State v. Smith, 94-3350-CR

• Decision Date: 14 March 1996
• Docket Number: No. 94-3350-CR,94-3350-CR
• Citation: 553 N.W.2d 824,203 Wis.2d 288
• Parties: STATE of Wisconsin, Plaintiff-Respondent, d v. Walter SMITH, Defendant-Appellant. . Oral Argument
• Court: Wisconsin Court of Appeals

Page 824

553 N.W.2d 824

203 Wis.2d 288

STATE of Wisconsin, Plaintiff-Respondent, ^d v. Walter SMITH, Defendant-Appellant.

No. 94-3350-CR.

Court of Appeals of Wisconsin.

Oral Argument March 14, 1996.

Opinion Released June 25, 1996.

Opinion Filed June 25, 1996.

For the defendant-appellant the cause was submitted on the briefs of Patricia K. Flood, Assistant State Public Defender.

For the plaintiff-respondent the cause was submitted on the briefs of James E. Doyle, Attorney General, and Jerome S. Schmidt, Assistant Attorney General.

Before WEDEMEYER, P.J., and SULLIVAN and SCHUDSON, JJ.

SULLIVAN, Judge.

Walter Smith appeals from a judgment of conviction for first-degree intentional homicide, as a party to a crime. He also appeals from an order denying his motion for postconviction relief. At issue is whether the trial court committed reversible error when it refused to allow Smith, under RULE 906.09, STATS., to impeach a State witness by introducing evidence of the witness's prior criminal convictions. ¹ We conclude that the trial court misapplied Wisconsin law when it excluded the evidence, and further, that this error was not harmless. Accordingly, we must reverse both the judgment and order and remand for a new trial.

I. BACKGROUND.

On July 16, 1993, Travis Craig was shot and killed while he stood at a phone booth with his uncle, George Owens. Craig was shot twice; a 9mm bullet recovered from Craig's body matched eight cartridge casings found in an alley adjacent to the phone booth.

The State's theory was that Owens was the intended target of the shooting, and that Smith and Troy Jackson, as parties to a crime, killed Craig while shooting at Owens. The State's theory was that the shooting was the result of an ongoing argument between Jackson and Owens over the quality of cocaine sold by Jackson to Owens's girlfriend, Myrtle Robertson.

No physical evidence or eyewitness testimony linked either Smith or Jackson to the shooting; the State's case was based exclusively on circumstantial evidence. The key evidence was supplied through Robertson's testimony. Both the State and Smith concede that Robertson made conflicting statements concerning what occurred on the day of the shooting.

At trial, Robertson testified that on the day of the shooting, she saw Jackson and his girlfriend outside--Smith was not seen. She went inside and called her mother on the telephone and then heard a gunshot. She went outside and was told by friends that there was an altercation between Jackson and Owens. She went back inside and called her sister, and while on the phone, Jackson and Smith knocked on the door. Smith told her that if she did not tell them where Owens was, he would kill her. Smith had a gun that looked like an Uzi, and she thought Jackson had a firearm as well.

Robertson stated she then walked with Smith and Jackson to Owens's uncle's apartment, but was unable to get inside, so they returned to her apartment. Smith and Jackson left and came back, and Robertson attempted to call Owens's uncle, but was unsuccessful. She said Smith told her they didn't want George Owens, they wanted his son, because Owens was not worth killing. They then left her apartment.

Robertson stated that she then received a call from Jeanetta Owens and talked for about twenty minutes. Jeanetta Owens called again around midnight. While Robertson was on the phone, someone knocked on the door. Jackson, his girlfriend, and Smith were outside.

Robertson stated that Smith told her that the police would be coming to ask her questions and he warned her not to give the police his name. Robertson stated he threatened to kill her if she did. At this time, neither Smith nor Jackson appeared to be carrying a gun.

Robertson gave variant statements to police. During Robertson's first questioning by police, she told them that it was Jackson, not Smith, who had a gun when they first visited her apartment. She gave a second statement in which she said Jackson had an Uzi-type gun. She later gave a third statement in which she said both Jackson and Smith were carrying guns.

Further, at the preliminary hearing, Robertson testified that Smith was alone when he came to her apartment the second time; however, at trial, she could not remember this testimony. During her trial testimony, Robertson was repeatedly challenged through her prior inconsistent statements and different versions of what she stated had occurred. Both Smith and the State concede that Robertson's testimony was severely tested on these points during cross-examination.

Smith argues that the trial court erred, however, before Robertson even testified at trial. Robertson, George Owens, and another State witness had criminal records--so did Smith and Jackson. Smith wished to impeach the State's witnesses, particularly Robertson by questioning them about their prior convictions.

According to the transcript in this case, Robertson had two convictions in 1975 for injury by conduct regardless of life, one drug-related conviction in 1982, a conviction for battery in 1985, and a conviction for drug possession with intent to deliver in 1990.

The trial court heard arguments on the admission of this evidence, and as will be discussed in detail below, ruled that none of the witnesses' prior convictions would be allowed into evidence. The jury convicted both Smith and Jackson of Craig's homicide, as party to a crime. Smith filed a postconviction motion alleging, inter alia, that the trial court erroneously exercised its discretion in excluding the prior conviction evidence. The trial court denied the motion, stating that the evidence was properly excluded.

II. ANALYSIS.

A. Prior Conviction Evidence.

Although the trial court excluded all evidence of prior convictions, Smith focuses his challenge on the exclusion of Robertson's prior convictions--so do we. Based on the trial court's ruling when compared to the standards set forth in Wisconsin law, we conclude that the trial court erroneously exercised its discretion in excluding evidence of Robertson's convictions.

Evidence that a witness has been convicted of a crime is admissible for the purpose of attacking the witness's credibility by an inference on the witness's character for truthfulness. RULE 906.09, STATS. (1993-94). ² A prior conviction of any crime is relevant to the credibility of a witness's testimony. State v. Kruzycki, 192 Wis.2d 509, 524, 531 N.W.2d 429, 435 (Ct.App.1995). RULE 906.09 "reflects the longstanding view in Wisconsin that 'one who has been convicted of a crime is less likely to be a truthful witness than one who has not been convicted.' " State v. Kuntz, 160 Wis.2d 722, 752, 467 N.W.2d 531, 542 (1991) (citation omitted).

Whether to admit prior conviction evidence for impeachment purposes under RULE 906.09 is a matter within the discretion of the trial court. Kruzycki, 192 Wis.2d at 525, 531 N.W.2d at 435. "When we review a discretionary decision, we consider only whether the trial court properly exercised its discretion, putting to one side whether we would have made the same ruling." Id. Nonetheless, a trial court's misapplication of the law is an erroneous exercise of discretion on which we must reverse the trial court's ruling. State v. Hutnik, 39 Wis.2d 754, 763, 159 N.W.2d 733, 737 (1968).

A trial court considering whether to admit evidence of prior convictions for impeachment purposes should consider the following factors: (1) the lapse of time since the conviction; (2) the rehabilitation or pardon of the person convicted; (3) the gravity of the crime; and (4) the involvement of dishonesty or false statement in the crime. Kruzycki, 192 Wis.2d at 525, 531 N.W.2d at 435 (citation omitted). These factors are weighed in a balancing test to determine whether the probative value of the prior conviction evidence "is substantially outweighed by the danger of unfair prejudice." RULE 906.09(2), STATS. (1993-94). ³

Here, the trial court refused to admit evidence of Robertson's prior convictions, based primarily, as the State reluctantly conceded at oral argument, on an erroneous interpretation of Wisconsin law. The trial court stated that it had a problem with giving the jurors information about the number of a witness's prior convictions "without telling them what the convictions are for."

When ruling on this issue at trial, the court stated:

[A]s I've said many times from the bench in excluding evidence of these convictions for defendants, I have serious doubts about the probative value of any of this when the jury doesn't learn about what the conviction is for. If I was sitting on a jury and heard that someone had a prior conviction, I would lean forward and wait to hear whether it was for homicide, perjury, forgery, or retail theft of a pack of cigarettes before I would have the slightest idea what weight to give it in deciding someone's credibility.

Again, when ruling on postconviction motions, the trial court posited that evidence of prior convictions in general had "low probative value." Hence, the trial court ruled its "principal concern [was] that jurors, not knowing what the[ ] convictions [we]re for, might give them much greater weight than they deserve." We are concerned that the trial court's general attitude on prior conviction evidence, as reflected throughout the record, tainted its analysis of the probative value of Robertson's prior convictions.

Wisconsin law is very clear that if evidence of prior convictions is admitted, witnesses may be asked if they have been convicted of a crime, and if the answer is yes, the number of convictions. State v. Midell, 39 Wis.2d 733, 738-39, 159 N.W.2d 614, 617 (1968). The nature of the convictions is not to be discussed by the proffering party. See id. As one commentator has noted about this "counting rule":

The convictions themselves do not necessarily have to bear on a person's character for truthfulness.... The assumption is that the longer the...