COURT OF APPEALS

DECISION

DATED AND FILED

 

July 3, 2002

 

Cornelia G. Clark

Clerk of Court of Appeals

 

 

 

NOTICE

 

 

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. 

 

 

 

 

Appeal No. 

02-0567-CR

 

Cir. Ct. No.  01-CM-1600

STATE OF WISCONSIN   

IN COURT OF APPEALS

 

DISTRICT II

 

 

 

 

State of Wisconsin,

 

                        Plaintiff-Respondent,

 

              v.

 

Thomas L. Stafford,

 

                        Defendant-Appellant.

 

 

 

 

            APPEAL from a judgment and an order of the circuit court for Winnebago County:  bruce schmidt, Judge.  Affirmed. 

1        ANDERSON, J.[1]   Thomas L. Stafford raises several challenges to his conviction after a jury trial for violating the terms of a domestic abuse injunction.  Stafford asserts that the trial court erred in turning down his motion to dismiss in which he alleged a violation of his due process rights because of the spoliation of evidence.  He raises several trial court rulings that he claims were an erroneous exercise of discretion.  In addition, he attacks the credibility of witnesses and the sufficiency of the evidence.  Finally, he insists that he is entitled to a new trial in the interest of justice.  We reject all of his challenges and affirm the judgment of conviction and order denying postconviction relief.

2        Stafford and his estranged wife Rose Stafford were in the process of a divorce when she obtained a domestic abuse injunction under Wis. Stat. § 813.12(4), which ordered, among other things:

1.  The respondent [Stafford] refrain from committing acts of domestic abuse against the petitioner [Rose Stafford].

2.  The respondent avoid the petitioner’s residence or any premises temporarily occupied by the petitioner now and in the future.

3.  The respondent avoid contacting or causing any person other than a party’s attorney to contact the petitioner unless the petitioner consents in writing.  Contact includes contact at work, school, public places, by phone or in writing.

The domestic abuse injunction was in force on August 27, 2001, when Rose was dropping off the couple’s son at Stafford’s parents’ house for a scheduled visitation.  During the stop, Stafford had contact with Rose when he attempted to write down the mileage on the car that Rose was driving.  As a result of the contact, the State charged Stafford with a misdemeanor violation of § 813.12(4).

3        Stafford filed a pretrial motion seeking to have the charge dismissed under Wis. Stat. § 971.31 and State v. Greenwold, 189 Wis. 2d 59, 525 N.W.2d 294 (Ct. App. 1994), because the State allegedly destroyed an audio recording of the contact between Rose and him, which he claimed contained exculpatory evidence.  Stafford also moved that the trial court instruct the jury that the State failed to preserve the audiotape and the jury was free to infer that the evidence would have been unfavorable to the State.  The trial court denied both motions, first holding that there was no bad faith on the part of the State in the loss or destruction of the tape; nevertheless, it prohibited both the State and Stafford from even mentioning the existence of an audiotape of the incident.  The trial court also declined to give Stafford’s requested instruction.

4        Following a one-day jury trial, Stafford was convicted of violating the domestic abuse injunction.  The trial court imposed a sentence that was stayed pending this appeal.  In this appeal, Stafford contends that the trial court misused its discretion in failing to dismiss the charge because the State lost or destroyed the audiotape containing potentially exculpatory evidence.  He insists that there was an erroneous exercise of discretion in refusing to give the proposed jury instruction on missing evidence.  He argues that there was insufficient evidence because two of the State’s witnesses were incredible as a matter of law.  Finally, he seeks a new trial on the grounds that the cumulative effect of the trial court’s rulings was to prevent the real controversy from being tried and to perpetrate a miscarriage of justice.  We reject all of Stafford’s claims of error and affirm his conviction.

Destruction of Evidence

5        It is undisputed that Rose contemporaneously audiotaped the contact between Stafford and her and turned the audiotape over to the investigating police officer.  While the officer did listen to the audiotape, no one else was able to because the officer mistakenly recorded over the audiotape.  On appeal, Stafford argues that the trial court erred in concluding that his due process rights to present a meaningful defense were not violated when the contents of the audiotape were destroyed.

6        Whether the trial court erred in applying a constitutional standard, here due process, is a constitutional fact which we review de novo.  Greenwold, 189 Wis. 2d at 66.

7        The Due Process Clause of the United States Constitution requires that criminal defendants be afforded a meaningful opportunity to present a complete defense in order for criminal prosecutions to comport with prevailing notions of fundamental fairness.  California v. Trombetta, 467 U.S. 479, 485 (1984).  In order to safeguard the right to present a complete defense, the Supreme Court has developed an area of constitutionally guaranteed access to evidence which delivers exculpatory evidence into the hands of the accused.  Id.  The State’s duty to preserve evidence is limited to evidence that “might be expected to play a significant role in the [defendant’s] defense.”  Id. at 488.

8        There are two different standards for measuring whether the destruction of evidence violated due process guarantees.  Under the first standard, the evidence:  (1) must have possessed an exculpatory value that was apparent before the evidence was destroyed, and (2) be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonable means.  Id. at 489.  This standard was adopted by Wisconsin in State v. Oinas, 125 Wis. 2d
487-88, 490, 373 N.W.2d 463 (Ct. App. 1985).

9        Under the second standard, however, when the evidence is only potentially useful rather than apparently exculpatory, there is no denial of due process unless the defendant can show that the State acted in bad faith.  Arizona v. Youngblood, 488 U.S. 51, 58 (1988).  In adopting this test, we have determined that bad faith can only be shown if:  (1) the State was aware of the potentially exculpatory value of the evidence that it failed to preserve before it destroyed the evidence, and (2) the State acted with official animus or made a conscious effort to suppress the evidence.  Greenwold, 189 Wis. 2d at 69.

10      Stafford contends that his due process rights were violated under the Greenwold standards.  Whether or not either Oinas or Greenwold applies hinges on whether the contents of the audiotape were exculpatory.  Stafford claims that the contents of the audiotape would support his version of the sequence of events and conversations the day Rose dropped off their son for visitation.  It is his theory that the audiotape would call the credibility of Rose and her companion into question because it would directly contradict their version of the events.  We agree that the State may not withhold evidence which is exculpatory and material to either guilt or punishment.  Brady v. Maryland, 373 U.S. 83, 87 (1963).  However, the issue on which Stafford’s guilt or innocence depended was whether he had contact with Rose that was prohibited by the domestic abuse injunction, not whether he and Rose had conversations.[2]  Therefore, whether Stafford exchanged words with Rose is not materially exculpatory within the meaning of Brady.  Nor are we convinced that the contents of the conversations were material to Stafford’s credibility, whose correct testimony about the content of the conversations during the prohibited contact does not have a bearing upon the credibility of the witnesses as to whether the contact occurred.[3]  Because the audiotape would not have included either apparently exculpatory evidence, Oinas, 125 Wis. 2d at 490, or potentially exculpatory evidence, Greenwold, 189 Wis. 2d at 69, we do not have to engage in any further analysis to determine that Stafford’s due process rights to present a complete defense were not violated.[4]

11      Along with his claim that the destruction of the audiotape violated his due process rights, Stafford argues that the trial court erred in rejecting his request to instruct the jury on the inference it would be permitted to draw because the audiotape was missing.  “The decision to give or not to give a requested jury instruction lies within the trial court’s discretion.  We will not reverse such a determination absent an erroneous exercise of discretion.”  State v. Miller, 231 Wis. 2d 447, 464, 605 N.W.2d 567 (Ct. App. 1999) (citation omitted).  Because the audiotape contained no materially relevant evidence, the trial court properly denied Stafford’s requested instruction.[5]

Sufficiency of the Evidence

12      Stafford premises his assertion that the evidence was insufficient to uphold his conviction on the argument that because Rose and her companion gave conflicting testimony concerning whether the companion ever spent the night in Rose’s residence, their testimony was inherently or patently incredible and could not support the jury’s verdict.  The State concedes that Rose and her companion gave contradictory testimony but argues that it was for the jury to assess the credibility of the witnesses.

13      Our review of the sufficiency of the evidence is to determine whether the evidence, viewed most favorably to the State and the conviction, “is so insufficient in probative value and force that it can be said as a matter of law that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt.”  State v. Ray, 166 Wis. 2d 855, 861, 481 N.W.2d 288 (Ct. App. 1992) (citation omitted).  We will affirm a conviction if we conclude that the trier of fact, acting reasonably, could be convinced beyond a reasonable doubt by evidence it is entitled to accept as true.  State v. Teynor, 141 Wis. 2d 187, 204, 414 N.W.2d 76 (Ct. App. 1987).  We will not substitute our judgment for that of the trier of fact unless “the evidence supporting the jury’s verdict conflicts with nature or the fully established facts, or unless the testimony supporting and essential to the verdict is inherently and patently incredible.”  State v. Sharp, 180 Wis. 2d 640, 659, 511 N.W.2d 316 (Ct. App. 1993).

14      Stafford’s argument requires us to apply well-known principles encompassing the credibility of witnesses.  It is the fact finder’s task, not this court’s, to sift and winnow the credibility of the witnesses.  State v. Toy, 125
Wis. 2d 216, 222, 371 N.W.2d 386 (Ct. App. 1985).  The fact finder may believe some of the testimony of one witness and some of the testimony of another witness even though their testimony, read as a whole, may be inconsistent.  Id.  Discrepancies in the testimony of witnesses do not necessarily render their testimony so incredible that it is unworthy of belief as a matter of law.  See State ex rel. Brajdic v. Seber, 53 Wis. 2d 446, 450, 193 N.W.2d 43 (1972).  It is the function of the fact finder to determine where the truth lies in a normal case of confusion, discrepancies and contradictions in the testimony of witnesses.  Id.

15      Examining the trial record as a whole, there is more than enough evidence to support the jury’s verdict.  Stafford was charged with violating a domestic abuse injunction that prohibited any contact, without exceptions, between Rose and him.  Rose and her companion both testified that when Rose dropped off the Staffords’ child for visitation, Stafford came to Rose’s car to determine the mileage on the car, and during that episode, he had contact with Rose.  Whether the companion had spent a night at Rose’s residence was not material to the issue of whether Stafford violated a condition of the domestic abuse injunction.  It may have had an impact on the credibility of Rose and/or her companion if the issue was the content of the conversation between Rose and Stafford, but Stafford’s admission that he had contact with Rose when she dropped off the child minimized any discrepancies in the testimony of Rose and her companion.

New Trial in the Interest of Justice

16      Under Wis. Stat. § 752.35, we may grant a discretionary reversal if the real controversy has not been fully tried or if it is likely for any reason that justice has miscarried.  State v. Wyss, 124 Wis. 2d 681, 735, 370 N.W.2d 745 (1985).  We may conclude that the real controversy was not fully tried when, for example, important evidence bearing on an important issue was erroneously excluded or when evidence was admitted that should have been excluded.  Vollmer v. Luety, 156 Wis. 2d 1, 19-20, 456 N.W.2d 797 (1990).  We may conclude that justice has miscarried if the defendant convinces us that there is a substantial probability that a new trial would produce a different result.  State v. Darcy N.K., 218 Wis. 2d 640, 667, 581 N.W.2d 567 (Ct. App. 1998).  We will exercise the power to grant discretionary reversal only in exceptional cases.  State v. Drusch, 139 Wis. 2d 312, 330, 407 N.W.2d 328 (Ct. App. 1987).

17      We decline to exercise our power of discretionary reversal in this case.  The full controversy—whether Stafford violated a term of a domestic abuse injunction—was tried.  We have concluded that the trial court appropriately exercised its discretion when required to do so by motions and objections raised by Stafford and no important evidence or jury instructions were improperly excluded from consideration by the jury.  Finally, Stafford fails to make a convincing argument that there is a substantial probability that a new trial would produce a different result.

            By the Court.—Judgment and order affirmed.

                        This opinion will not be published.  See Wis. Stat. Rule 809.23(1)(b)4.

 

 

 


[1]  This is a one-judge appeal pursuant to Wis. Stat. § 752.31(2)(f) (1999-2000).  All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

[2]  The trial court instructed the jury on the offense using Wis JI—Criminal 2040, “Violating A Temporary Restraining Order Or An Injunction” as a template:

     Violating an injunction, as defined in Section 813.12(8) of the Wisconsin Statutes, is committed by one who knowingly violates an injunction issued under [§] 813.12(4) of the Wisconsin Statutes.

     Before the defendant may be found guilty of this offense, the State must prove by evidence which satisfies you beyond a reasonable doubt that the following three elements were present:  First, that an injunction was issued against Thomas L. Stafford under [§ ]813.12(4) of the Wisconsin Statutes.  An injunction is a court order prohibiting specific conduct.  Second, that the defendant committed an act that violated the terms of the injunction.  Third, that the defendant knew that the injunction had been issued and knew that his actions violated its terms.

     If you are satisfied beyond a reasonable doubt … that an injunction was issued against Thomas L. Stafford, that the defendant committed an act that violated the terms of the injunction, and that the defendant knew that the injunction was issued, knew that his acts violated its terms, you should find the defendant guilty.  If you are not so satisfied, you must find the defendant not guilty.

[3]  Stafford never contested that he had contact with Rose.  At the commencement of the trial, he stipulated that a valid domestic abuse injunction had been issued and during his testimony he admitted that he had contact with Rose on the street outside of his parents’ house.

[4]  Although the trial court relied on other reasons for its decision to deny the motion to dismiss, we may affirm a trial court’s ruling on different grounds.  State v. Holt, 128 Wis. 2d 110, 124-25, 382 N.W.2d 679 (Ct. App. 1985).

[5]  We also reject Stafford’s assertion that the trial court erroneously exercised its discretion when it prohibited him from cross-examining Rose on her alleged destruction of the family business.  A trial court has discretion to determine the proper scope of cross-examination to impeach a witness.  See Rogers v. State, 93 Wis. 2d 682, 689, 287 N.W.2d 774 (1980).  No misuse of discretion will be found if a reasonable basis exists for the trial court’s determination.  State v. Oberlander, 149 Wis. 2d 132, 140-41, 438 N.W.2d 580 (1989).  While it is usually permissible to cross-examine a witness on subjects that impact upon his or her credibility, Rogers, 93 Wis. 2d at 689, the trial court did not misuse its discretion in this case because with Stafford’s admission that he had contact with Rose, her credibility as to contact occurring was no longer material.