State v. GARY MB, 01-3393-CR.

• Decision Date: 26 March 2004
• Docket Number: No. 01-3393-CR.,01-3393-CR.
• Citation: 270 Wis.2d 62,2004 WI 33,676 N.W.2d 475
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. GARY M.B., Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

270 Wis.2d 62

2004 WI 33

676 N.W.2d 475

STATE of Wisconsin, Plaintiff-Respondent, v. GARY M.B., Defendant-Appellant-Petitioner.

No. 01-3393-CR.

Supreme Court of Wisconsin.

Oral argument October 7, 2003.

Decided March 26, 2004.

For the defendant-appellant-petitioner there were briefs by T. Christopher Kelly and Kelly & Habermehl, S.C., Madison, and oral argument by T. Christopher Kelly.

For the plaintiff-respondent the cause was argued by Jenifer E. Nashold, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.

¶ 1. JON P. WILCOX, J.

Petitioner, Gary M.B. (Gary), seeks a review of a published court of appeals decision, State v. Gary M.B., 2003 WI App 72, 261 Wis. 2d 811, 661 N.W.2d 435, which affirmed his convictions for three counts of first-degree sexual assault of a child in Grant County Circuit Court, Robert P. VanDeHey, Judge.

I. ISSUES

¶ 2. Two issues are presented for review. First, Gary contends that the circuit court erred in admitting three of his five prior convictions for impeachment purposes under Wis. Stat. § 906.09 (1999-2000).¹ In addition, the State raises the issue of whether Gary strategically waived his objection to the admission of his prior convictions by preemptively introducing this evidence during his direct examination. We hold that Gary did not strategically waive his objection to the introduction of this evidence. Further, we hold that the circuit court did not err in admitting Gary's prior convictions.

II. FACTUAL BACKGROUND

¶ 3. On June 23, 1999, the State filed a criminal complaint charging Gary with three counts of first-degree sexual assault of a child. The State alleged that Gary had sexual contact with a child under the age of 13 during the years 1995, 1996, and 1997. The alleged victim was the daughter of Gary's wife. The alleged incidents occurred inside the apartment where all three resided. Many of the alleged incidents occurred when other family members were present in the apartment. The allegations arose in 1998, when the victim was residing with her natural father, following the death of her mother.

¶ 4. Prior to trial, defense counsel filed a motion in limine, requesting "a hearing be held as to the number of convictions or adjudications of delinquencies that would be used as to all witnesses and as to the defendant." Defense counsel did not file a memorandum of law relating to Gary's prior convictions or those of any other witness.

¶ 5. Gary had previously been convicted of five crimes. In 1973 he was convicted of uttering in Maine and received one-year probation. In 1975 he was convicted of disorderly conduct in Maine and received a fine. In 1977 Gary was convicted of assault in Maine and received a 30-day suspended jail term and probation. Gary was also convicted of domestic abuse in Iowa during 1991 and received a fine. Finally, Gary had another conviction in Iowa during 1991 for domestic abuse with a penalty enhancement and received one-year probation.

¶ 6. During the motion in-limine hearing, defense counsel objected to the introduction of the three oldest convictions. The following colloquy took place:

Ms. Oliveto: Your Honor, we ask that the court not allow him to testify as to the convictions in the 1970's since it has been -'73, '75, and '77—since it has been quite some time since those had occurred. I don't believe they would go towards truthfulness. I realize Wisconsin law doesn't have it but the federal law does. One is assault and the other disorderly conduct, and the bank check happened almost 20 years ago. We ask that the court not allow that to be admitted against him.

Mr. Everix: The consistent series of '73, '75, and '77, twice in '91 make it significant.

Court: The law generally in Wisconsin doesn't follow the federal law. There is no exclusion for convictions more than 10 years old. Some of these are 27 years, 25 years, 23 years. But to the extent that there is I guess a presumption in the statute and the statute allows for prior convictions to be brought in because it does say something about the person's credibility, I will allow it.

Thus, the court ruled that all five of Gary's prior convictions could be used for impeachment purposes.

¶ 7. During Gary's direct examination, defense counsel asked him if he had ever been convicted of a crime and how many times. Gary answered "yes" and "five times." The State never discussed the issue of Gary's prior criminal record during the evidentiary phase of the trial. There was no physical evidence presented at trial regarding the allegations of sexual assault, and no witness actually observed the alleged assault. Simply put, this was a "he said, she said" case.

¶ 8. At closing argument, during rebuttal, the State brought up the issue of Gary's prior convictions as they related to his credibility. The prosecutor cautioned "use it only in terms of whether or not he is credible, not in terms of whether something else happened." The circuit court also gave a limiting instruction to the jury before deliberation regarding Gary's prior convictions.² After three hours of deliberation, the jury informed the court that it was deadlocked. The court then read Jury Instruction 520,³ and 20 minutes later, the jury returned a verdict of guilty on all three counts.

III. PROCEDURAL POSTURE

¶ 9. Gary appealed, arguing that the circuit court improperly admitted three of his five prior convictions. The State argued that Gary had strategically waived any objection because the defense preemptively introduced the prior convictions. The court of appeals rejected the State's strategic waiver argument, relying on Vanlue v. State, 87 Wis. 2d 455, 275 N.W.2d 115 (Ct. App. 1978),rev'd on other grounds,96 Wis. 2d 81, 291 N.W.2d 467 (1980).⁴Gary M.B., 261 Wis. 2d 811, ¶¶ 12-13. The court reasoned that "a pre-trial ruling permitting the introduction of prior conviction evidence effectively forces the defendant to introduce the evidence preemptively, and the defendant's introduction of the evidence should not therefore constitute a waiver of his or her prior objection to its admissibility." Id., ¶ 18. In responding to the State's argument that the harm to Gary was too speculative to be considered on appeal because the State could have chosen not to introduce the number of prior convictions, the court ruled that it made no difference who introduced the evidence because "[o]nce the court ruled that all five convictions were admissible for impeachment purposes, it was reasonable for Gary to assume that the State would elicit the number of his convictions on cross-examination." Id., ¶ 21.

¶ 10. Regarding the admissibility of Gary's prior convictions, the court of appeals held that the circuit court erroneously exercised its discretion in failing to balance the probative value of the three oldest convictions to which Gary objected against the danger of unfair prejudice. Id., ¶ 27. Further, the court of appeals declined to independently review the record for evidence supporting the circuit court's ruling because "there were no evidentiary proceedings []and only very brief argument[] on the issue . . .[,]" such that it could not conclude that the circuit court would have reached the same result if the circuit court had engaged in the balancing test. Id. However, the court of appeals nonetheless affirmed the circuit court after utilizing a harmless-error analysis. Id., ¶¶ 28, 40.

IV. ANALYSIS

A. Strategic Waiver

[1, 2] ¶ 11. Under the doctrine of strategic waiver, also known as invited error, "[a] defendant cannot create his own error by deliberate choice of strategy and then ask to receive benefit from that error on appeal." Vanlue, 87 Wis. 2d at 460-61. Thus, whether a defendant has strategically waived an objection is a question of law subject to de novo review. See State v. Ruud, 41 Wis. 2d 720, 726, 165 N.W.2d 153 (1969). One commentator has remarked that Wisconsin's strategic waiver rule:

prevents a party from counterattacking with otherwise inadmissible evidence when he has deliberately chosen not to object with the aim of using the otherwise inadmissible evidence to his own advantage. . . . The flip side of this coin is that a party who does object to the use of inadmissible evidence by his opponent does not forgo his right to claim error on appeal merely because he makes an effort to use the same or similar evidence in a defensive fashion after he has failed in his effort to exclude the evidence.

1 Wigmore, Evidence § 15, at 733 n.3 (Tiller's rev. 1983) (emphasis in original) (citing Vanlue, 87 Wis. 2d at 460-62). Thus, there is a distinction between a party's use of objected to evidence for his own benefit and the use of such evidence purely for defensive purposes. Id., § 18, at 836-38 & n.37 (citing Vanlue, 87 Wis. 2d at 460-62).

¶ 12. In Ruud, 41 Wis. 2d at 723, the defendant argued on appeal that certain statements given to police were not preceded by an adequate Miranda⁵ warning. However, the defense had entered into a stipulation with the State regarding the admissibility of the statements at trial. Ruud, 41 Wis. 2d at 724. On appeal, the court noted that the defendant had made a "knowing election between alternative courses of action. Instead of making any attempt to attack the validity of the statement the defense, as a matter of strategy, chose to use it to support his theory of the case." Id. at 726. In such a circumstance, a defendant is estopped from claiming error. Id.

¶ 13. In contrast, in Vanlue, 87 Wis. 2d at 457-58, the defendant objected to the circuit court's ruling allowing the State to cross-examine him regarding the nature of two previous convictions. After his objection was overruled, the defendant introduced evidence relating to the nature of his prior offenses during his case-in-chief. Id. at 460. The State claimed that the defendant had strategically waived his objection because he made a knowing election to introduce the evidence in an...