State v. Mayhall

• Citation: 195 Wis.2d 53,535 N.W.2d 473
• Decision Date: 18 April 1995
• Docket Number: No. 94-0727-CR,94-0727-CR
• Court: Court of Appeals of Wisconsin
• Parties: STATE of Wisconsin, Plaintiff-Respondent, d FDd Petition for review filed. v. La Shonda F. MAYHALL, Defendant-Appellant. dd . Oral Argument

Page 473

535 N.W.2d 473

195 Wis.2d 53

STATE of Wisconsin, Plaintiff-Respondent, ^dFDd Petition for review filed. v. La Shonda F. MAYHALL, Defendant-Appellant. ^dd

No. 94-0727-CR.

Court of Appeals of Wisconsin.

Oral Argument April 18, 1995.

Opinion Released May 31, 1995.

Opinion Filed May 31, 1995.

On behalf of the defendant-appellant, the cause was submitted on the briefs and oral argument of Robert J. Dvorak of Dvorak & Fincke, S.C., Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Atty. Gen. and G.M. Posner-Weber, Asst. Atty. Gen. Oral argument was by G.M. Posner-Weber.

Before ANDERSON, P.J., and BROWN and SNYDER, JJ.

ANDERSON, Presiding Judge.

LaShonda F. Mayhall appeals from a judgment of conviction of first-degree intentional homicide while armed, as party to the crime, and from an order denying her motions for postconviction relief. Because we conclude that the trial court erred in not giving the jury a limiting instruction regarding out-of-court statements made by a nontestifying codefendant, we reverse and remand for a new trial.

The criminal complaint alleged that LaShonda, LaTonia Mayhall (a/k/a LaTonda) and Vernon Walker feloniously and, in concert with others, intentionally caused the death of Leroy Brantley. Brantley was a friend of Miguel Adams. Adams was the father of LaShonda's child. LaShonda felt that Brantley was interfering in her relationship with Adams and told her sister, LaTonia, that she wanted Brantley killed. LaTonia said that Vernon would take care of it.

Ronald Walker, Vernon's stepbrother, told the police that Vernon said that he had gone to Brantley's house and shot through the door. Brantley was found by the police at his house where he had suffered a gunshot wound to the abdomen. He subsequently died.

A jury trial was held, and the three defendants were tried jointly. LaShonda was subsequently found guilty. She filed motions for postconviction relief which the trial court later denied. LaShonda appeals.

LaShonda raises four issues on appeal. She argues that the court erred in denying her limiting instruction regarding the use of out-of-court admissions of a nontestifying codefendant, in restricting cross-examination of a witness, in denying her postconviction motion alleging ineffective assistance of counsel and in denying the motion to modify her sentence.

Limiting Instruction

LaShonda contends that "[t]he court erred in denying [her] limiting instruction regarding the use of out of court admissions of a nontestifying codefendant and thereby violated her right to confrontation." ¹ As long as jury instructions fully and fairly inform the jury of the law applicable to the particular case, the trial court has discretion in deciding which instructions will be given. Farrell v. John Deere Co., 151 Wis.2d 45, 60, 443 N.W.2d 50, 54 (Ct.App.1989). Whether there are sufficient facts to allow the giving of an instruction is a question of law which we review de novo. Id. Additionally, a court errs when it fails to give an instruction on an issue raised by the evidence. Lutz v. Shelby Mut. Ins. Co., 70 Wis.2d 743, 750, 235 N.W.2d 426, 431 (1975).

Before reaching Vernon's out-of-court statements which are the subject of this appeal, we review the law concerning out-of-court admissions made by nontestifying codefendants. In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the Supreme Court restated the following premise:

[T]he right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him secured by the Sixth Amendment.... [A] major reason underlying the constitutional confrontation rule is to give a defendant charged with [a] crime an opportunity to cross-examine witnesses against him.

Id. at 126, 88 S.Ct. at 1622 (quoted source omitted). The Supreme Court held that the Confrontation Clause is violated when a nontestifying codefendant's confession incriminating another codefendant in the crime is introduced at their joint trial. See id. at 135-36, 88 S.Ct. at 1628. The Court held that even a limiting instruction requiring the jury to only consider the confession against the codefendant for which the statement was offered could not cure a Confrontation Clause violation. Id.

In Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987), the Supreme Court addressed the issue of "whether Bruton requires the same result when the codefendant's confession is redacted to omit any reference to the defendant, but the defendant is nonetheless linked to the confession by evidence properly admitted against him at trial." Id. at 202, 107 S.Ct. at 1704. The Court distinguished Bruton, stating that in Bruton the codefendant's confession expressly implicated the defendant as his accomplice. Id. at 208, 107 S.Ct. at 1707. In contrast, in Richardson the confession was not incriminating on its face, and became so only when linked with evidence later introduced at trial. Id. The Court held: "[T]he Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence." Id. at 211, 107 S.Ct. at 1709.

In the present case, LaShonda is concerned with the testimony of Shawntal Chapman, Jimmie Jones, Bonnie Price, Ronald Walker, Patrick Walker and Paul Herrick regarding Vernon's statements implicating himself in the murder. Based upon our review of the testimony, we conclude that the testimony of Chapman, Jones, Price, Patrick Walker and Herrick did not require a limiting instruction. The statements made to these witnesses only incriminated Vernon in the conspiracy. Unlike in Richardson, where the codefendant's statement was linked with other evidence which combined to incriminate the respondent, ² these statements were not susceptible to being linked with other evidence to incriminate LaShonda. Thus, there was no reason to give a limiting instruction.

Ronald Walker's testimony concerning Vernon's out-of-court statements differs from the other statements. Ronald testified that Vernon told him that LaShonda was in the car and that LaShonda was there to show Vernon where Brantley lived. This testimony places LaShonda at or near Brantley's house prior to the murder: ³

Q. What occurred then between you and Vernon outside the club?

A. Me and him had a talk and he told me he believed he had shot somebody.

....

Q. What did he tell you about that situation? Describe when you first met him what was said outside.

A. He told me that Leroy Brantley was supposed to have slapped LaTonda Mayhall. He went over there to talk to him and he was talking and he said he shot through the door. He said he heard Leroy Brantley scream and he shot again through the door.

....

Q. Did [Vernon] indicate how he happened to get there?

A. He said Jerry Yarbrough drove him there.

Q. And did he indicate who else was with him, if anyone?

A. Yes. He said Shonda Mayhall.

Q. Did he indicate why Shonda would have been in the car?

A. He said she showed him where he lived.

Q. What else, if anything, did Vernon tell you outside the club at that time, if you recall?

A. He said he believed he had killed Leroy Brantley.

Ronald's testimony in the present case is analogous to the situation in Richardson. Here, the testimony placing LaShonda at the scene, while not directly incriminating, created the same inferentially incriminating atmosphere as in Richardson when combined with the evidence concerning her motive to murder Brantley and Yarbrough's testimony implicating her in the conspiracy. ⁴ Ronald's testimony required a limiting instruction as contemplated by Richardson: "[W]ith regard to inferential incrimination the judge's instruction may well be successful in dissuading the jury from entering onto the path of inference in the first place, so that there is no incrimination to forget." Richardson, 481 U.S. at 208, 107 S.Ct. at 1708.

The State argues that "[e]ven assuming that error was committed here, [LaShonda's] inability to cross-examine Vernon Walker on his out-of-court statements was harmless beyond a reasonable doubt." At oral argument, the State argued harmless error as follows:

I think you can get to harmless error.... I think we have Jerry Yarbrough ... who plainly establish[es] LaShonda's guilt either as an accomplice or as an aider and abettor.

....

Jerry Yarbrough's credibility was ravaged on cross-examination.... [T]he basis of his testimony of putting her at the scene and involving her in the crime ... is sufficient to uphold this verdict, absolutely.

Generally, constitutional violations are subject to a harmless-error analysis. State v. Flynn, 190 Wis.2d 31, 54, 527 N.W.2d 343, 352 (Ct.App.1994), cert. denied, 514 U.S. 1030, 115 S.Ct. 1389, 131 L.Ed.2d 241 (1995). A conviction will be upheld if it can be shown beyond a reasonable doubt that the error did not contribute to the guilty verdict. Id. at 55-56, 527 N.W.2d at 352-53. We must determine what effect the error had upon the guilty verdict in the present case. Sullivan v. Louisiana, 508 U.S. 275, ----, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993).

We are unable to conclude that the trial court's failure to give a limiting instruction was harmless beyond a reasonable doubt. The evidence against LaShonda is not so substantial that we can ignore the introduction of Ronald's testimony placing her at the scene. Although the State claims that Yarbrough's testimony is sufficient to uphold the verdict, Ronald's corroborating testimony significantly increases Yarbrough's credibility. ⁵ For example, in closing arguments, the State argued as follows:

Ronald Walker says that [Vernon] told him he had been in the car just--been in the car with Jerry Yarbrough and with Shonda. Well, are you going to believe Ronald...