District II/IV
August 13, 2013
To:
Hon. Mary Kay Wagner
Circuit Court Judge
Kenosha County Courthouse
912 56th Street
Kenosha, WI 53140
Rebecca Matoska-Mentink
Clerk of Circuit Court
Kenosha County Courthouse
912 56th Street
Kenosha, WI 53140
Michael D. Graveley
Asst. District Attorney
Molinaro Bldg.
912 56th Street
Kenosha, WI 53140-3747
Robert Probst
Assistant Attorney General
P.O. Box 7857
Madison, WI 53707-7857
John T. Wasielewski
Wasielewski & Erickson
1442 N. Farwell Ave., #606
Milwaukee, WI 53202
Marcus D. Jackson 574932
Waupun Corr. Inst.
P.O. Box 351
Waupun, WI 53963-0351
You are hereby notified that the Court has entered the following opinion and order:
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State of Wisconsin v. Marcus D. Jackson (L.C. # 2010CF261) |
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Before Blanchard, P.J., Lundsten
and Sherman, JJ.
Marcus Jackson appeals the circuit court’s judgment
convicting him, after a jury trial, of one count of armed robbery as a party to
a crime. See Wis. Stat. §§ 943.32(2);
939.05 (2011-12).[1] Jackson argues on appeal that the circuit
court erred in ruling that a police officer’s testimony about the statements
made to the officer by a witness while the witness was viewing a photo array
was inadmissible hearsay. Based on our
review of the briefs and record, we conclude at conference that this case is
appropriate for summary disposition. See Wis.
Stat. Rule 809.21. We summarily
affirm.
Jackson was charged with armed robbery, as a party to
a crime, for the robbery of a jewelry store with another man, Vernon
Fields. During the robbery, Fields
carried a gun and raised it. The store
owner pulled out a gun and shot Fields. Security
cameras inside the jewelry store captured video of the incident. Fields’ DNA was identified on a handgun and
in blood discovered in a nearby alley where Fields was found after the
robbery. Nearby, police found two surgical
gloves that contained DNA that matched Jackson’s DNA. A third surgical glove located there had
Fields’ DNA on it.
Around the time of the robbery, a man named Duward
Mays was riding his bike in the vicinity.
Mays testified at trial that, at that time, he saw two black men, one of
whom was staggering across the street.
The other man was walking two to three feet behind the first man. Mays rode another half a block and then
turned around and saw that the man who had been staggering had fallen to the
ground. Mays approached the man and saw
that he was bleeding and had a gun. Mays
saw the other man get into a nearby van driven by someone else.
Several months later, a police officer showed a photo
array to witness Mays that included a picture of Jackson. During cross-examination of the officer,
Jackson’s counsel tried to elicit testimony that Mays had not picked out
Jackson in the photo array and instead had selected photos of two other
persons. The State objected, and the
circuit court excluded the officer’s testimony about Mays’ statements as
inadmissible hearsay.
On appeal, Jackson challenges the circuit court’s exclusion of the officer’s testimony about what Mays did or did not say during the photo array. Jackson argues that the officer’s testimony about Mays’ statements should have been admitted either as a present sense impression under Wis. Stat. § 908.03(1) or as an identification statement under Wis. Stat. § 908.01(4)(a)3. Although we agree that, on its face, the question does not appear to have been geared to elicit hearsay, we need not decide the issue because Jackson has failed to establish that the proffered testimony was sufficiently relevant, such that the decision to exclude the testimony was error.
Whether to admit evidence is a decision left to the discretion
of the circuit court. State
v. Jackson, 216 Wis. 2d 646, 655, 575 N.W.2d 475 (1998). Exceptions to the general prohibition, in Wis. Stat. § 908.02, against
hearsay evidence “do not operate in a vacuum such that if testimony falls under
a hearsay exception it will be admissible no matter what.” State v. Jacobs, 2012 WI App 104, ¶27,
344 Wis. 2d 142, 822 N.W.2d 885, review
denied, 2013 WI 6, 345 Wis. 2d 402, 827 N.W.2d 96. Under Wis.
Stat. § 904.02, “[e]vidence which is not relevant is not
admissible.”
Here, Jackson fails to establish a reasonable relationship
between the evidence sought to be introduced and the proposition to be proved. Jackson argues in broad strokes that Mays’ failure
to identify Jackson in the photo array was relevant to the issue of Jackson’s
identity and that the statements were potentially exculpatory in nature. However, the prosecutor here did not look to
Mays to identify Jackson as the particular black male who fled in the van. Mays agreed, at trial, that he did “get a
look” at the man who got into the van near the scene of the robbery, but also
said he could only “vaguely remember” the man and stated only that the man was
black.
The proper standard for relevancy on cross-examination
is “whether [the answer] will be useful to the trier of fact in appraising the
credibility of the witness and evaluating the probative value of the direct
testimony.” Rogers v. State, 93 Wis.
2d 682, 689, 287 N.W.2d 774 (1980).
Given that Mays never identified Jackson in his testimony or elsewhere
in the record, Mays’ inability to pick Jackson out of a photo array does not
tend to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable. See Wis. Stat. § 904.01. On that basis, we uphold the circuit court’s
ruling to exclude the proffered evidence, and affirm the judgment of
conviction.[2]
IT IS ORDERED that the judgment is summarily affirmed under Wis. Stat. Rule 809.21(1).
Diane M. Fremgen
Clerk of Court of Appeals
[1] All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.
[2] On appeal, we may affirm on different grounds than those relied on by the circuit court. Vanstone v. Town of Delafield, 191 Wis. 2d 586, 595, 530 N.W.2d 16 (Ct. App. 1995). When we affirm on other grounds, we need not discuss our disagreement with the circuit court’s chosen grounds of reliance. See Liberty Trucking Co. v. DILHR, 57 Wis. 2d 331, 342, 204 N.W.2d 457 (1973).