State v. GARY MB

• Decision Date: 06 March 2003
• Docket Number: No. 01-3393-CR.,01-3393-CR.
• Citation: 261 Wis.2d 811,2003 WI App 72,661 N.W.2d 435
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. GARY M. B., Defendant-Appellant.
• Court: Wisconsin Court of Appeals

261 Wis.2d 811

2003 WI App 72

661 N.W.2d 435

STATE of Wisconsin, Plaintiff-Respondent, v. GARY M. B., Defendant-Appellant.¹

No. 01-3393-CR.

Court of Appeals of Wisconsin.

Submitted on briefs August 9, 2002.

Decided March 6, 2003.

On behalf of the defendant-appellant, the cause was submitted on the briefs of T. Christopher Kelly of Kelly & Habermehl, S.C., Madison.

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

Before Vergeront, P.J., Dykman and Deininger, JJ.

¶ 1. DEININGER, J.

A jury found Gary B. guilty of three counts of first-degree sexual assault of a child in violation of WIS. STAT. § 948.02(1) (2001-02).² He appeals, claiming the trial court erred by permitting three, twenty-five-year-old convictions to be used to impeach his credibility instead of limiting the number of admissible convictions to his two most recent ones. We agree that the trial court did not engage in a proper exercise of discretion when it ruled that the State could utilize all five convictions for impeachment purposes, but we conclude that any error in this regard was harmless. Accordingly, we affirm the appealed judgment of conviction.

BACKGROUND

¶ 2. Gary's stepdaughter testified at trial that when she was between the ages of nine and twelve, he sexually assaulted her two to three times per week at the family's home in the village of Potosi. According to the girl, who was fifteen at the time of trial, Gary touched her vagina on top of or underneath her clothing and she, at his request, touched his penis either on top of or underneath his clothing. The girl further testified that she described Gary's behavior to her mother after the first assault, but her mother did not believe her. The girl also testified that she occasionally locked herself in the bathroom in order to prevent the assaults, and that if she asked Gary to stop the assaults, he would tell her that they both "would get into trouble" and that she "wouldn't be able to see [her] mom again."

¶ 3. The girl's mother died of a heart attack when the girl was twelve, and she went to live with various out-of-state relatives, ultimately settling with her biological father and his girlfriend in Iowa. Several months after moving to Iowa, she described Gary's behavior to her father's girlfriend, who in turn contacted the Iowa Department of Health and Human services. The department arranged for the girl to enter counseling and subsequently contacted the Village of Potosi Police Department. A police officer interviewed the girl twice and took two written statements.

¶ 4. The State charged Gary with three counts of first-degree sexual assault of a child, to which he pled not guilty. Prior to trial, Gary filed a motion in limine requesting "[t]hat a hearing be held as to the number of convictions . . . that would be used as impeachment... as to the defendant." He had a total of five previous convictions: a 1973 conviction from the State of Maine for "uttering or insufficient funds"; a 1975 conviction from the State of Maine for disorderly conduct; a 1977 conviction from the State of Maine for assault; and two 1991 convictions from the State of Iowa for domestic abuse.

¶ 5. At the hearing on his motion, Gary did not object to the use of his two 1991 convictions for impeachment purposes. He did object, however, to the use of all five convictions, arguing that the court should not allow the introduction of "the convictions in the 1970's since it has been . . . quite some time since those had occurred" and because they do not "go towards truthfulness." The State's one-sentence response was that "[t]he consistent series of [crimes in] '73, '75, and '77, twice in '91, make it significant." The court ruled as follows:

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.

¶ 6. At trial, Gary's counsel elicited the following during Gary's direct examination:

Q Well, I want to go off track a little bit. Have you ever been convicted of a crime?

A Yes, I have.

Q How many times?

A Five times.

The State made no mention of Gary's prior convictions during its cross-examination of him, but it referred to them once during its closing rebuttal argument:

First of all, you have to look in terms of everybody's credibility, including that of the defendant. You can take into consideration his interest, who has the ultimate interest to gain by a finding of not guilty. He does. He has the absolute ultimate greater interest. Because of that you can take into consideration the fact that [Gary] has had five prior convictions. Use it only in terms of whether or not he is credible, not in terms of whether something else happened. It goes toward his credibility.

Later in its argument, the State also said that, although Gary "said that it didn't happen," the jury should "look at his prior record and look at his interest in the outcome of this case . . . ."

¶ 7. Following closing arguments, the judge instructed the jury as follows:

Evidence has been received that the defendant . . . has been convicted of crimes. This evidence was received solely because it bears upon the credibility of a defendant as a witness. It must not be used for any other purpose and particularly you should bear in mind that a criminal conviction at some previous time is not proof of guilt of the offense now charged.

See WIS JI — CRIMINAL 327.

¶ 8. After approximately three hours of deliberation, the jury reported to the judge that it was unable to reach a unanimous decision. The court, over Gary's objection, read WIS JI—CRIMINAL 520 to the jury, an instruction which encourages jurors to try to reach a unanimous verdict if possible.³ After twenty more minutes of deliberation, the jury returned a guilty verdict on all three counts. The court entered a judgment of conviction and sentenced Gary to twelve years imprisonment with consecutive probation. Gary appeals the judgment.

ANALYSIS

¶ 9. Gary argues that the trial court erred by failing to weigh the danger of unfair prejudice resulting from introduction of evidence of his prior convictions against its probative value as required by WIS. STAT. § 906.09:

(1) GENERAL RULE. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime or adjudicated delinquent is admissible. The party cross-examining the witness is not concluded by the witness's answer.

(2) EXCLUSION. Evidence of a conviction of a crime or an adjudication of delinquency may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.

Id. (emphasis added). He contends that his three convictions for relatively minor offenses some twenty-five years ago were only remotely probative of his credibility at trial, and that he was unfairly prejudiced by their admission because the case boiled down to a credibility contest between him and his stepdaughter.

¶ 10. Before addressing the merits of Gary's claim of error, we take up the State's contention that Gary waived any objection to the trial court's admission of his prior convictions by preemptively testifying to them on direct examination. The State bases its argument on Ohler v. United States, 529 U.S. 753 (2000). The United States Supreme Court held in Ohler that "a defendant who preemptively introduces evidence of a prior conviction on direct examination may not on appeal claim that the admission of such evidence was error." Id. at 760. The Court noted that "both the Government and the defendant in a criminal trial must make choices as the trial progresses." Id. at 757. The Court concluded that if the defendant "choose[s] . . . to introduce the [prior] conviction on direct examination and remove the sting," "there is nothing `unfair' . . . about putting [the defendant] to [his] choice." Id. at 758-59.

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¶ 11. As Gary correctly notes, however, we are not bound by the Ohler decision because the Supreme Court's holding did not rest on an interpretation of U.S. Constitutional or other "federal law" that we must apply in this case. Rather, the Court in Ohler enunciated a rule of administration⁴ applicable to the federal courts based on what it deemed to be a "well-established commonsense principle." Id. at 756. Holdings of the United States Supreme Court are binding on this court only when they address questions of federal law which govern the dispute before us. See State v. King, 205 Wis. 2d 81, 93, 555 N.W.2d 189 (Ct. App. 1996)

. The question of whether Gary waived the right to challenge in this court the trial court's ruling on the number of convictions admissible for impeachment purposes is not a question of federal law. We are therefore free to apply our own notion of "commonsense principles" in determining whether to find waiver in a defendant's preemptive introduction of conviction evidence in response to a court's pre-trial denial of a motion to exclude it.

¶ 12. Indeed, we have already addressed the issue, reaching a conclusion contrary to that of the Supreme Court in Ohler. We concluded in 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), that a defendant who unsuccessfully objects to the admission of prior conviction evidence does not waive the objection by preemptively testifying about the convictions on direct examination. Id. at 462. We reasoned that when a trial court decides to admit prior conviction testimony over a defendant's objection, the defendant is left with "no choice but to offer the evidence himself' so as "to lessen the prejudicial...