State v. Smith

• Citation: 648 N.W.2d 15,254 Wis.2d 654,2002 WI App 118
• Decision Date: 09 April 2002
• Docket Number: No. 01-1662-CR.,01-1662-CR.
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Zebelum SMITH, Defendant-Appellant.
• Court: Court of Appeals of Wisconsin

254 Wis.2d 654

2002 WI App 118

648 N.W.2d 15

STATE of Wisconsin, Plaintiff-Respondent, v. Zebelum SMITH, Defendant-Appellant.¹

No. 01-1662-CR.

Court of Appeals of Wisconsin.

Submitted on briefs February 5, 2002.

Decided April 9, 2002.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Erich C. Straub of Kachelski, Atta & Straub, S.C., of Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Marguerite M. Moeller, assistant attorney general, and James E. Doyle, attorney general.

Before Wedemeyer, P.J., Fine and Curley, JJ.

¶ 1. CURLEY, J.

Zebelum Smith appeals from the judgment of conviction entered after a jury convicted him of second-degree sexual assault of a child, party to a crime, contrary to WIS. STAT. §§ 948.02(2) and 939.05 (1999-2000).² He also appeals from the trial court's order denying his postconviction motion for a new trial. Smith claims that the trial court violated his constitutional rights to confrontation, due process and compulsory process by excluding extrinsic evidence of the victim's alleged prior inconsistent statements. We disagree and affirm.

I. BACKGROUND.

¶ 2. At the time of this incident, the victim was fourteen years old. She testified that on February 23, 2000, she was on her way to the corner grocery store when she saw an acquaintance, John Harris, along with two other individuals sitting in a car across the street from the store. John signaled for her to come over, and she approached the car. John then asked her to run up to Smith's apartment, which was located near the store, to get some cigarettes from his brother, Albert Harris, whom she knew by the name of "Tweet." The victim agreed and went to the apartment.

¶ 3. The victim testified that she knocked on the front door of the apartment, which Smith answered. When she asked for Tweet, Smith signaled to a back bedroom. She went to the back bedroom, but the light was turned off and nobody was in the room. Then Smith entered the bedroom with three other men, Torrence Whitmore and two other men that she only knew by the names "Red" and "Black." Red then forced her down on the bed and began kissing her neck, while Black put his hands down her pants and put his finger in her vagina. She testified that Smith left the room as these two men continued molesting her, but that he later returned to the bedroom completely naked, touched his erect penis to her cheek, and told her to "kiss it." Albert Harris then entered the room, turned on the light, chastised the others, and escorted the victim out of the house. Although Whitmore was present during the entire incident, the victim testified that he never touched her.

¶ 4. After the incident, the victim gave three statements to the police regarding the activities on the night of February 23, 2000. The victim gave one statement to each of the following in order: Officer Peter Reichert, Detective Paul Leshok, and Detective Vickie Hall. During cross-examination of the victim, defense counsel questioned her regarding whether she had given a number of statements to the police, but never confronted the victim with any inconsistencies in those prior statements. However, Smith later attempted to introduce these statements as prior inconsistent statements pursuant to WIS. STAT. § 906.13. The trial court excluded the statements, ruling that a proper foundation had not been laid pursuant to § 906.13 and, exercising its powers pursuant to WIS. STAT. § 906.11, determined that the victim could not be recalled, in order to avoid needless consumption of time and harassment.

II. ANALYSIS.

¶ 5. Smith first contends that the trial court erred by precluding the testimony of the law enforcement officers regarding prior statements made by the victim. He argues that because the requirements of WIS. STAT. § 906.13(2)(a)2 had been satisfied, the trial court erroneously excluded the evidence pursuant to WIS. STAT. § 906.11(1).³ While we agree that Smith met the evidentiary requirements of § 906.13(2)(a)2, and that such evidence may not be excluded merely by invoking § 906.11(1), we conclude that any error was harmless.

[1, 2]

¶ 6. "Few rights are more fundamental than that of an accused to present witnesses in his own defense." Chambers v. Mississippi, 410 U.S. 284, 302 (1973). In the exercise of this right, the accused must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence. See id. Further, due process prohibits the trial court from applying the evidentiary rules so that critical defense evidence is excluded. See State v. Sharlow, 110 Wis. 2d 226, 233, 327 N.W.2d 692 (1983)

.

[3, 4]

¶ 7. Generally, the trial court's determination to admit or exclude evidence is a discretionary decision that will not be upset on appeal absent an erroneous exercise of discretion. State v. Jenkins, 168 Wis. 2d 175, 186, 483 N.W.2d 262 (Ct. App. 1992). However, in the present case, where the focus of the claim is on the constitutional right of a defendant to confront witnesses, the issue is one of constitutional fact. See State v. Dunlap, 2001 WI App 251, ¶ 17, 239 Wis. 2d 423, 620 N.W.2d 398

(stating that "a determination of whether the circuit court's actions violate the defendant's constitutional rights to confrontation and to present a defense is a question of constitutional fact"), rev'd on other grounds, 2002 WI 19, 250 Wis. 2d 466, 640 N.W.2d 112.

[5]

¶ 8. "This court has traditionally treated questions of constitutional fact as mixed questions of fact and law, and it has applied a two-step standard when reviewing lower court determinations of constitutional fact." State v. Phillips, 218 Wis. 2d 180, 189, 577 N.W.2d 794 (1998).

[A]n appellate court reviewing issues of constitutional fact examines two determinations made by the circuit court, but applies a different standard of review to each. The circuit court first determines the evidentiary or historical facts relevant to the issue. The circuit court then applies those facts to resolve the constitutional questions.

The standard of review by the appellate court of the trial court's findings of evidentiary or historical facts is that those findings will not be upset on appeal unless they are [clearly erroneous]. This standard of review does not apply, however, to the trial court's determination of constitutional questions. Instead, the appellate court independently determines the questions of "constitutional" fact.

Id. (citations omitted).

[6-8]

¶ 9. "The constitutional right to present evidence is grounded in the confrontation and compulsory process clauses of Article I, Section 7 of the Wisconsin Constitution and the Sixth Amendment of the United States Constitution." State v. Pulizzano, 155 Wis. 2d 633, 645, 456 N.W.2d 325 (1990). The Sixth and Fourteenth Amendments to the United States Constitution and Art. I, § 7 of the Wisconsin Constitution assure criminal defendants the right to confront any witnesses against them.⁴ The Sixth Amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him [and] to have compulsory process for obtaining witnesses in his favor . . . ." Article I, Section 7 of the Wisconsin Constitution similarly provides: "In all criminal prosecutions the accused shall enjoy the right . . . to meet the witnesses face to face [and] to have compulsory process to compel the attendance of witnesses in his behalf . . . ."

The rights granted by the confrontation and compulsory process clauses are fundamental and essential to achieving the constitutional objective of a fair trial. The two rights have been appropriately described as opposite sides of the same coin and together, they grant defendants a constitutional right to present evidence. The former grants defendants the right to "effective" cross-examination of witnesses whose testimony is adverse, while the latter grants defendants the right to admit favorable testimony. The right to present evidence is not absolute, however. Confrontation and compulsory process only grant defendants the constitutional right to present relevant evidence not substantially outweighed by its prejudicial effect.

Pulizzano, 155 Wis. 2d at 645-46 (citations omitted).

¶ 10. When Smith attempted to call Officer Reichert to introduce the alleged inconsistent statements of the victim into evidence, the trial court and defense counsel had the following exchange:

[THE COURT:] Do you have an offer of proof as to what Reichert would say?

[DEFENSE COUNSEL:] Yes. I am actually going to bring in the prior inconsistent statements. I do have [the victim] here again today under subpoena, so she would be available to be recalled.

. . . .

She is available right now, because she is here under subpoena. And so I believe that pursuant to 906.13, that because she is here, she has not been excused from giving further testimony in the action.

[THE COURT:] In examining [the victim,] you had the witness on the stand. You examined the witness . . . . What I'm saying is you could have done it under 906.13 when she was on the stand and when you ventured into your area of cross-examination regarding [the victim's] interaction with Reichert, but you chose not to go far enough. You could have done it, but you didn't.

. . . .

I'm exercising my authority under 906.11. . . . We're going to avoid needless consumption of time, [and] I'm going to protect [the victim] from further harassment.

[9]

¶ 11. The trial court erred in two respects. First, because Smith satisfied the evidentiary foundation set forth in WIS. STAT. § 906.13(2)(a)2, we conclude that the trial court erred, as a matter of law, when it ruled that Smith was precluded from calling Officer Reichert to testify regarding the alleged prior inconsistent statement of the victim.

¶ 12. Although WIS. STAT. §...