State v. Hereford

• Decision Date: 20 July 1995
• Docket Number: No. 94-1596-CR,94-1596-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Marvin L. HEREFORD, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 62

537 N.W.2d 62

195 Wis.2d 1054

STATE of Wisconsin, Plaintiff-Respondent, v. Marvin L. HEREFORD, Defendant-Appellant. ^d

No. 94-1596-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs June 13, 1995.

Opinion Released July 20, 1995.

Opinion Filed July 20, 1995.

For the defendant-appellant the cause was submitted on the briefs of Daniel P. Bestul of Duxstad, Vale, Bestul & Gartzke, S.C., Monroe

For the plaintiff-respondent the cause was submitted on the brief of James E. Doyle, Attorney General, and Daniel J. O'Brien, Assistant Attorney General.

Before EICH, C.J., and SUNDBY and VERGERONT, JJ.

VERGERONT, Judge.

Marvin Hereford appeals from a judgment convicting him of first-degree intentional homicide while possessing a dangerous weapon contrary to §§ 940.01(1) and 939.63(1)(a)2, STATS., and from an order denying his motion for a new trial. Hereford was convicted after a retrial following a mistrial. He appeals on these grounds: (1) the trial court misused its discretion and erred as a matter of law in admitting the testimony of Ella Brown to prove identity under § 904.04, STATS.; (2)¹ § 906.13(1), STATS., ² does not permit or require the disclosure of a defense investigator's reports of witness interviews; and (3) disclosure of the reports violated his Sixth Amendment right to counsel.

We affirm the convictions. We conclude, on different grounds than did the trial court, that Ella Brown's testimony was properly admitted. We also conclude that although certain reports of witness interviews were erroneously ordered disclosed under § 906.13, STATS., that error was not prejudicial and did not violate Hereford's right to counsel.

OTHER ACTS EVIDENCE

Background

Hereford was charged with the first-degree intentional homicide of Frank Gurley, who was shot outside a Beloit tavern. Hereford's defense was that someone else, Darren Isabell, shot Gurley. The first trial ended in a mistrial when the jury informed the trial court that it could not reach a decision.

During the first trial, the State sought to introduce the testimony of Ella Brown, Hereford's grandmother. The trial court denied the State's request to introduce Brown's testimony, but permitted the State to make an offer of proof later in the trial. In that offer of proof, Brown testified that sometime before the shooting, she found a gun beneath a bed in the guest room of her home. She put the gun in a drawer. Sometime later, she noticed it was not in the drawer. Then, approximately three weeks before the shooting, when she was driving Hereford's car and came to an abrupt stop, the same gun she had found in her home slid out from under the front seat of the car. She confronted Hereford about the gun and he told her not to be concerned about it. Brown told Hereford she should throw the gun in the river, but she did not do that. Brown described the gun as small, silver, and missing a clip. The State argued that this testimony was admissible to show opportunity and to show that Hereford had a small caliber handgun fitting the description of the murder weapon a week or weeks before the murder.

At the close of testimony in the first trial, following the State's rebuttal witnesses, the court concluded that the offered testimony of Ella Brown was relevant, but that its probative value was substantially outweighed by the danger of unfair prejudice to the defense.

Before the second trial, the court heard Hereford's motion in limine regarding the State's desire to reintroduce Brown's testimony. At this hearing, the trial court inaccurately recalled that the State had offered the evidence only in its case-in-chief in the first trial and that, had the State done so in rebuttal, it would have allowed the testimony because it went to the identity of the assailant. The court did not rule on the motion at that time. But, when the State offered Brown's testimony in the rebuttal phase of the second trial, the court ruled it admissible. The State's argument was essentially the same as at the first trial. The State argued that Brown's testimony was relevant because it showed Hereford in possession of a gun similar to the murder weapon one to three weeks before the shooting. According to the State, Brown's testimony went to identity and opportunity.

Hereford's counsel pointed out to the court that the same testimony was offered by the State in rebuttal at the first trial and was excluded. Counsel argued that the court could not reverse its prior ruling, that it had prejudged the issue, and that the evidence was not admissible under § 904.04(2), STATS.

The trial court ruled that Brown's testimony was relevant because it went to the identity of the person who shot Gurley, which was the central issue in the trial. The court decided that the probative value of the evidence outweighed the prejudicial effect. In making this ruling, the court recognized that it came to a different conclusion at the first trial.

Brown testified in person at the second trial as part of the State's rebuttal. Her testimony was substantially the same as that offered, but not received, at the first trial. At the close of the trial, the court offered to give a limiting instruction to the jury regarding the proper use of Brown's testimony. Hereford opposed a limiting instruction and none was given.

The decision of whether to admit or exclude evidence is within the trial court's discretion. Johnson v. Agoncillo, 183 Wis.2d 143, 154, 515 N.W.2d 508, 513 (Ct.App.1994). We will not reverse such a discretionary determination where it has a reasonable basis and was made in accordance with accepted legal standards and the facts of record. Id.

Hereford argues that the trial court misused its discretion because it suggested a ground for admissibility of Brown's testimony based on an erroneous belief of the record. We find no merit to this claim.

As the State concedes, the trial court was mistaken in thinking that it had excluded the testimony because the State had offered it as part of its case-in-chief. While under that misimpression, the trial court asked the prosecutor: "The State chose not to use it, apparently by rebuttal? Doesn't it go to identity?" The prosecutor answered that it did. The trial court then went on to indicate why it felt the testimony went to identity and that it would have allowed the testimony for rebuttal at the first trial, still under the mistaken impression.

We do not read this interchange as indicating that the trial court advocated for the State, as Hereford contends. The court simply tried to recall what it did and why when this issue came up at the first trial. We see no significance in the fact that the trial court was initially mistaken about the basis for its first ruling. The important point is that when the trial court later ruled that Brown's testimony was admissible, it had an accurate understanding of the basis for its first ruling. After discussing in detail the testimony of other witnesses that made Brown's testimony relevant, it concluded, "Apparently, I didn't feel it was at the time of the first trial, but upon reflection and upon the entire record here, I think its probative value exists and that the prejudicial effect is not outweighed by its probative value [sic]."

Hereford concedes that a trial court has the discretion to change its rulings. But he argues that the trial court misused that discretion because, although it explained the reasons for its new ruling, it did not explain what was wrong with the first ruling. We do not agree. If the new ruling on the admissibility of Brown's testimony has a reasonable basis and is supported by the facts of record and the proper legal analysis, we will sustain the new ruling. We conclude the trial court's decision to admit Brown's testimony meets this standard.

Permissible Purpose

All testimony must be relevant to be admissible and, generally, relevant testimony is admissible. Section 904.02, STATS. Relevant evidence is evidence having any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence. Section 904.01, STATS. However, even if relevant, testimony of a person's other acts is not admissible to prove the character of a person in order to show the person acted in conformity therewith. Section 904.04(2), STATS. But such testimony is admissible for other purposes. Section 904.04(2) lists these other purposes: "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." This list is not exclusive, but rather illustrative. State v. Shillcutt, 116 Wis.2d 227, 236, 341 N.W.2d 716, 720 (Ct.App.1983), aff'd, 119 Wis.2d 788, 350 N.W.2d 686 (1984). If a trial court determines that testimony of other acts is relevant for a purpose not prohibited by § 904.04(2), then it must determine whether the probative value of the testimony is substantially outweighed by the danger of unfair prejudice. State v. Bedker, 149 Wis.2d 257, 266, 440 N.W.2d 802, 805 (Ct.App.1989); § 904.03, STATS.

Hereford concedes for purposes of argument that Brown's testimony was relevant. But he argues that the trial court erred in deciding the testimony was evidence of Hereford's identity. We agree with Hereford that Brown's testimony is not evidence of his identity in that it does not relate the type of unique actions by Hereford that would carry his imprint and therefore serve to identify him as the person who killed Gurley. Cf. Whitty v. State, 34 Wis.2d 278, 295, 149 N.W.2d 557, 564 (1967), cert. denied, 390 U.S. 959, 88 S.Ct. 1056, 19 L.Ed.2d 1155 (1968) (testimony that defendant had enticed another child into a basement to look for a lost rabbit admissible for the purpose of identifying the defendant as the assailant of the child victim in present case). However, we conclude Brown's testimony is nevertheless admissible because it was relevant for purposes other...