State v. Ray

• Decision Date: 15 January 1992
• Docket Number: No. 91-0463-CR,91-0463-CR
• Citation: 481 N.W.2d 288,166 Wis.2d 855
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Charles C. RAY, Defendant-Appellant. *
• Court: Wisconsin Court of Appeals

Page 288

481 N.W.2d 288

166 Wis.2d 855

STATE of Wisconsin, Plaintiff-Respondent, v. Charles C. RAY, Defendant-Appellant. ^*

No. 91-0463-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Sept. 13, 1991.

Opinion Released Jan. 15, 1992.

Opinion Filed Jan. 15, 1992.

On behalf of the defendant-appellant the cause was submitted on the briefs of Charles C. Ray, pro se, of Waupun.

On behalf of the plaintiff-respondent the cause was submitted on the brief of James E. Doyle, Atty. Gen. and Daniel J. O'Brien, Asst. Atty. Gen.

Before BROWN, ANDERSON and SNYDER, JJ.

ANDERSON, Judge.

Charles C. Ray was convicted of conspiracy to deliver cocaine contrary to sec. 161.41(1)(c), Stats., and sec. 161.41(1x). Undercover agents of the Racine County Metropolitan Drug Enforcement Unit (drug unit) attempted to purchase cocaine from Dennis Natale. The jury found that Ray combined with Natale to deliver cocaine for this purchase. We affirm the judgment except for sentencing. We remand with directions to the trial court to resentence Ray. The facts will be stated where relevant. ¹

I. SUFFICIENCY OF THE EVIDENCE

Ray argues that the evidence was insufficient to prove that a conspiracy existed between Natale and Ray. We disagree.

The standard of review for sufficiency of the evidence to support a conviction is the same in either a direct or circumstantial evidence case. State v. Poellinger, 153 Wis.2d 493, 501, 451 N.W.2d 752, 755 (1990). [A]n appellate court may not reverse a conviction unless the evidence, viewed most favorably to the state and the conviction, is so insufficient in probative value and force that it can be said as a matter of law that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt.

Id.

Conspiracy is committed by one who, "with intent that a crime be committed, agrees or combines with another for the purpose of committing that crime ... if one or more of the parties to the conspiracy does an act to effect its object...." Section 939.31, Stats.

The evidence, when viewed most favorably to the state and the conviction, is sufficient to support the jury's finding. Natale worked as a cook at a restaurant in Racine. On February 10, 1989, Officer Stannis of the drug unit and John Malone, an informant, met with Natale at the restaurant to purchase cocaine. They were unsuccessful.

On February 13, 1989, Ray and his eight-year-old daughter stopped at the restaurant for lunch. Natale was working. Natale and Ray were acquaintances for several years. Both Ray and his daughter testified that during lunch Natale indicated to Ray that Natale had a friend who wanted to buy a gold watch. Natale and Ray decided that the probable weight of a gold watch would be forty grams, and that it would cost approximately $11 per gram. Ray indicated that he would attempt to obtain a gold watch for Natale. Ray said that he would return to the restaurant the next day, February 14.

On February 14, Officer Stannis and Malone returned to the restaurant to purchase cocaine from Natale. Malone was wired to a radio transmitter, and his conversations were being listened to and recorded by the drug unit's surveillance team. After negotiations over quantity and price, Malone gave Natale $600 for the purchase of two eight-balls, or about seven grams, of cocaine. Several times during the attempted purchase Natale indicated to Malone that his source would arrive soon with the cocaine. Officer Stannis and Malone were at the restaurant for a period of two to three hours. At no time did Natale indicate the name of his source.

At one point Malone saw Natale speaking with a person at the rear of the restaurant. He suspected that this was the source for the cocaine. Malone instructed the surveillance team to arrest that person when he left the restaurant.

Ray was arrested moments after he drove away from the restaurant. At the time of the arrest, Ray had $440 of the marked bills in his pockets. Natale had the remaining $160 at the time of his arrest. Ray told the police that the money was a repayment of a debt. No cocaine was found on Ray, on Natale, or at the restaurant. At trial, Ray testified that Natale gave him the money to purchase a gold watch.

A reasonable jury could have and did find beyond a reasonable doubt that Ray and Natale had an agreement to obtain cocaine for delivery to a third party, here Officer Stannis and Malone. The jury could reasonably have found that the discussion between Ray and Natale regarding a "gold watch" was in code and was actually referring to cocaine. A jury could reasonably have concluded that Ray returned to the restaurant on February 14 to pick up the money so that he could obtain the cocaine for Natale to sell to Officer Stannis and Malone. ² We conclude that the evidence was sufficient to permit the jury to reasonably find that Ray was guilty beyond a reasonable doubt of conspiracy to deliver cocaine.

II. CO-CONSPIRATOR'S STATEMENTS

Ray argues that the trial court improperly admitted testimony into evidence as co-conspirator's statements under sec. 908.01(4)(b)5, Stats. The trial court allowed Malone to testify about several of Natale's statements made during the cocaine negotiations at the restaurant on February 14. These statements included statements about the amount, price and time of delivery. Malone testified to Natale's statements that Natale's source would arrive soon with the cocaine.

The trial court's decision to admit co-conspirator testimony is discretionary. State v. Webster, 156 Wis.2d 510, 514-15, 458 N.W.2d 373, 374-75 (Ct.App.1990). We will affirm the trial court's decision unless the trial court abused its discretion. Id. An abuse of discretion will not be found if the record shows that the trial court correctly applied accepted legal standards to the facts of the record and reached a reasonable conclusion by a demonstrated rational process. See id.

In making the discretionary determination the trial court must find a prima facie showing of the conspiracy from evidence independent of the statement at issue. State v. Dorcey, 103 Wis.2d 152, 157-58, 307 N.W.2d 612, 615 (1981). ³ The trial court may hear the disputed testimony first, contingent upon a later showing that there was a conspiracy. Id. at 158, 307 N.W.2d at 615. If the conspiracy is established, the declarations of one co-conspirator are admissible against the other whether or not they were made in the presence of the co-conspirator. Id.

The record shows that the trial court exercised its discretion and that there was a reasonable basis for the trial court's conspiracy determination. Undercover agents went to the restaurant where Natale worked to buy cocaine from him. After prolonged negotiations, the agents gave Natale $600 in marked bills for the purchase of the cocaine. Natale met with Ray at the rear of the restaurant and Natale gave Ray $440 of the marked bills. Ray left the restaurant and was arrested several blocks away with the marked bills on him. Based on the above evidence, the trial court reasonably determined that the state had sufficient evidence to present a prima facie showing of the conspiracy.

It is necessary for the trial court to determine when the conspiracy began and ended. Id. Commencement and termination of a conspiracy cannot be determined by a hard and fast rule and must be determined by the facts of each case. Id. The record shows that the trial court in this case was aware of this requirement. Although it did not explicitly state the beginning and ending of the conspiracy, our review of the record shows a basis for the trial court's determination that a conspiracy began and ended. See State v. Pharr, 115 Wis.2d 334, 343, 340 N.W.2d 498, 502 (1983). Based on the evidence before the trial court, it reasonably could have concluded that Natale and Ray agreed on February 14 to meet to accomplish the purchase of cocaine for their personal profit and that they acted to accomplish their goal when they exchanged money. Thus, the trial court did not abuse its discretion in admitting Malone's testimony regarding Natale's statements made during the cocaine purchase negotiation.

III. CONFRONTATION CLAUSE

Ray argues that the admission of Natale's statements was a violation of Ray's constitutional right to confront his accusers. See U.S. CONST. amend. VI; WIS. CONST. art. I, sec. 7. ⁴ The confrontation clause is not to be read literally to eliminate the use of all out-of-court statements in a criminal trial, but instead is to be read to reflect a preference for face-to-face confrontation. Ohio v. Roberts, 448 U.S. 56, 63, 100 S.Ct. 2531, 2537, 65 L.Ed.2d 597 (1980). In Roberts, the Court recognized that "competing interests, if 'closely examined,' may warrant dispensing with confrontation at trial." Id. at 64, 100 S.Ct. at 2538 (quoting Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1046, 35 L.Ed.2d 297 (1973)). Hearsay evidence may be admitted without causing a confrontation problem in some circumstances. Id. at 66, 100 S.Ct. at 2539.

This court held in Webster that a statement of a co-conspirator that is not hearsay as provided by sec. 908.01(4)(b)5, Stats., may be admitted into evidence without proof of the declarant's unavailability and without a showing of particular indicia of reliability. Webster, 156 Wis.2d at 522, 458 N.W.2d at 378. As we already have stated, the trial court did not abuse its discretion in determining that Natale's statements were not hearsay under sec. 908.01(4)(b)5. However, the trial court must examine the case for unusual circumstances that would warrant exclusion of the statement. Webster, 156 Wis.2d at 522, 458 N.W.2d at 378.

Ray contends that there were unusual circumstances warranting the exclusion of Malone's testimony of Natale's statements. We conclude that none of these circumstances, separately or combined, warrants the exclusion of Malone's testimony. ⁵ First, Ray contends that Natale was available for...