State v. Salter
| Citation | 346 N.W.2d 318,118 Wis.2d 67 |
| Decision Date | 08 February 1984 |
| Docket Number | No. 83-305-CR,83-305-CR |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Ricky B. SALTER, Defendant-Appellant. * |
| Court | Wisconsin Court of Appeals |
Bronson C. LaFollette, Atty. Gen., and Sally L. Wellman, Asst. Atty. Gen., for plaintiff-respondent.
Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.
Ricky B. Salter appeals from a judgment of conviction of first-degree murder, contrary to sec. 940.01, Stats., and from an order denying his motions for post-conviction relief. The issues concern the exclusion of the testimony of Dr. Frederick Fosdal, a psychiatrist, and the failure of the trial court to take a personal waiver from Salter when his counsel declined an instruction of a lesser included offense of manslaughter. We conclude that the exclusion of Dr. Fosdal's testimony was proper and that the record does not support the trial court's offer of a lesser included offense of manslaughter. We further deny the request for a new trial in the interests of justice and affirm the conviction.
Salter was originally charged with attempted first-degree murder, contrary to secs. 939.32 and 940.01, Stats., arising out of the shooting of Patricia Wilson. Thereafter, Patricia died of her wounds, and the State issued the information charging Salter with first-degree murder.
The facts relating to events prior to the shooting are not in significant dispute. Salter and Patricia had lived together for six years. They had a four-year-old son, and Patricia was pregnant with Salter's child. On the evening of January 23, 1981, a group of people, including Salter and Patricia, attended a party at the home of Robert Rodriguez. At the party, Patricia became aware that Ann Florez, a guest at the party, had been flirting with Salter. According to Salter's testimony, Patricia expressed her displeasure with this flirting incident and urged Ann's boyfriend to speak with Ann because Patricia did not want to "have to straighten her out."
About 3:00 a.m., the group ran out of beer and traveled to an ice skating arena where they planned to obtain more refreshments. Unable to obtain access to this facility, the group returned to the Rodriguez home. Most of the group went inside, but Salter, Patricia, and Jean Champion remained outside. Salter and Patricia began to argue about whether to stay at the party or go home. Salter wanted to leave, and Patricia wanted to stay long enough to go inside and settle her dispute with Ann Florez. It was at this time that the shooting occurred.
The events surrounding the shooting itself are in sharp dispute. Jean Champion, the State's principal witness, testified that Salter kept trying to get Patricia to go home with him but that Patricia wanted to go inside to fight with Ann Florez. As Patricia walked toward the steps leading to the house in order to "take care of Ann," Salter struck Patricia in the face. She fell to the ground with her head hitting the steps, apparently knocking her out. Champion grabbed Salter's arm and told him to leave Patricia alone. Salter pushed Champion away and Champion went to the assistance of Patricia. While kneeling next to Patricia, Champion heard one or two Salter testified that upon return to the Rodriguez home from the ice arena, Patricia said she was going to "take care of Ann" and "kick this bitch in the ass." As Patricia started up the stairs, Salter reached over and put his hand on top of her head and pushed her downward, forcing her to sit on the steps. Salter then decided to leave without Patricia. He reached into his left back pocket to find a house key to give to Patricia. He had a hand gun in that pocket, removed it with his left hand and placed it in his right hand. His right foot was on the step, and his left foot was on the ground. Salter testified that Champion, upon seeing the gun, grabbed at his right shoulder and near his right wrist. He turned to face her, and as he did so, his right hand hit the railing of the front porch, and the gun went off, striking Patricia. Salter testified that he did not intend to kill Patricia and that the shooting was accidental.
sounds like a cap gun and saw two simultaneous white flashes. She looked at Salter, who was standing about three feet away, and saw his arm pointing toward Patricia's head. Champion testified that the flashes had come from near Salter's outstretched arm. In reply to Champion's remark that she thought Salter had hurt Patricia, Salter replied, "I shot her and killed her."
Patricia was questioned at the Kenosha Memorial Hospital emergency room. She stated that she had been sitting in a station wagon with Salter, that they had gotten into an argument and that Salter had slapped her. She said Salter had a gun, but she did not remember being shot. She subsequently died of her wounds.
About 6:00 a.m. on January 24, 1981, Salter was arrested by officers of the Kenosha Police Department. At the police station, Salter was questioned by Kenosha Detective Michael Serpe. Salter stated the gun went off when Jean Champion struck him on the right side. A formal written statement was subsequently obtained from Salter.
Monte Lutz, a firearms and tool mark examiner with the State Regional Crime Laboratory, testified that the weapon could be discharged without the trigger being pulled or the hammer being cocked and that usual safety devices were not incorporated into the mechanism of the weapon.
At trial, the defense offered the testimony of Dr. Fredrick Fosdal, a psychiatrist, on the matters of intent, absence of motive, mental state or condition of the defendant, credibility, and lesser included offenses. This evidence was excluded by the trial court, citing Steele v. State, 97 Wis.2d 72, 294 N.W.2d 2 (1980), and on the grounds that the proffered testimony invaded the province of the jury. Defense counsel then made an offer of proof in the form of a statement as to Dr. Fosdal's anticipated testimony and further argued that the testimony represented a prior consistent statement by Salter.
Salter contends that Dr. Fosdal's testimony is admissible under sec. 906.08, Stats. The statute provides, in part, as follows:
Evidence of character and conduct of witness. (1) OPINION AND REPUTATION EVIDENCE OF CHARACTER. Except as provided in § 972.11(2), the credibility of a witness may be attacked or supported by evidence in the form of reputation or opinion, but subject to these limitations: a) the evidence may refer only to character for truthfulness or untruthfulness, and b), except with respect to an accused who testifies in his or her own behalf, evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
While the statute clearly allows for the giving of opinion and reputation evidence as to character for truthfulness or untruthfulness, nothing in the offer of proof satisfies us that Dr. Fosdal was prepared to give such opinion or reputation evidence on There is no question but that defense counsel alerted the judge to the fact that the proffered testimony would bear upon Salter's credibility. However, considering the subtle but important evidentiary distinctions drawn between opinion and reputation testimony as to truthfulness (particularly as to requisite foundation), we are not satisfied that the offer of proof in this case stated "an evidentiary hypothesis underpinned by a sufficient statement of facts to warrant the conclusion or inference that the trier of fact is urged to adopt." Milenkovic v. State, 86 Wis.2d 272, 284, 272 N.W.2d 320, 326 (Ct.App.1978). The offer of proof must enable the reviewing court to act with reasonable confidence that the evidentiary hypothesis can be sustained. Id. The offer of proof and the evidentiary arguments did not address these distinctions nor did they demonstrate how the applicable foundation requirements were satisfied.
these matters. The doctor merely recited in his report that Salter "talked freely about his past and present life and the information he volunteered seemed to be generally reliable." There is no indication in Dr. Fosdal's report that the purpose of the examination was to assess the truthfulness of Salter's statements. Rather, Dr. Fosdal performed an examination of Salter pursuant to court order under sec. 971.16[118 Wis.2d 74] (1), Stats. Dr. Fosdal's observation that the information volunteered by Salter "seemed to be generally reliable" relates to the likely accuracy of Salter's recounting of his personal history rather than an attestation as to Salter's truthfulness regarding the events of the shooting. It is important to note that Dr. Fosdal, in his concluding remarks to the trial court in his report, observed "[q]uite clearly, two issues in this case are the credibility of Mr. Salter's account of what happened and knowing exactly what happened." In this context, Dr. Fosdal ventured no opinion
Salter contends that the trial court was obligated to admit Dr. Fosdal's testimony pursuant to State v. Cuyler, 110 Wis.2d 133, 327 N.W.2d 662 (1983). We fully accept the rule of Cuyler that the rules of evidence now allow a witness to give opinion testimony concerning the defendant's character for truthfulness. However, Cuyler also holds that such evidence is not automatically admissible. The trial court may exclude the evidence if the witness lacks personal knowledge. Id. at 139, 327 N.W.2d at 666; see also United States v. Watson, 669 F.2d 1374, 1382 (11th Cir.1982). Nothing in sec. 906.08, Stats., and Cuyler eliminates the duty of the trial court to satisfy itself that minimal levels of competency are met before receiving reputation and/or opinion evidence of...
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