State v. Ballos, 98-1905-CR.

• Citation: 230 Wis.2d 495,602 N.W.2d 117
• Decision Date: 21 September 1999
• Docket Number: No. 98-1905-CR.,98-1905-CR.
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Peter BALLOS, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

230 Wis.2d 495

602 N.W.2d 117

STATE of Wisconsin, Plaintiff-Respondent, v. Peter BALLOS, Defendant-Appellant.¹

No. 98-1905-CR.

Court of Appeals of Wisconsin.

Submitted on briefs July 6, 1999.

Decided September 21, 1999.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Robert N. Meyeroff of Robert N. Meyeroff, S.C., of Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Diane M. Welsh, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.

Before Fine, Schudson and Curley, JJ.

¶ 1. SCHUDSON, J.

Peter Ballos appeals from the judgment of conviction, following a jury trial, for arson of building with intent to defraud an insurer, party to a crime, in violation of §§ 943.02(1)(b) and 939.05, STATS. He argues that the trial court erred in declining to conduct an in camera inspection of the mental health treatment records of the State's primary witness. He also argues that the trial court erred in admitting transcripts of tape recordings of the 911 calls reporting the fire and connecting him to the crime. We conclude that the trial court erred in not conducting an in camera inspection of the mental health records, but that the error was harmless. We also conclude that the 911 evidence was admissible. Accordingly, we affirm.

I. BACKGROUND

¶ 2. Ballos and William Jackson-Burnett were charged with the February 25, 1996, arson of the Four Coins Restaurant in Milwaukee. The complaint stated that officers responding to the fire "were informed by the dispatchers that they had received numerous calls indicating that at least one man had run from the building and that the man was on fire and that he had gotten into a car with a possible plate of NFT 543." The investigation established that the man on fire was Jackson-Burnett who, at trial, testified that he ultimately was hospitalized for seven months with third degree burns to approximately seventy percent of his body, as a result of the fire. The investigation also established that license plate NFT 543 was registered to a car owned by Ballos.

¶ 3. The owner of the Four Coins Restaurant, Antonio Chronopoulos, was charged with conspiracy to commit arson, and with insurance fraud, and was prosecuted with Ballos in a consolidated trial. Jackson-Burnett, however, entered into an agreement with the State. In exchange for his truthful testimony regarding the arson, and in consideration of the severe injuries he had suffered in the fire, the State did not pursue its prosecution of him.

¶ 4. At the Ballos/Chronopoulos trial, Jackson-Burnett testified that Ballos told him the owner wanted to remodel the restaurant and had offered him $5,000 to set it on fire. Jackson-Burnett said that he agreed to commit the arson with Ballos, for which he (Jackson-Burnett) would receive $2,500 "about ten days or so after [the arson] when the insurance paid up." Both Ballos and Chronopoulos were convicted.

¶ 5. Ballos based his defense on two theories germane to the issues on appeal. First, he contended that Jackson-Burnett "acted either alone or with [other] persons . . . to satisfy [his] desire . . . to build bombs and burn buildings." In order to pursue that theory in cross-examining Jackson-Burnett, Ballos maintained that he would need Jackson-Burnett's mental health treatment records. In support of the pretrial motion for production of those records, defense counsel's affidavit referred to a police report that stated Jackson-Burnett had received hospital treatment for depression and hostility from November 22 to December 1, 1995, and that Jackson-Burnett's "chief complaint" was that he had been "obsessed with building bombs for about one week," and could not "seem to stop [such] thoughts." Second, Ballos maintained that the numerous 911 calls reporting the fire and license plate number were inadmissible hearsay. Thus, as he contended in his pretrial motions and brief, because "[t]he 911 calls were the basis for police investigation of [him] and search warrants which resulted in the . . . evidence" leading to his arrest, the charge against him should have been dismissed for insufficiency of evidence at the preliminary hearing, and the 911 information and derivative evidence should have been suppressed at trial.

II. MENTAL HEALTH TREATMENT RECORDS

¶ 6. Ballos first argues that "[u]pon a showing that . . . the main witness against [him] had received mental health treatment and had expressed an obsession with building bombs," the trial court should have granted his request for production of the treatment records for an in camera inspection. He contends that his theory of defense — that Jackson-Burnett acted alone, or with others, to satisfy his desire to burn buildings — would have been strengthened by exposing Jackson-Burnett's mental health problems and challenging his credibility based on the information in those records. Ballos is correct.

¶ 7. In State v. Munoz, 200 Wis. 2d 391, 395, 546 N.W.2d 570, 572 (Ct. App. 1996), we reiterated:

"To be entitled to an in camera inspection, the defendant must make a preliminary showing that the sought-after evidence is material to his or her defense. We review under the clearly erroneous standard the findings of fact made by the trial court in its materiality determination." Whether a defendant has made the required preliminary showing presents a question of law.

(Quoted source omitted.) Clarifying our decision in State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993), where we had concluded that "the defendant's burden should be to make a preliminary showing that the sought-after evidence is relevant and may be helpful to the defense or is necessary to a fair determination of guilt or innocence," id. at 608, 499 N.W.2d at 723 (emphasis added), we explained that a defendant does not satisfy that burden by offering "the mere possibility" that the records contain something that "may be helpful" to the defense. See Munoz, 200 Wis. 2d at 397-98,546 N.W.2d at 572-73. Thus, in Munoz, we affirmed the denial of an in camera inspection of a sexual assault victim's mental health treatment records in a case where the defendant had asserted that the victim "had acknowledged receiving psychiatric counseling for prior assaults," but had "offered the trial court nothing to suggest that [the victim] suffered from any psychological disorder rendering `reality problems in sexual matters.'" Id. at 399, 546 N.W.2d at 573.

¶ 8. The circumstances of the instant case are quite different. Ballos's showing was specific; it established the necessary connection between his theory of defense and Jackson-Burnett's treatment records. Defense counsel's affidavit accompanying the motion for production of the records advised the trial court of Ballos's contention that Jackson-Burnett "acted either alone or with [other] persons ... to satisfy [his] desire ... to build bombs and burn buildings." Counsel provided evidence that Jackson-Burnett had received approximately ten days of hospital treatment for depression and hostility, less than three months before the arson, and that Jackson-Burnett had complained that he had been "obsessed with building bombs for about one week" and could not "seem to stop [such] thoughts." Taken together, the treatment, the timing, and the apparent potential relationship among the subjects of hostility, bomb-building obsession, and arson provided more than "the mere possibility" that Jackson-Burnett's treatment records "`may be necessary to a fair determination of guilt or innocence.'" See id. at 398, 546 N.W.2d at 573. Thus, we conclude that the trial court erred in not granting Ballos's request for an in camera inspection of Jackson-Burnett's mental health treatment records.

[1,2]

¶ 9. We also conclude, however, that the error was harmless. An error is harmless if "there is no reasonable possibility that the error contributed to the conviction." State v. Dyess, 124 Wis. 2d 525, 543, 370 N.W.2d 222, 232 (1985). Here, because the jury learned of Jackson-Burnett's mental health problems, and because the evidence of Ballos's guilt was overwhelming, we conclude that the failure to conduct an in camera inspection of Jackson-Burnett's treatment records, even assuming the inspection would have led to Ballos being allowed to utilize or introduce the records at trial, was harmless error. As the State argues:

Ballos wanted the jury to hear about Jackson-Burnett's mental health problems and that he was obsessed with bombs. The jury heard this. The jury heard, directly from Jackson-Burnett, that he had received mental health counseling prior to the fire; that he had problems with his short-term memory; that he was on several kinds of medications, including anti-depressants; that he had "gestured toward blowing things up ... in specific, City Hall"; that on one occasion he heard voices; that he has had a hallucination; and that he talks to God.

Ballos simply provides no evidence to show how an in camera review of Jackson-Burnett's psychological records would have cast any more doubt on the witness's mental health than that cast by the witness's own testimony about his mental health. In fact, despite Jackson-Burnett's apparent psychological problems, he proved himself to be a credible witness. Jackson-Burnett's version of the arson was consistently corroborated by the physical evidence and testimonial evidence admitted at trial.

For example, Jackson-Burnett testified, in great detail, about how the arson was committed. He testified that Ballos came over to his home and changed clothes before they went to burn the Four Coins Restaurant. The Milwaukee Police recovered Ballos's clothes and wallet from Jackson-Burnett's home.

Jackson-Burnett testified that both he and Ballos were at the restaurant and were responsible for starting the fire. This version is corroborated by overwhelming physical evidence. Witnesses called 9-1-1 to report

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