State v. McCall

• Decision Date: 19 June 1996
• Docket Number: No. 94-1213-CR,94-1213-CR
• Citation: 202 Wis.2d 29,549 N.W.2d 418
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Henry F. McCALL, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 418

549 N.W.2d 418

202 Wis.2d 29

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Henry F. McCALL, Defendant-Appellant.

No. 94-1213-CR.

Supreme Court of Wisconsin.

Argued April 30, 1996.

Decided June 19, 1996.

For the plaintiff-respondent-petitioner the cause was argued by Daniel J. O'Brien, Assistant Attorney General, with whom on the brief was James E. Doyle, Attorney General.

For the defendant-appellant there was a brief (in the Court of Appeals) by Mary Louise Radzimowski, Milwaukee and oral argument by Mary Louise Radzimowski.

JON P. WILCOX, Justice.

The plaintiff-respondent-petitioner State of Wisconsin (State) seeks review of an unpublished decision of the court of appeals which reversed a judgment of conviction in the circuit court for Milwaukee County, the Honorable Charles B. Schudson presiding, after a jury found the defendant-appellant Henry F. McCall (McCall) guilty of second-degree reckless injury, contrary to Wis.Stat. § 940.23(2) (1991-92). The court of appeals concluded that McCall's constitutional right to confront his accusers ¹ was violated when the circuit court would not permit his counsel to cross-examine the victim regarding the dismissal of three charges ² pending against him prior to his testimony at McCall's trial. See State v. McCall, No. 94-1213-CR, unpublished slip op. at 2, 1995 WL 128491 (Wis.Ct.App. Mar. 28, 1995). The appellate court reversed the judgment of conviction and remanded for a new trial. Id.

The issue before the court on this review is whether the court of appeals erred as a matter of law when it failed to give deference to the circuit court's discretionary act of limiting the scope of cross-examination. We hold that the circuit court did not erroneously exercise its discretion or otherwise err when it concluded that defense inquiry on cross-examination regarding the three dismissed charges was not relevant, and therefore inadmissible. The circuit court found that any relevance of the proffered evidence was outweighed by other considerations, including the risk of unfair prejudice, a strong potential for confusing the issues, and a waste of valuable trial time. See Wis.Stat. § 904.03 (1993-94). ³

I.

On February 22, 1992, Robert Wade (Wade) entered the apartment of his friend McCall, an individual from whom he had purchased cocaine in the past. Wade had been drinking and smoking cocaine in celebration of his birthday on that evening, prior to going up to McCall's residence. The facts regarding Wade's entry into the apartment and the ensuing scuffle between Wade and McCall are disputed. What is clear is that Wade's wife, Kathleen Wade, was in McCall's apartment when Wade arrived. Some form of altercation took place, and Wade was eventually shot in the shoulder by McCall. The bullet permanently lodged in Wade's spinal column, resulting in a quadriplegic condition which has confined him to a wheelchair. On the evening of the incident, he stated that he and McCall had been arguing, McCall had hit him on the head with the gun and shortly thereafter, shot him in the shoulder.

In June 1992, several months after the shooting occurred, Wade was interviewed by a police detective at his home. In recounting the events which had transpired in February, Wade stated to the officer that the only thing that he could remember that night was knocking on McCall's apartment door and later waking up in the hospital. At trial, Wade testified that after knocking upon McCall's door, McCall opened the door and let him in. McCall then closed and locked the door behind Wade. According to Wade's testimony, McCall then turned around with a gun in his hand and put it at Wade's shoulder. Wade's wife was hiding in the bathroom at the time and did not witness the shooting. Wade could not remember the gun discharging, but simply stated that the last thing he could remember was McCall pushing the gun into his shoulder. He then testified that he could not recall anything else that happened that evening until he awoke in the hospital and was being questioned by a police detective.

McCall's version of the events that evening were substantially dissimilar. McCall claimed that he shot Wade in self-defense, stating that after answering the knock on the door, and seeing that it was Wade, he attempted to shut the door, not intending to grant Wade entry into the apartment. Wade allegedly forced his way past the door and made threatening gestures directed at McCall. In response, McCall testified that he hit him on the head with the gun, so as to alleviate any further struggle. When Wade persisted, McCall shot him in the shoulder.

Wade represented the State's primary witness to refute McCall's self-defense theory. During cross-examination of Wade, McCall attempted to impeach the witness by inquiring into the nature of an alleged agreement between Wade and the prosecutor regarding the recently dismissed charges pending against him. Though Wade specifically denied that any agreement in fact existed, the State objected, and a hearing was conducted outside the presence of the jury.

The circuit court sustained the State's objection, denying the defense permission to proceed with this line of questioning during cross-examination. The circuit court judge articulated on the record the factors which he had considered in concluding that the proffered evidence was irrelevant and why its limited probative value was substantially outweighed by the danger of confusing the issues and wasting time on speculative and collateral matters. McCall was subsequently convicted of the lesser-included charge, second-degree reckless injury. Further facts will be noted as necessary in this opinion.

II.

McCall argues that it was reversible error for the circuit court to prohibit defense counsel from cross-examining Wade regarding the dismissal of three charges which had been pending prior to the start of McCall's trial. ⁴ The extent and scope of cross-examination allowed for impeachment purposes is a matter within the sound discretion of the circuit court. Rogers v. State, 93 Wis.2d 682, 689, 287 N.W.2d 774 (1980); Chapin v. State, 78 Wis.2d 346, 352, 254 N.W.2d 286 (1977). "The appellate court should reverse a trial court's determination to limit or prohibit a certain area of cross-examination offered to show bias only if the trial court's determination represents a prejudicial abuse of discretion." State v. Lindh, 161 Wis.2d 324, 348-49, 468 N.W.2d 168 (1991) (citing State v. Whiting, 136 Wis.2d 400, 422, 402 N.W.2d 723 (Ct.App.1987)). ⁵ No abuse of discretion will be found if a reasonable basis exists for the circuit court's determination. State v. Oberlander, 149 Wis.2d 132, 140-41, 438 N.W.2d 580 (1989).

During cross-examination, the defendant sought to probe the circumstances surrounding the dismissal of charges which had been pending against Wade prior to trial. As the sole eyewitness for the prosecution, the accuracy and truthfulness of Wade's testimony were key elements in the State's case. The nature of the inquiry was clearly directed to effectuate an attack on the credibility of Wade as a witness, designed to reveal possible biases, prejudices, or ulterior motives that Wade may have possessed, as they directly related to his testimony against the defendant. ⁶ The State, however, objected to this line of inquiry on relevancy grounds. SeeWis.Stat. § 904.01 (1993-94). ⁷ This court and the United States Supreme Court have recognized that a defendant's opportunity to explore the subjective motives for the witness's testimony is a necessary ingredient of a meaningful cross-examination. ⁸

In Rogers, this court pronounced that "[t]he proper standard for the test of relevancy on cross-examination is not whether the answer sought will elucidate any of the main issues in the case but whether it will be useful to the trier of fact in appraising the credibility of the witness and evaluating the probative value of the direct testimony." Rogers, 93 Wis.2d at 689, 287 N.W.2d 774 (citing McCormick, Evidence, § 30 (2d Ed.1972)). Moreover, in Lindh, we highlighted the circumstances under which courts have properly excluded bias evidence:

Other courts have delineated some of the prejudice factors which may warrant the exclusion of bias evidence. One factor is whether the evidence would divert the trial to an extraneous issue. Hossman v. State, 467 N.E.2d 416, 418 (Ind.1984). A court can and should exclude bias evidence which has little bearing on the witness's credibility, but which would impugn the witness's character because such evidence "opens the door to improper considerations and lends to the confusion of the jury by placing undue emphasis on collateral matters."

People v. Cole, 654 P.2d 830, 833 (Colo.1982). If the bias evidence, taken as a whole, might have directed the jury's attention away from the case under consideration, it may be prejudicial. Id. at 834.

The trial court may exclude bias evidence if the very slight probative value of the evidence on the issue of bias fails to overcome its strong likelihood of confusing the issues and undue delay. United States v. Jarabek, 726 F.2d 889, 902 (1st Cir.1984). The appellate court should not find the trial court abused its discretion when the relevance of the proffered bias evidence was unclear and the risk of prejudice was real. United States v. Sellers, 658 F.2d 230, 232 (4th Cir.1981). The trial court may prohibit cross-examination in a certain area where to permit it would open up extraneous matters, for the trial court " 'has responsibility for seeing that the sideshow does not take over the circus.' " United States v. Brown, 547 F.2d 438, 446 (8th Cir.1977).

Lindh, 161 Wis.2d at 363, 468 N.W.2d 168. ⁹

Before deciding whether to grant McCall's request to explore what he perceived to be a "working relationship" between Wade and the prosecutor regarding trial testimony and the dismissal of pending charges, the circuit court gave heed to the...