State v. Speer

Decision Date23 June 1993
Docket NumberNo. 91-2523-CR,91-2523-CR
Citation176 Wis.2d 1101,501 N.W.2d 429
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Randy B. SPEER, Defendant-Appellant. d
CourtWisconsin Supreme Court

For the plaintiff-respondent the cause was argued by Sharon Ruhly, Asst. Atty. Gen., with whom on the briefs was James E. Doyle, Atty. Gen.

Amicus curiae brief was filed by Frank Remington, Professor of Law and Walter J. Dickey, Professor of Law, Madison for Legal Assistance to Institutionalized Persons.

BABLITCH, Justice.

This case was certified to this court to resolve a perceived disparity in Wisconsin case law concerning the admission of "other crimes" evidence. According to the court of appeals, some case law suggests that in deciding whether to admit other crimes evidence the circuit court should predispose itself to exclude the evidence, while other case law indicates that the circuit court should begin with a presumption in favor of its admissibility. Additionally, we are asked to decide whether a circuit court's compliance or noncompliance with the sentencing guidelines statute can provide a defendant with a basis for an appeal.

We conclude that the admissibility of other crimes evidence is not controlled by predispositions or presumptions, but rather by a set of well-established rules: The Wisconsin Rules of Evidence. Our case law indicates as much. The purportedly disparate language found in the case law does not address presumptions and is not contradictory. Rather, it discusses separate sections of the rules. Furthermore, as explained in detail below, we conclude that the circuit court did not erroneously exercise its discretion in this case in admitting evidence of Speer's prior conviction for burglary.

We further conclude that the sentencing guidelines statute, sec. 973.012, Stats., unambiguously places a duty on a circuit court to consider the sentencing guidelines when imposing a sentence and to state on the record its reasons for deviating from the guidelines. The statute further provides that a defendant has no right to appeal a sentence solely because the sentence exceeds the guidelines. However, the statute does not deprive an appellate court of jurisdiction to consider whether the sentencing court erroneously exercised its discretion by failing to consider the guidelines or failing to state on the record why it departed from the guidelines. Thus, the question of whether a circuit court has complied with the mandates of sec. 973.012 is an appealable issue that is determined by an appellate court by examining the entire record. We conclude that the circuit court in this case complied with sec. 973.012 and properly exercised its sentencing discretion under McCleary v. State, 49 Wis.2d 263, 182 N.W.2d 512 (1971).

Accordingly, we affirm the circuit court in all respects.

The facts for the basis of this appeal are these. Evidence at Speer's trial elicited certain relevant facts. The home of Dorothy and Charles Cosner was burglarized on September 21, 1990, sometime between 11:00 a.m. and 1:00 p.m. Sometime between 12:00 noon and 1:30 p.m., Speer left jewelry taken from the Cosner's home at a pawnshop. The Cosner's home was located between Janesville Wisconsin, and Albany, Wisconsin just off Britt and Fenrick roads. The Cosner's home could not be seen from the road, but it had a "For Sale" sign posted at the corner of Britt Road and Fenrick.

At Speer's trial for the burglary of the Cosner residence and the theft of the items taken from their home, the circuit court admitted evidence of Speer's prior conviction in California for a daytime burglary of a home which had a "For Sale" sign posted in the front yard. Speer was convicted of burglary and theft and was sentenced to ten years imprisonment and five years probation consecutive to the ten years imprisonment. Further facts, as necessary for the disposition of this case, will appear throughout this opinion.

We turn first to the issue of whether the law concerning the admissibility of other crimes evidence creates either a presumption of exclusion or a presumption of admissibility.

I. OTHER CRIMES EVIDENCE

Section (Rule) 904.04(2), Stats., which governs the admissibility of other crimes evidence, states:

904.04 Character evidence not admissible to prove conduct; exceptions; other crimes.

. . . . .

(2) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. This subsection does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

As our case law indicates, the statute provides that the general rule is one of exclusion: other crimes evidence is not admissible to prove a person's character in order to show that the defendant acted in conformity therewith. See State v. Plymesser, 172 Wis.2d 583, 592, 493 N.W.2d 367 (1992); State v. Fishnick, 127 Wis.2d 247, 253, 378 N.W.2d 272 (1985); State v. Rutchik, 116 Wis.2d 61, 67, 341 N.W.2d 639 (1984). However, as the second sentence of the rule indicates, other crimes evidence is admissible "when offered for some purpose other than to prove the general criminal disposition of the accused." Rutchik, 116 Wis.2d at 68, 341 N.W.2d 639. Once an appropriate objection has been made to the admission of other crimes evidence, the burden is on the proponent of the evidence, in this case the State, to show that the other crimes evidence is relevant to one or more named admissible purposes. Id. If relevancy for an admissible purpose is established, the evidence will be admitted unless the opponent of the evidence can show that the probative value of the other crimes evidence is substantially outweighed by the danger of undue prejudice. Section (Rule) 904.03, Stats. 1 "The probative value of other crimes evidence 'depends in part upon its nearness in time, place and circumstances to the alleged crime or element sought to be proved.' " Rutchik, 116 Wis.2d at 68, 341 N.W.2d 639.

Speer argues that our statement that the general rule is one of exclusion indicates a presumption against the admissibility of other crimes evidence. He notes that this expression of a presumption is at odds with the court of appeals' decisions in Lievrouw v. Roth, 157 Wis.2d 332, 350, 459 N.W.2d 850 (Ct.App.1990); and State v. Grande, 169 Wis.2d 422, 434, 485 N.W.2d 282 (Ct.App.1992), wherein the court stated that the "rules ... favor admissibility."

The admission of other crimes evidence is not controlled by presumptions or predispositions, but rather it is controlled by the Wisconsin Rules of Evidence. Our case law correctly notes that the first sentence of sec. (Rule) 904.04(2), Stats., provides a rule of exclusion; other crimes evidence is excluded when it is offered to prove the criminal disposition of the defendant. The case law in no way indicates that a circuit court should predispose itself against the admission of other crimes evidence. To the extent that Speer reads our statements to indicate such a presumption, he misinterprets our case law and reads a presumption into language that was intended merely to express the rule as provided under sec. (Rule) 904.04(2).

The court of appeals' statement that the "rules favor admissibility" is similarly an expression of what the rules themselves already point out; other crimes evidence is admissible for the relevant admissible purposes other than to show the defendant's disposition to commit a crime. In other words, sec. 904.04(2), Stats, favors admissibility in the sense that it mandates the exclusion of other crimes evidence in only one instance: when it is offered to prove the propensity of the defendant to commit similar crimes.

Similarly, sec. (Rule) 904.03, Stats., favors admissibility in that it mandates that other crimes evidence will be admitted unless the opponent of the evidence can show that the probative value of the evidence is substantially outweighed by unfair prejudice. The term "substantially" indicates that if the probative value of the evidence is close or equal to its unfair prejudicial effect, the evidence must be admitted. As with this court's statement that "the general rule is one of exclusion," the court of appeals' statements in Lievrouw and Grande merely explain secs. (Rules) 904.04(2) and 904.03. The court of appeals' statements were not intended to erroneously indicate that a court should begin an analysis of other crimes evidence with a presumption in favor of its admissibility.

In sum, the law concerning the admissibility of other crimes evidence creates neither a presumption of exclusion nor a presumption of admissibility. Rather, the admissibility of other crimes evidence is controlled by the circuit court's neutral application within its discretion of the well-established rules of evidence which we have set forth in detail above.

We now turn to the merits of this case to determine the validity of the admission of Speer's California conviction for burglary. Our rules for reviewing evidentiary rulings are well established:

the trial court's determination will be upheld where the court exercised its discretion according to accepted legal standards and in accordance with the facts of record. We will not find an abuse of discretion where a reasonable basis exists for the trial court's determination. But the record must reflect that discretion was exercised, including evidence that the trial judge undertook a reasonable inquiry and examination of the facts as the basis for his decision. The inquiry on review is not whether this court, 'ruling initially on the admissibility of the evidence, would have permitted it to come in....' Fishnick, 127 Wis.2d at 257, 378 N.W.2d 272 (citations omitted).

For Speer to prevail on review that the other crimes evidence was inadmissible, we must...

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