State v. Reimann, 94-2528-CR
| Decision Date | 17 October 1996 |
| Docket Number | No. 94-2528-CR,94-2528-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| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.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. Thomas W. REIMANN, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Appeal from judgments and orders of the circuit court for Dane County: DANIEL R. MOESER, Judge.
Peg Carlson Chief Staff Attorney 119 Martin Luther King Blvd. Madison, WI 53703
Judy Schwaemle Ass't District Attorney City-County Bldg. 210 M L King Jr. Blvd. Madison, WI 53709
James M. Freimuth Assistant Attorney General P.O. Box 7857 Madison, WI 53707
T. Christopher Kelly Reynolds, Thomas Kelly 145 West Wilson Madison, WI 53703
Before EICH, C.J., GARTZKE, P.J., and VERGERONT, J.
Thomas Reimann appeals from judgments convicting him of two controlled substance violations and a weapon violation, and from orders denying his postconviction motions and a motion to reopen a postconviction evidentiary hearing.
He raises several issues: (1) whether tape recordings of his telephone conversations with a police informant were improperly admitted into evidence because (a) the statute allowing one-party-consent conversations into evidence, enacted before trial but after the recordings were made, cannot be applied retroactively and, alternatively, (b) the recordings were not properly authenticated; (2) whether the State's failure to turn over exculpatory evidence violated his due process rights; (3) whether the trial court erroneously instructed the jury that it was required to accept the testimony of one of the State's witnesses; (4) whether the court erred in allowing the hearsay testimony of another State witness; and (5) whether the court erred when it denied his request to reopen the postconviction motion hearing.
We reject all his arguments and affirm the judgments and orders.
Two cases are consolidated on this appeal. In the first, Reimann entered a plea of guilty to a charge of possession of a firearm by a felon and to a charge of possession of Dilaudid, a controlled substance. He was charged after police officers, who were serving an arrest warrant on him at a Madison motel, found pills in the bathroom and a sawed-off shotgun under the bed. The second case, in which he was charged with delivery of heroin (as a repeater), went to trial and was found guilty by the jury.
Through several postconviction attorneys and several postconviction motions, he sought to withdraw his plea to the firearm-possession charge and a new trial on the heroin charge. The trial court conducted three days of evidentiary hearings on the motions over a three-month period in 1992. After the hearings, Reimann, both pro se and through counsel, filed several briefs with the court, as well as several other documents suggesting additional grounds for relief. He also moved to reopen the hearings to take additional evidence. The trial court denied all Reimann's motions.
The primary witness at Reimann's drug trial was Felipe Banuelos, a special agent employed by the Division of Criminal Investigation of the Wisconsin Department of Justice. Banuelos, working undercover, met a man named Robert Watson who was being held at the Dane County Jail on a charge of obtaining a prescription by fraud. Watson suggested Reimann as a possible subject for investigation and offered to assist in the investigation.
In Banuelos's presence and at his direction, Watson telephoned Reimann to arrange a drug purchase. The call was tape-recorded. Watson told Reimann that his "buddy" wanted some morphine sulfate tablets, and Reimann responded that he was going to have to take heroin instead. When informed that Watson's "buddy" had $400 to spend, Reimann said: They arranged to meet later in the day.
Banuelos and Watson drove to the agreed-upon location, where Reimann told them he wanted $230 for the heroin. When Banuelos attempted to hand him the money, he refused it, telling him to give it to Watson instead. Watson went to Reimann's car with the money and returned moments later with a small package containing a "brown substance" 1 and a "little round ball." Banuelos was wearing a recording device during his meeting with Reimann, and their recorded conversations were allowed into evidence at the trial.
Reimann's theory of defense was entrapment: he testified that, while he was a serious drug user, he was not a seller, and had sold the heroin to Banuelos only because Watson told him Banuelos was going to "hurt" him (Watson) unless he could come up with some money to pay off a debt.
While Reimann concedes the accuracy of the tape recordings (insofar as they are audible), he challenges their admission on two grounds. First, acknowledging the constitutionality of § 968.29(3)(b), Stats., which permits intercepted communications to be introduced into evidence in drug prosecutions, 2 he argues that the statute, which became effective after Banuelos's recordings were made, cannot be retroactively applied to him. Alternatively, he argues that if § 968.29(3)(b) applies to the recordings in question, they still were not admissible because they were not "authenticated," as required by the statute.
Rather than directly arguing that the statute is inapplicable on retroactivity grounds, Reimann contends that his counsel was ineffective for not timely raising the retroactivity issue during trial. We assume he does so because he did not raise the issue in the trial court and is familiar with the well-known rule that we generally will decline to entertain such arguments. See State v. Peters, 166 Wis.2d 168, 174, 479 N.W.2d 198, 200 (Ct.App.1991). However he frames the argument, we reject it.
Reimann correctly points out that prior to the adoption of § 968.29(3)(b), Stats., tape recordings made with the consent of only one party to a conversation were not admissible in evidence. State ex rel. Arnold v. County Court, 51 Wis.2d 434, 444, 187 N.W.2d 354, 359 (1971). Section 968.29(3)(b), as we have said, amended the statute to render such recordings admissible in controlled-substance cases under chapter 161; the amendment became effective after Banuelos had made the recordings but before the trial.
Whether a statute may be applied retroactively is a question of law which we review independently, owing no deference to the trial court's analysis. Schulz v. Ystad, 155 Wis.2d 574, 596, 456 N.W.2d 312, 370 (1990). Generally, if a statute is unclear in regard to its prospective or retroactive application, it is considered to apply prospectively only. Wipperfurth v. U-Haul Co., 98 Wis.2d 516, 522, 297 N.W.2d 65, 68 (Ct.App.1980), aff'd, 101 Wis.2d 586, 304 N.W.2d 767 (1981). However, if a statute "is remedial or procedural, rather than substantive in nature, it will be given retroactive application unless there is a clearly expressed legislative intent to the contrary or unless retroactive application will disturb contracts or vested rights." City of Madison v. Town of Madison, 127 Wis.2d 96, 102, 377 N.W.2d 221, 224 (Ct.App.1985).
We discussed the distinction between "procedural" and "substantive" laws in City of Madison, 127 Wis.2d at 102, 377 N.W.2d at 224. If a statute "simply prescribes the method--the 'legal machinery'--used in enforcing a right or remedy," it is considered to be procedural. Id. (quoted source omitted). However, if a law "creates, defines or regulates rights or obligations, it is substantive--a change in the substantive law of the state." Id.
Reimann argues that, prior to the adoption of § 968.29(3)(b), Stats., Wisconsin citizens had a substantive right to privacy in oral communications--a right he says the supreme court recognized in Arnold--which was abrogated by the enactment of the statute. As a result, Reimann says, § 968.29(3)(b) cannot be retroactively applied to him. We disagree. We believe the change wrought by the enactment of subsection (b) was procedural, not substantive, and that Arnold does not require a contrary result.
Prior to the addition of subsection (b) to Section 968.29(3), Stats., one-party-consent communications were subject to interception by law enforcement authorities and could be disclosed in court, subject only to the general rules of evidence, if the interception had been authorized by the court under procedures set forth in chapter 968. 3 Additionally, the "consenting" party's testimony describing the contents of the conversation has always been admissible independently of the admissibility of the recording of the conversation. State v. Smith, 72 Wis.2d 711, 713-17, 242 N.W.2d 184, 185-87 (1976); State v. Maloney, 161 Wis.2d 127, 129-30, 467 N.W.2d 215, 216 (Ct.App.1991); see also Rathbun v. United States, 355 U.S. 107, 110, 78 S.Ct. 161, ---, 2 L.Ed.2d 134 (1957) ().
Thus, a person in Reimann's position had no way of knowing or ensuring that his conversations with Watson would not be recorded and, if recorded, could not be used against him in police investigations--and, if certain prerequisites were met, in a court of law. In other words, he had no substantive right of privacy in the contents of his conversations with Watson. The adoption of § 968.29(3)(b), Stats., altered only the "legal machinery" through which intercepted communications could be used in court proceedings.
In so concluding, we reject Reimann's argument that Arnold recognized a substantive right in such circumstances. Arnold, who was being prosecuted for bribery, sued to prohibit the state from introducing into evidence tape-recordings of his conversations obtained through the use of a hidden microphone. Arnold, 51...
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