State v. Rewolinski

Decision Date07 November 1989
Docket NumberNo. 88-2312-CR,88-2312-CR
Citation153 Wis.2d 773,452 N.W.2d 585
PartiesNOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.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. Robert Donald REWOLINSKI, Defendant-Appellant.
CourtWisconsin Court of Appeals

Circuit Court, Pierce County.

AFFIRMED.

Appeal from a judgment and an order of the circuit court for Pierce County: Robert W. Wing, Judge.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

MYSE, Judge.

Robert Rewolinski appeals his conviction of first-degree murder. Rewolinski alleges that the trial court erred by failing to order a videotape record of the trial so that the translation of the sign language used by witnesses who could neither hear nor speak could be reviewed upon appeal. He also alleges that the trial court erred by admitting into evidence the transcript of a TDD (a telecommunications device for the deaf, permitting telephone communications between deaf people) conversation between himself and the victim, Catherine A. Teeters, who are both nonverbal and deaf. Rewolinski further alleges that the trial court erred by admitting evidence of four-year-old prior violent acts toward Teeters. Finally, he challenges the sufficiency of the evidence to support the first-degree murder verdict. We conclude that the trial court adequately protected Rewolinski's right to accurate interpretation and a record sufficient for appellate court review, Rewolinski had no reasonable expectation of privacy in the TDD communication between himself and Teeters, the evidence of prior violent conduct by Rewolinski toward Teeters was admissible to rebut his heat of passion defense, and there is sufficient evidence to support the guilty verdict and therefore affirm his conviction.

This case arose from Teeters' death on June 9, 1987. Teeters resided with Rewolinski for a number of years, and the couple had two children. Teeters' body was found with her head submerged in a partially-filled bathtub with a belt around her throat. Ligature strangulation was found to be the cause of death. Rewolinski admitted committing the acts causing Teeters' death. However, he stated "I lost my mind," and claimed that he had killed her in the heat of passion after he learned that Teeters was having an affair with another man and she told him that he was an unfit father and would be unable to see his children.

Earlier that day, Rewolinski had been arrested for operating a motor vehicle with a suspended license. After being released by the sheriff's department, he used a TDD to communicate with Teeters, requesting that she come to the sheriff's department to pick him up. A TDD creates a written transcript of the messages, which are also displayed on the machine and may be read by the person using the machine. One may press a designated button so that no written transcript of the conversation will be created. Both the sheriff's department and Rewolinski's home were equipped with similar, though not identical, TDDs.

During the series of conversations between Rewolinski and Teeters, a transcript was created because Rewolinski did not press the button that would have limited the machine to displaying a nonpermanent message. After the conversations had been completed, Rewolinski ripped the tape from the machine and attempted to exit the sheriff's department. 1 A sheriff's deputy stopped Rewolinski and advised him that he could not remove the tape from the sheriff's department. Rewolinski was unwilling to surrender the tape, so the deputy forced open Rewolinski's hand and removed the tape from his possession. The transcript of the conversations refers to Rewolinski's physical assault on Teeters one month before and her fear of him. In these conversations, she communicated: "I am scared to death that you will make us die in [a] car accident."

Rewolinski, Teeters and several of the witnesses testifying at trial are nonverbal and deaf. The court appointed five skilled sign language interpreters, two for the court, two for the defense, and one for the prosecution to translate testimony and permit communication between Rewolinski and his counsel. The trial court ordered a television monitor to display each of the witnesses' spoken words from a simultaneous transcription of such testimony, and a screen to prevent anyone from intruding on Rewolinski's conversations with counsel. The trial court, however, denied Rewolinski's motion to videotape the entire trial, particularly the signing of the various witnesses who testified.

Rewolinski argues that the trial court erred by refusing his request for a videotape record of the entire trial. Rewolinski argues that the right to seek appellate relief guaranteed in State v. Perry, 136 Wis.2d 92, 401 N.W.2d 748 (1987), and the right to have an accurate interpretation of the signed testimony mandate a video transcript of the entire trial. Rewolinski claims that such a record is the only way to ensure that the accuracy of the translations can be reviewed by an appellate court.

In addressing this issue, we must first determine the applicable standard of review. The need for interpretation, the form such interpretation takes, and the process used for such interpretation are submitted to the trial court's discretion. State v. Neave, 117 Wis.2d 359, 344 N.W.2d 181 (1984). It is, however, a question of law whether Rewolinski has a record sufficient for appellate review. Perry, 136 Wis.2d at 97, 401 N.W.2d at 750-51. We review questions of law independently, without deference to the trial court. State v. Wisumierski, 106 Wis.2d 722, 733, 317 N.W.2d 484, 489 (1982).

We first observe that the trial court took sufficient safeguards to protect Rewolinski's rights to participate in the trial in a meaningful way and to assure the accuracy of the interpretation at the trial court level. A simultaneous translation of the proceeding was made for Rewolinski's benefit. Rewolinski's ability to communicate with his counsel was assured, and a procedure was established for Rewolinski to stop the proceedings if he failed to understand or observed a misinterpretation of witness testimony. The two defense interpreters were available not only to verify the interpretations being made by the court interpreters, but to assist in communication between counsel and either Rewolinski or witnesses. These steps adequately protected Rewolinski's right to understand and participate in the trial and ensured accurate translation.

We are also satisfied that an adequate record for appellate review has been created. The procedures established by the trial court properly focused on resolving any question as to the accuracy of interpretation during the trial itself, not at the appellate level. Rewolinski argues for a videotape transcript, but we see no necessity for such a transcript. Neither the trial court nor the appellate court have any special expertise that would assist in resolving conflicts between qualified interpreters as to the meaning of witness testimony. To the extent that a videotape of these proceedings is desirable, it is desirable for all trials. As in any trial, once the spoken word is gone, an error in transcription by the court reporter or a misunderstanding by the fact finder is always a possibility. While the interpretation of signing may be more complex than the interpretation of a foreign language, the essential purpose is to accurately communicate the testimony to the fact finder.

The trial court adopted the far more desirable method of halting the proceedings in the event of an interpretation disagreement. This enabled Rewolinski to clarify any misunderstanding that might exist directly with the witness, and, in the event this process did not resolve the conflict, Rewolinski was free to introduce evidence as to alternative meanings of the signing. Resolution of the matter during the trial, with the fact finder determining disputes as to meaning, is preferable to having the matter raised on appellate review. While there were disagreements as to the meaning of various signs, the record is devoid of any specific area of disagreement that was either unresolved or that the fact finder was not capable of resolving. We commend the court for its diligence in protecting Rewolinski's rights and find no error in its refusal to order a videotape of these proceedings.

Rewolinski next contends that the court erred by admitting a transcript of his TDD communications with Teeters. He argues that these wire communications are...

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