State v. Whitaker, s. 91-1075-CR and 91-1076-CR

• Decision Date: 18 February 1992
• Docket Number: Nos. 91-1075-CR and 91-1076-CR,s. 91-1075-CR and 91-1076-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Michael E. WHITAKER, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 649

481 N.W.2d 649

167 Wis.2d 247

STATE of Wisconsin, Plaintiff-Respondent, v. Michael E. WHITAKER, Defendant-Appellant. ^d

Nos. 91-1075-CR and 91-1076-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Jan. 14, 1992.

Opinion Released Feb. 18, 1992.

Opinion Filed Feb. 18, 1992.

On behalf of the defendant-appellant, the cause was submitted on the briefs of James R. Lucius of Shorewood, Wisconsin.

On behalf of the plaintiff-respondent, the cause was submitted on the briefs of James E. Doyle, Atty. Gen., and Jerome S. Schmidt, Asst. Atty. Gen.

Before MOSER, P.J., and SULLIVAN and FINE, JJ.

FINE, Judge.

Michael Whitaker was convicted in two jury trials of 1) first-degree reckless homicide while armed, in violation of sections 940.02(1) and 939.63(1) & (2), Stats., and 2) possession of cocaine with intent to deliver, in violation of sections 161.16(2)(b)(1) and 161.41(1m)(c)(1), Stats. He raises five issues on this appeal.

First, he claims that the trial court erred in not admitting into evidence at his request in the homicide trial an exculpatory out-of-court statement given by Tommie Lee Harris that Whitaker contends was against Harris' penal interest and thus admissible under Rule 908.045(4), Stats. Second, Whitaker asserts that the trial court abused its discretion in permitting a police officer to testify in the homicide trial about gang modus operandi. Third, Whitaker argues that the trial court erred in receiving into evidence in the homicide trial an out-of-court statement by Tommie Lee Harris offered by the State under the co-conspirator exclusion from the rule against hearsay, Rule 908.01(4)(b)(5), Stats. Fourth, Whitaker contends that the trial court erred in permitting several of the persons he wanted to call as defense witnesses in the homicide trial to assert their Fifth Amendment privilege against self-incrimination through their attorneys. Finally, he claims an abuse of sentencing discretion in connection with his conviction on the drug charge. We affirm.

I.

Whitaker was convicted of shooting Tamika Patrick following the break-up of a Saturday-night party at a house on East Hadley Avenue in the City of Milwaukee. The State's main witness, Raquel Russel, testified that she went to the party at around 9 p.m. There were first approximately forty-five to fifty, and later sixty-five to seventy-five persons between the ages of fifteen and nineteen at the party, including Whitaker and Patrick. Many of the young people at the party were street-gang members. Ultimately, rowdiness and violence that began at the party spilled out onto the nearby streets, and shots were fired. Russel told the jury that she saw Whitaker shoot Patrick. Although Russel did not know Whitaker prior to meeting him at the party, she testified that she was able to identify him as the shooter because when he shot Patrick he was still wearing the same clothes he wore at the party, including a black baseball-type cap that said "Sleepy" on the side.

II.

Most of Whitaker's claims of trial-court error involve decisions to admit or exclude evidence. Such decisions are vested in the reasoned discretion of the trial court and will not be reversed on appeal if they have "a reasonable basis" and were made " 'in accordance with accepted legal standards and in accordance with the facts of record.' " State v. Pharr, 115 Wis.2d 334, 342, 340 N.W.2d 498, 501 (1983) (citation omitted). We review Whitaker's contentions of evidentiary error against this standard.

A. Rule 908.045(4), Stats. (statement against interest): Whitaker's first claim of trial-court error is that the court should have received into evidence an April 27, 1989, written and notarized out-of-court statement by Tommie Lee Harris. Harris' nickname was "Sleepy," and his statement asserted that he and not Whitaker wore the "Sleepy" cap the night Patrick was shot. ¹ Harris had, earlier, told the police that Whitaker was wearing the hat that night. Harris asserted his Fifth Amendment right not to testify at the trial, and was thus found by the trial court to be unavailable as a witness. See Rule 908.04(1)(a), Stats. (" 'Unavailability as a witness' includes situations in which the declarant ... [i]s exempted by ruling of the judge on the ground of privilege from testifying concerning the subject matter of the declarant's statement."). ² Given Russel's identification of the shooter as the person who wore the "Sleepy" hat, Harris' statement that he was wearing the hat was against his penal interest when it was made. ³ Accordingly the statement falls within the ambit of Rule 908.045(4), Stats., which provides:

The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: ....

... A statement which ... at the time of its making ... so far tended to subject the declarant to ... criminal liability ... that a reasonable person in the declarant's position would not have made the statement unless the person believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborated.

The corroboration required before a statement against the declarant's penal interest may be received into evidence under Rule 908.045(4) to exculpate an accused must be "sufficient to permit a reasonable person to conclude, in light of all the facts and circumstances, that the statement could be true." State v. Anderson, 141 Wis.2d 653, 660, 416 N.W.2d 276, 279 (1987). The trial court applied this legal standard in determining that the April 27 statement was not admissible under Rule 908.045(4), and gave the following explanation:

This Court will find that as to the written statement [of April 27] of Tommy [sic ] Lee Harris, and as to his testimony in the preliminary [examination] transcript when contrasted with a statement given to the police earlier before he recognized the significance of the wearing of a hat to lead me to believe that no reasonable person could conclude in all--in light of all the facts and circumstances that the statement [of April 27] could be true. I am satisfied on the basis of the totality of this record that Tommy [sic ] Lee Harris is not a person who could be believed in his subsequent statements.

The trial court applied the correct legal principles and based its decision on a reasonable view of the evidence. There was no abuse of discretion in excluding the statement.

B. Police officer testimony about gang modus operandi. The trial court permitted a police officer to testify that gang members will exchange items of clothing with one another to frustrate identification. Whitaker contends that this was error for three reasons. First, Whitaker claims in his appellate brief that this proposition is not "so far beyond the knowledge, understanding or experience of the ordinary juror so as to require expert testimony." Second, he argues that there was no evidence that Whitaker went to the party with the intention to commit a crime so that frustration of his identification by others would be a motive to exchange items of clothing. Third, he claims that there was no proof that the officer relied on accurate information in formulating his opinions concerning gang activity. We disagree.

First, expert testimony is required only if the issue to be decided by the jury is beyond the general knowledge and experience of the average juror. Kujawski v. Arbor View Health Care Center, 139 Wis.2d 455, 463, 407 N.W.2d 249, 252-253 (1987). Expert testimony is permitted, however, even though it may not be required, when it will "assist the trier of fact to understand the evidence." Rule 907.02, Stats. ⁴ See also Lievrouw v. Roth, 157 Wis.2d 332, 356-357, 459 N.W.2d 850, 859 (Ct.App.1990). The trial court did not abuse its discretion in concluding that the police officer's testimony could assist the jury in evaluating the evidence. Additionally, the trial court correctly instructed the jurors that it was their responsibility to determine the officer's credibility as a witness and the weight they would give to his testimony.

Second, the State's case was, at least in part, premised on the theory that much of the violence during and after the party was gang-related. Indeed, even Whitaker's trial attorney conceded the admissibility of evidence concerning gang activity when he acknowledged that if the State wished to "elicit testimony about the practices of youth gangs to wear their hats a certain way and tip them, that would be relevant." It was also conceded by both the State and the defense that "Sleepy" was Harris' nickname, not Whitaker's. Yet, Russel testified that Whitaker was wearing the "Sleepy" hat. Accordingly, the alleged practice of gang members exchanging clothing to frustrate identification bolstered her testimony; it was therefore relevant. See Rule 904.01, Stats. (" 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.") (emphasis added).

Third, a witness is qualified to give an opinion under Rule 907.02, Stats., when he or she has "specialized knowledge" as the result of "knowledge, skill, experience, training or education." Ibid. In formulating his or her opinion, the witness may rely on matters that are not admissible as substantive evidence as long as those matters are "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject" of the witness' opinion testimony. Rule 907.03, Stats. The State laid an extensive foundation for the police officer's opinions concerning gang activity and elicited the bases for those opinions. Additionally, Whitaker's trial counsel conducted a lengthy voir dire of the officer. During the course of these examinations, the officer testified that at the time of the trial he had been assigned to...