COURT OF APPEALS
DATED AND FILED
July 20, 2010
Acting Clerk of Court of Appeals
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
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.
STATE OF WISCONSIN
IN COURT OF
State of Wisconsin,
Daniel Perry Oswald,
from a judgment and order of the circuit court for Milwaukee County: carl ashleY,
Before Fine, Kessler and Brennan,
¶1 FINE, J. Daniel Perry
Oswald appeals the judgment
entered after a jury found him guilty of two counts of homicide by negligent
operation of a motor vehicle. See Wis.
Stat. § 940.10(1). He also
appeals that part of the postconviction order denying his motion for a new
argues that the trial court erroneously exercised its discretion in allowing
his parole agent to testify about his missing an appointment shortly after the
accident and that Oswald seemed
nervous when he met with the agent later.
¶2 On October
19, 2007, two people in a van died in a car accident after a Dodge
Stealth matching the description of a car owned by Oswald
cut in front of them and hit the van. Oswald was on extended supervision at the time and
missed his appointment with parole agent Michael Rudig
on October 22, 2007.
Oswald did not call Rudig to explain why
he did not keep the appointment. Rudig called
Oswald and left him a voicemail about
the missed appointment and then sent him a letter re-setting the appointment
for October 30. Oswald
missed that appointment too, but phoned Rudig on October 31, and left a
voicemail message saying that he was having car problems. Oswald
met with Rudig on November 1. According
to Rudig, Oswald seemed nervous at
that meeting, and, when asked about the nervousness, Oswald
said he had post-traumatic stress because he lost some of his fingers as the
result of a factory accident in January of 2007.
¶3 The State wanted to call Rudig at Oswald’s
trial, arguing that the testimony was “highly probative” to show Oswald’s consciousness of guilt:
[T]he evidence is highly probative here because … in
the past [when] he missed he called in or he explained his absence or he gave
some excuse … three days after this incident … which … was a Friday. [On what] would be the [following] Monday he
fails to show up and gives no explanation, doesn’t call and just says nothing
to his agent. His agent leaves a phone
message, sends a letter, and sets an appointment for the 30th. Mr.
Oswald misses that appointment and
then at least at that point he does call in. And it is rescheduled for the first. And Mr. Oswald,
then shows up, but appears nervous speaking, different things along that line.
I think given the time frame
that you have here, Judge, that he has a history of showing up at his appointments. He has no outstanding non[-]compliance issues
at this time. That would explain why he
wouldn’t show up. That when you [are]
talk[ing] … three days after this incident that he fails to show up to his
agent. I think that’s highly probative
of consciousness of guilt, especially when he doesn’t call in and report it and
say anything to his agent why he missed that specific day and then misses the
next day as well.
Oswald objected, arguing that the
agent’s testimony was irrelevant because Rudig had just been recently assigned
to him and, as such, was unfamiliar with Oswald’s
demeanor and likelihood to keep appointments. Oswald
also argued that the evidence was unfairly prejudicial. The trial court agreed with the State and
ruled that Rudig’s testimony was admissible to show consciousness of guilt, but
gave the jury a limiting instruction, which we set out below.
¶4 A trial court’s decision to admit or exclude evidence is a discretionary
determination and will not be upset on appeal if it has “a reasonable basis”
and was 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). In determining
whether to admit evidence, the trial court considers, as material here, whether
the probative value of the evidence is “substantially outweighed by the danger
of unfair prejudice.” See Wis.
Stat. Rule 904.03. Here, the
trial court considered both the probative value of Rudig’s testimony and Oswald’s
claim of unfair prejudice and found that Rudig’s testimony was “clearly
relevant” and “clearly based on consciousness of guilt.” It also determined that it could ameliorate
whatever prejudice inhered in Rudig’s testimony by first reviewing the questions
the State was going to ask Rudig, and by giving the jury a limiting instruction.
¶5 At the trial, Rudig testified that:
He had been Oswald’s
agent since October 12,
2007, and Oswald has been
on parole supervision since June of 2005.
did not make his scheduled appointment on October 22, 2007, and did not call to explain even
though when Oswald had previously
missed appointments with agents he always called with a reason.
He telephoned Oswald
and sent him a letter scheduling a new appointment for October 30, 2007.
did not keep the October 30 appointment either. He telephoned Rudig the next day to say that he
missed it because he had trouble with his car, but said that he would come in
on November 1.
arrived at Rudig’s office on November 1, Oswald
“was extremely nervous so much so he was speaking very hurriedly and actually
visibly shaking and so much to the point I asked him, What’s going on? I mean you seem really nervous. I inquired as to why he seemed so nervous and
then he responded that he has post-traumatic stress syndrome from having his
fingers cut off from a [factory] finger incident.”
¶6 Further, the jury heard evidence that Oswald
was driving the car that caused the accident, including:
Testimony by an eyewitness to the accident, who
identified the car as Oswald’s, both
by color and make, and by unique spokes on the car’s wheels.
Testimony by an eyewitness to the accident who
identified the jacket Oswald was
wearing at the time of the incident.
Evidence that Oswald
had staged another accident to his car after the October 19 collision with the
van to cover up damage from that collision.
Evidence that shortly after his collision with
the van and the staged accident, Oswald
traded his car for another car.
Testimony from Oswald’s
former girlfriend that he admitted having been in an accident where two people
were killed, and said that he wanted to say goodbye to her because he was going
to be put away for a long time.
¶7 The trial court ruled that Rudig’s testimony was
relevant. That decision was not an
erroneous exercise of discretion because evidence of an accused’s
“consciousness of guilt” is admissible at trial. See,
e.g., Gauthier v. State, 28 Wis. 2d 412, 420,
137 N.W.2d 101, 105-106 (1965). The next
question is whether the evidence was “substantially outweighed by the danger of
unfair prejudice.” See Wis. Stat. Rule 904.03. As Oswald
argued, Rudig’s testimony necessarily meant that the jurors knew he had been convicted
of another crime. We assume that this was prejudicial. The probative value of the evidence was not, however,
“substantially outweighed” by that prejudice. Further, as noted, the trial court ameliorated
that prejudice. It not only pre-screened
the State’s questions, but also told the jury:
You heard testimony from a
witness concerning the defendant’s status as being on extended
supervision. The evidence was offered by
the State for the limited purpose of showing a consciousness of guilt by the
defendant. It was offered for that
limited issue. You cannot use this
evidence for any other purpose. The fact
that the defendant was on extended supervision is not evidence of his guilt in
this case. He is not on trial for any
other crime and his status as being on extended supervision does not have any
bearing on his guilt or innocence in this case, nor are you to infer from this
status that the defendant is a person of bad character or has a criminal
We presume that juries follow
instructions. See State v. Shillcutt,
116 Wis. 2d 227, 238, 341 N.W.2d 716, 721 (Ct. App. 1983), aff’d, 119 Wis. 2d 788, 350 N.W.2d 686 (1984). We affirm.
By the Court.—Judgment and order affirmed.
Publication in the official reports is not recommended.