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COURT OF APPEALS DECISION DATED AND RELEASED April 16, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-2460-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
MARK ANDREW REA,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
JEFFREY A. WAGNER, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER CURIAM. Mark Rea appeals from the judgment of
conviction for first-degree intentional homicide and second-degree sexual
assault, both as party to a crime. Rea
argues that the admission of other acts evidence deprived him of his
constitutional right to a fair trial; that exclusion of the co-defendant's
composition deprived him of his right to present a defense; and that admission
of his (Rea's) confession was improper because it was secured in violation of
his constitutional rights. We affirm.
Rea and his
co-defendant, David Newbury, were charged and tried jointly for the brutal
sexual assault and murder of their classmate, Charlene Dvorak, whose badly
beaten body was found near Pulaski High School on May 14, 1993. Rea first contends that the trial court
erred in allowing the State to introduce what he considers inadmissible “other
acts” evidence: a composition he wrote
approximately forty-five days before the assault; sexually suggestive comments
he made to Dvorak the day before the assault; and statements he made after the
assault claiming to have killed Dvorak.
A challenge to the
admissibility of evidence is reviewed under the erroneous exercise of
discretion standard. Badger
Produce Co. v. Prelude Foods Int'l Inc., 130 Wis.2d 230, 235, 387
N.W.2d 98, 101 (1986). If there is a
reasonable basis for the trial court's decision, it will be upheld. See State v. Plymesser, 172
Wis.2d 583, 591, 493 N.W.2d 367, 371 (1992).
In assessing the
admissibility of other acts evidence, the trial court must apply a two-part
test. State v. Danforth,
129 Wis.2d 187, 202, 385 N.W.2d 125, 131 (1986). First, the evidence must fit within the exceptions of §
904.04(2), Stats. Danforth, 129 Wis.2d at 202,
385 N.W.2d at 131. Second, the trial
court must determine whether any unfair prejudice resulting from the admission
of the evidence would substantially outweigh its probative value. See § 904.03, Stats., and Danforth, 129 Wis.2d at 202, 385
N.W.2d at 131. “Implicit with our
two-prong analysis is the requirement that other crimes evidence be relevant to
an issue in the case” as required by § 904.01, Stats. State v.
Alsteen, 108 Wis.2d 723, 729, 324 N.W.2d 426, 429 (1982).
Rea challenges the
admission of a composition he wrote approximately 45 days prior to Dvorak's
murder. In response to a school
assignment in which he was asked to describe his “favorite place,” Rea wrote:
My
favorite place I would like to be is Hell Because I like Death and Killing And
theires No Rule except yours And thats How this hole world should Be! Meny years White men were in control Now The
Blacks are trying to take over, Blood And Death Excites me. To watch a man Blead and Die right in frunt
of you must meny Powers witch If you follow satan You shal have. Just like me!! If Everyone could see the world The way I Do Every thing would Be
much mor exciting. I would explain but
I would be to hard.
The
trial court admitted the composition concluding that it provided “a reasonable
basis for proving [Rea's] motive, intent and state of mind and identity.”
While conceding that
this evidence of “a professed fascination with death and violence...would, at
first blush, appear to be relevant on motive, intent and identity,” Rea argues that “[t]he composition is simply
not fact-specific enough to be deemed relevant to any issue in the case.” On appeal, the State agrees but argues
harmless error.
We agree with the trial
court. Section 904.04(2), Stats., allows other acts evidence to
prove, inter alia, motive, intent, and identity. In this brutal, unprovoked attack, Rea's
composition was relevant to the most obvious questions: Who would have done such a thing, and
why? Arguably, the composition offered
responses to those questions by identifying Rea, his completely crazed view of
life, and his willingness to kill.
We also conclude that the composition's
probative value was not outweighed by any unfair prejudicial effect. The probative value of other acts evidence
depends on its nearness in time, place and circumstance to the alleged crime or
element sought to be proved. State
v. Speer, 176 Wis.2d 1101, 1117, 501 N.W.2d 429, 434 (1993). Under the circumstances of this case, the
trial court reasonably found that the evidence “provided a reasonable basis”
for determining Rea's motive and intent.
Rea next argues that his
sexually aggressive remarks should not have been admitted. Rea's classmates testified that the day
before the assault, Rea told Dvorak “that he could take [her] behind a dumpster
and ... fuck her,” that “he could drag her by the hair to the dumpster and make
her suck his penis,” and that he “bet he could make her scream.” The trial court ruled that the statements
were relevant and admissible under § 904.04(2), Stats., as to intent, motive and identity, and that the
probative value of this evidence was not outweighed by any unfair prejudice to
Rea.
Once again, we agree
with the trial court. Rea's remarks
indicated his aggressive sexual intentions against Dvorak the day before the
attack. The trial court used reasonable
discretion in admitting the testimony relating Rea's statements.
Rea also challenges the
admissibility of statements he made after the assault. A classmate testified that Rea stated,
“yeah, I did it, and I'd do it again,” and “yeah, I killed her.” Another classmate testified that Rea said
that “he hit her with a brick and used a claw hammer.” Again, Rea concedes that “at first blush”
this evidence appears to be admissible, but he argues that, under § 904.02, Stats., it was “so fundamentally
unreliable that it was utterly lacking in probative value.” Clearly, however, as the trial court
concluded, this testimony was admissible as Rea's admissions under §
908.01(4)(b)1, Stats.[1]
Rea next argues that the
trial court's exclusion of co-defendant Newbury's composition deprived him of
his right to present a defense. Whether
an evidentiary determination deprived an individual of his/her constitutional
right to present a defense is subject to our de novo review. In Interest of Michael R. B.,
175 Wis.2d 713, 720, 499 N.W.2d 641, 644 (1993).
Rea explains that his
“theory of defense rested in part upon the opportunity to confront and impeach
Newbury” because each co-defendant was claiming that the other was the primary
actor. Rea argues that the Newbury
composition would have supported his (Rea's) version because it depicted “sex
as power, sex as brutal, uncaring[,] impersonal, narcissistic gratification.”
Newbury's composition,
written six months prior to the murder, is, as Rea's brief describes it, “a
rambling four-page description of several raunchy sexual encounters taking
place in a nudist town with all women.”
Although temporally more remote than Rea's composition, Newbury's
composition was also admissible to establish Newbury's motive, intent, and
identity under § 904.04(2), Stats. Thus, we conclude that the trial court erred
in excluding Newbury's composition.
The court's error,
however, was harmless. An error in the
exclusion of evidence is harmless unless “there is a reasonable possibility
that the error contributed to the conviction.”
State v. Dyess, 124 Wis.2d 525, 543, 370 N.W.2d 222,
231-32 (1985).
The evidence against Rea
was overwhelming. It included Newbury's
confession identifying Rea as the primary actor, Rea's own confession, Rea's
composition, Rea's statements the day before the assault, and Rea's admissions
after the assault. We conclude,
therefore, that there is no reasonable possibility that the exclusion of
Newbury's composition contributed to Rea's conviction.
Finally, Rea argues that
the trial court erred in denying the motion to suppress his confession. Rea does not claim that the Miranda
warnings were deficient or that he did not knowingly waive his rights. Rather, Rea maintains that his waiver was
involuntary because of coercive police tactics, his developmental disabilities,
and the unavailability of his lawyer and father.
Under the Fifth
Amendment of the United States Constitution, no person “shall be compelled in a
criminal case to be a witness against himself.” If, however, the accused “voluntarily, knowingly and
intelligently” waives his right against self-incrimination, then his statements
may be used against him. Miranda
v. Arizona, 384 U.S. 436, 444 (1966).
Reviewing a trial court's denial of a motion to suppress a confession
presents a mixed question of fact and law.
We will not set aside the trial court's factual findings “unless they
are contrary to the great weight and clear preponderance of the evidence.” State v. Clappes, 136 Wis.2d
222, 235, 401 N.W.2d 759, 765 (1987).
We independently review, however, “the application of federal
constitutional principles to the facts as found.” Id.
“[C]oercive police
activity is a necessary predicate to the finding that a confession is not
‘voluntary’.” Colorado v.
Connelly, 479 U.S. 157, 167 (1986).
If no coercive tactics were undertaken by the police, there is no basis
for finding the confession involuntary.
Clappes, 136 Wis.2d at 235-39, 401 N.W.2d at 765-67; State
v. Owens, 148 Wis.2d 922, 934, 436 N.W.2d 869, 874 (1989). The voluntary nature of a confession is
determined by balancing the personal characteristics of the accused against the
pressures exerted by the police. Grennier
v. State, 70 Wis.2d 204, 210, 234 N.W.2d 316, 320 (1975). The personal characteristics are not,
however, dispositive if the trial court finds that the police did not engage in
improper conduct. Clappes,
136 Wis.2d at 239-240, 401 N.W.2d at 767.
Rea argues that the
police employed “coercive tactics ... during nearly six hours of
questioning.” The record, however,
belies his claim. According to the
testimony at the hearing on his motion to suppress, Rea was arrested at about
5:30 p.m. on May 19, 1993. He was
placed in a squad car, advised of his Miranda rights, and taken
to the police station for questioning.
Detective Joseph Nowicki advised Rea of his Miranda rights
again and then began questioning Rea at about 6:40 p.m. Between 6:40 p.m. and 10:00 p.m., Rea
offered three different alibis and, as a result, the questioning was
interrupted several times so that the police could investigate them. When the alibis broke down, Rea eventually
admitted that he committed the crimes and his formal statement was taken
between approximately 10:40 p.m. and 12:30 a.m.
At the hearing on his
motion to suppress, Rea did not testify.
No evidence disputed Nowicki's account that Rea never declined to speak
and never requested a lawyer or his parents.
Rea was provided with sandwiches, soda, coffee, and cigarettes and was
given at least four breaks of between ten and thirty minutes. There was no evidence of any threats or
other coercion.
Rea argues that “law
enforcement personnel undertook inadequate efforts to secure a valid waiver of
his constitutional rights” given his age and mental capacity. A psychologist testified that Rea functioned
at a third or fourth grade level.
Nowicki, however, testified that Rea engaged in a coherent and rational
discussion with him. Further, Nowicki
testified that Rea acknowledged having been through the interrogation process
during a prior arrest for an unrelated crime.
Rea further argues that
the absence of his parents and/or his lawyer rendered his confession
involuntary. The presence of a parent
or an attorney is not required to validate a juvenile's waiver. Theriault v. State, 66 Wis.2d
33, 41, 223 N.W.2d 850, 853 (1974).
According to the undisputed testimony, Rea never requested an attorney
or his parents. Further, there is no
evidence to show that Rea's attorney (in an unrelated juvenile court case) was
seeking contact with Rea or even that the questioning detective knew that Rea
had such counsel.
We conclude, therefore,
under the totality of the circumstances, that Rea voluntarily waived his rights
and the trial court properly admitted his confession.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.