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COURT OF APPEALS
DECISION
DATED AND FILED
December 9, 2010
A.
John Voelker
Acting Clerk of Court of Appeals
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NOTICE
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT I
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State of Wisconsin,
Plaintiff-Respondent,
v.
Marlon M. Anderson,
Defendant-Appellant.
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APPEAL
from a judgment of the circuit court for Milwaukee County: martin
j. donald, Judge. Affirmed.
Before
Vergeront, P.J., Sherman
and Blanchard, JJ.
¶1 VERGERONT, P.J. Marlon Anderson appeals the
judgment of conviction entered upon a jury verdict finding him guilty of first
degree recklessly endangering safety while using a dangerous weapon in
violation of Wis. Stat. §§ 941.30(1)
and 939.63 (2007-08). He contends the circuit court erred in
allowing the State to introduce for impeachment purposes portions of his
videotaped police interview obtained in violation of Miranda v. Arizona, 384
U.S. 436, 444, 447 (1966). He asserts
the statements were not admissible because they were not inconsistent with his
trial testimony. We conclude that certain
statements were inconsistent and properly admitted. For the reasons we explain below, we conclude
that any error in admitting consistent statements was harmless. Accordingly, we affirm the judgment of
conviction.
BACKGROUND
¶2 The information charged Anderson
with attempted first-degree intentional homicide while armed. The charge arose out of an altercation during
which Anderson
stabbed Johnnie Premetz, Jr., in the chest.
The testimony at trial established that Anderson’s
acquaintance, Jessie Wroczynski, drove Anderson
and Premetz to Arnold Ness’s trailer to facilitate Anderson collecting on a debt Premetz owed
him. Shortly after they arrived, Anderson and Premetz began
arguing over drugs or money. The
argument became heated, and eventually Anderson
retrieved Wroczynski’s knife from his car. Although the witnesses present differing
accounts of the events, it is undisputed that Anderson stabbed Premetz. Shortly after the incident Anderson and
Wroczynski were apprehended and arrested.
¶3 Upon arrest, Anderson
was taken into custody. City of Cudahy Police Detective Glen Haase
conducted a videotaped interview.
Apparently the officer advised Anderson of his Miranda
rights but did not obtain a waiver before questioning him. When Anderson
moved to suppress this interview prior to trial on the ground of a Miranda
violation, the State agreed there was a Miranda violation and that it would
not introduce any part of the interview in its case-in-chief. Anderson
conceded that his statements to the police were made voluntarily. The State indicated that, if Anderson testified at
trial, the State would seek to impeach him with any inconsistencies between the
statements he made to the police and his trial testimony.
¶4 At trial, Anderson
claimed that he had stabbed Premetz in self-defense. Anderson testified
that he swung the knife at Premetz in an attempt to scare him because he was
afraid that Premetz and Ness were going to
attack him. After hearing Anderson’s testimony, the State requested that it be
allowed to use portions of Anderson’s
videotaped interview for impeachment purposes. The State argued that certain portions were inconsistent
with Anderson’s
trial testimony because they either contradicted his trial testimony or
contained omissions as compared to his trial testimony. Anderson’s
attorney disagreed. He contended that
the portions the State sought to introduce were consistent with Anderson’s testimony and
therefore were inadmissible. The circuit
court concluded that the interview contained omissions and statements that were
contradictory to Anderson’s trial testimony and
both could be used to impeach Anderson.
The State played several excerpts from
the videotape of the interview.
¶5 The jury found Anderson
guilty of the lesser-included offense of first-degree recklessly endangering
safety while using a dangerous weapon.
DISCUSSION
¶6 Anderson
argues on appeal that the excerpts of the interview played to the jury were
consistent with his trial testimony and therefore the circuit court erred in
allowing the State to introduce them for impeachment purposes. The State responds that material omissions in Anderson’s statements to
the police constitute inconsistencies, and the excerpts played contained
omissions as well as statements that contradicted his trial testimony. Any consistent statements that were played,
the State contends, were harmless error.
Anderson
has not filed a reply brief.
¶7 Before discussing the parties’ positions in more detail, we
provide the constitutional law that is the background to their dispute.
¶8 The Fifth Amendment to the United States Constitution
protects against compelled self-incrimination. U.S.
Const. amend. V. This protection
applies to states through the Due Process Clause of the Fourteenth
Amendment. See U.S. Const. amend.
XIV, § 1; Dickerson v. United States,
530 U.S.
428, 434 (2000). To safeguard this Fifth
Amendment right, law enforcement officers must administer Miranda warnings at the
outset of a “custodial interrogation.” See State v. Armstrong, 223 Wis. 2d 331, 351-52, 588 N.W.2d 606 (1999); see also
Miranda,
384 U.S.
at 444. Failure to give the prescribed
warnings and obtain a waiver of rights before custodial questioning generally
requires exclusion of the statements obtained. Missouri v.
Seibert, 542 U.S.
600, 608 (2004).
¶9 Thus, as both parties here recognize, statements obtained
without Miranda warnings may not be used as evidence in the prosecution’s
case-in-chief. United States v. Patane, 542 U.S.
630, 640 (2004) (quoting Dickerson, 530 U.S. at 443-44). However, if a statement
obtained in violation of Miranda is made voluntarily, it can be
used to impeach a defendant’s testimony at trial. Patane, 542 U.S. at 639 (citations omitted); Harris
v. New York, 401 U.S. 222, 225
(1971). See also State v. Mendoza, 96 Wis. 2d 106, 118,
291 N.W.2d 478 (1980).
¶10 The rationale behind permitting voluntary statements obtained
in violation of Miranda to be used for impeachment purposes is that suppression
in this situation is not warranted by the goal of deterrence. Harris, 401 U.S. at 225; see
also Patane, 542 U.S. at
639-40. The deterrent effect is
speculative in this context and the goal of deterrence is adequately served by
suppression in the prosecutor’s case-in-chief.
See id. In addition, because the statement is
voluntary, suppression for impeachment purposes is not warranted to assure that
evidence is trustworthy. See id.
Thus, if a defendant chooses to testify, which he or she has a right not
to do, the prosecutor may use the “traditional truth-testing devices of the
adversary process” to impeach the defendant’s credibility through use of prior
conflicting statements, as long as they are voluntary. See
Harris,
401 U.S.
at 225-26. See also Mendoza,
96 Wis. 2d
at 118 (voluntary statements taken in violation of Miranda “may be used to
impeach the defendant’s credibility if the defendant testifies to matters
contrary to what is in the excluded statement.”)
¶11 While acknowledging this constitutional background, both
parties appear to view their dispute as raising an evidentiary issue, not a
constitutional issue. For purposes of
resolving this appeal, we accept this characterization of the issue. The parties agree we should review the
circuit court’s ruling as we generally review evidentiary rulings: “to
determine whether the circuit court properly exercised its discretion in
accordance with the facts and accepted legal standards.” State v. Tucker, 2003 WI 12, ¶28,
259 Wis. 2d
484, 657 N.W.2d 374 (citation omitted).
¶12 In arguing that his statements were erroneously admitted
because they are not “contrary” to his trial testimony or “inconsistent” with
it, Anderson does not attempt to define the scope of these terms. He refers us to Wis. Stat. § 908.01(4)(a)1., which provides that a prior
statement by a witness is not hearsay if “[t]he declarant testifies at the
trial or hearing and is subject to cross-examination concerning the statement,
and the statement is … [i]nconsistent with the declarant’s testimony ….” However, Anderson does not refer us to any cases that
apply this provision.
¶13 The State, citing cases from other jurisdictions, argues that a
prior statement is inconsistent with trial testimony if it omits a material
fact, see People v. Sholl, 556
N.W.2d 851, 854 (Mich. 1996), or, using different phrasing for the same concept,
a fact that would naturally have been asserted in the circumstances. See Commonwealth v.
Rivera, 682 N.E.2d 636, 642 (Mass.
1997). The State also argues that an
inconsistency for impeachment purposes does not require a directly
contradictory statement but includes a statement that “tends” to disprove or
contradict trial testimony and any inference from it. People v. Boyd, 222 Cal. App. 3d 541, 566 (Cal.
Ct. App. 1990).
¶14 Because Anderson does not make an argument on the meaning of “inconsistent
statement” in his main brief and does not file a reply brief, we have no
argument that counters the State’s position. We also observe that the description of a
prior inconsistent statement in State v. Richards, 21 Wis. 2d 622, 633-34,
124 N.W.2d 684 (1963), supports the State’s position that an omission may
create an inconsistency. In Richards,
in the context of deciding when a criminal defendant may inspect statements
made to authorities by witnesses who testify for the State at trial, the court
stated that such a statement could be used at trial to impeach the witness if
the court “determines that there are such inconsistencies between the testimony
and the statements, or such variance between them (including omissions) as
would tend to substantially impeach the witness’ testimony.” Id.
In the absence of an argument to the
contrary from Anderson, we accept the State’s position that an “inconsistent
statement” for impeachment purposes includes statements that contain material
omissions and statements that tend to disprove or contradict trial testimony
and any inference from it.
¶15 We turn now to the portions of the interview the State
introduced to impeach Anderson’s
trial testimony. We conclude the
following four statements were properly admitted as inconsistent statements.
¶16 First, Anderson testified at trial that Premetz told Ness to
get him a bat so that he could “smash [Anderson’s] fucking head,” then Ness ran
toward the trailer and returned with his hand behind his back. Anderson testified
that he thought Ness was going to attack him
with whatever he had behind his back. Similarly,
in the interview with Detective Haase, Anderson
stated that Premetz asked Ness to get him a
bat. He said that Ness
was “ready to fucking take off to go run in the fucking house.” However, Anderson
never claimed in the interview that Ness had
been in the house or had returned with his hand behind his back. The State argues that this omission creates
an inconsistency with Anderson’s
trial testimony. We conclude this is a
reasonable application of the correct law to the relevant facts. In these circumstances, if Anderson believed he had acted in self-defense,
it would have been natural for him to indicate to the police why he felt the
need to defend himself. His failure to tell
the police that, after Premetz told Ness to get him a bat, Ness
ran to the house and returned with his hand behind his back, is a material
omission and reasonably viewed as a statement that these actions did not
occur. Therefore, it is reasonable to
view Anderson’s
trial testimony describing these actions as inconsistent with his prior
statement.
¶17 Second, at trial Anderson
testified that Premetz jumped at him and threw a punch, which Anderson
ducked, and then Anderson
“took a swipe at him” with the knife. In
the interview, Anderson
said, “[Premetz] came rushing at me like he was getting ready to fucking punch
me.” He did not tell Detective Haase
that Premetz threw a punch before Anderson
“took a swipe at him.” We agree with the
State that this is a material omission and the circuit court could reasonably
view this omission as inconsistent with Anderson’s
trial testimony.
¶18 Third, Anderson
testified at trial that he had stabbed Premetz while trying to scare him,
believing that Premetz had not been badly cut.
In the interview Anderson
said he “didn’t stab Johnnie Premetz in the chest” and he didn’t know who
had. It is reasonable to view this prior
statement as inconsistent with Anderson’s
trial testimony.
¶19 Fourth, Anderson
testified at trial that he “took a swipe at” Premetz. In the interview Anderson made “a roundhouse kind of move”
when demonstrating how he had used the knife. Anderson
asserts these are not inconsistent, while the State argues that, “to the extent
that Anderson’s demonstrations … have
varied with respect to how … he swung or thrust the knife at Premetz, … such
variations” can be used to impeach Anderson’s
credibility. It is not clear from the
trial transcript that Anderson’s
demonstration in the interview of how he used the knife is contrary to his
trial testimony that he “took a swipe at” Premetz. In both his taped statement and his trial
testimony, Anderson
admits that he used the knife, but claims to have done so in a manner other
than a forward stabbing motion. Without
the videotape of the interview in the appellate record, we are unable to view Anderson’s
demonstration. This deficiency in the
record works against Anderson.
As the appellant, it is his responsibility
to ensure that the record is complete, and “when an appellate record is
incomplete in connection with an issue raised by the appellant, we must assume
that the missing material supports the trial court’s ruling.” Fiumefreddo v. McLean, 174 Wis. 2d 10, 26-27,
496 N.W.2d 226 (Ct. App. 1993). Therefore,
we conclude the circuit court did not erroneously exercise its discretion in
admitting this portion of the interview.
¶20 Anderson
argues and the State concedes that other introduced portions of the interview
were consistent with his trial testimony and therefore improperly admitted. We accept the State’s concession without
further analysis for purposes of this opinion and examine whether this error was
harmless.
¶21 An error is harmless when it is clear beyond a reasonable doubt
that a rational jury would have found the defendant guilty absent the error. State v. Gordon, 2003 WI 69, ¶36,
262 Wis. 2d
380, 663 N.W.2d 765 (citation omitted).
The burden of establishing harmless error is on the beneficiary of the
error, here, the State. State
v. Anderson, 2006 WI 77, ¶27, 291 Wis. 2d 673, 717
N.W.2d 74. Factors to consider in
assessing whether an error is harmless include “the frequency of the error, the
importance of the erroneously admitted evidence, the presence or absence of
evidence corroborating or contradicting the erroneously admitted evidence,
whether the erroneously admitted evidence duplicates untainted evidence, the
nature of the defense, the nature of the State’s case, and the overall strength
of the State’s case.” State
v. Hale, 2005 WI 7, ¶61, 277 Wis. 2d
593, 691 N.W.2d 637 (citations omitted).
¶22 The salient—and unusual—fact about the erroneously admitted
evidence here is that it is consistent
with Anderson’s
trial testimony. This consistency would
bolster Anderson’s
credibility and he would benefit by the jury hearing his trial version of
events being repeated in a statement made before trial.
¶23 Anderson
nonetheless claims that his demeanor during the interview differed
substantially from his demeanor on the witness stand. As we understand this argument, he is
referring to the expletives he used in the consistent statements. Some of these expletives were the words of
others, which he was recounting, and it is not clear how this would adversely
affect the jury’s view of him. To the
extent that he himself used expletives in the erroneously admitted statements,
he also did so in some of the statements we have concluded were properly
admitted.
¶24 In addition, the State’s case, considered without the erroneously
admitted portions of the interview, was strong.
The elements of first-degree recklessly endangering safety as applied to
this case are: (1) Anderson “endanger[ed] the safety” of Premetz; (2) he did so
by “criminally reckless conduct,” which is conduct that created an unreasonable
and substantial risk of death or great bodily harm; and (3) the circumstances
of his conduct showed “utter disregard for human life.” See Wis JI—Criminal 1345. Anderson
admitted at trial that he stabbed Premetz, and it was undisputed that this
stabbing punctured one of Premetz’s lungs.
Even if one believes Anderson’s testimony that Premetz had tried to
punch him just him before the stabbing, rather than as Premetz was walking away
from the confrontation as Premetz and Wroczynski testified, the stabbing “creates
an unreasonable and substantial risk of death or great bodily harm” and shows
an “utter disregard for human life.”
¶25 As for Anderson’s defense of self-defense, this requires that
the person “reasonably believed that
an interference with [his] person involved the danger of imminent death or
great bodily harm and reasonably
believed that it was necessary to use force which was intended or likely to
cause death or great bodily harm to prevent or terminate that interference.” State v. Head, 2002 WI 99, ¶66, 255 Wis. 2d 194, 648 N.W.2d 413 (emphasis in original); see also
Wis JI—Criminal 805. Without the erroneously admitted evidence, a
reasonable jury would not find that Anderson
had a reasonable belief that he was in danger of imminent death or great bodily
harm and reasonably believed it was necessary to stab Premetz to prevent or
terminate that situation. Even accepting
Anderson’s version of events, he never claimed
that either Premetz or Ness actually
threatened him with a baseball bat, and the evidence showed he could have left
in the car with Wroczynski.
¶26 We conclude beyond a reasonable doubt that the admission of the
consistent portions of Anderson’s
taped statement for impeachment purposes was harmless error.
CONCLUSION
¶27 We conclude that the four identified statements were properly
admitted for impeachment purposes and that the admission of consistent
statements was harmless error.
Accordingly, we affirm the judgment of conviction.
By the Court.—Judgment affirmed.
Not recommended
for publication in the official reports.