State v. Cohard, 90-2535-CR
| Decision Date | 28 August 1991 |
| Docket Number | No. 90-2535-CR,90-2535-CR |
| Citation | 476 N.W.2d 25,164 Wis.2d 433 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. David H. COHARD, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Appeal from a judgment and an order of the circuit court for Walworth county: James L. Carlson, Judge.
Before NEAL NETTESHEIM, P.J., and BROWN and ANDERSON, JJ.
David Cohard appeals from a judgment of conviction for possession of cocaine with intent to deliver and from a stayed order voiding that part of his sentence imposed because of his repeater status. On appeal, Cohard raises a host of issues; we are persuaded by none of them. Accordingly, we affirm the judgment and order of the circuit court.
On August 1, 1989, law enforcement officers executed a search warrant at Cohard's residence, during which officers seized over thirty grams of cocaine and arrested Debra Markling, a friend of Cohard's. She informed officers of money which Cohard had hidden at his mother's house. Some $17,000 was found there, which officers confiscated along with Cohard's truck. The truck was turned over to the United States Department of Justice, pursuant to 21 U.S.C. § 881(a)(6).
Cohard was not initially charged as a repeater. The state, however, filed an amended information after the arraignment which alleged his repeater status.
At the start of trial, because of Cohard's having taken medication in jail, the court addressed the issue of his competency to proceed. The court took testimony from the nurse who administered the medication. Following this, both the prosecutor and defense counsel stated that they believed Cohard to be competent to proceed. The court then so found.
Following the trial, the jury found Cohard guilty of possession with intent to deliver. The trial court initially sentenced Cohard to twenty years' imprisonment, which sentence included a repeater enhancement. The court also fined Cohard $1000 and ordered the balance of the confiscated funds forfeited under sec. 973.06(1)(f), Stats., to the Walworth County Drug Unit. Following a hearing on motions after verdict, the court issued an order which voided the five-year repeater portion. The court indicated, however, that entry of the order was stayed pending a supreme court review of two pending cases concerning the question of late repeater amendments. 1 Cohard appeals. Further facts will be set forth in the body of the opinion.
Cohard's first challenge on appeal is to his competence to stand trial. He contends that the trial court failed to determine his competence by appointing a qualified person to examine him. We cannot agree.
The statute on competency proceedings, sec. 971.14(1)(a), Stats., begins: "The court shall proceed under this section whenever there is reason to doubt a defendant's competency to proceed." However, extensive hearings and psychiatric examinations are not prerequisites to every case. State v. McKnight, 65 Wis.2d 582, 595, 223 N.W.2d 550, 557 (1974). Before competency proceedings are required, evidence giving rise to a reason to doubt competency must be presented to the trial court. Id. Whether there is evidence giving rise to a reason to doubt competency is a question left to the sound discretion of the trial court. State v. Weber, 146 Wis.2d 817, 823, 433 N.W.2d 583, 585 (Ct.App.1988). Our review of the record persuades us that the evidence heard left no serious question of Cohard's competency. There was no abuse of discretion, therefore, in the court's assessment that there was no reason to doubt Cohard's competency.
Cohard's second issue on appeal concerns evidence adduced at trial about the sniffing out of a parcel containing the money confiscated at Cohard's mother's house by a trained dog. 2 His first challenge is to the sufficiency of the chain of custody of the parcel itself. He contends that there was an insufficient demonstration that the parcel was uncontaminated by contact with other parcels. The degree of proof necessary to establish a chain of custody is a matter within the trial court's discretion. B.A.C. v. T.L.G., 135 Wis.2d 280, 290, 400 N.W.2d 48, 53 (Ct.App.1986). The testimony must be sufficiently complete so as to render it improbable that the original item has been exchanged, contaminated or tampered with. Id. Alleged gaps in a chain of custody go to the weight of the evidence rather than to its admissibility. United States v. Jefferson, 714 F.2d 689, 696 (7th Cir.1983). We conclude the likelihood of the parcel's being contaminated by contact with other parcels is here sufficiently small. The court did not abuse its discretion in letting this evidence go to the jury.
Cohard's second subissue challenges the adequacy of the foundation evidence for a videotape showing the dog in action. Whether a court errs in admitting a videotape into evidence is governed by an abuse of discretion standard. See Gieseke v. DOT, 145 Wis.2d 206, 210, 426 N.W.2d 79, 81 (Ct.App.1988). We are presented with no Wisconsin law which directly addresses the question of the admissibility of videotaped evidence, but we have no reason to conclude that the standards are any different than those for photographs. See Annotation, Admissibility of Videotape Film in Evidence in Criminal Trial, 60 A.L.R.3d 333, 340 (1974). All that is necessary by way of a foundation is that a witness identify the picture as a fair and accurate representation of the object photographed. See Schueler v. City of Madison, 49 Wis.2d 695, 719, 183 N.W.2d 116, 130 (1971). The witness who lays the foundation need not be the photographer nor need he know anything of the time, conditions or mechanisms of the taking. Instead, he need only know about the facts represented or the scene or objects photographed, and once this knowledge is shown, he can say whether the photograph correctly and accurately portrays these facts. E. Cleary, McCormack on Evidence § 214 at 671 (3d ed. 1984). While the testifying deputy acknowledged unfamiliarity with some limited portions of the videotape, neither the trial record nor Cohard's briefs on appeal indicates just what was shown or how it might have prejudiced the jury. We conclude, therefore, that the deputy provided sufficient foundation for those portions of the videotape upon which he commented. The trial court did not abuse its discretion in admitting it.
We reject Cohard's ancillary argument based on Wilson v. State, 59 Wis.2d 269, 288-89, 208 N.W.2d 134, 144-45 (1973). While that case does caution trial judges to screen tapes to determine their admissibility before letting them go to the jury, id., it does not make that lapse in itself reversible error. Wilson indicates that the question then "becomes whether this error resulted in admission of irrelevant but prejudicial evidence." Id. We are convinced that this evidence was relevant but not unfairly prejudicial. Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable that it would be without the evidence." Section 904.01, Stats. The dog's alert to the parcel meant that cocaine or another controlled substance was present on the money--this fact has a tendency to make more probable that the money came from cocaine dealings. As such, it is relevant. 3
Cohard's next major argument is that testimony from a deputy sheriff that this was the "second largest seizure that I'm aware of in the two years that we have had the drug unit" was "both error and irrelevant." We cannot agree.
As we stated above, "relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Section 904.01, Stats. Intent to deliver may be demonstrated by evidence of the quantity of the substances possessed. See sec. 161.41(1m), Stats. Insofar as the deputy's testimony gave some context regarding quantity for those jurors unfamiliar with just how substantial thirty-three grams of cocaine is, the testimony was relevant.
Cohard also contends that the deputy's testimony was false, in that some other previous drug seizures were in fact larger. The deputy, however, qualified his testimony by stating that this was the second largest seizure "that I'm aware of...." On cross-examination, Cohard was free to delve into the depth of the deputy's experience or recollection in an effort to undercut the impact of that evidence. We are unconvinced, therefore, that the testimony was erroneously admitted.
Cohard's fourth issue is that it was error to admit the opinion testimony of the deputy that Cohard possessed the cocaine with intent to...
To continue reading
Request your trial