State v. Stuart
| Decision Date | 01 July 2003 |
| Docket Number | No. 01-1345-CR.,01-1345-CR. |
| Citation | 664 N.W.2d 82,262 Wis.2d 620,2003 WI 73 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Paul J. STUART, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
For the defendant-appellant there were briefs by Christopher W. Rose and Rose & Rose, Kenosha, and oral argument by Christopher W. Rose.
For the plaintiff-respondent the cause was argued by Jeffrey J. Kassel, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.
¶ 1.
This case comes before the court on certification from the court of appeals pursuant to Wis. Stat. (Rule) § 809.61 (1999-2000). The overriding issue requiring our examination is whether a previous order entered by the court in this case establishes the "law of the case."
¶ 2. The legal questions raised here revolve around the propriety of admitting a witness's preliminary hearing testimony in a criminal trial. In February 1999, Paul Stuart, the defendant, was convicted of first-degree intentional homicide. He was convicted following a jury trial in which the Kenosha County Circuit Court, Michael S. Fisher, Judge, allowed the preliminary hearing testimony of the defendant's brother, John Stuart, to be read into evidence. The circuit court had initially excluded this preliminary hearing testimony. However, the State sought immediate review of that ruling. The court of appeals summarily affirmed the circuit court's ruling, but this court granted the State's emergency petition for review and reversed the court of appeals.
¶ 3. The defendant now asserts that this court's previous order did not establish the law of the case because it involved a mere discretionary ruling and did not state reasons for its reversal of the court of appeals. These are the issues specifically raised by the court of appeals' certification.1 We hold that our previous ruling did establish the law of this case. We also conclude that although this court has the authority to make an exception to the law of the case doctrine under certain circumstances, such circumstances do not exist in this case. We therefore affirm the circuit court's judgment of conviction.
¶ 4. The defendant also raises numerous other issues on appeal.2 We remand these issues for consideration by the court of appeals.
¶ 5. The relevant facts are undisputed. As noted, this case is now before us for the second time. To better understand the issues presented, we discuss the relevant facts surrounding our first decision as well as those leading up to our review on certification.
¶ 6. On March 27, 1990, Gary Reagles was found dead in his apartment with a gunshot wound to the chest. A Berretta nine millimeter gun was found on the floor near the body. Reagles had a history of emotional problems and his girlfriend told police that he had been threatening suicide because of their impending breakup. His death was initially ruled a suicide.
¶ 7. In 1998, Paul Stuart (Paul) was charged with the first-degree intentional homicide of Reagles. A preliminary hearing was held on August 13, 1998, and included testimony by Paul's brother, John Stuart (John), implicating Paul in the shooting.
¶ 8. John testified at the preliminary hearing that between 5:00 and 7:00 a.m. on the morning Reagles' body was found, Paul came to his house and spoke with him. Paul told him that he had been out partying with Reagles the night before, drinking and getting high on cocaine. John then testified that about a half hour into the early morning conversation with Paul, Paul admitted to him that he shot Reagles because he was going to say something about a burglary perpetrated a week or two before by John and Paul.
¶ 9. John testified that he and Paul had robbed a home in Illinois a short time before Reagles' death. They had stolen coins, pocketknives, and some guns. One of the guns was a Berretta nine millimeter. John testified that Paul had possession of that particular weapon following the burglary. According to John's testimony, Paul appeared to be scared, distraught, and confused when talking to him about the shooting. John testified that Paul told him that after he shot Reagles, he "fixed it to look like a suicide."
¶ 10. John stated that later on the same day, George Stuart, another of the Stuart brothers, came over and told him that Reagles had been found dead in his apartment. Reagles was the son of George Stuart's girlfriend. Paul was there when George Stuart told John about Reagles' death. John testified that Paul acted surprised when told about the shooting, as if he knew nothing about it. Later, Paul asked John to provide him with an alibi. He asked John to say that he had been at John's home at the time of the shooting. Finally, John testified that Paul left the state on a trip to Arizona within a week of Reagles' death.
¶ 11. On cross-examination, John acknowledged that defendant's trip to Arizona was not unusual since their mother lived there. He acknowledged that he first told police about the information he had regarding Reagles' death when he was stopped for a traffic offense in 1992 or 1993. He stated that he gave another statement to police in June of 1998.3 The defense counsel then asked about the circumstances under which John gave this statement, which drew an objection from the State. The exchange regarding that June 1998 statement was as follows:
¶ 12. Following the objection, defense counsel continued his questioning. Under continued questioning, John testified that he was "stoned" when Paul told him about shooting Reagles. He also testified that after his conversation with Paul, he smoked five or six additional marijuana cigarettes. John admitted being confused during the conversation and did not believe what Paul told him. He also admitted being confused when George came over with the news of Reagles' death, because Paul acted like he had no prior knowledge of it.
¶ 13. John also admitted telling police that Paul told him that there were two shots fired. He acknowledged lying for Paul when he told officers that Paul was at his home the day of the shooting.
¶ 14. After hearing testimony from John and another witness, Arthur Parramoure, who testified that Paul confessed to shooting Reagles, the case was bound over for trial. Paul had new counsel at trial because the attorney representing him at the preliminary hearing, Mr. Sumpter, passed away.
¶ 15. Trial began on February 8, 1999. On the third day of trial, John took the witness stand and asserted his Fifth Amendment right against self-incrimination. He refused to answer questions, and persisted in the refusal despite the State's offer of use immunity for his testimony and the court's warning that he could be held in contempt of court. In response to questioning from the court, John acknowledged that he feared perjury charges. The court held John in contempt of court. The State then moved to have John's preliminary hearing testimony offered into evidence.
¶ 16. On February 11, 1999, after a motion hearing, the circuit court ruled that John's preliminary hearing testimony was inadmissible. The State immediately appealed. By order dated February 16, 1999, the court of appeals summarily affirmed the circuit court's ruling, finding that the State properly filed a notice of appeal under Wis. Stat. § 974.05(1)(d)2 (1997-98)4 and that "an unusual circumstance" existed in the case such that the opportunity to cross-examine at the preliminary hearing was insufficient to satisfy the constitutional right to confrontation. The State then filed an emergency petition for review with this court, which we accepted. This court ordered the trial stayed, pending a decision by the court. Thus, in the middle of the trial, after a jury had been selected and jeopardy attached, everything in the case stopped to await an answer from the appellate courts on the issue of the admissibility of John's preliminary hearing testimony. ¶ 17. The parties submitted briefs and this court held oral argument on February 23, 1999. The same day, following oral argument, this court issued an order reversing the decision of the court of appeals. That order provided, in full:
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