State v. Boshcka, s. 92-0287-CR

• Decision Date: 17 December 1992
• Docket Number: Nos. 92-0287-CR,s. 92-0287-CR
• Citation: 496 N.W.2d 627,178 Wis.2d 628
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Michael F. BOSHCKA, Defendant-Appellant. d to 92-0289-CR.
• Court: Wisconsin Court of Appeals

Page 627

496 N.W.2d 627

178 Wis.2d 628

STATE of Wisconsin, Plaintiff-Respondent, v. Michael F. BOSHCKA, Defendant-Appellant. ^d

Nos. 92-0287-CR to 92-0289-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Sept. 10, 1992.

Opinion Released Dec. 17, 1992.

Opinion Filed Dec. 17, 1992.

For the defendant-appellant the cause was submitted on the briefs of Suzanne Hagopian, Asst. State Public Defender.

For the plaintiff-respondent the cause was submitted on the brief of James E. Doyle, Atty. Gen., and James M. Freimuth, Asst. Atty. Gen.

Before EICH, C.J., GARTZKE, P.J., and SUNDBY, J.

EICH, Chief Judge.

Michael Boshcka appeals from a judgment convicting him of eight separate felonies, all involving his former wife, S.F.: sexual assault (three counts); intimidation of a victim; carrying a concealed weapon; solicitation to commit first-degree intentional homicide; and being a party to the crimes of robbery and auto theft.

The sexual assault, intimidation and concealed weapon charges were based on S.F.'s testimony that Boshcka came to her apartment one evening, forced her to engage in several sexual acts over a period of several hours, and threatened to kill her if she called the police. She also stated that, in the days that followed, Boshcka made several telephone threats to her. He was eventually arrested outside her apartment carrying a concealed weapon. The solicitation, robbery and auto theft charges were based on evidence that Boshcka solicited a fellow jail inmate, James Stanley, to kill S.F. and that Stanley went to S.F.'s apartment while on work release, beating her and stealing her car. Following his conviction on the charges, Boshcka was sentenced to a total of sixty-three years in prison. ¹

He raises four issues on appeal: (1) whether he was denied due process when the trial court used a pattern jury instruction on credibility which had since been replaced with a revised version; (2) whether the trial court committed reversible error by allowing into evidence S.F.'s hearsay statements concerning the sexual assaults; (3) whether he was denied his constitutional right to the assistance of counsel when the trial court failed to consult with defense counsel before denying the jury's request for access to a trial exhibit during deliberations; and (4) whether the trial court's erroneous statement to the jury that Boshcka had five prior convictions, when in reality he had only four, denied him a fair trial. We resolve all issues against Boshcka and affirm the judgment. Other facts will be discussed below.

I. The Jury Instruction

One of the instructions on witness credibility given by the trial court was Wis J I--Criminal 310, which states:

[The defendant] is directly interested in the result of the trial. In determining the weight to be given to the testimony of the defendant, it is proper for you to take such interest into consideration.... You have a right to consider his situation, his interest in the result of the trial, [and] the temptation which may exist under the circumstances to testify falsely....

Boshcka argues first that the instruction violates his right to due process of law because it "singles him out" as a person not to be trusted. However, the supreme court has upheld the instruction over constitutional objections, concluding that it neither "direct[s] the jury to disbelieve the defendant" nor otherwise denies the defendant a fair trial. Thompson v. State, 83 Wis.2d 134, 148, 265 N.W.2d 467, 474 (1978).

Boshcka acknowledges the Thompson decision but argues that the Wisconsin Criminal Jury Instructions Committee expressed its disapproval of the instruction by withdrawing it in 1979, and that this action somehow supplants or supersedes the supreme court's holding in Thompson. He does not elaborate further on the argument and we reject it.

The committee withdrew the instruction because it concluded that "it is preferable to include reference to the credibility of the defendant in the instruction on credibility of all witnesses." Wis J I--Criminal 310, Comment. The language suggested by the committee to be added to the general witness credibility instruction is as follows:

Under the law, a defendant is a competent witness and you should not discredit the testimony merely because the defendant is charged with a crime. The defendant's testimony should be weighed as the testimony of any other witness; considerations of interest, appearance, manner, and other matters bearing upon credibility apply to the defendant in common with all witnesses. Wis J I--Criminal 300.

The change appears to be more one of style and wording than of substance. The supreme court, in Thompson, expressly approved the former version of the instruction, and we decline Boshcka's invitation to disregard that decision. Indeed, as we have often said, we are bound by decisions of the state's highest court. State v. Olsen, 99 Wis.2d 572, 583, 299 N.W.2d 632, 638 (Ct.App.1980).

Alternatively, Boshcka argues that the trial court exceeded its discretion by giving the replaced instruction. We disagree.

A trial court has "broad discretion" in instructing the jury. White v. Leeder, 149 Wis.2d 948, 954, 440 N.W.2d 557, 559 (1989). That discretion extends to both the language chosen by the court and the emphasis given to that language. State v. Vick, 104 Wis.2d 678, 690, 312 N.W.2d 489, 495 (1981).

The limited scope of our review of discretionary rulings is well settled. Generally, "[w]e will not reverse a discretionary determination by the trial court if the record shows that discretion was in fact exercised and we can perceive a reasonable basis for the court's decision." Prahl v. Brosamle, 142 Wis.2d 658, 667, 420 N.W.2d 372, 376 (Ct.App.1987). Indeed, "[b]ecause the exercise of discretion is so essential to the trial court's functioning, we generally look for reasons to sustain discretionary decisions." Schneller v. St. Mary's Hosp., 155 Wis.2d 365, 374, 455 N.W.2d 250, 254 (Ct.App.1990), aff'd, 162 Wis.2d 296, 470 N.W.2d 873 (1991).

To determine whether the trial court properly exercised its discretion in a particular matter, we look first to the court's on-the-record explanation of the reasons underlying its decision. And if that explanation indicates that the court "looked to and considered the facts of the case and reasoned its way to a conclusion that is (a) one a reasonable judge could reach and (b) consistent with applicable law, we will affirm the decision even if it is not one with which we ourselves would agree." Burkes v. Hales, 165 Wis.2d 585, 590, 478 N.W.2d 37, 39 (Ct.App.1991) (footnote omitted).

Boshcka argues that the trial court exceeded its discretion in giving the instruction because it based its decision to do so on its "conclu[sions]" that: (1) a defendant's testimony must be viewed "with particular caution" when the state "chooses to rely on the uncorroborated testimony of an accomplice, with whom the state has made a sweet deal"; and (2) when the charges in a case are "particularly serious," it is proper to "cast[ ] doubt upon the veracity of the defendant's considerations." Where the court's exercise of discretion is based upon an error of law, it acts "beyond the limits of discretion" and its decision cannot stand. State v. Hutnik, 39 Wis.2d 754, 763, 159 N.W.2d 733, 737 (1968). That is not the case here, however.

First, Boshcka has not referred us to any place in the trial transcript where the court stated any such "conclusions," and we have said many times that we will not consider arguments unsupported by citations to the record, for it is not our duty to "sift and glean the record" to find facts to support a party's argument. Keplin v. Hardware Mut. Casualty Co., 24 Wis.2d 319, 324, 129 N.W.2d 321, 323 (1964).

Second, the state points out that the trial court chose to give the instruction after considering the committee's withdrawal of the older version--which the trial court properly concluded amounted only to a determination by the committee that it would be "preferable" to include reference to the defendant's credibility in the general witness credibility instruction--and reasoned that giving the former Wis J I--Criminal 310 would strike a "better balance" with the pattern instruction on the testimony of accomplices than would the "new" paragraph in the general credibility instruction. The court thus exercised its discretion based on a correct assessment of the effect of the withdrawal of Instruction 310 and the supreme court's decision in Thompson; and because we cannot say it reached an unreasonable result, we may not interfere with its determination.

II. Hearsay Evidence

Boshcka claims that he is entitled to reversal of the sexual assault convictions because they were based, in part at least, on inadmissible hearsay evidence offered by Gidget Krueger, S.F.'s job supervisor, and William Hammes, Boshcka's parole agent. ²

Krueger testified that shortly after arriving at work--approximately three hours after Boshcka had left her apartment, threatening to kill her if she reported the assaults--S.F. told Krueger she could not work that day because she had been sexually assaulted sometime earlier. Krueger stated that S.F. was in an excited and agitated state--appearing to be "real shook up"--while recounting the assaults. Hammes testified that, some four to five hours after the assaults, S.F. told him "that ... Boshcka had raped her several occasions the night before." According to Hammes, S.F. was crying and "trembling" and "appeared to be very upset" while telling him of the incident.

"A statement relating to a startling event ..., made while the declarant was under the stress of excitement caused by the event or condition," is admissible as an exception to the hearsay rule. Section 908.03(2), Stats. For a statement to be considered an "excited utterance," two elements must coalesce: (1) there must be a "startling event or condition" and (2) the declarant must have...