State v. Baldwin
| Decision Date | 02 November 2010 |
| Docket Number | 2009AP1542–CR,2009AP1543–CR.,2009AP1541–CR,Nos. 2009AP1540–CR,s. 2009AP1540–CR |
| Parties | STATE of Wisconsin, Plaintiff–Respondent,v.Scottie L. BALDWIN, Defendant–Appellant.† |
| Court | Wisconsin Court of Appeals |
OPINION TEXT STARTS HERE
On behalf of the defendant-appellant, the cause was submitted on the briefs of Robert E. Haney, Milwaukee.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of J.B. Van Hollen, attorney general, and Aaron R. O'Neil, assistant attorney general.Before CURLEY, P.J., FINE and BRENNAN, JJ.BRENNAN, J.
[330 Wis.2d 503] ¶ 1 Scottie L. Baldwin appeals two evidentiary rulings entered on the first day of his jury trial and the imposition of a DNA surcharge at sentencing.1 First, he argues that the trial court violated the Sixth Amendment's Confrontation Clause by admitting statements made by Baldwin's girlfriend, R.Z., under the forfeiture by wrongdoing exception to the general prohibition against hearsay. Baldwin contends that the record fails to support the trial court's finding that R.Z. was unavailable for trial and that the trial court applied “bad law.” Second, Baldwin argues that the trial court erred by admitting tape recordings of telephone conversations without authenticating them as required by Wis. Stat. § 909.015. Finally, he argues that the trial court's imposition of the DNA surcharge offends State v. Cherry, 2008 WI App 80, 312 Wis.2d 203, 752 N.W.2d 393.
¶ 2 We reject Baldwin's arguments and affirm because the trial court made the requisite findings under Giles v. California, 554 U.S. 353, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008), to establish forfeiture by wrongdoing and the record reveals sufficient authentication for the telephone recordings under Wis. Stat. § 909.015 and State v. Williams, 2002 WI 58, 253 Wis.2d 99, 644 N.W.2d 919. We also conclude that we lack jurisdiction over Baldwin's Cherry claim because he never filed a notice of appeal from the trial court's July 31, 2009 order denying his pro se postconviction motion to vacate the DNA surcharge.
¶ 3 Baldwin and R.Z. were engaged in a violent relationship that resulted in much police and court involvement. The first charges relevant to Baldwin's claims on appeal were multiple charges of domestic violence brought against Baldwin in 2005 and 2006 for harming R.Z.2 Those charges were eventually dismissed without prejudice when R.Z. failed to appear at trial.
¶ 4 On March 13, 2007, Baldwin was charged in Milwaukee County Circuit Court Case No. 2007CM1803, the first case consolidated on appeal, with disorderly conduct, as a habitual criminal, for threatening to harm R.Z. several days earlier. According to the criminal complaint, R.Z., who was two months pregnant with Baldwin's child at the time, told police that Baldwin was “yelling and screaming and threatening to kill her” and that he “punched the walls and yelled, ‘you're going to fucking get it[ ]’ and ‘I'm going to dog walk your ass and blacken your eye.’ ” R.Z. told police that she was “really scared” because Baldwin “ha[d] hit her and threatened her on prior occasions.” The responding police officer noted that R.Z. “appeared nervous, fearful and [was] shaking.” As a condition of Baldwin's bail, the trial court prohibited Baldwin from contacting R.Z. and from committing any new crimes.
¶ 5 Ten days later, while Baldwin was out on bail for the March 2007 incident, he was charged with misdemeanor bail jumping for failing to appear in court for a hearing on one of the dismissed 2005 charges.3 The bail jumping charge constitutes Milwaukee County Circuit Court Case No. 2007CM2031 and is the second case consolidated on appeal. Again, as a condition of his bail, Baldwin was ordered not to commit any new crimes.
¶ 6 On June 14, 2007, Baldwin was charged with aggravated battery and false imprisonment, both felonies, in the third case consolidated on appeal, Milwaukee County Circuit Court Case No. 2007CF2984. According to the criminal complaint, R.Z. told police that Baldwin “battered her unmercifully and struck her with a great amount of force” and that as a result of the attacks R.Z.:
suffered serious bodily injuries ... including, but not necessarily limited to[:] two black eyes, substantial swelling to the orbital area of each eye and the upper forehead, apparent blood on the surface of her eyes, significant discoloration of the whites of each eye, temporary impairment of her vision, significant pain, bruising, redness, and discoloration, various abrasions to the facial area and a substantial goose-egg like swollen bump to her upper forehead above the right eye.
After Baldwin refused to let R.Z. leave an upstairs bedroom for over two hours, she was able to escape to her sister's house while Baldwin slept.
[330 Wis.2d 507] ¶ 7 Additionally, Baldwin was charged with four counts of bail jumping for violating the conditions of his bail in Case Nos. 2007CM1803 and 2007CM2031. Each count charged the habitual criminality enhancer based on Baldwin's previous convictions.
¶ 8 Because Case No. 2007CF2984 charged Baldwin with felonies, the trial court was required to hold a preliminary hearing. The State served R.Z. with a subpoena for the June 21, 2007 preliminary hearing. R.Z. failed to appear. The preliminary hearing was adjourned to June 26, 2007, but again R.Z. failed to appear. Soon thereafter, the trial court received a letter from R.Z., dated June 20, 2007, in which she stated that she would not appear or testify, that she suffered from bipolar disorder and that she was not taking her medications. More specifically, the letter stated:
To whom it may concern:
I called my baby's father, Scottie Baldwin, three or four times before he picked up his cell phone in the early morning hours. I was trying to inform him that I had a fight in the club and that I had needed his help because some girl and a boyfriend had jumped on me. Scottie came about thirty minutes after the altercation had went on. He was asking me why did I go out to the club while pregnant with his child. I started to get upset and I really didn't want to go back to the club and confront them. I called the cops about three or four hours after and informed them that Scottie did it to me. I did not take my medication that morning. I have been diagnosed with bipolar disease. I refuse to come to court knowing that I lied lied [sic] on Scottie. Sorry for the inconvenience. 4
Without R.Z.'s testimony, the State could not proceed with the felony charges against Baldwin. Accordingly, the State amended one of the felony counts to a misdemeanor and the trial court dismissed the second count without prejudice.
¶ 9 After R.Z. failed to appear in court on June 21 and 26, 2007, the State obtained a search warrant to search R.Z.'s residence. Police found written correspondence in the residence sent to R.Z. from Baldwin while he was at the Milwaukee County Jail. A card from Baldwin, dated June 20, 2007, and found in R.Z.'s bedroom, told R.Z. to tell the trial court that she would not come to the preliminary hearing and testify. The card stated:
Call Judge Conen, Branch 30, and tell him about the bipolar situation. And he is the one that put a body warrant for you out before and you went out of town. Until you drop it, you planning to go out of town. If they put a body warrant out again, tell them you didn't take your medication that day and shit like this that happened before, and you're not coming to court no matter what. Leave the judge your number in case he want to call and verify it. Call at about 8 o'clock in the morning Thursday. I love you. Everlasting love on my mama. Everything is going to be all right. Papi. 5
[330 Wis.2d 509] ¶ 10 Approximately one month after R.Z. failed to appear at the preliminary hearing in Case No. 2007CF2984, the State filed the complaint in the fourth case consolidated on appeal, Case No. 2007CF3514. After filing an amended information, the State charged Baldwin with seven counts.
¶ 11 The first count, intimidation of a witness, a felony, alleged that Baldwin intimidated R.Z. from appearing and testifying at the June 21 and 26, 2007 preliminary hearing dates in Case No. 2007CF2984. The allegations were based on: the June 20, 2007 card from Baldwin to R.Z. found in R.Z.'s residence; R.Z.'s June 20, 2007 letter to the trial court; and Baldwin's subsequent failure to appear at the June 21 and 26, 2007 preliminary hearing dates.
¶ 12 Counts two through four—charging disorderly conduct, criminal damage to property and battery—were based on an August 5, 2005 incident in which R.Z. told police that Baldwin hit her with his fists, struck her with an ironing board and threw a glass candlestick holder at her. Baldwin then took R.Z.'s car keys and cell phone and drove her car into the screen door of R.Z.'s house.
¶ 13 Count five, disorderly conduct, was based on a January 13, 2006 incident in which R.Z. told police that she had run outside because Baldwin had been threatening her and chasing her and she feared for her safety. Once outside, Baldwin pushed R.Z.'s face into the mud and pushed and struck R.Z.'s five-year-old son when he attempted to intervene.
¶ 14 Counts six and seven, two misdemeanor counts of intimidating a witness, were based on additional correspondence police recovered during the search of R.Z.'s residence. Baldwin sent the correspondence to R.Z. in 2005 and 2006, dissuading her from attending and testifying in court in several then-pending, domestic violence cases.6
¶ 15 The preliminary hearing in Case No. 2007CF3514 was held on August 2 and 3, 2007....
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