State v. Grant

• Decision Date: 11 June 1987
• Docket Number: No. 85-1137-CR,85-1137-CR
• Citation: 406 N.W.2d 744,139 Wis.2d 45
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Stephen L. GRANT, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 744

406 N.W.2d 744

139 Wis.2d 45

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Stephen L. GRANT, Defendant-Appellant.

No. 85-1137-CR.

Supreme Court of Wisconsin.

Argued Nov. 25, 1986.

Decided June 11, 1987.

Michael R. Klos, Asst. Atty. Gen., argued, for plaintiff-respondent-petitioner; Bronson C. La Follette, Atty. Gen., on brief.

Mark J. Rogers, argued, Milwaukee, for defendant-appellant; Angermeier & Rogers, Milwaukee, on brief.

DAY, Justice.

This is a review of an unpublished decision of the court of appeals dated February 12, 1986, which reversed Stephen L. Grant's (Defendant's) conviction on June 18, 1984, in the circuit court for Milwaukee county, Hon. Ralph G. Gorenstein, Circuit Judge, of the violation of two counts of second-degree sexual assault under Section 40.225(2)(e), Stats., and one count of robbery, contrary to Section 943.32.

The issue on review is: Did the court of appeals properly apply the harmless error test in reviewing an erroneous decision by the trial court to admit "other acts" evidence consisting of Defendant's arrest for prowling? ¹ We conclude that the court of appeals incorrectly applied the harmless error test. Properly applying the test for harmless error ennunciated in State v. Dyess, 124 Wis.2d 525, 370 N.W.2d 222 (1985), there is no reasonable possibility that the error contributed to the conviction and we determine that the admission of evidence of the arrest for the ordinance violation constituted harmless error. We therefore reverse the decision of the court of appeals.

On February 22, 1983, Defendant was charged with two counts of second-degree sexual assault and one count of robbery. The crimes with which he was charged took place on February 13, 1983.

At trial, the victim testified as to the events that occurred in the early morning hours of February 13, 1983. After having fallen asleep with a bedroom light and television left on, the victim was awakened at approximately 3:30 a.m. by a noise in the dining room. A man wearing a stocking cap and jacket entered the bedroom. The victim testified she had about twenty seconds in which to view the man prior to his switching off of the light and television.

The assailant approached the victim, placing his hand over her mouth and advising her that if she did not move she would not be hurt. After questioning the victim as to whether they were alone, the man demanded money, and the two proceeded side-by-side to the dining room to retrieve the victim's wallet. They then walked into the kitchen to count the money.

Dissatisfied with the amount of money found, the man demanded more. The victim assured the man that this was all the money she had. The victim testified that she was threatened; the man kept telling her that if she looked at him he would kill her. In an effort to appease the assailant, the victim removed her eyeglasses. The victim testified that she was near sighted and had no difficulty seeing objects near to her. The victim testified that she had no difficulty seeing the denominations of the bills removed from her wallet--two ten dollar bills and a one dollar bill. She also stated while on the witness stand that she could see the face of the court reporter without wearing her glasses. The distance between the court reporter and the victim while testifying was approximately one yard. In addition, she testified that since the living room, dining room, and kitchen were illuminated by a street light she had no difficulty seeing the assailant's face.

After walking to the front door and locking it, the assailant then took the victim to the bedroom. The man threatened the victim, stating: "[i]f you don't do what I ask you to do I'm going to hurt you." She was instructed to close her eyes and remove her clothes. The victim was then sexually assaulted.

At one point during the assault the assailant pulled aside the drape to look out the window. At this moment the victim glanced at him. This was the only time the victim looked at the man during the assault. After the assault, the man rummaged through some dresser drawers and then departed.

The victim called police and upon their arrival gave the following physical description of her assailant: he was a black male in his late teens to early twenties, about five foot eight inches tall, and weighed around 130 pounds. She then went to the police station and viewed fifty to sixty photographs, but did not identify any as the photograph of her assailant.

On February 21, 1983, the victim returned to the police station to view a lineup. She identified the Defendant, who was one of the five men in the lineup. The lineup took place following the Defendant's arrest for prowling. The Defendant is a black male, twenty-seven years old, five foot seven inches tall and weighs 140 pounds.

During the jury trial, the prosecutor sought to introduce evidence of Defendant's arrest on February 19, 1983, on an ordinance violation for prowling. A woman, standing inside her home, had observed Defendant peering in her window. The police were called and upon their arrival they also saw the Defendant peering into the window of the woman's house. Upon his arrest, Defendant had in his possession the name and address of the woman. The trial court allowed admission of evidence of the prowling violation pursuant to Section 904.04(2), Stats. ²

On appeal, the state conceded that the trial court abused its discretion when it admitted evidence of the prowling violation. The court of appeals held that the trial court erroneously allowed the state to admit evidence of Defendant's arrest for prowling, and that the error was not harmless. ^{3 3} The judgment was reversed and the case remanded for a new trial.

In determining whether the admission of the prowling evidence constituted harmless error, the court of appeals stated:

"We must now determine whether this error is harmless. The harmless error test is whether there is a reasonable possibility that the error contributed to the conviction. A reasonable possibility is a possibility sufficient to undermine our confidence in the outcome. As a general rule, the erroneous receipt of evidence of the defendant's bad character or his commission of specific disconnected acts is prejudicial error. The burden is on the state to show that there is no reasonable possibility that the error contributed to the conviction.

"Here the state has failed to carry its burden. It is reasonably likely that the jury, upon hearing the prowling evidence, convicted Grant not because the evidence proved his guilt beyond a reasonable doubt, but because it thought that Grant had the propensity to commit bad acts. This is the very conclusion that sec. 904.04, Stats., seeks to prevent. The jury could have believed that Grant was indeed "caught in the act" when he was arrested for prowling. Had the prowling evidence been excluded, it is reasonably possible that the outcome of the trial would have been different. Our confidence in the outcome of this trial is thus undermined." (Footnotes omitted). (Emphasis added).

The instant case presents the single issue of whether the admission of other acts evidence constitutes harmless error.

The potential dangers in admitting other-acts testimony are well known. Our rules of evidence do not allow this type of evidence to be admitted merely to show that the Defendant had a propensity to commit the type of acts for which he is charged. In the instant case it is argued that the admission of the evidence of the prowling arrest may have influenced the jury in such a way that it was more easily lead to resolve the identity issue and determine the matter of guilt based on the Defendant's apparent propensity to commit acts such as prowling, acts which are arguably related to the sexual misconduct with which he was charged.

While the error was potentially prejudicial to the Defendant, there remains the fact that there is substantial evidence, unrelated to the prowling evidence, which confirms the victim's identification of the Defendant. Courts turn to the harmless error test for guidance in these situations in assessing whether the error is sufficiently grievous that a new trial should result.

The harmless error test as set forth in Dyess contemplates that the "reviewing court must set aside the verdict unless it is sure that the error did not influence the jury or had such slight effect as to be de minimus." Dyess, 124 Wis.2d at 541-542, 370 N.W.2d 222. The reviewing court must determine "whether there is a reasonable possibility that the error contributed to the conviction." Id. at 543, 370 N.W.2d 222. In assessing this, the focus should be on whether the error undermines the court's confidence in the outcome of the case. Id. at 545, 370 N.W.2d 222. We conclude that the outcome in this case was not undermined by the admission of the other-acts testimony.

This court has reviewed trial error by analyzing the error "in the context of the entire trial." State v. Zelenka, 130 Wis.2d 34, 49, 387 N.W.2d 55 (1986). In Zelenka, this court applied the Dyess harmless error test to assess whether erroneous jury instructions could be deemed harmless. This court stated: "To make this determination, we do not view this instruction in isolation from the trial nor do we consider whether such an instruction could prejudice the verdict in some hypothetical trial. We view this instruction in the context of the entire trial." Id. at 49, 387 N.W.2d 55.

In the instant case the erroneous admission of the other-acts testimony must be viewed in a similar light. In State v. Fishnick, 127 Wis.2d 247, 378 N.W.2d 272 (1985), the court applied the Dyess harmless error test to determine whether the erroneous admission of other acts evidence could be deemed harmless. As in the present case, application of the Dyess test involved the review of evidence presented at trial. An important part of the Fishnick harmless error analysis involved an assessment...