State v. Jones
| Decision Date | 17 June 1998 |
| Docket Number | No. 96-3443-CR,96-3443-CR |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. Dennis E. JONES, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
APPEAL from a judgment and an order of the circuit court for Kenosha County: DAVID M. BASTIANELLI, Judge. Affirmed.
Before Snyder, P.J., Brown and Nettesheim, JJ.
Dennis E. Jones appeals pro se from a judgment convicting him as a repeat offender of armed robbery, felon in possession of a firearm and possession of a short-barreled shotgun. He also appeals from an order denying his postconviction motion. We reject Jones' multiple claims, which will be identified and discussed in this opinion. We affirm the judgment and the order.
Jones was convicted of robbing a delicatessen. On the same afternoon of the robbery, Jones had entered the store twice before to purchase a small item. After the robbery, he was observed leaving in a car that was later found to belong to Jumard Brooks. After giving a false statement about the whereabouts of his car on the day of the robbery, Brooks admitted that he had loaned his gold Buick LeSabre to Jones. Brooks said that after using the car, Jones called him three times to ask about retrieving something from the car. Under the passenger seat of the car used by Brooks' wife, a white Buick Regal, Brooks discovered a bag with a sawed-off rifle in it. Three store employees identified Jones as the robber in lineup and photo array identifications.
With this preliminary statement of facts, we summarily reject Jones' claim that there was insufficient evidence to support his conviction of felon in possession of a firearm and possession of a short-barreled shotgun. The cash register attendant whom Jones confronted identified the rifle recovered from Brooks as the gun used in the robbery. Even if the witness was equivocal on cross-examination about whether it was the same gun, it only affected the weight of her testimony. Regardless of whether the witness could identify the actual gun used, she indicated that Jones was in possession of a firearm during the robbery. This was sufficient evidence. 1 See State v. Ray, 166 Wis.2d 855, 861, 481 N.W.2d 288, 291 (Ct.App.1992) ().
Jones also contends that there was inadequate proof to permit him to be sentenced as a repeat offender because he did not admit to his prior convictions and the prosecution failed to offer proof of those convictions. At sentencing, Jones was not personally questioned about the prior convictions, no admission of the prior convictions was obtained, and the prosecution did not offer formal proof of the repeater allegation. However, the presentence report recites the case numbers in which Jones was convicted on February 3, 1991, of party to the crime of armed robbery and armed robbery. A presentence report satisfies the proof requirements of § 973.12(1), STATS. See State v. Goldstein, 182 Wis.2d 251, 259, 513 N.W.2d 631, 635 (Ct.App.1994). The offenses here were committed on September 3, 1993, within the five-year window subjecting Jones to sentencing as a repeat offender. See § 939.62(2), STATS. There is no merit to Jones' claim that he was not properly sentenced as a repeat offender.
Jones argues that he was subject to prosecutorial misconduct because the prosecutor withheld evidence that none of the fingerprints found on the car used in the robbery could be identified. Jones speculates that the evidence that other unidentified adult prints were found on the car was exculpatory because it supports his theory that Brooks' cousin borrowed the car and committed the robbery.
A violation of the duty to disclose exculpatory evidence applies only when the evidence is both favorable to the accused and material to guilt or innocence. See State v. Garrity, 161 Wis.2d 842, 848, 469 N.W.2d 219, 221 (Ct.App.1991). Id. at 850, 469 N.W.2d at 222 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)).
The lack of fingerprint evidence was neutral and not exculpatory to Jones. Because the car did not belong to Jones, it is not remarkable that his prints were not found in the vehicle. This is particularly true because the owner's fingerprints were not found either. The lack of identifiable fingerprints cannot be equated with evidence that some other person was at the scene of the crime. The evidence does not meet the materiality test.
Jones also suggests that the prosecutor attempted to intimidate three alibi witnesses by threatening them with arrest. This claim lacks merit because two of the three witnesses Jones names testified at trial as alibi witnesses. See State v. Gibas, 184 Wis.2d 355, 364, 516 N.W.2d 785, 788 (Ct.App.1994) (). One of these two witnesses, Aaron Lewis, was subject to arrest on an outstanding warrant, but the trial court did not allow any mention of the potential arrest in front of the jury. The third witness, Shawn Muhammad, could not be located by the defense or the police. The police had been told that Muhammad had moved. There was no evidence of any threats of arrest causing Muhammad's unavailability. Moreover, Muhammad's alibi testimony would have been cumulative to that of the other alibi witnesses. Jones' right to present evidence was not impaired by prosecutorial misconduct.
Jones argues that the trial court was biased against him and exhibited such bias during the trial by making erroneous and prejudicial rulings against him. 2 Whether the trial judge's partiality, if any, violated Jones' right to due process presents a legal question subject to de novo review. See State v. Hollingsworth, 160 Wis.2d 883, 893, 467 N.W.2d 555, 559 (Ct.App.1991). There is a presumption that a judge is free of bias and prejudice. See State v. McBride, 187 Wis.2d 409, 414, 523 N.W.2d 106, 109 (Ct.App.1994). To overcome the presumption, the party asserting judicial bias must show by a preponderance of the evidence that the judge is prejudiced or biased. See id. at 415, 523 N.W.2d 106, 523 N.W.2d at 109. We look to whether there are objective facts demonstrating actual bias. 3 See id. at 416, 523 N.W.2d at 110.
Jones attempts to show objective bias by arguing that the trial courts made improper rulings. His first contention is that Judge Vuvunas demonstrated bias when he reconsidered an earlier ruling denying the prosecution's motion to join at trial a complaint against Jones for solicitation of perjury involving Brooks. Judge Vuvunas' inquiry regarding whether there was any dispute about Jones having written the letter Brooks received about giving false testimony was proper in light of the determination to be made about whether evidence of the letter would be admissible in the robbery trial. See State v. Hall, 103 Wis.2d 125, 141, 307 N.W.2d 289, 296 (1981) (). Judge Vuvunas' inquiry did not mean that he had prejudged the solicitation case. 4 Nor did he demonstrate personal bias against Jones simply by his willingness to entertain the prosecution's motion for reconsideration of the ruling made by another trial court judge. 5 See Dietrich v. Elliott, 190 Wis.2d 816, 822, 528 N.W.2d 17, 20 (Ct.App.1995) ().
Jones faults Judge Bastianelli for stating that he would not reconsider Judge Vuvunas' denial of Jones' motion to suppress evidence. Reconsideration was a matter of discretion for the trial court. Judge Bastianelli's expression that he would not reconsider was reasonable in light of his concern over delay in the prosecution and his acknowledgment that the issue was preserved for appellate review. This did not exhibit bias.
Jones absolutely misrepresents the record when he contends that Judge Bastianelli informed the jury of his friendship with the prosecutor or vouched for the prosecutor's reputation. The comments Jones attributes to Judge Bastianelli were actually made by trial counsel. No bias was exhibited by the trial judge.
As Jones points out, during the trial Judge Bastianelli intervened to limit questioning when no objection was made, told the jury that Jones was not entitled to counsel at the lineup identification, required Jones to read the letter soliciting perjury, interrupted the testimony of an alibi witness to determine, outside the presence of the jury, whether the witness had been previously convicted of a crime, refused to produce in court a prisoner who had been identified in a lineup by one of the witnesses, 6 and spoke, outside the presence of the parties, with a juror who reported that an unidentified individual had appeared at the juror's house asking about the trial. The trial judge was acting within his discretion to limit evidence and control the trial in the interests of judicial economy. See State v. Speese, 199 Wis.2d 597, 605, 545 N.W.2d 510, 514 (1996) (...
To continue reading
Request your trial