State v. Long
| Decision Date | 17 October 1996 |
| Docket Number | No. 93-3253-CR,93-3253-CR |
| Citation | 557 N.W.2d 255,205 Wis.2d 734 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.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. Donald L. LONG, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Appeal from a judgment and an order of the circuit court for Dane County: GEORGE NORTHRUP, Judge.
Before EICH, C.J., DYKMAN, P.J., and VERGERONT, J.
1
Donald L. Long was convicted of first-degree intentional homicide as a party-to-a-crime resulting from the death of his son, Wesley. The trial court denied his postconviction motions, and he appeals.
We previously considered some of the facts of this case in State v. Jackie Long, No. 93-3235-CR, unpublished slip op. (Wis.Ct.App. Mar. 23, 1995). There, we affirmed the conviction of Jackie Long, Donald Long's wife, of the same crime for which Donald Long was convicted. Long argues that we should reverse his conviction because: (1) the trial court erroneously exercised its discretion by joining (or failing to sever) Donald and Jackie Long's cases for trial; (2) the trial court improperly admitted evidence of other bad acts; (3) the trial court failed to instruct the jury as to the other bad acts evidence; (4) the party-to-a-crime instruction was improper; (5) the information and the party-to-a-crime instruction allowed the jury to convict under an invalid theory of the law; and (6) he was denied effective assistance of counsel. We reject these arguments and therefore affirm the judgment and post-trial order.
We take the facts from our opinion in State v. Jackie Long.
On January 2, 1992, Donald and Jackie Long called emergency medical technicians to their residence in Mazomanie. On arrival, the technicians found the Longs' infant son, Wesley, unresponsive, pulseless and not breathing. Donald Long told the technicians that he had been asleep on a sofa with Wesley on his stomach and had accidentally fallen to the floor, possibly landing on top of the child. He said that although Wesley cried after the incident, he eventually calmed down and was put to bed. The medical personnel immediately took Wesley to University Hospital in Madison where, despite efforts to resuscitate him, he died.
An autopsy performed by Dr. Robert Huntington on January 2 revealed that Wesley had multiple cranial and rib fractures (in varying stages of healing) which Huntington considered to be inconsistent with Donald Long's explanation of the child's injuries. Huntington confirmed to the police that, because of the number of injuries and their relative stages of healing, he believed Wesley's death was a homicide.
The Longs were charged with first-degree intentional homicide, each as a party to the crime, and the cases were consolidated for trial. The jury found both guilty, and the trial court sentenced [Donald] Long to life in prison with parole eligibility in thirty years and denied [his] motions for postconviction relief. Other facts will be discussed in the body of the opinion.
The trial court granted the prosecutor's motion to join Donald and Jackie Long's cases for trial. Long complains that this resulted in the jury hearing voluminous bad acts evidence pertaining only to Jackie Long, prejudicing him. But he did not object to the joinder on this basis until his postconviction hearing.
In a pretrial letter to the court, Long objected to the State's joinder motion. He argued that in a joint trial, the defendants could only avoid a conviction by blaming each other for their baby's death, and that § 971.12(3), Stats., required separate trials if either of two defendants had given a statement implicating the other co-defendant. He repeated the first of these reasons at a pretrial hearing on the State's motion.
To be considered timely, objections must be made prior to the return of the jury verdict. Wingad v. John Deere & Co., 187 Wis.2d 441, 457, 523 N.W.2d 274, 281 (Ct.App.1994). A party cannot wait until after receiving an unfavorable verdict, then raise an objection or state different grounds in the motions after verdict. Id. at 458, 523 N.W.2d at 281. In Behning v. Star Fireworks Mfg. Co., 57 Wis.2d 183, 187, 203 N.W.2d 655, 658 (1973), the court said:
We have uniformly held that failure to make a timely objection precludes a party, as a matter of right, to subsequently raise the point. Ordinarily, it is necessary to make a timely objection, and again to renew the objection on a motion for a new trial, to give the trial judge an opportunity to correct a possible error.
Long's brief asserts that "[i]n pre-trial motions, it became clear that a substantial line of evidence relevant only to, and admissible only against Jackie Long, would be introduced." Had Long wanted to make the argument then that he now makes on appeal, he could have done so. Had he done so, the trial court could have addressed the objection. With information as to the nature and extent of the evidence relevant only against Jackie Long, the trial court could have decided to sever the two trials. Having not moved to sever the two trials for the reason now asserted, Long has waived the issue of whether the trial court erroneously exercised its discretion by refusing to sever the trials because of evidence admitted solely against his wife.
Long asserts that the trial court erroneously exercised its discretion by permitting a voluminous amount of bad acts evidence to be given to the jury. He particularly objects to evidence that when he was twelve years old, he spanked two children for whom he was babysitting, causing bruises. He argues that the trial court failed to address the relevance of the bad acts evidence and failed to balance the danger of unfair prejudice against the probative value of the evidence. See § 904.03, Stats. 2 But Long specifically agreed that the State could admit much of this evidence. In a written response to the State's motion for a ruling on its proposed introduction of the bad acts evidence, Long conceded:
With regard to evidence concerning the children named Scott, Amber, Anthony and Wesley, Donald Long will not object to its introduction using Wis. Stats. 904.04(2) as a basis for objection. He does reserve the right to object to such evidence on other bases, such as relevance.
Relevant evidence is defined in § 904.01, Stats., as "evidence having 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."
Long does not now directly argue that the bad acts evidence was admitted to prove Long's character. And that is notable, for even if the bad acts evidence was irrelevant, it could not be prejudicial absent an assertion that it was introduced to show Long's character. But the significant problem with his present complaint as to the relevance of the evidence and the trial court's asserted failure to balance the danger of unfair prejudice of the evidence against its probative value is that he did not object to the admission of the evidence when it was introduced.
In his reply brief, Long concedes that he did not object to the bad acts evidence. He asserts that this is because the trial court's decision to join his and his wife's cases affected his strategy. He also argues that because the trial court intended to allow bad acts evidence concerning a battery Long committed when he was twelve years old, it would have permitted the State to show any bad acts evidence it wished.
When the trial court ruled on the State's motion to admit the bad acts evidence, it told Long that its ruling was not final:
And while I'm making a general ruling, as with any motion in limine, a lot of that is going to be subject to how things progress at trial....
....
... I recognize also that by ruling as I am on the, for lack of a better term, the Whitty evidence, that there is a gray area there. And that some of the individuals that may be called to testify on some of the so-called Whitty evidence may be touching upon areas that the State feels are subject to the motion in limine. And we'll have to deal with that, I guess, as that occurs.
In Wingad v. John Deere, 187 Wis.2d 441, 457, 523 N.W.2d 274, 280 (Ct.App.1994), the defendant objected at pretrial to evidence because it was undated and unpublished. As here, the objection that the evidence was irrelevant and that the probative value of the evidence was outweighed by the danger of unfair prejudice was not made until post-trial motions. We said:
A party cannot wait until after receiving an unfavorable verdict, then raise an objection or state different grounds in the motions after verdict. John Deere's objection to the learned treatises on relevancy grounds in the motions after verdict was untimely because it prevented the trial court from reviewing the relevancy of the evidence before it was presented to the jury. Because John Deere objected to the learned treatises on different grounds and did not object or move to strike in a timely manner, its objection to the learned treatises was waived.
Id. at 458, 523 N.W.2d at 281.
We reject Long's proffered excuse that he did not object to the bad acts evidence because the trial court's decision to join the cases affected his strategy and because objection would probably be futile. Long has failed to provide authority supporting these assertions or to develop them. We conclude that Long has waived any objections to the other acts evidence. See State v. Shaffer, 96 Wis.2d 531, 545-46, 292 N.W.2d 370, 378 (Ct.App.1980).
Citing Wis J I--Criminal 275, Long asserts that the trial court failed to describe each other act that the jury could consider. The instruction reads: ...
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