) (citations and footnote omitted).
Here, Williams's counsel
did not meet this minimum standard.
First, the relevancy of the testimony was not self-evident. Second, in his offer of proof, Williams's
counsel never specifically stated that his mother or sister were prepared to
testify that Williams's walk was different than that of the person shown on the
surveillance videotape. As such, the
trial court's exclusion of this evidence is irrelevant and was not an erroneous
exercise of discretion.
In sum, we reject all of
Williams's arguments raised on appeal.
Accordingly, the judgments of conviction and order denying
postconviction relief are affirmed.
By the Court.—Judgments
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Rule 908.045, Stats., provides:
Hearsay exceptions; declarant
unavailable. The
following are not excluded by the hearsay rule if the declarant is unavailable
as a witness:
(1) Former testimony. Testimony given as a
witness at another hearing of the same or a different proceeding, or in a
deposition taken in compliance with law in the course of another proceeding, at
the instance of or against a party with an opportunity to develop the testimony
by direct, cross‑, or redirect examination, with motive and interest
similar to those of the party against whom now offered.
(2) Statement of recent perception. A statement, not in response to the
instigation of a person engaged in investigating, litigating, or settling a
claim, which narrates, describes, or explains an event or condition recently
perceived by the declarant, made in good faith, not in contemplation of pending
or anticipated litigation in which the declarant was interested, and while the
declarant's recollection was clear.
(3) Statement under belief of impending death. A statement made by a declarant while believing
that the declarant's death was imminent, concerning the cause or circumstances
of what the declarant believed to be the declarant's impending death.
(4) Statement against interest. A statement which was at the time of its
making so far contrary to the declarant's pecuniary or proprietary interest, or
so far tended to subject the declarant to civil or criminal liability or to
render invalid a claim by the declarant against another or to make the
declarant an object of hatred, ridicule, or disgrace, that a reasonable person
in the declarant's position would not have made the statement unless the person
believed it to be true. A statement
tending to expose the declarant to criminal liability and offered to exculpate
the accused is not admissible unless corroborated.
(5) Statement of personal or family history.
(a) A statement concerning the
declarant's own birth, adoption, marriage, divorce, relationship by blood,
adoption or marriage, ancestry, whether the person is a marital or nonmarital
child, or other similar fact of personal or family history, even though
declarant had no means of acquiring personal knowledge of the matter stated; or
(b) a statement concerning the foregoing matters, and death also, of another
person, if the declarant was related to the other by blood, adoption or
marriage or was so intimately associated with the other's family as to be
likely to have accurate information concerning the matter declared.
(6) Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having comparable circumstantial guarantees of trustworthiness.