Michael Whitaker was convicted in two jury trials of 1) first-degree reckless homicide while armed, in violation of sections 940.02(1) and 939.63(1) & (2), Stats., and 2) possession of cocaine with intent to deliver, in violation of sections 161.16(2)(b)l and 161.41(lm)(c)l, Stats. He raises five issues on this appeal.
First, he claims that the trial court erred in not admitting into evidence at his request in the homicide trial an exculpatory out-of-court statement given by Tommie Lee Harris that Whitaker cоntends was against Harris' penal interest and thus admissible under Rule 908.045(4), Stats. Second, Whitaker asserts that the trial court abused its discretion in permitting a police officer to testify in the homicide trial about gang modus operands Third, Whitaker argues that the trial court erred in receiving into evidence in the homicide trial an out-of-court statement by Tommie Lee Harris offered by the State under the co-conspirator exclusion from the rule against hearsay, Rule 908.01 (4)(b)5, Stats. Fourth, Whitaker contends that the trial court erred in permitting several of the persons he wanted to call as defense witnesses in the homicide trial to assert their Fifth Amendment privilege against self-incrimination through their attorneys. Finally, he claims an abuse of sentencing discretion in connection with his conviction on the drug charge. We affirm.
*252 l-H
Whitaker was convicted of shooting Tamika Patrick following the breakup of a Saturday-night party at а house on East Hadley Avenue in the City of Milwaukee. The State's main witness, Raquel Russel, testified that she went to the party at around 9 p.m. There were first approximately forty-five to fifty, and later sixty-five to seventy-five persons between the ages of fifteen and nineteen at the party, including Whitaker and Patrick. Many of the young people at the party were street-gang members. Ultimately, rowdiness and violence that began at the party sрilled out onto the nearby streets, and shots were fired. Russel told the jury that she saw Whitaker shoot Patrick. Although Russel did not know Whitaker prior to meeting him at the party, she testified that she was able to identify him as the shooter because when he shot Patrick he was still wearing the same clothes he wore at the party, including a black baseball-type cap that said "Sleepy" on the side.
II
Most of Whitaker's claims of trial-court error involve decisions to admit or exclude evidence. Such decisions are vested in the reasoned discretion of the trial court and will not be reversed on appeal if they have "a reasonable basis" and were made " 'in accordance with accepted legal standards and in accordance with the facts of record.' "
State v. Pharr,
*253 A. Rule 908.045(4), Stats, (statement against interest): Whitaker’s first claim of trial-court error is that the court should have received into evidence an April 27, 1989, written and notarized out-of-court statement by Tommie Lee Harris. Harris' nickname was "Sleepy," and his statement asserted that he and not Whitaker wore the "Sleepy" cap the night Patrick was shot. 1 Harris had, earlier, told the police that Whitaker was wearing the hat that night. Harris asserted his Fifth Amendment right not to testify at the trial, and was thus found by the trial court to be unavailable as a witness. See Rule 908.04(1)(a), Stats. (" 'Unavailability as a witness' includes situations in which the declarant. . . [i]s exempted by ruling of the judge on the ground of privilege from testifying concerning the subject matter of the declarant's statement."). 2 Given Russel's identification of the shooter as the person who wore the "Sleepy" hat, Harris' statement that he was wearing the hat was *254 against his penal interest when it was made. 3 Accordingly, the statement falls within the ambit of Rule 908.045(4), Stаts., which provides:
The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: . . ..
... A statement which... at the time of its making ... so far tended to subject the declarant to . . . criminal liability . . . that a reasonable person in the declarant's position would not have made the statement unless the person believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborated.
The corroboration required before a statement against the declarant's penal interest may be received into evidence under Rule 908.045(4) to exculpate an accused must be "sufficient to permit a reasonable person to conclude, in light of all the facts and circumstances, that the statement could be true."
State v. Anderson,
This Court will find that as to the written statement [of April 27] of Tommy [sic] Lee Harris, and as to his testimony in the preliminary [examination] transcript when contrasted with a statement given to the police earlier before he recognized the significance of the wearing of a hat to lead me to believe that no reasonable person could conclude in all — in light of *255 all the facts and circumstances that the statement [of April 27] could be true. I am satisfied on the basis of the totality of this record that Tommy [sic] Lee Harris is not a person who could be believed in his subsequent statements.
The trial court applied the correct legal principles and based its decision on a reasonable view of the evidence. There was no abuse of discretion in excluding thе statement.
B. Police officer testimony about gang modus operandi. The trial court permitted a police officer to testify that gang members will exchange items of clothing with one another to frustrate identification. Whitaker contends that this was error for three reasons. First, Whitaker claims in his appellate brief that this proposition is not "so far beyond the knowledge, understanding or experience of the ordinary juror so as to require expert testimony." Second, he argues that there was no evidence that Whitaker went to the party with the intention to commit a crime so that frustration of his identification by others would be a motive to exchange items of clothing. Third, he claims that there was no proof that the officer relied on accurate information in formulating his opinions concerning gang activity. We disagree.
First, expert testimony is
required
only if the issue to be decided by the jury is beyond the general knowledge and experience of the average juror.
Kujawski v. Arbor View Health Care Center,
Second, the State's case was, аt least in part, premised on the theory that much of the violence during and after the party was gang-related. Indeed, even Whitaker's trial attorney conceded the admissibility of evidence concerning gang activity when he acknowledged that if the State wished to "elicit testimony about the practices of youth gangs to wear their hats a certain way and tip them, that would be relevant." It was also conceded by both the State and the defense that "Sleepy" was Harris' nickname, not Whitaker's. Yet, Russel testified that Whitaker was wearing the "Sleepy" hat. Accordingly, the alleged practice of gang members exchanging clothing to frustrate identification bolstered her testimony; it was therefore relevant. See Rule 904.01, Stats. (" 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.") (Emphasis added.)
*257 Third, a witness is qualified to give an opinion under Rule 907.02, Stats., when he or she has "specialized knowledge" as the result of "knowledge, skill, experience, training or education." Ibid. In formulating his or her opinion, the witness may rely on matters that are not admissible as substantive evidence as long as those matters are "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject" of the witness' opinion testimony. Rule 907.03, Stats. The State laid an extensive foundation for the police officer's opinions concerning gang activity and elicited the bases for those opinions. Additionally, Whitaker's trial counsel conducted a lengthy voir dire of the officer. During the course of these examinations, the officer testified that at the time of the trial he had been assigned to the Milwaukee Police Department's Metro Gang Crimes Unit since the unit's inception eight years earlier, although at the time of trial he was on special assignment with the department's Violent Crimes Task Force. He explained that he had attended seminars on youth-gang activity, studied the relevant literature about youth-gang activity, received in-service training in that area, worked with pоlice officers considered to be youth-gang experts in other midwest jurisdictions, conducted training sessions in youth-gang activity for law enforcement officers as well as school principals, teachers, and counselors, and had personally interviewed more than fifty purported youth-gang members. The officer's testimony established a sufficient threshold foundation for his opinion testimony on gang activity.
Once a party lays a threshold fоundation for a witness to give an opinion under Rule 907.02, Stats., the burden shifts to the adverse party to show that the
*258
underlying bases for the witness' opinion are insufficient to support that opinion.
See Karl v. Employers Ins. of Wausau,
C. Rule 908.01(4)(b)5, Stats, (statement by co-conspirator of a party): Over Whitaker's objection, the trial court permitted a police officer to testify during the State's rebuttal that Tommie Lee Harris told him that after Whitaker shot Patrick, Harris said to Whitaker "you got one." The trial court received the statement under Rule 908.01(4)(b)5, which provides that an out-of-court declaration "offered against a party" is not hearsay if it is "[a] statement by a coconspirator of a party during the course and in furtherance of the conspiracy." 5 We must first evaluate whether there was suf *259 ficient evidence for the trial court to conclude that Whitaker and Harris were part of a conspiracy as that term is used in Rule 908.01(4)(b)5. This analysis turns on whether Harris' statement may be considered as part of this foundation.
In 1981, the Wisconsin Supreme Court held that a statement sought to be admitted under Rule 908.01(4)(b)5, Stats., may not be considered as part of the evidentiary foundation.
State v. Dorcey,
Glasser
held that unless the out-of-court declaration was made in the presence of the defendant, its consideration as part of the evidentiary foundation would improperly permit the statement to "lift itself by its own bootstraps to the level of competent evidence."
*260 Preliminary questions concerning . . . the admissibility of evidence shall be determined by the court. ... In making its determination it is not bound by the rules of evidence except those with respect to privileges.
As the Federal Advisory Committee Note explains, under Rule 104(a) "[a]n item, offered and objected to, may itself be considered in ruling on admissibility, though not yet admitted in evidence."
See Bourjaily,
Rule 901.04(1), Stats., is virtually identical to Federal Rule 104(a), and provides:
Preliminary questions concerning . . . the admissibility of evidence shall be determined by the judge .... In making the determination the judge is bound by the rules of evidence only with respect to privileges.
The Judicial Council Committee Note to Rule 901.04(1) points out that Wisconsin's rule was designed to operate in the same manner as its federal counterpart. Thus, it explains that the significant last sentence of Rule 901.04(1) "deviates from the federal rule only in the interest of clarity; no change of substance is intended." 59 Wis. 2d at R16. This congruence between Federal Rule 104(a) and Rule 901.04(1) is consistent with the *261 general approach followed by the drafters of Wisconsin's rules of evidence:
In formulating the Wisconsin rules, uniformity with the Proposed Federal Rules was the overriding principle. Because evidence law was applied "on the run" in the heat of the combat of the adversary system, it was thought that a Wisconsin trial lawyer should not be required to be skilled in two potentially contradictory systems of evidence. Changes from the federal rules were proposed only in instances where legal tradition or legislative enactment seemed substantially compelling or where Wisconsin law was more advanced. The differences are not substantial enough to stimulate forum shopping nor to complicate the mastery of both codes by the bar.
J. Decker A New Wisconsin Evidence Code? 56 Marq. L. Rev. fourth unnumbered page preceding 156 (1973). 8
As Wisconsin's intermediate appellate court, we are of course bound by Wisconsin Supreme Court precedent.
State v. Lossman,
The requisite "conspiracy" under Rule 908.01(4)(b)5, Stats., is concerted action: "[n]ot all of the elements of the substantive crime of conspiracy need be proven."
Dorcey,
A police officer testified that Whitaker told him that he and five friends, including Harris, had weapons at the party because they were afraid that a group at which Harris had shot the previоus evening would attempt retaliation. Whitaker told the police officer that after he and his friends left the party Saturday night they heard shots. Two of those with Whitaker pointed to a nearby car, and told Whitaker to "shoot down there." The officer related to the jury what happened next:
[Whitaker] states that he walked down to the sidewalk, on the north side of the street, pulled out his three fifty-seven, held it in two hands and he showed me like this and he firеd all six shots in the direction of 3rd Street.
It was during this volley that Patrick was shot and that Harris told the police he said to Whitaker: "You got one."
A trial court may not admit evidence under the duties imposed by Rule 901.04(1), Stats., unless it is satisfied by a preponderance of the evidence that a sufficient foundation has been laid.
State v. Frambs,
D. Invocation of privilege against self-incrimination. At the trial, Whitaker sought to call several persons as witnesses on his behalf. The trial court permitted their lawyers to assert their Fifth Amendment privilege on their behalf without requiring that they come to court to personally invoke the privilege. Although not challenging the trial court's conclusion that each of the persons had a basis for invoking the privilege,
see State v. McConnohie,
E. Sentence in drug case. The trial court sentenced Whitaker to an indeterminate term of incarceration not to exceed twenty years on the conviction for first degree reckless homicide, and to a consecutive indeterminate term of incarceration not to exceed two years on the drug conviction. Whitakеr asserts that the sentence on the drug conviction must be reversed and remanded since the trial court considered as a factor the homicide conviction, which he contends was improperly obtained. We disagree. First, consideration of the circumstances surrounding the shooting of Patrick would have been entirely appropriate even if Whitaker had been acquitted of the homicide charge.
See Elias v. State,
By the Court. — Judgment and order affirmed.
Notes
The statement was in Harris' handwriting and reads as follows:
My name is Tommie Harris I was at the party the night Tamika Patrick got shot. Doin [sic] that entire even [sic] I wore my hat. The hat was black and had Villanoa Wilcat [sic] my name was on the side it sade [sic] sleepy. Michael Whitaker never wore my hat. I wore my hat on [sic] all night.
Harris also testified at Whitaker's preliminary examination that Whitaker had been wearing his own hat the entire evening. Whitaker's counsel expressly told the trial сourt, however, that he did not want that testimony admitted into evidence.
The constitutional privilege against self-incrimination takes precedence over a defendant's constitutional right to compulsory process.
State v. McConnohie,
Neither the parties nor the trial court considered whether Harris might have waived his Fifth Amendment privilege concerning his conflicting statements as to who was wearing his "Sleepy" baseball cap that evening. We do nоt address this issue.
Rule 907.02, Stats., provides:
Testimony by experts. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Whitaker's trial counsel also objected on double-hearsay grounds; namely, that although what Harris said at the time of the shooting might or might not have been a statement by a co-conspirator within the ambit of Rule 908.01(4) (b)5, Stats., Harris' statement to the police officer was also hearsay and was not in the furtherance of any conspiracy. Each hurdle erected by the rule against hearsay must be independently cleared. Rule 908.05, Stats. ("Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in this
*259
chapter."). We will not consider this hearsay-within-hearsay argument, however, since Whitaker has not raised it in his appellate brief.
Cf. Reiman Assocs. v. R/A Advertising, Inc.,
The Federal Advisory Committee Note is reprinted at 59 Wis. 2d R16.
Rule 908.01(4)(b)5, Stats., is Wisconsin's counterpart to Federal Rule 801(d)(2)(E).
Judge John A. Decker was the Reporter for the Wisconsin Judicial Council Evidence Committee, whiсh drafted the rules. See 56 Marq. L. Rev. sixth unnumbered page preceding 156.
Significantly, Harris' statement could have been considered even under
Glasser,
although arguably not under
Dorcey.
As we recognized in
Blalock, "Glasser
excepted from its anti-bootstrapping rule those out-of-court statements made in the presence of the alleged co-conspirator against whom admission of those statements is sought."
Blalock,
A defendant's right to confrontation is not violated by admission of a co-conspirator's statement that passes muster under Rule 908.01(4) (b)5, Stats.
Webster,