|
COURT OF APPEALS DECISION DATED AND RELEASED June 4, 1996 |
NOTICE |
|
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. 95-0524-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JAMES A. JACKSON,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: VICTOR MANIAN, Judge. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Schudson, JJ.
PER
CURIAM. James A. Jackson appeals from a judgment of conviction,
after a jury trial, for first-degree intentional homicide while armed as a
party to a crime, and armed robbery. He
also appeals from an order denying his motion for postconviction relief. He raises three issues for review—whether
the trial court erroneously exercised its discretion when it admitted evidence
about his possession of guns implicated in the offenses; whether the trial
court erroneously exercised its discretion in excluding alleged evidence of a
third party's guilt; and whether there was insufficient evidence to convict him
of first-degree intentional homicide.
We reject Jackson's arguments and affirm.
I. Background.
Police found Robert
Walker's body in an alley near the 2500 block of North Teutonia Avenue in
Milwaukee. Walker had been killed by a
gunshot to the back of the neck. Police
also found his automobile parked across the street in front of Charlotte Ward's
residence. The car's passenger-side
window was broken and the glove compartment was open.
Police arrested Jackson
several weeks after Walker's homicide.
Jackson was a passenger in a car detained by police in a routine traffic
stop. The police found a “Tech‑Nine”
semiautomatic handgun, a .32 caliber revolver, and a .38 caliber revolver. Jackson was carrying twelve unfired rounds
which matched those in the .32 caliber revolver. These weapons were implicated[1]
in Walker's homicide and armed robbery.
Jackson, Duwon Watkins,
and two juveniles, Robert J. and Terrell T., were implicated in the
homicide and robbery; however, Jackson was tried separately. Further facts are discussed with the
relevant issue raised by Jackson.
II. Analysis.
During his trial, the
State introduced evidence concerning Jackson's arrest and the recovery of the
weapons. Jackson argues on appeal that
the trial court erroneously exercised its discretion when it admitted this
evidence. We disagree.
A trial court possesses
great discretion in determining whether to admit or exclude evidence. State v. Evans, 187 Wis.2d 66,
77, 522 N.W.2d 554, 557 (Ct. App. 1994).
Thus, we will not reverse such a determination unless the trial court
erroneously exercises that discretion. Id.
Jackson miscasts the
evidence in question as “other acts,” or Whitty evidence. See Rule
904.04, Stats.; Whitty v.
State, 34 Wis.2d 278, 149 N.W.2d 557 (1967), cert. denied, 390
U.S. 959 (1968). This evidence is not
“other acts” evidence, but rather, relevant evidence of the crimes. Jackson's possession of the guns, in
connection with the testimony of a co-defendant linking the guns to Walker's
homicide, was clearly relevant. See
Rule 904.01, Stats.
Further, this evidence helps to “complete the story of the crime.” Holmes v. State, 76 Wis.2d
259, 269, 251 N.W.2d 56, 61 (1977). As
such, we cannot say that the trial court erroneously exercised its discretion
in admitting this evidence. Evans,
187 Wis.2d at 77, 522 N.W.2d at 557.
Jackson next argues that
the trial court erroneously exercised its discretion when it denied his attempt
to introduce evidence of alleged third-party guilt. Once again, we review the trial court's determination under the
exercise of discretion standard of review.
See id.
Jackson sought to
introduce evidence that Coleonn Ward or Derrick Loyde committed the murder.[2] In support of the introduction of this
evidence, he presented the following argument and offer of proof.
Four days after Walker's
homicide, police located Derrick Loyde in a car registered to Charlotte
Ward. Police recovered a .22 caliber
pistol from Loyde's lap.
Simultaneously, the police entered the apartment building in front of
which the car was parked, seeking Coleonn Ward, Charlotte's son. The police apprehended Coleonn leaving by a
window. Further, police recovered a .22
caliber long rifle bullet in the siding of a wall near where Walker's body was
found. There was no ballistics evidence
that the bullet found near Walker matched the pistol recovered from Loyde.
Before any “proffered
evidence of the alleged third persons's guilt is relevant,” there must be a
“legitimate tendency” that the third person could have committed the
crime. State v. Jackson,
188 Wis.2d 187, 195, 525 N.W.2d 739, 742 (Ct. App. 1994).
[T]o show a “legitimate tendency,” a
defendant should not be required to establish the guilt of third persons with
that degree of certainty requisite to sustain a conviction in order for this
type of evidence to be admitted. On the
other hand, evidence that simply affords a possible ground of suspicion against
another person should not be admissible....
The “legitimate tendency” test asks whether the proffered evidence is so
remote in time, place or circumstances that a direct connection cannot be made
between the third person and the crime.
State
v. Denny, 120 Wis.2d 614, 623‑24, 357 N.W.2d 12, 17 (Ct.
App. 1984).
The trial court ruled
that the proffered evidence was “just speculation.” The trial court stated:
[T]o jump to the conclusion that somehow
this gun had some connection with Coleonn, first of all, is an assumption, and
then that Coleonn had something to do with the crime simply because his mother
lived in the house behind which the victim was found is making a number of
leaps that in any event can only lead to speculation at the best.
(Emphasis
added.) We agree with the trial
court. Jackson's offer of proof on the
evidence offers at best a “possible ground of suspicion against another
person.” Id. Accordingly, the trial court could properly
exclude the evidence as irrelevant. Jackson,
188 Wis.2d at 195, 525 N.W.2d at 742.
Finally, Jackson argues
that there was insufficient evidence to support his conviction for first-degree
intentional homicide as a party to a crime.
The record belies this argument.
When reviewing the
sufficiency of the evidence to support Jackson's conviction, we will not
reverse unless the evidence, when viewed most favorably to the verdict, is so
lacking in probative value that no jury, acting reasonably, could have found
guilt beyond a reasonable doubt. See
State v. Webster, 196 Wis.2d 308, 320, 538 N.W.2d 810, 814 (Ct.
App. 1995). Hence, we will only
substitute our judgment for that of the jury if that jury relied on evidence
that “`conflicts with the law of nature or with fully established or conceded
facts.'” Id. at 320, 538
N.W.2d at 815 (citation omitted).
Further, the jury is the “sole arbiter of the credibility of witnesses
and alone is charged with the duty of weighing the evidence.” Id.
The State concedes that
much of the testimony was conflicting, with witnesses recanting earlier statements
to the police. Nonetheless, the State
points out that there was clearly evidence on which the jury could base its
decision to find Jackson guilty. We
agree. We do not list all the evidence
supporting the conviction, but point out some of the more significant items.
Both Robert J. and
Terrell T. gave statements to police implicating Jackson. Robert J. testified that he shot Walker
with a handgun handed to him by Jackson, and that he then handed the gun back
to Jackson. This was corroborated by
Charlotte Ward's son, who testified that watching from his house, he saw one
assailant hand Robert J. a gun and saw Robert J. shoot Walker. Robert J. also testified that after he
handed the gun back to Jackson, he fled, but heard two more gunshots from the alley. He testified that Jackson was the only
person remaining in the alley with Walker.
Terrell T. gave
statements to police, but recanted them on the stand. A detective testified that Terrell T. told him that Jackson,
Robert J., and he agreed to rob Walker.
Terrell T. told the detective that Jackson shot Walker, and that he
(Terrell T.) fled from the alley.
He heard two more shots from a different gun and assumed that it was
Robert J. firing.
From this evidence, and
from other corroborating testimony, the jury could clearly conclude that
Jackson was guilty of first-degree intentional homicide, as party to a
crime. Id.
In sum, we reject all
three of Jackson's arguments and affirm.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.