State v. Anderson
| Decision Date | 19 August 1999 |
| Docket Number | No. 98-3639-CR.,98-3639-CR. |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Gordon R. ANDERSON, Jr., Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
On behalf of the defendant-appellant, the cause was submitted on the briefs of Craig M. Kuhary of Huppertz & Kuhary, S.C. of Waukesha.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and David J. Becker, assistant attorney general.
Before Dykman, P.J., Eich and Vergeront, JJ.
Gordon Anderson, Jr. appeals a judgment of conviction for first-degree intentional homicide as a party to the crime, contrary to §§ 940.01(1) and 939.05, STATS.2 He contends the trial court made two evidentiary errors: it admitted evidence of a "prior bad act," and it refused to admit additional portions of his prior out-of-court statement under the doctrine of completeness. We conclude the trial court did not erroneously exercise its discretion in admitting the prior bad acts evidence under § 904.04(2), STATS., but it did err in refusing to admit an additional portion of the defendant's statement. However, we conclude this error was harmless and therefore affirm.
The charges arose out of the death of Brenda Boshears-McDonald (Boshears), whose body was found floating in a drainage ditch under a bridge in Wisconsin. The pathologist who conducted the autopsy stated that Boshears' death was caused by someone pounding on her head, presumably with a blunt object. The pathologist further testified that, although the head injuries were sufficient to kill her, they were possibly augmented by drowning and force to the neck. One week before the body was found, Anderson and a friend, Jamie Moore, met Boshears at a bar in Rockford, Illinois, and the three of them left together to purchase cocaine.
During Anderson's trial, the jury heard two very different versions of Boshears' murder. The first was related by Moore, who testified for the State as follows. After work on May 1, 1997, Anderson drove Moore to the bar where they first saw Boshears, who appeared intoxicated. Eventually the three left the bar, with Anderson driving, and went to a house where Anderson gave Boshears $50 to buy crack cocaine. When she got back into the truck,3 they drove out of town, and Anderson and Boshears began arguing about where to stop to smoke the cocaine. Finally, Anderson demanded that Boshears either show him the drugs or give him his money back, threatening Boshears with a knife. He stopped the truck on a bridge in the country, got out and began yelling at Boshears to get out. When Moore opened the passenger door to let her out, Boshears turned to Moore, cussed at him, and pushed him as she tried to get out. Moore punched Boshears in the jaw, causing her mouth and his hand to bleed. He then grabbed her and threw her to the ground, and also fell to the ground himself. At that point, Anderson came around the truck and hit Boshears in the head with a hammer and then threw her off the bridge into the water.
Anderson and Moore got back in the truck, turned the truck around and saw Boshears coming up the side of the ditch. According to Moore, Anderson made the following comments: "she's not gonna die," "he (Anderson) was not gonna go back to jail for some bitch," and "a dead bitch can't say anything." Anderson then got out and started hitting Boshears in the head with the hammer again and then threw her off the bridge again. When Anderson and Moore saw Boshears struggling to get out of the water again, Anderson went to the truck, got a rope and put it around Boshears neck. He pulled on it until the rope broke and she fell into the water and stopped moving. On their drive back to Rockford, Anderson stopped at another bridge and threw the hammer and the rope into a river.
Moore acknowledged that his testimony of this version of events followed a plea agreement, pursuant to which the charge against him was reduced to second-degree reckless homicide. He also acknowledged that, prior to his testimony at Anderson's trial, he had lied about the events of May 1 several times, including initially telling investigators he was not there; he had "told at least seven different versions of what happened on [that] night"; and he had not told anyone he hit Boshears until the week before trial, after he was sentenced on the reduced charge.
Although Anderson did not testify, he established his version of events through other witnesses. Anderson's nephew and two detectives testified that Anderson had told them what had happened that night, and from their testimony the jury could infer that Anderson consistently said Moore was the one who killed Boshears. Several police officers and both Anderson's and Moore's girlfriends testified that Moore had previously told them different versions of the facts at different points in the investigation. Finally, three inmates testified that Moore had, while in jail, told each of them that he (Moore) killed the woman with a hammer, although two of the inmates acknowledged that Moore also told different stories that put some blame on Anderson.
In addition to Moore's testimony, Tina Smith, who had been sexually assaulted by Anderson in 1994, testified for the State. Anderson objected to this other acts evidence and, in the alternative, asked the court to limit Smith's testimony to these elements: she made an allegation against Anderson, she testified against him and he was subsequently sentenced to prison. The trial court ruled that the evidence was admissible under § 904.04(2), STATS., for the purposes of motive and intent4 with the following explanation:5
[I]n view of the testimony of Mr. Moore, that they had driven away. That they turned around and came back. That the woman was alive and crawling on the bridge. And that Mr. Anderson as he turned around approximately made the statement that a dead bitch can't say anything, would, if believed by the jury, [make] this prior offense ... relevant as to why he made such a statement. Both on the grounds of motive and intent.
The court also concluded the probative value outweighed any prejudicial effect, provided there were appropriate limiting instructions. It further ruled that Smith's testimony must be limited to the following details:
[S]he met the defendant in the bar [in Byron, Illinois], that they went to Rockford to get cocaine. That they struck a deer on the way [and knocked out a headlight]. That coming back he [sexually and physically] assaulted her [along the roadside close to Byron]. That [afterwards he wanted her to get in the truck, but] she hid in the corn field. That he later came back. The truck [with the headlight out] came back and then left again at which time she had gone down the road a bit and hid in the bushes. That she then met a state Officer Johnson and told him of the assault. That a trial was held. She testified and the defendant was convicted.
Immediately after Smith testified, the trial court instructed the jury that it could consider her testimony for motive and intent only and was not to infer that Anderson was a bad person. The trial court repeated this instruction at the end of the trial, immediately prior to jury deliberations.
Anderson contends the trial court erred in admitting Smith's testimony for the purposes of motive and intent. He also contends that even if the evidence were properly admitted for those purposes, the details—concerning the circumstances under which the defendant met the victim, their drug use, the location of the offense and the circumstances surrounding the offense—were unnecessary and improperly prejudiced the jury with a display of Anderson's propensity of violence towards women.
When reviewing a trial court's discretionary decision to admit other acts evidence, we will not reverse the trial court if it examined the relevant facts, applied a proper standard of law, and, using a demonstrative rational process, reached a conclusion that a reasonable judge could reach. See State v. Sullivan, 216 Wis. 2d 768, 780-81, 576 N.W.2d 30, 36 (1998)
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[1]
Generally other acts evidence is not admissible because of the fear that it may invite the jury to focus on an accused's character and because it magnifies the risk that jurors will punish the accused for being a bad person regardless of his or her guilt of the crime charged. Id. at 783, 576 N.W.2d at 37; see also § 904.04(2), STATS.6 However, other acts evidence may be admitted when relevant for some purpose other than that of demonstrating the accused's propensity to commit the act charged. Id. Our supreme court has set forth a three-step analytical framework for addressing whether other acts evidence should be admitted:
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