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COURT OF APPEALS
DECISION
DATED AND FILED
October 13, 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.
Morris L. Harris,
Defendant-Appellant.
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APPEAL
from a judgment and an order of the circuit court for Milwaukee County: jeffrey
a. conen, Judge. Affirmed.
Before Curley, P.J.,
Fine and Kessler, JJ.
¶1 FINE, J. Morris L.
Harris appeals the judgment entered
after a jury found him guilty of battery to a domestic-abuse-injunction
petitioner, see Wis. Stat. §§ 940.20(1m)(a) &
813.12, and substantial battery with intent to cause bodily harm, see Wis.
Stat. § 940.19(2), both while armed and as an habitual criminal, see Wis.
Stat. §§ 939.63 &
939.62. He also appeals the order denying his
motion for postconviction relief. Harris
argues that: (1) there were errors in
the jury instructions; (2) his lawyer gave him constitutionally deficient
representation; (3) the trial court should have recused itself; (4) his trial
was unfair because of: alleged prosecutorial
vindictiveness, the removal of a black juror from the panel, the failure to remove
another juror, and because the trial court would not let his rebuttal witnesses
testify; and (5) the trial court erroneously exercised its discretion when it
sentenced him. We affirm.
I.
¶2 On January
8, 2007, Harris went to Alexis Lewis’s
home where she lived with their three-year-old son. The two fought with each other until a
neighbor called the police. When the police
arrived, Harris fled. Lewis
had a fractured rib, head abrasions and jaw pain. Lewis
told police that Harris “grab[bed] her
by the throat and strangle[d] her, thr[e]w her against the wall causing her to
fall onto her back, and kick[ed] her
in the stomach,” and “struck her in the right side of her chest with an ironing
board.” Their three-year-old son told
police that “Daddy hit mommy with a board.”
¶3 At the trial, Harris
claimed that he acted in self-defense and that Lewis
had started the argument. During voir dire of the jury panel, the prosecutor
sought to remove a black juror, Andre Dukes, for cause, and told the trial
court that he had “two serious concerns:”
First, he [Dukes] indicated
that he had been convicted of a misdemeanor gun charge. He claimed it was carrying a concealed
weapon.
In fact, he had been convicted
of five, looks like misdemeanor charges, which one would involve a gun, I
believe it was a pointing case, endangering safety by use of a dangerous weapon
pointing case, not carrying concealed weapon case.
So, the State was concerned
about his candor in that regards and that concerned -- that concern was
exacerbated by the fact that Mr. Dukes also indicated that while he believed
the prosecution treated him fairly over the course of that case, that he does
not believe that the courts had treated him fairly over the course of that
case.
So, the State was of the opinion
that Mr. Dukes was exhibiting both subjective,
as well as objective bias, and moved to strike him for cause for those reasons.
¶4 The court struck Dukes for cause, but noted that the juror who
replaced him:
[I]s also an African-American, so what basically
happened here is we struck Mr.
Dukes and allowed [the replacement
juror] to remain on the panel, and we do have, I believe, two African-American
jurors that are on the final panel.
So, in
any event, it was a wash. There was no
way that we were going to get more than two on this panel, based on the way the
people came up from jury management, so there is no Batson issue here.
¶5 Both Lewis and Harris
testified at the trial. During the jury-instruction
conference, Harris asked the trial
court to instruct the jury on the lesser-included offense of simple
battery. The trial court, however, found
that the evidence did not support the lesser-included offense. As we have seen, the jury found Harris guilty of both charges.
¶6 Before sentencing in this case, Harris
pled guilty in a separate substantial-battery case with a different victim. The two cases were joined for a status conference
because Harris’s lawyer in both cases,
Lori A. Kuehn,
sought to withdraw. Harris wanted to file a motion to withdraw his guilty
plea in the other case. According to
Kuehn that “would make it most likely I would be called as a witness [at the
plea-withdrawal hearing] and it creates a conflict of interest.” The trial court granted Kuehn’s motion to
withdraw and sua sponte recused
itself from the other case:
THE COURT: [T]he Court
is going to recuse itself from hearing the case.
The Court has certain
information that may cause the Court to not be as fair as possible in
determining the credibility of certain witnesses in this case.
THE CLERK: On both
cases?
THE COURT: I’m
going to send them both.
[PROSECUTOR]: You
are sending even the matter for which this Court heard the trial?
THE COURT: Actually,
take it back. I’m going to keep the
trial case.
¶7 Ultimately, the trial court sentenced Harris
to seven years on the battery-to-an-injunction-petitioner count (five years’
initial confinement, followed by two years of extended supervision). The trial court sentenced Harris on the substantial battery count to seven
years (five years’ initial confinement followed by two years of extended
supervision). The sentences on both
counts were ordered to be consecutive to one another. We address Harris’s
many contentions on appeal in turn.
II.
A.
Jury Instructions.
¶8 Harris claims that
the trial court erred: (1) by
refusing to give the lesser-included instruction of simple battery, see Wis.
Stat. § 940.19(1); (2) by giving the self-defense instruction
allegedly only in connection with the substantial-battery count; and (3) by
giving the “while armed” instruction without also giving a “nexus”
instruction. Each contention is without
merit.
1.
Lesser-included
instruction
¶9 A trial court has broad discretion as to how to instruct the
jury, but whether the evidence permits a lesser-included-offense instruction is
a legal question that we review independently.
State v. Kramar, 149 Wis.
2d 767, 792, 440 N.W.2d 317, 327 (1989).
Submission of a lesser-included offense instruction is proper only “when
there are reasonable grounds in the evidence both for acquittal on the greater
charge and conviction on the lesser offense.”
Ibid. As the trial court
recognized, that was not the case here.
¶10 Harris’s basis for
requesting an instruction on simple battery was that, he claims, the medical
reports were ambiguous as to whether the fractured rib was caused by Harris during the fight or was an old fracture. He points to one comment in Lewis’s medical records which said the rib fracture
“could be old.” The trial court
rejected Harris’s request, finding that: “There is really no clear evidence here that
would allow a jury, a reasonable jury, to … conclu[de] … that this fracture was
not a result of [Harris’s] actions. We
agree.
¶11 Lewis testified:
● Harris
“grabbed the ironing board, and stood over me with it and rammed it into my
side.”
● An ambulance took her for medical
treatment and the doctor “told me, that I had a fracture, and she gave me the
rib brace and told me to come back in a few weeks.”
● Lewis
was never told that the rib fracture was old; and she never had any problems
with her ribs before the fight with Harris
that was the basis for the charges.
¶12 The medical records consistently refer to Lewis
suffering a fractured rib, and document that she was treated for a fractured rib.
One notation even refers to the injury
as “[n]ew right lateral 7th rib fracture.” The medical records also describe Lewis’s presentation as having “tenderness to
palpation of rt ribs from 4th to 9th ribs” and “[f]eels
something popping when takes a deep breath and has pain with deep breathing.”
¶13 We agree with the trial court that no reasonable jury could have
both acquitted Harris of substantial
battery and convicted him of simple battery.
2.
Self-defense
¶14 Harris’s next
complaint is that the trial court read the self-defense instruction to the jury
allegedly only in connection with the instruction on the substantial battery
and not also in connection with the battery-to-an-injunction-petitioner charge.
It did not.
¶15 A trial court’s instructions to the jury must be read as a
whole: “If the overall meaning is a
correct statement of the law, then any erroneous part of the instruction is
harmless and not grounds for reversal.” State
v. Petrone, 161 Wis. 2d 530, 561, 468
N.W.2d 676, 688 (1991), cert. denied,
502 U.S.
925. The sequence here was that the trial court instructed the jury on battery
to an injunction petitioner, then instructed the jury on substantial battery,
and then gave the self-defense instruction.
The self-defense instruction was not limited to one crime or the
other. Rather, the instruction broadly
stated: “Self-defense is an issue in
this case,” and then went on to instruct the jury on self-defense. Thus, the overall meaning of the instructions
were correct; the self-defense instruction applied to both charges. Contrary to Harris’s
contention, there was no chance that the jury was confused by the placement of
the self-defense instruction, which, as noted, told the jury that self-defense
was “an issue” in the case. Further, the
trial court explained in its order denying Harris’s
motion for postconviction relief that:
“when you have multiple battery cases, I only instruct the jury once on
the self-defense issue.”
3.
“While
armed”
¶16 Harris also argues
that the trial court erred in giving the standard “while armed” jury
instruction without also giving a required State v. Peete, 185 Wis. 2d 4, 517 N.W.2d
149 (1994), “nexus” instruction to link the weapon to the crime.
¶17 First, he did not raise this issue during the jury instruction
conference and thus forfeited his right to challenge it, except in an
ineffective-assistance-of-counsel context.
See Wis. Stat. § 805.13(3) (“Failure to object at the conference
constitutes a waiver of any error in the proposed instructions or
verdict.”) Second, and more significant,
this case is not like Peete, where the defendant had a
loaded gun under a mattress in another room, but did not necessarily use it in
connection with the drug crime with which he was charged. Peete, 185 Wis.
2d at 18, 517 N.W.2d at 154 (while armed penalty enhancer applies only when
defendant “possessed the weapon to facilitate commission of the predicate
offense”).
¶18 Here, Harris was charged with
using the ironing board as the
dangerous weapon in committing the charged crimes. Thus, the nexus between the weapon and the
crime was automatically present. See id.
Moreover, the model instruction given
here asked the jury to determine whether Harris
committed “this crime while using a dangerous weapon.” Any contention that there was error with
respect to the ironing board and its nexus to the battery is wholly without
merit.
B.
Alleged Ineffective
Assistance of Harris’s Trial Lawyer.
¶19 Harris claims his trial lawyer gave him constitutionally
deficient representation because she: (1) did
not object to the testimonial references to his criminal history; (2) did
not investigate Lewis’s violent temper and reputation for untruthfulness;
(3) did not seek to dismiss the battery-to-injunction-petitioner count because
there was a mistake in the date on the petition for the injunction; (4) did
not put into evidence that Harris lived with Lewis on the fight’s date; and
(5) did not put in evidence that was sufficient to support the request for
the simple-battery instruction.
¶20 To establish ineffective assistance of counsel, a defendant
must show that the lawyer’s representation was deficient and that the defendant
was prejudiced as a result. Strickland v. Washington,
466 U.S. 668, 687 (1984). To prove deficient representation, a defendant
must point to specific acts or omissions by the lawyer that are “outside the
wide range of professionally competent assistance.” Id., 466 U.S. at 690. To
prove prejudice, a defendant must demonstrate that the lawyer’s errors were so
serious that the defendant was deprived of a fair trial and a reliable outcome.
Id.,
466 U.S. at 689. Thus, in order to succeed on the prejudice
aspect of the Strickland analysis,
“[t]he defendant must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id., 466 U.S. at 694. This
is not, however, “an outcome-determinative test. In decisions following Strickland,
the Supreme Court has reaffirmed that the touchstone of the prejudice component
is ‘whether counsel’s deficient performance renders the result of the trial
unreliable or the proceeding fundamentally unfair.’” State v. Smith, 207 Wis. 2d 258, 276, 558 N.W.2d 379, 386 (1997) (citations
and quoted source omitted).
¶21 Further, we need not address both aspects of the Strickland test if the defendant does not make a
sufficient showing on either one. See Strickland, 466 U.S. at 697. Our
review of an ineffective-assistance-of-counsel claim presents mixed questions
of law and fact. See State v. Johnson,
153 Wis. 2d 121, 127, 449 N.W.2d 845, 848
(1990). A circuit court’s findings of
fact will not be disturbed unless they are clearly erroneous. Ibid. Its legal conclusions whether the lawyer’s
performance was deficient and, if so, prejudicial, are questions of law that we
review de novo. Id., 153 Wis. 2d at 128, 449 N.W.2d at 848.
¶22 Finally, a trial court must hold an evidentiary hearing on a
defendant’s ineffective-assistance claim if the defendant alleges facts that,
if true, would entitle the defendant to relief. See State v. Bentley,
201 Wis. 2d 303, 309, 548 N.W.2d 50, 53
(1996). “Whether a motion alleges facts
which, if true, would entitle a defendant to relief is a question of law that
we review de novo.” Id., 201 Wis. 2d at 310, 548 N.W.2d at 53. If, however:
“[T]he defendant fails to allege sufficient facts in
his motion to raise a question of fact, or presents only conclusory
allegations, or if the record conclusively demonstrates that the defendant is
not entitled to relief, the trial court may in the exercise of its legal
discretion deny the motion without a hearing.”
Id.,
201 Wis. 2d at 309–310, 548 N.W.2d at 53
(quoted source omitted). Under these
standards, all of Harris’s contentions fail
because he did not prove any prejudice.
1.
References
to Harris’s criminal history
¶23 Harris claims his lawyer should have moved in limine to prevent any references to his criminal history and
should have objected during the following references set out by italics:
● When asked whether Harris
was “present at [the injunction] hearing to defend himself,” Lewis
answered: “No, he was, I believe, at the
House of Correction then.”
● When asked whether Harris
“even kn[e]w about the injunction,” Lewis
answered: “They told me that it was
active and then something happened another time and I had contacted the police.”
● When asked whether Harris
“ever [did] house arrest time” at her home, Lewis
responded: “He ended up getting revocated, or something.”
● When asked if she was a “controlling”
person, she said: “No, but I have been beaten before.”
● The prosecutor asked Harris
if he had “open criminal cases,” and
he responded: “Absolutely.”
Then there was the following exchange between the
prosecutor and Harris:
Q And at the time, you know this because you have been through this a few times,
you know that as a condition –
A I haven’t been through this a few
times.
Q -- as a condition for all your criminal cases, you would
inquire --
[DEFENSE
COUNSEL]: I am going to object, I have
an objection.
¶24 Harris also claims that the prosecutor
improperly questioned him using court documents from earlier criminal matters
where he had to keep his current address on file with the court. The prosecutor’s only questions from these
documents were about Harris’s addresses and
change of addresses used to rebut Harris’s
claim that he lived with Lewis during the
fight that underlies this appeal. Although
Harris complains on this appeal that his
lawyer did not object, the lawyer did object repeatedly during this
questioning, but the trial court overruled the objections every time.
¶25 Harris also complains that the prosecutor asked him whether he
had “been around a lot of law enforcement officers.” Here again, Harris’s
lawyer objected, but trial court overruled the objection.
¶26 When Harris testified, he said that he had eight prior criminal
convictions. See Wis. Stat. Rule 906.09 (a witness’s convictions may be
considered by the fact-finder in assessing the witness’s credibility). The trial court told the jury that “a
criminal conviction at some previous time is not proof of guilt of the offense
now charged.” The references in paragraph 24 of this opinion about which
Harris now complains are consistent with that history and were either not prejudicial
under Strickland in connection with those matters to which Harris’s
trial lawyer did not object, or they were harmless beyond a reasonable doubt as
to those matters to which Harris’s lawyer did object but was overruled (and
thus we do not have to determine whether the trial court should have sustained
the objections). See State v. Edwardsen,
146 Wis. 2d 198, 210, 430 N.W.2d 604, 609 (Ct. App. 1988) (limiting instructions cure any
prejudice); State v. Johnston, 184 Wis. 2d 794, 822, 518 N.W.2d 759, 768
(1994) (juries are presumed to follow instructions); State v. Dyess, 124 Wis.
2d 525, 543, 370 N.W.2d 222, 231–232 (1985) (An error is harmless when “there
is no reasonable possibility that the error contributed to the conviction.”).
2.
Lewis’s
violent temperament
¶27 Harris claims his lawyer was
constitutionally deficient because she failed to investigate Lewis’s
violent temperament, including one earlier incident where Lewis
hit Harris so hard that he lost a tooth. The jury, however, heard about Lewis’s violent temperament directly from her:
● “I was hitting him, … he wasn’t hitting
me then, but I was hitting him … [i]n the face.”
● After Harris
locked himself in the bathroom, she “was ramming the bathroom door with the
ironing board.”
● “I threw some big candles [at him] … and
a curler, a cup, I think, I think some other stuff.”
● “I threw a cup … I threw a lot of
things [at him].”
¶28 Harris has not shown Strickland prejudice.
3.
Injunction petition
¶29 Harris contends his lawyer was
deficient for not seeking dismissal of the battery-to-an-injunction-petitioner count.
He claims that the underlying petition
was defective because the notary wrote the wrong year on the petition in
support of the injunction. Relying on Laluzerne
v. Stange, 200 Wis. 2d 179, 546 N.W.2d
182 (Ct. App.
1996), Harris argues that the
battery-to-an-injunction-petitioner charge should have thus been dismissed
because a valid petition is a prerequisite of a valid injunction. The trial court rejected this argument:
The defendant does not argue that there is anything
wrong with the actual injunction, only that it is based on an invalid petition
which renders the injunction invalid. He
argues that because both the victim and the notary dated their signatures 2008
on the petition (when it was really 2005), the injunction became invalid, citing
Laluzerne
v. Stange, 200 Wis. 2d 179 (Ct. App. 1996), for the
proposition that a valid petition is a prerequisite of a valid injunction. Laluzerne does not support the
defendant’s argument. That case holds
that an injunction may be granted only if the petitioner files a petition
alleging the necessary elements. No
petition had been filed in that case, and so the injunction was not valid. Here, a petition had been filed, and it had
been accepted by the clerk of court’s office on February
23, 2005 when it was filestamped.
Although it is unknown why one or both (notary and petitioner) used a
2008 year (it is not clear if the petitioner wrote 2008 or 2005), its receipt
by the clerk of court’s office on February 23, 2005
would have constituted sufficient evidence to conclude that the petition had
been prepared and filed in 2005. Trial
counsel would not have been successful in arguing that the injunction was
invalid.
¶30 We agree with the trial court’s analysis. The scrivener’s error in the petition does
not go to the merits of whether the injunction was valid. See Wis. Stat. Rule 805.18. There was no Strickland prejudice.
4.
Co-habitation
evidence
¶31 Next, Harris complains that his
trial lawyer did not present evidence that he lived with Lewis
at the time of the fight. Lewis testified that she and Harris
had lived together in the past and that around the time of this fight he occasionally
stayed at her home. First, whether Harris lived with Lewis
on the date of the fight is largely irrelevant as to whether he battered her. Second, the jury had the evidence Harris complains his lawyer did not elicit. Harris has
not shown Strickland prejudice.
5.
Evidence
to support lesser-included instruction
¶32 Finally, Harris claims his
trial lawyer was constitutionally deficient for not presenting more evidence to
show that Lewis’s rib fracture was old. The trial court rejected this claim ruling
that even with that additional evidence, it would not have given the simple-battery
instruction because: “[t]he medical
records are replete with references to rib fractures” and:
Not only was the court not in a position to rule out a
rib fracture suffered by the victim, but the victim had multiple other injuries
stemming from this altercation; and even assuming the medical reports about the
rib fracture were ambiguous, there was other evidence of injury to the victim
that would have precluded the court from giving the lesser included instruction
as requested by the defense.
¶33 We agree. Again, Harris has not shown Strickland prejudice.
C.
Recusal.
¶34 Harris argues that the trial court should have
recused itself from this case. As we
have seen, the trial court sua sponte
recused itself from the other, earlier, case because it “ha[d] certain
information that” it determined might “cause” it “to not be as fair as possible
in determining the credibility of certain witnesses” in connection with that
case. We reject Harris’s
argument that the trial court should have recused itself from this case as well.
¶35 First, Harris did not
request recusal, and thus, has forfeited this claim. See City of Edgerton
v. General Cas.
Co. of Wis., 190 Wis. 2d 510, 519, 527
N.W.2d 305, 308 (1995) (party forfeits recusal claim if not timely
raised). Second, there is no merit to
Harris’s claim that the trial court should have also sua sponte recused itself from this case, especially when the case
had already been fully tried and all that remained was sentencing.
¶36 A court must recuse
itself when it “determines that, for any reason, he or she cannot, or it
appears he or she cannot, act in an impartial manner.” Wis.
Stat. § 757.19(2)(g). This is a
subjective determination. See State
v. American TV & Appliance of Madison, Inc., 151 Wis.
2d 175, 183, 433 N.W.2d 662, 665, (1989) (“[T]he determination of the existence
of a judge’s actual or apparent inability to act impartially in a case is for
the judge to make.”). Here, the trial
court found that it could be fair in this
case. Harris
has pointed to nothing that even hints that this subjective determination was fraudulent.
D.
Allegations of Unfair Trial.
¶37 Harris claims “a variety of other issues combined” to make his trial unfair. Each is without merit.
1.
Prosecutorial
vindictiveness
¶38 Harris contends the prosecutor was vindictive because he had refused to plead
guilty and testify against alleged co-conspirators in gang-related cocaine cases,
and because he avoided conviction in the drug matters. He says the prosecutor overcharged the
domestic violence cases as a result. He
claims the trial court erred in refusing to grant a hearing on this claim.
¶39 The trial court found
“no prosecutorial vindictiveness on the part of the State based on the
allegations set forth in the defendant’s motion,” noting that it presided over
“the trial and did not perceive the prosecutor’s conduct as the defendant has
alleged.” Although we review de
novo the trial court’s legal analysis as to whether a prosecutor was
“vindictive,” see United
States v. Contreras, 108 F.3d 1255, 1262 (10th Cir. 1997), Harris
has not developed his vindictiveness argument, and, therefore, we decline to
consider it. See Pettit, 171 Wis. 2d at 646, 517 N.W.2d at 642. Certainly, a prosecutor in Wisconsin
may charge all crimes that he or she fairly believes a defendant committed. See Sears v. State, 94 Wis. 2d 128, 133–134, 287 N.W.2d 785, 787–788 (1980).
2.
Removal
of black juror
¶40 Next, Harris
contends that the removal of Dukes from the jury for cause was racially
motivated and violates Batson v. Kentucky, 476 U.S. 79
(1986). As we have seen, the prosecutor
had a legitimate non-race related reason for removing Dukes from the panel,
and, indeed, Dukes was replaced by a juror who was also black. Further, Dukes was removed for cause, which
is not covered by Batson. See id.,
476 U.S. at 96 (applies when prosecutor used
peremptory challenge to exclude juror of the defendant’s race).
3.
Failure
to remove juror
¶41 Harris complains that Jeremy
Bose should have been removed
from the jury because, on the second day of trial, Bose expressed concern that
he lived near one of the addresses linked to the defendant and would have to
drive past the address to get home. The
trial court explained:
By the way, on the record, I received a note, I think
this is from you April, one of the jurors, Juror No. 23, Mr. Bose [had] concerns
earlier today, because he stays four blocks away from one of the addresses the
defendant is believed to reside at. Deputy
Johnson told him that the defendant, no one in the courtroom, including her,
knows his address that meaning the jurors [sic]
address, wherever it may be. He voiced
his concerns. He has to drive by the
address to get home. I don’t know that
that’s an issue. I told him to avoid the
area and not to investigate the case on your own. He may have to drive by the scene, and he was
advising us he had no other choice of doing that.
¶42 The trial court asked
if either side had a problem with that and both the prosecutor and Harris’s lawyer responded “No.” Thus, the claim can only be considered in the
context of an ineffective-assistance-of-counsel contention. See State v. Carprue, 2004 WI 111, ¶47,
274 Wis. 2d 656, 678, 683 N.W.2d 31, 41–42
(“The absence of any objection warrants that we follow ‘the normal procedure in
criminal cases,’ which ‘is to address waiver within the rubric of the
ineffective assistance of counsel.’”) (citations omitted). Harris has
not shown that leaving Bose on the jury was Strickland
prejudice.
4.
Rebuttal
witnesses
¶43 Harris also claims that
the trial court erroneously exercised its discretion when it refused to let him
call rebuttal witnesses to testify that he was living with Lewis at the time of
the fight. The trial court denied the
request because:
[M]y recollection of the testimony yesterday, was that
he was there on-and-off, he did not reside there necessarily full-time, but
that he would come-and-go.
And to have these witnesses
come in and testify that Mr.
Harris supposedly told them that
he had lived there from time-to-time, is really useless, it is a waste of time,
there is nothing that is to be gained by any of this.
¶44 A trial court’s decision to admit or exclude
evidence is discretionary, and we will not reverse if it was “‘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) (quoted source omitted). Here,
the trial court gave valid reasons under Wis.
Stat. Rule 904.03, and found that the evidence would be cumulative and a
waste of time. The trial court did not
erroneously exercise its discretion in excluding Harris’s
rebuttal witnesses.
E.
Sentencing.
¶45 Harris claims the trial
court erroneously exercised its discretion when it sentenced him by: (1) allegedly relying on an improper factor—that
he fathered many children with different women; (2) allegedly failing to
adequately explain its reason for imposing a consecutive sentence; and
(3) considering Harris’s past arrests even though he was not convicted.
¶46 Sentencing is within
the trial court’s discretion, and our review is limited to determining whether
it erroneously exercised that discretion.
McCleary v. State, 49 Wis. 2d 263, 277–278, 182 N.W.2d 512,
519–520, (1971); see also State v. Gallion, 2004 WI 42, ¶68,
270 Wis. 2d 535, 569, 678 N.W.2d 197, 212 (“circuit court possesses wide
discretion in determining what factors are relevant to its sentencing
decision”). A trial court erroneously
exercises its sentencing discretion “only where the sentence is so excessive
and unusual and so disproportionate to the offense committed as to shock public
sentiment and violate the judgment of reasonable people concerning what is
right and proper under the circumstances.” Ocanas v. State, 70 Wis. 2d 179, 185, 233 N.W.2d 457, 461 (1975).
¶47 The three primary
factors a sentencing court must consider are the gravity of the offense, the
defendant’s character, and the need to protect the public. State v. Harris,
119 Wis. 2d 612, 623, 350 N.W.2d 633, 639
(1984). The sentencing court may also
consider a variety of secondary factors listed in Harris.
See
id.,
119 Wis. 2d at 623–624, 350 N.W.2d at 639.
1.
Alleged
improper factor
¶48 The trial court
analyzed each of the primary sentencing factors: it noted that the crimes were
very serious, that Harris had a long criminal
record, and that incarceration was needed to protect the community. Harris,
however, objects to the part of the
sentencing where the trial court discussed information in the presentence-investigation
report:
The next paragraph says that
you enjoy having these women fighting over you.
You seem to be proud of the fact that you have three three-year-old
children by different women, and that these women are all falling all over each
other to put money in your account.
….
I have no doubt that whenever you’re released, you will get involved in
additional relationships and probably multiple relationships, have more kids,
by those women, and victimize those women in the same way that you victimized the people involved in those two
cases; that would be Ms. A[] and Ms. Lewis. Because it appears to me that you just don’t
get it. Talking about the fact that the
victims did more to you than you did to them, I’m not really sure that that
justifies burning somebody in the face with a curling iron on purpose, or
stopping somebody with an ironing board and breaking their ribs.
¶49 We disagree with
Harris’s contention that the trial court’s reference to him fathering other
children was improper because it is clear from the context that these comments
were part of background facts and the nature of his character to hurt women
with whom he had children. There is
nothing in the trial court’s remarks that indicate that Harris
was being punished for fathering children, but, rather, he was being punished
because he battered the mothers of his children, and had done so in the past. The trial court did not erroneously exercise
its sentencing discretion.
2.
Concurrent
versus consecutive
¶50 Harris also contends that his sentences should have been concurrent instead
of consecutive, and the trial court failed to adequately explain why a
consecutive sentence was imposed. We
disagree.
¶51 The trial court fully
explained why it imposed consecutive sentences:
The Court believes that consecutive time is appropriate
under all of the circumstances; again, due to the seriousness of the overall offenses and the fact that even
though they arose out of this same set of allegations as in Count 1 in this
matter, that there were two separate and distinct concerns and violations of
the law; the first one being not only that there was a battery committed, but
there was a violation of an injunction, and I was concerned about that. With regard to Count 2, the fact that there
was substantial bodily harm that was caused to the victim.
3.
Harris’s
criminal history
¶52 Finally, Harris claims the
trial court improperly considered past arrests, which did not result in convictions and on what the trial court
considered a “pattern” of behavior, which Harris says was based on false
information. Again, we disagree.
¶53 In sentencing Harris, the trial court explained:
[T]hat there are a number of cases [against Harris]
that were dismissed over the course of the years and I can take that into
account. I am not giving that great
weight here, but I am looking at
that as an overall pattern of conduct that you put yourself in a position at
least to be arrested for those type of offenses. That’s all I’m going to look at those
for. I’m not certainly viewing them in
the same light as convictions and not even close; I’m not giving them anywhere
near that weight.
¶54 Harris acknowledges that
a sentencing court may consider unproved and uncharged crimes, see State
v. Hubert, 181 Wis. 2d 333,
346, 510 N.W.2d 799, 804 (Ct. App. 1993); Elias v. State, 93 Wis. 2d 278, 284,
286 N.W.2d 559, 562 (1980) (sentencing court “can consider other unproven
offenses, since those other offenses are evidence of a pattern of behavior
which is an index of the defendant’s character, a critical factor in
sentencing.”), but claims the pattern relied on was “false.” Harris,
however, had an opportunity to rebut or clarify any “false” information during
the sentencing. Further, he does not
tell us what part of the history on which the trial court partly relied is
false. Thus, he does not develop his
contention. Accordingly, we reject
it. See
Pettit, 171 Wis.
2d at 646, 517 N.W.2d at 642.
By the Court.—Judgment and order affirmed.
Publication in the official reports is not recommended.