STATE оf Wisconsin, Plaintiff-Respondent, v. Michael F. BOSHCKA, Defendant-Appellant.
Nos. 92-0287, 92-0288, 92-0289
Court of Appeals of Wisconsin
December 17, 1992
Submitted on briefs September 10, 1992.
(Also reported in — N.W.2d —.)
For the plaintiff-respondent the cause was submitted on the brief of James E. Doyle, attorney general, and James M. Freimuth, assistant attorney general.
Before Eich, C.J., Gartzke, P.J., and Sundby, J.
EICH, C.J. Michael J. Boshcka appeals from a judgment convicting him of eight separate felonies, all involving his former wife, S.F.: sexual assault (three counts); intimidation of a victim; carrying a concealed weapon; solicitation to сommit first-degree intentional homicide; and being a party to the crimes of robbery and auto theft.
The sexual assault, intimidation and concealed weapon charges were based on S.F.‘s testimony that Boshcka came to her apartment one evening, forced her to engage in several sexual acts over a period of several hours, and threatened to kill her if she called the police. She also stated that, in the days that followed, Boshcka made several telephone threats to her. He was eventually arrested outside her apartment carrying a concealed weapon. The solicitation, robbery and auto theft charges were based on evidence that Boshcka solicited a fellow jail inmate, James Stanley, to kill S.F. and that Stanley went to S.F.‘s apartment while on work release, beating her and stealing her car. Fоllow-
He raises four issues on appeal: (1) whether he was denied due process when the trial court used a pattern jury instruction on credibility which had since been replaced with a revised version; (2) whether the trial court committed reversible error by allowing into evidence S.F.‘s hearsay statements concerning the sexual assaults; (3) whether he was denied his constitutional right to the assistance of counsel when the trial court failed to consult with defense counsel before denying the jury‘s request for access to a trial exhibit during deliberations; and (4) whether the trial court‘s erroneous statement to the jury that Boshcka had five prior convictions, when in reality he had only four, denied him a fair trial. We resolve all issues against Boshcka and affirm the judgment. Other facts will be discussed below.
I. The Jury Instruction
One of the instructions on witness credibility given by the trial court was Wis J I—Criminal 310, which states:
[The defendant] is directly interested in the result of the trial. In determining the weight to be given to the testimony of the defendant, it is proper for you to take such interest into consideration. . . . You have a right to consider his situation, his interest in the result of the trial, [and] the temptation
which may exist under the circumstances to testify falsely. . . .
Boshcka argues first that the instruction violates his right to due prоcess of law because it “singles him out” as a person not to be trusted. However, the supreme court has upheld the instruction over constitutional objections, concluding that it neither “direct[s] the jury to disbelieve the defendant” nor otherwise denies the defendant a fair trial. Thompson v. State, 83 Wis. 2d 134, 148, 265 N.W.2d 467, 474 (1978).
Boshcka acknowledges the Thompson decision but argues that the Wisconsin Criminal Jury Instructions Committee expressed its disapproval of the instruction by withdrawing it in 1979, and that this action somehow supplants or supersedes the supreme court‘s holding in Thompson. He does not elaborate further on the argument and we reject it.
The committee withdrew the instruction because it concluded that “it is preferable to include reference to the credibility of the defendant in the instruction on credibility of all witnesses.” Wis J I—Criminal 310, Comment. The language suggested by the committee to be added to the general witness credibility instruction is as follows:
Under the law, a defendant is a competent witness and you should not discredit the testimony merely because the defendant is charged with a crime. The defendant‘s testimony should be weighed as the testimony of any other witness; considerations of interest, appearance, manner, and other matters bearing upon credibility apply to the defendant in common with all witnesses. Wis J I—Criminal 300.
Alternatively, Boshcka argues that the trial court exceeded its discretion by giving the replaced instruction. We disagree.
A trial court has “broad discretion” in instructing the jury. White v. Leeder, 149 Wis. 2d 948, 954, 440 N.W.2d 557, 559 (1989). That discretion extends to both the language chosen by the сourt and the emphasis given to that language. State v. Vick, 104 Wis. 2d 678, 690, 312 N.W.2d 489, 495 (1981).
The limited scope of our review of discretionary rulings is well settled. Generally, “[we] will not reverse a discretionary determination by the trial court if the record shows that discretion was in fact exercised and we can perceive a reasonable basis for the court‘s decision.” Prahl v. Brosamle, 142 Wis. 2d 658, 667, 420 N.W.2d 372, 376 (Ct. App. 1987). Indeed, “[b]ecause the exercise of discretion is so essential to the trial court‘s functioning, we genеrally look for reasons to sustain discretionary decisions.” Schneller v. St. Mary‘s Hosp., 155 Wis. 2d 365, 374, 455 N.W.2d 250, 254 (Ct. App. 1990), aff‘d, 162 Wis. 2d 296, 470 N.W.2d 873 (1991).
To determine whether the trial court properly exercised its discretion in a particular matter, we look
Boshcka argues that the trial court exceeded its discretion in giving the instruction because it based its decision to do so on its “conclu[sions]” that: (1) a defendant‘s testimony must be viewed “with particular caution” when the state “chooses to rely on the uncorroborated testimony of an accomplice, with whom the state has made a sweet deal“; and (2) when the charges in a case are “particularly serious,” it is proper to “cast[] doubt upon the veracity of the defendant‘s considerations.” Where the court‘s exercise of discretion is based upon an error of law, it acts “beyond the limits of discretion” and its decision cannot stand. State v. Hutnik, 39 Wis. 2d 754, 763, 159 N.W.2d 733, 737 (1968). That is not the case here, however.
First, Boshcka has not referred us to any place in the trial transcript where the court stated any such “conclusions,” and we have said many times that we will not consider arguments unsupported by citations to the record, for it is not our duty to “sift and glean the record” to find facts to support a party‘s argument. Keplin v. Hardware Mut. Casualty Co., 24 Wis. 2d 319, 324, 129 N.W.2d 321, 323 (1964).
II. Hearsay Evidence
Boshcka claims that he is entitled to reversal of the sexual assault convictions because they were based, in part at least, on inadmissible hearsay evidence offered by Gidget Krueger, S.F.‘s job supervisor, and William Hammes, Boshcka‘s parole agent.2
“A statement relating to a startling event . . ., made while the declarant was under the stress of excitement caused by the event or condition,” is admissible as an exception to the hearsay rule.
(unobjected-to hearsay statements “are not reviewable on appeal“). He argues, however, that we should exercise our discretionary authority under
We decline to do so. As will be seen, the trial court properly allowed the other witnesses, Krueger and Hammes, to testify as to what S.F. told them about the assaults. Thus, even if inadmissible, Dunham‘s testimony was merely cumulative and cannot be said to have “so clouded a crucial issue that it may be fairly said that the real controversy was not fully tried.” State v. Penigar, 139 Wis. 2d 569, 578, 408 N.W.2d 28, 32-33 (1987).
Here, the first element—the existence of a “startling event“—is met by the nature of the assaults themselves.
The second requirement, that the declarant must have made the statement while under the stress of the excitement caused by the event, was discussed in Christensen v. Economy Fire & Casualty Co., 77 Wis. 2d 50, 56-57, 252 N.W.2d 81, 84-85 (1977):
The excited utterance exception . . . is based upon spontaneity and stress which endow such statements with sufficient trustworthiness to overcome the reasons for exclusion of hearsay. In determining whether a statement qualifies as an excited utterance, the important factors [to consider] are timing and stress. . . .
“It must be shown that the statement was made so spontaneously or under such psychological or physical pressure or excitement that the rational mind could not interpose itself between the spontaneous statement or utterance stimulated by the event and the event itself.” (Citations and footnote omitted.)
For the purposе of determining the admissibility of hearsay statements under the excited utterance exception, the interval between the incident and the declaration is not measured by the mere lapse of time but by the duration of the excitement the event caused. Muller, 94 Wis. 2d at 467, 289 N.W.2d at 578.
S.F.‘s statements to Krueger and Hammes were made within a few hours after she had suffered
Under these circumstances, we conclude that the witness‘s testimony was properly admitted under the excited utterance exception to the hearsay rule.3
Boshcka next argues that we should reverse his convictions because hе was denied his constitutional right to assistance of counsel when the trial court failed to consult with him and his attorney before responding to a jury request during deliberations. Again, we disagree.
While deliberating, the jury sent a note to the court requesting that a copy of the medical report prepared after S.F.‘s physical examination be sent to the jury room. Without consulting with defense counsel or the prosecutor, the trial court deniеd the request. A short time later, the court informed both parties of the request and, noting that the subject had “already [been] discussed on the record,” stated that it had declined to send the exhibit in because it contained “irrelevant information.” Boshcka‘s counsel neither objected to, nor commented on, the court‘s actions or statements. The jury continued its deliberations for another six hours before returning a verdict.
The state concedes that the court erred in answering the jury‘s question without first consulting with defense counsel. See State v. Bjerkaas, 163 Wis. 2d 949, 957, 472 N.W.2d 615, 618 (Ct. App. 1991). It argues, however, that Boshcka waived his right to review by not raising an objection at the time he was informed of the error. We agree.
As we have discussed above, unobjected-to errors are generally considered waived, and the rule applies to both evidentiary and constitutional errors. Maclin v.
App. 1985) (two and one-half to seven hours); State v. Fleming, 621 P.2d 779, 781-82 (Wash. Ct. App. 1980) (three to four hours).
As indicated, when informed by the trial court of the jury‘s request and the court‘s response, Boshcka‘s counsel neither objected to the court‘s action nor requested that the exhibit be sent in. Nor did he comment on the subject at any time during the succeeding six hours during which the jury continued to deliberate its verdict.
The waiver rule is of long standing, and its purpose is to require a party to raise an objection аt trial as soon as it becomes known so that it may be addressed with minimal disruption of the trial process. Cappon v. O‘Day, 165 Wis. 486, 490-91, 162 N.W. 655, 657 (1917). It also serves to discourage possible defense strategies of foregoing the opportunity to correct alleged errors at trial in hopes of obtaining a new trial in the event of a guilty verdict.
Here, Boshcka and his attorney had ample time to respond to the court‘s denial of the jury‘s request. Indeed, the prosecutor еven suggested to the court and defense counsel that relevant portions of the medical records might be read to the jury; and still counsel stood mute. We agree with the state that, on this record, Boshcka should not now be heard to complain that his own acquiescence in the court‘s action somehow prejudiced his case.
IV. Boshcka‘s Prior Convictions
In determining the number of Boshcka‘s prior convictions that would be admissible to impeach his
An error will be considered prejudicial to a defendant if “there is а reasonable possibility that [it] contributed to the conviction.” State v. Dyess, 124 Wis. 2d 525, 543, 370 N.W.2d 222, 232 (1984). No such possibility exists in this case.
Taken in the context of a lengthy trial on ten charged crimes—several of them of an aggravated nature—in which the evidence of guilt was substantial, we see no possibility that this error affected the outcome. Indeed, Boshcka acknowledges that “[s]tanding alone, this error might not warrant reversal.” We agree, and note that we have rejected his other claims of еrror.
We also note the supreme court‘s observation in State v. Bowie, 92 Wis. 2d 192, 202, 205, 284 N.W.2d 613, 617, 619 (1979), that a similar error (erroneous testimony that a defendant had four prior convictions when in reality he had only one) was harmless because the standard instruction on prior convictions as impeachment “does not direct the jury to give the number of convictions special consideration,” and thus “[t]he jury would have received the [same] instruction” no matter how many convictions existed or were said to exist.
The same situation exists here: the trial court gave the standard instruction on impeachment of a defendant by prior convictions (Wis J I—Criminal 327) and
By the Court.—Judgment affirmed.
SUNDBY, J. (dissenting). A criminal defendant is not entitled to a perfect trial, only a fаir one. State v. Crandall, 133 Wis. 2d 251, 259, 394 N.W.2d 905, 908 (1986). Because Boshcka did not receive a fair trial, I would reverse and grant him a new trial.
First, the jury was instructed that it was to weigh Boshcka‘s testimony according to Wis J I—Criminal 310, which was withdrawn by the Wisconsin Criminal Jury Instructions Committee in 1979. The Wisconsin Supreme Court concluded in Thompson v. State, 83 Wis. 2d 134, 148, 265 N.W.2d 467, 474 (1978), that the instruction did not deny the defendant a fair trial. However, the committee concluded that “it is preferable to include reference to the credibility of the defendant in the instruction on credibility of all witnesses.” Comment to Wis J I—Criminal 310 (1991). That reference is included in Wis J I—Criminal 300 (1991). The Wisconsin Supreme Court has not had occasion since the committee‘s action to exercise its supervisory authority to instruct trial courts as to which instruction is preferable.
Second, the jury heard inadmissible hearsay testimony which corroborated the testimony of Boshcka‘s wife that Boshcka had sexually assaulted her. Boshcka‘s parole officer and a police detective testified that S.F. told each of them that Boshcka had raped her four to six hours earlier. Further, S.F.‘s work supervisor testified that S.F. told her she had been sexually
Here, it cannot be said that the circumstances surrounding the making of S.F.‘s out-of-court statements “provide sufficient assurance that she spoke the truth.” Boshcka testified that his sexual contacts with his wife were consensual. There were no witnesses to the alleged assaults, other than S.F.‘s daughter, who only heard noises outside her bedroom and whose testimony is inconclusivе. The medical evidence was inconclusive. S.F. had a motive to lie: the couple was estranged; S.F. testified that on the night of June 27, 1990, Boshcka came home drunk, “choke[d]” her and “punched her” in the face, sending her to the hospital; and in early August 1990, she contacted Boshcka‘s parole officers who imposed a no-contact condition on Boshcka. This case became a credibility contest. It was unfair to allow the stаte to bolster S.F.‘s testimony with her out-of-court statements.
Finally, the trial court ruled incorrectly that Boshcka had been convicted of five crimes, rather than four. Boshcka therefore testified, when asked, that he had been convicted of five crimes. The state concedes the error but argues it was harmless. I agree that by itself the error was harmless. However, the cumulative effect of the several errors was to deny Boshcka a fair trial. I would give him one.