State v Hoover
| Decision Date | 22 February 2000 |
| Docket Number | 98-3271-CR |
| Parties | This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. 808.10 and Rule 809.62. State of Wisconsin,Plaintiff-Respondent, v. Leamon Hoover,Defendant-Appellant.STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT I |
| Court | Wisconsin Court of Appeals |
APPEAL from a judgment and an order of the circuit court for Milwaukee County: JEFFREY A. WAGNER, Judge. Affirmed.
Before Wedemeyer, P.J., Fine and Schudson, JJ.
1. FINE, J.
Leamon Hoover appeals from a judgment entered on a jury verdict convicting him of first-degree recklessly endangering safety, see Wis. Stat. 941.30(1), and from the trial court's denial of his motion for postconviction relief. The crux of Hoover's complaint is that the trial court did not allow him to show his twin brother to the jury. We affirm.
2. Hoover was convicted of shooting at Joseph Bynum as Bynum sat in his minivan. According to Bynum's testimony at the trial, he and Hoover argued over some dice and then fought with fists. A little later, Bynum told the jury, Hoover first fired four or five shots at him, and then a second volley of three or four shots. The fusillade left several bullets in Bynum's minivan and shattered a window.
3. Bynum testified that he had known both Hover and his twin brother, Lamont Hoover, for some ten years, as they all lived in the same neighborhood, and that he could tell them apart. In an effort to impeach that testimony by showing the jury that the brothers looked alike, Hoover's lawyer wanted the jury to see Lamont Hoover. The trial court denied the request, and, in a written decision denying Hoover's motion for a new trial, credited Bynum's testimony to the effect that Lamont Hoover had been specially groomed for the trial to look like Hoover. The trial court concluded that showing Lamont Hoover to the jury under those circumstances would be "unfairly prejudicial, confusing and misleading."1
4. All of the allegations of trial-court error turn on the trial court's refusal to let Hoover show his twin brother to the jury. Hoover clothes this argument in four similar cloaks: 1) he claims that "excluding Lamont [Hoover] was a closure of the trial," thus violating Hoover's constitutional and statutory rights to a public trial; 2) he contends that he was denied his right to cross-examine Bynum because the trial court would not permit Hoover to display his twin brother to the jury during Bynum's cross-examination; 3) he argues that the trial court denied him his due-process right to present a defense; and, in a final catch-all argument, 4) he seeks a new trial "in the interest if justice." All of these contentions are without merit.
1.Relevance of whether Bynum or the jury could tell the Hoover twins apart.
5. A trial court's decision to admit or exclude evidence is a discretionary determination and will not be upset on appeal if it has "a reasonable basis" and was made "`in accordance with accepted legal standards and in accordance with the facts of record.'" State v. Pharr, 115 Wis. 2d 334, 342, 340 N.W.2d 498, 501 (1983) (citation omitted). Evidence is not admissible unless it is relevant. See Wis. Stat. Rule 904.02. Evidence is not relevant unless it has "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." Wis. Stat. Rule 904.01. A defendant has no constitutional right to present evidence that is not relevant. See State v. Morgan, 195 Wis.2d 388, 432, 536 N.W.2d 425, 441 (Ct. App. 1995), habeas corpus granted on another ground sub nom. Morgan v. Krenke, 72 F. Supp.2d 980 (E.D.Wis.1999). Moreover, even relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." Wis. Stat. Rule 904.03.
6. The relevance of whether Bynum could distinguish the defendant Leamon Hoover from his twin brother Lamont Hoover turns on the whether it was possible that Bynum actually saw Lamont Hoover fire the shots and, because he could not tell the twin brothers apart, believed that he was seeing not Lamont Hoover but the defendant. In short, whether the brothers looked alike would have been relevant if Hoover asserted a mistaken-identity defense. He did not, and the defense lawyer told the trial court that Lamont Hoover was not at the shooting scene. This breaks the chain of relevance, and distinguishes this case from Lyons v. Johnson, 99 F.3d 499 (2d Cir. 1996), upon which Hoover relies, where the alleged look-alike was at the scene of the shooting for which the defendant in that case was convicted. See id., 99 F.3d at 500-501. Thus, despite the extensive dancing around this issue in the trial court, it makes no difference whether Bynum could tell the brothers apart. The trial court did not err in excluding the evidence-either Hoover's attempt to display his brother to the jury, or Hoover's attempt to cross-examine Bynum on whether he could distinguish Lamont Hoover from the defendant. This resolves the defendant's second and third claims of error.
2.Exclusion of Lamont Hoover from courtroom.
7. As noted earlier, the trial court would not permit Hoover to display his brother to the jury, and, during the first part of the trial, kept him out of the courtroom when the jury was present. In an attempt to circumvent this ruling, Hoover's lawyer asked the judge to let him add Lamont Hoover to the defendant's witness list. The trial court granted Hoover's request, and, as provided for in Wis. Stat. Rule 906.15, excluded Lamont Hoover from the courtroom.2 As we have seen in footnote one, the trial court determined that Lamont Hoover's proposed testimony was not relevant. Hoover does not contend on this appeal either that the trial court erroneously exercised its discretion in not permitting Lamont Hoover to testify, or that the exclusion under Rule 906.15 once Lamont Hoover was added to the witness list was error. After the trial court decided that Lamont Hoover could not testify, he was allowed to observe the trial as long as he sat in a place where the jury could not easily see him. Thus, Hoover's claim that his right to a public trial was violated focuses on his brother's exclusion from the courtroom for the short period before he was added to Hoover's witness list.
8. There is no doubt but that a defendant in a criminal case has a Sixth-Amendment right to a public trial. See Waller v. Georgia, 467 U.S. 39, 46 (1984); see also Wis. Const. art. I, 7; Wis. Stat. 757.14. Thus, a defendant has the right to have members of the public, including family members, see In re Oliver, 333 U.S. 257, 271-272 (1948); United States v. Blanche, 149 F.3d 763, 769-770 (8th Cir. 1998), observe the trial, unless there is a countervailing "overriding interest," that requires exclusion, Waller, 467 U.S. at 45. For example, and as we have noted, Wis. Stat. Rule 906.15, and Rule 615 of the Federal Rules of Evidence, which is substantially similar to Rule 906.15, allow witnesses to be excluded from the court room until after they have testified, so they cannot shape their testimony from the trial evidence. See James v. Heintz, 165 Wis. 2d 572, 582-583, 478 N.W.2d 31, 35-36 (Ct. App. 1991) (); Blanche, 149 F.3d at 769-770 (). A trial court may exclude a person from the trial if that "`is essential to preserve higher values and is narrowly tailored to serve that interest.'" Waller, 467 U.S. at 45 (quoted source omitted); see also, United States v. Sherlock, 962 F.2d 1349, 1356 (9th Cir. 1989) (). Here the trial court was rightly concerned that showing the jury Hoover's twin brother would distract the jury from its task of determining whether to believe Bynum, who claimed that Hoover shot at him, or to believe Hoover, who testified that he neither shot at nor saw Bynum that evening. As we have already discussed, whether Bynum could or could not tell the two brothers apart was not a material issue in the trial because there was no contention that Lamont Hoover was at the scene of the shooting and that it was thus a case of mistaken-identity. Thus, the fact that either Bynum or the jury might have had trouble distinguishing Lamont Hoover from Leamon Hoover would have been nothing more than a red herring dragged across trial. A trial court has a responsibility to ensure that a jury is not misled by extraneous matters that are not relevant to the material issues. The trial court here cogently recognized that to let the jurors see Lamont Hoover would divert their attention to, in its words, a matter that was "confusing and misleading." The trial court fully complied with the Waller dictates. Hoover was not deprived of his right to a public trial.
3.Hoover's request for a new trial "in the interest of justice."
9. Hoover seeks a new trial under Wis. Stat. 752.35, which permits us to grant such relief if we are convinced "that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried." He raises no new issues, however, but merely clothes old ones in new garb. Larding a final catch-all plea for reversal with arguments that have already been rejected adds nothing; "[z]ero plus zero equals zero." Mentek v. State, 71 Wis. 2d 799, 809, 238 N.W.2d 752, 758 (1976).
By the Court.-Judgment and order affirmed.
Publication in the official reports is not recommended.
No. 98-3271-CR (CD)
10. SCHUDSON, J. ...
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