State v. Pharr
| Decision Date | 30 November 1983 |
| Docket Number | No. 81-1891-CR,81-1891-CR |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Justin PHARR, Defendant-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
Stephen J. Eisenberg, Madison (argued), for defendant-appellant-petitioner; Donald S. Eisenberg and Eisenberg, Giesen, Ewers & Hayes, S.C., Madison, on brief.
Sally L. Wellman, Asst. Atty. Gen. (argued), for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., on brief.
This is a review of an unpublished decision of the court of appeals affirming a judgment of conviction for attempted first-degree murder, party to a crime. The judgment of conviction was entered by the Rock County circuit court, Judge Gerald W. Jaeckle. We affirm the decision of the court of appeals, 110 Wis.2d 741, 330 N.W.2d 247.
The issues presented on this appeal are whether the trial court abused its discretion in admitting other crimes evidence and whether there was sufficient evidence to support a bindover at the preliminary examination and to sustain a conviction for attempted first-degree murder, party to a crime. The court of appeals has also identified the related issue of what procedures should be used in reviewing the decision of a trial court where the court has failed to articulate the basis for its exercise of discretion in admitting evidence.
Testimony revealed that early on the morning of October 18, 1980, the defendant, Justin Pharr, and two other persons, Timothy Rice and his sister, Sharon, drove from Madison to the rural Rock county home of Dennis and Mary Turner. The purpose of the trip was to rob the Turners of drugs and money to compensate the defendant and Rice for the money they had paid to Dennis Turner for cocaine which proved to be ineffective. At approximately 3 a.m., the trio entered the Turner's home, where they threatened and abused the Turners and their children. The defendant and Timothy Rice each were armed with a handgun, both of which were fired during the course of the robbery. The trio removed from the Turner home various household items and several guns and loaded the stolen goods into their car. They then started back to Madison with Timothy Rice driving.
At approximately 4 a.m., shortly after the car entered Interstate Highway 90 near Janesville, Trooper Joseph Gustafson, who at the time was unaware of the robbery, stopped the car because he had seen it cross the centerline a couple of times. Gustafson left his car and approached the suspect car just as Timothy Rice exited his car. As he neared the driver's side, Gustafson shined his flashlight in the car and noticed a gun lying on the front seat. As Gustafson began to ask about the gun, Timothy Rice reached in the window, grabbed the gun, pointed it at Gustafson, and fired several shots in rapid succession. As Gustafson dove into the ditch and then got up, Rice jumped back into the car and sped away.
Gustafson returned to his car and began following Rice's car. Gustafson radioed ahead in order to alert other troopers that the Rice car should be stopped. Shortly after 4 a.m., Trooper John Luther received Gustafson's radio call, and picked up the chase near the intersection of Highway 59 and I-90. Luther pursued the Rice car, traveling at speeds of approximately 100 miles per hour, on I-90 for several miles until the car turned off on Highway 51 toward Stoughton. As the two cars were approaching Stoughton in Dane county, the defendant leaned out of the front passenger window of Rice's car and fired his gun several times at Luther's car, shattering its windshield. Rice's car was stopped in Stoughton, and the defendant was arrested.
While the defendant fully admitted that he participated in the robbery and fired his gun at Trooper Luther's car, he denied that he encouraged or participated in Rice's shooting at Trooper Gustafson. The defendant testified that in fact he was completely surprised at the turn of events when their car was stopped and Rice began shooting at Gustafson. Nevertheless, the defendant testified that, when the car was pulled over by Gustafson, the defendant told Rice to tell Gustafson that they were moving Rice's sister, Sharon. The defendant while denying that he thought they were being stopped because of the robbery, admitted that he did not know that Gustafson was unaware of the robbery. He further testified that he thought they were in serious trouble when Gustafson noticed the gun on the front seat and the stolen property.
Prior to trial, the defendant made a motion in limine to exclude any evidence regarding his alleged involvement in a Dane county bank robbery and the fact that he fired gunshots at Trooper Luther's car in Dane county. The asserted grounds for keeping the other crimes evidence out were that it would not fall within any of the exceptions of sec. 904.04, Stats.; that it would be extrinsic evidence of the defendant's credibility, the admissibility of such evidence being prohibited by sec. 906.08; and that the evidence would be "very prejudicial," and its probative value would be outweighed by unfair prejudice. Defense counsel did not specify how the evidence concerning the Dane county shooting incident would be unduly prejudicial. In response to this motion, the state asserted that it would not introduce evidence of the alleged bank robbery, but would seek to introduce evidence on the Dane county shooting incident. The state argued that the Dane county shooting incident evidence was admissible to show the defendant's state of mind to escape at all costs, that it ratified the earlier Rock county shooting incident, and that the Dane county incident was a continuation of the Turner armed robbery. In ruling on the motion, the court stated:
At the close of the state's case, the trial court denied the defendant's motion for a mistrial on the basis of the admission of the allegedly prejudicial evidence concerning the Dane county shooting incident. The state then made a motion to prohibit the defendant from testifying as to the nature of the charge pending against him in Dane county circuit court for the Dane county shooting incident. In discussing the motions, defense counsel expressed concern that the shooting incident evidence would tend to cause the jury to convict on the basis of the Dane county shooting even if there was insufficient evidence to convict for the Rock county shooting. The trial court agreed to give the jury a cautionary instruction on the use of evidence concerning the Dane county shooting incident. Accordingly, at the end of the trial, the court instructed the jury that it could not use the evidence of the Dane county incident to conclude that the defendant had a bad character and acted in conformity with his character in committing the charged offense. The court further instructed that the evidence was admitted solely on the issue of preparation or plan and that the defendant was not charged in this case with any offenses he might have committed in Dane county.
On April 30, 1981, the jury found the defendant guilty of attempted first-degree murder, party to a crime, in violation of secs. 940.01(1), 1 939.32(1), 2 and 939.05, 3 Stats. On July 10, 1981, the court entered a judgment of conviction and sentenced the defendant to an indeterminate term not to exceed eighteen years. On October 1, 1981, the defendant filed a notice of appeal from the judgment of conviction. 4
On appeal, the defendant argued that the trial court erred in admitting evidence of the Dane county shooting incident and that there was insufficient evidence for the bindover after the preliminary examination and for the conviction after trial. The court of appeals sua sponte identified as an issue the failure of the trial court to perform the balancing test required by sec. 904.03, Stats., 5 before admitting the Dane county shooting evidence. After weighing the various procedural alternatives it believed were approved by this court, the court of appeals on September 27, 1982, remanded the case to permit the trial court to conduct the necessary balancing test. 6 On October 4, 1982, the trial court filed a certification with the court of appeals. In the certification, the trial court reviewed the evidence presented in the case and determined that the probative value of the Dane county shooting evidence far exceeded the danger of unfair prejudice to the defendant. On December 24, 1982, the court of appeals accepted the trial court's determination under the balancing test and affirmed the judgment of conviction, finding that the evidence supported the bindover and the jury's conviction. The defendant petitioned this court to review the court of appeals' decision, and we granted the petition on March 15, 1983.
Upon review of evidentiary issues, "[t]he question on appeal is not whether this court, ruling initially on the admissibility of the evidence, would have permitted it to come in, but whether the trial court exercised its discretion in accordance with accepted legal standards and in accordance with the facts of record." State v. Wollman, 86 Wis.2d 459, 464, 273 N.W.2d 225 (1979). Thus, the test is not whether this court agrees with the ruling of the trial court, but whether appropriate discretion was in fact exercised. Id. This court will not find an abuse of discretion if there is a reasonable basis for the trial court's determination. Boodry v. Byrne, 22 Wis.2d 585, 589, 126 N.W.2d 503 (1964). For a discretionary decision of this nature to be upheld, however, "there should be evidence in the record that discretion was in fact exercised and...
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