State v. Weed
| Decision Date | 03 July 2003 |
| Docket Number | No. 01-1476-CR.,01-1476-CR. |
| Citation | 263 Wis.2d 434,2003 WI 85,666 N.W.2d 485 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Patricia A. WEED, Defendant-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
For the defendant-appellant-petitioner there were briefs by T. Christopher Kelly and Kelly & Habermehl, S.C., Madison, and oral argument by T. Christopher Kelly.
For the plaintiff-respondent the cause was argued by Sally L. Wellman, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.
¶ 1.
The defendant, Patricia Weed (Weed) petitioned this court for review of a court of appeals' decision1 that upheld a circuit court's judgment of conviction and order denying post-conviction relief. There are a number of issues presented: (1) whether the circuit court erroneously exercised its discretion in admitting a hearsay statement made by Weed's deceased husband; (2) whether the admitted hearsay statement violated Weed's right to confrontation; (3) whether Weed received ineffective assistance of counsel because her attorney failed to object to the statement on confrontation grounds; and (4) whether the constitutional right of a criminal defendant to testify on his or her behalf is a fundamental right that can only be personally waived by the defendant with an on-the-record colloquy.
¶ 2. Based on our review of the record, we conclude that the circuit court did not erroneously exercise its discretion in admitting the hearsay statement under the recent perception exception to the hearsay rule. We further conclude that admission of the hearsay statement did not violate Weed's right to confrontation since it had particularized guarantees of trustworthiness. Nevertheless, even if the admitted hearsay violated Weed's right to confrontation, the error was harmless because in examining the effect of the error, "`it appears "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained."'" State v. Harvey, 2002 WI 93, ¶ 44, 254 Wis. 2d 442, 647 N.W.2d 189 (quoting Neder v. United States, 527 U.S. 1, 15-16 (1999), quoting in turn Chapman v. California, 386 U.S. 18, 24 (1967)). Consequently, Weed was not denied the effective assistance of counsel because admission of the hearsay statement was not prejudicial. Finally, we conclude that the constitutional right of a criminal defendant to testify on his or her behalf is a fundamental right. Accordingly, we hold that a circuit court should conduct an on-the-record colloquy to ensure that the defendant is knowingly, intelligently, and voluntarily waiving his or her right to testify. In this case, the circuit court did not conduct a colloquy; however it conducted a post-conviction hearing and found that Weed had waived her right to testify. Based on our review of the record and the evidence from the post-conviction hearing, we agree with the circuit court that Weed knowingly, intelligently, and voluntarily waived her right to testify, even though the circuit court did not conduct a colloquy. Accordingly, we affirm the decision of the court of appeals.
¶ 3. On September 12, 1998, Weed and her husband, Michael Weed (Michael), were invited to dinner at the cottage of Fred Fuerbringer (Fuerbringer), who was a good friend of Michael's. As the evening progressed, the atmosphere became tense when the conversation turned to Weed's recent suicide attempt. Weed was allegedly upset that Michael had brought another woman with him when he had visited her at the hospital when she was being treated for the attempted suicide. Michael allegedly responded that Weed should "keep her nose out of his business and not tell lies." After several interchanges, Weed allegedly stated that "she was going to divorce him [Michael] and take his pension, [and] make him the poorest asshole in Portage." At this point, Fuerbringer and his son, Chris, went outside with Michael to start a fish fry for dinner. While they were outside lighting the kettle, Weed came out of the cottage and told Michael she wanted the keys to the car so she could go home. Michael told her she could not have the keys because she had been drinking and had not yet eaten anything. Weed then went back into the cottage, and Michael allegedly said in front of Fuerbringer and Chris, "that's the reason I took the bullets out of the .357." According to Chris's testimony, Michael made this same statement about unloading the gun earlier in the evening when Chris and Michael were playing cards in the cottage.
¶ 4. Three days later, on September 15, 1998, Weed shot and killed Michael using the .357 handgun. Weed shot at Michael six times, hitting him at least four times in the arm, lower back and genitalia. The shooting occurred after Michael had told Weed earlier that day that he was in love with another woman and that he wanted a divorce. After the shooting, Weed called the Columbia County Sheriff's Department, identified herself, and stated that she shot her husband. In a statement to police at the scene Weed said "I shot him; he's in love with another woman and I cannot live without him."
¶ 5. The State of Wisconsin (State) charged Weed with first-degree intentional homicide in violation of Wis. Stat. § 940.01(1) (1997-98).2 Weed was found guilty by a jury and was sentenced to life in prison, plus two years for using a dangerous weapon. Prior to trial, the circuit court, Richard L. Rehm presiding, considered motions in limine, which included whether the hearsay testimony relating to Michael's statement regarding unloading the .357 should be excluded. The State argued that the statement was admissible under Wis. Stat. § 908.045(2) as a statement of recent perception.3 Weed claimed that the statement should be excluded because there was no indication of when Michael allegedly took the bullets out of the gun and there was no corroborating evidence that she had actually loaded the gun. The circuit court decided not to exclude the statement, but noted a concern with laying the foundation, particularly with respect to the recency of the perceived event (i.e. removal of the bullets). In its written order, dated June 28, 1999, the circuit court ordered that Michael's statement "shall be admitted subject to foundation on relevancy."
¶ 6. At the trial, Weed did not testify on her behalf, and the circuit court did not conduct a colloquy with Weed to ensure that she was knowingly, intelligently, and voluntarily waiving her right to testify.
¶ 7. Weed filed a post-conviction motion for a new trial based on the following: (1) the hearsay testimony about Michael's statement regarding unloading the .357 was inadmissible and violated her right to confrontation; (2) she received ineffective assistance of counsel because her attorney failed to object to the hearsay on the grounds that it violated her right to confrontation; and (3) she did not knowingly and voluntarily waive her right to testify on her own behalf. The circuit court received briefs from both Weed and the State and held an evidentiary hearing on Weed's motion. Weed testified at the post-conviction hearing that she only intended to scare Michael with the gun, not shoot him, and that she had no recollection of actually firing the gun. Weed also testified that she was never informed of her right to testify; however, her trial counsel testified that he had discussed the right to testify with Weed on numerous occasions. After reviewing the briefs and the record, the circuit court denied Weed's motion and concluded that "based on the post-trial testimony of defendant's counsel, other choices made by the defendant during trial, and the court's interaction with the defendant during the course of the trial, I find that she freely, intelligently, and voluntarily waived her right to give testimony on her behalf."
¶ 8. Weed appealed the judgment of conviction and the order denying post-conviction relief. In an unpublished per curiam opinion, the court of appeals affirmed both the judgment and order of the circuit court, concluding that any error the circuit court may have made in admitting the hearsay was harmless and that Weed knowingly and voluntarily waived her right to testify. Weed petitioned this court for review, which was granted on September 18, 2002.
[1-3]
¶ 9. A circuit's court's decision regarding the admissibility of a hearsay statement is within the discretion of the circuit court. Christensen v. Econ. Fire & Cas. Co., 77 Wis. 2d 50, 55, 252 N.W.2d 81 (1977). The circuit court has broad discretion in determining the relevance and admissibility of evidence and its decision will not be reversed absent an erroneous exercise of discretion. State v. Oberlander, 149 Wis. 2d 132, 140-41, 438 N.W.2d 580 (1989). This court will uphold a circuit court's decision to admit or exclude evidence if the court examined the relevant facts, applied a proper legal standard, and reached a reasonable conclusion using a rational process. Martindale v. Ripp, 2001 WI 113, ¶ 28, 246 Wis. 2d 67, 629 N.W.2d 698. [4]
¶ 10. Whether admission of a hearsay statement violates a defendant's right to confrontation presents a question of law that this court reviews de novo. Lilly v. Virginia, 527 U.S. 116, 136-37 (1999).
[5, 6]
¶ 11. This court's review of an ineffective assistance of counsel claim is a mixed question of fact and law. State v. Erickson, 227 Wis. 2d 758, 768, 596 N.W.2d 749 (1999). The circuit court's findings of fact will not be disturbed unless they are clearly erroneous. Id. "However, the ultimate determination of whether the attorney's performance falls below the constitutional minimum is a question of law which this court reviews independently of . . . the circuit court." Id.
[7]
¶ 12. The issue of whether a criminal defendant can only waive his or her constitutional right to testify expressly and personally...
To continue reading
Request your trial
-
State v. Denson
...to engage him in an on-the-record colloquy regarding his right not to testify. Relying on this court's decision in State v. Weed, 2003 WI 85, 263 Wis.2d 434, 666 N.W.2d 485, Denson argued that a criminal defendant's constitutional right not to testify is a fundamental right that can be waiv......
-
State v. Harris
...also articulated alternative wording. See, e.g., Neder v. United States, 527 U.S. 1, 2-3, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999); State v. Weed, 2003 WI 85, ¶ 29, 263 Wis.2d 434, 666 N.W.2d 485; State v. Harvey, 2002 WI 93, ¶ 48, n. 14, 254 442, 647 N.W.2d 189."23 The. Neder/Harvey test for ......
-
State v. Kutz
...observation of the event and the statement in cases where the declarant is unavailable and the evidence would otherwise be lost. State v. Weed, 2003 WI 85, ¶ 15, 263 Wis. 2d 434, 666 N.W.2d 485. Given the longer lapse of time allowed between the declarant's perception and description of the......
-
State v. Meeks
...testimony so influenced the competency determination that but for her testimony, Meeks would have been found incompetent. See State v. Weed, 2003 WI 85, ¶¶ 29-30, 263 Wis. 2d 434, 666 N.W.2d 485 (reviewing court evaluates an error's harmlessness by evaluating the nature of the error and the......
-
Evidence
...is sufficiently short and whether the statement was made in good faith without contemplation of anticipated litigation. State v. Weed , 666 N.W.2d 485, 492-93 (Wis. 2003). Trial court did not abuse its discretion in admitting hearsay statement of murder victim, to effect that he had recentl......
-
Wisconsin Court of Appeals rules man has right not to testify: Waiver must be knowing and voluntary.
...who represented Jamarillo on appeal, said the opinion is the logical offshoot of the Wisconsin Supreme Court's opinion in State v. Weed, 2003 WI 85, 263 Wis.2d 434, 666 N.W.2d 485, which held that the decision not to testify must be knowing and voluntary. Maroney called the rights to testif......