State v. Samuel Nelis

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2007 WI 58 SUPREME COURT CASE NO.: OF WISCONSIN 2005AP1920-CR COMPLETE TITLE: State of Wisconsin, Plaintiff-Respondent, v. Samuel Nelis, Defendant-Appellant-Petitioner. REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 294 Wis. 2d 698, 717 N.W.2d 853 (Ct. App. 2006 Unpublished) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: May 22, 2007 January 4, 2007 Circuit Ashland Robert E. Eaton BRADLEY, J. concurs (opinion filed). ABRAHAMSON, C.J., joins the concurrence. DISSENTED: NOT PARTICIPATING: ATTORNEYS: For the defendant-appellant-petitioner there were briefs by Robert A. Ferg and Ferg & Sinclair, Ltd., Chippewa Falls, and oral argument by Robert A. Ferg. For the plaintiff-respondent the cause was argued by Jeffrey J. Kassel, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general. 2007 WI 58 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2005AP1920-CR (L.C. No. 2004CF39) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, Plaintiff-Respondent, FILED v. MAY 22, 2007 Samuel Nelis, David R. Schanker Clerk of Supreme Court Defendant-Appellant-Petitioner. REVIEW of a decision of the Court of Appeals. ¶1 N. unpublished affirming PATRICK per the CROOKS, curiam decision J. decision of the This of is the Ashland Affirmed. a review Court of County of an Appeals,1 Circuit Court, Judge Robert E. Eaton presiding, which entered a judgment of conviction following a jury trial against Samuel Nelis (Nelis) as a repeat offender, on one count each of battery, aggravated battery, and second-degree sexual assault by use of force. 1 State v. Nelis, No. 2005AP1920-CR, unpublished slip op. (Wis. Ct. App. May 4, 2006). No. ¶2 2005AP1920-CR In his petition for review, Nelis claims that oral statements were erroneously admitted as prior inconsistent statements, that the State of Wisconsin (State) did not disclose such oral statements in advance, and further, that his right to confrontation under Crawford v. Washington, 541 U.S. 36 (2004) was violated. Nelis claims that all of this occurred because Chief Jim Stone of the Bad River Police Department (Police Chief Stone) was permitted to testify at his trial, as to alleged oral statements of another witness, Steve Stone. previously testified at Nelis' trial Steve Stone had concerning the sexual assault incident and his statements to the police on the night of the incident. ¶3 We hold that the oral statements of Steve Stone were properly admitted as prior inconsistent statements of a witness in accord with Wis. Stat. § 908.01(4)(a)(2003-04),2 and that the State was not required to disclose such oral statements in advance. We further hold that Nelis' right to confrontation, as explained in Crawford, was not violated because Steve Stone testified at trial about the sexual assault incident and his statements to the police, and was subject to cross-examination concerning those statements. The record does not establish that he recall became unavailable for to the stand after he testified. 2 All references to the Wisconsin Statutes are to the 200304 version unless otherwise noted. 2 No. ¶4 The decision of the court of appeals 2005AP1920-CR is therefore affirmed. I ¶5 Nelis was convicted of battery, aggravated battery, and second degree sexual assault, following a jury trial that was held on August 23 and 24, 2004, in Ashland County Circuit Court, Judge Robert E. Eaton presiding. The three charges for which Nelis was convicted arose from incidents involving his girlfriend, Diane S. The first charge of battery arose from an incident in February 2004, in which Nelis allegedly threw a full beer can and struck Diane S. in the head. The aggravated battery charge arose from an incident a few days later in which Nelis allegedly punched Diane S. in the face, resulting in black eyes, a swollen face, and blurred vision in her left eye. The sexual assault charge arose from a third incident in February 2004, in which Nelis allegedly choked Diane S. and forced her to have sexual intercourse with him. ¶6 At trial, the State's primary witness with regard to the sexual assault charge was Diane S. Diane S. testified that, on the day of the sexual assault incident, she and Nelis were at Amy Jenson's house in the city of Ashland. Diane S. said that she accused Nelis of shooting up drugs, and then went into a bedroom so that she could examine Nelis' arms for needle tracks. According to Diane S.'s testimony, Nelis choked her while they were in the bedroom. Diane S. then walked out of the bedroom and encountered David Stone, who suggested that Diane S. go into Amy Jenson's room. 3 No. ¶7 Diane S. said that she declined 2005AP1920-CR David Stone's suggestion and went back into the room where Nelis was. She said that Nelis wanted to have sex with her, but she refused. Diane S. testified that Nelis then punched her in the mouth and choked her again. off her. She was bleeding and screamed at Nelis to get Diane S. said that Nelis then ripped off her jeans and had intercourse with her. Diane S. further testified that a man heard her screaming and came into the bedroom to see if she was alright. On cross-examination, Diane S. testified that she and Nelis had had consensual sexual intercourse in the past, but that she did not consent to sexual intercourse during this incident. ¶8 On the morning of the first day of trial, the State informed the court that it had subpoenaed Steve Stone to appear as a trial witness, but he had not appeared. The State asked the court to issue a material witness warrant. In response to the court's inquiry regarding the testimony that Steve Stone would provide, the prosecutor said that Steve Stone had provided a statement that he had walked into the bedroom during the alleged sexual assault, that he had seen Nelis on top of Diane S., and that Diane S. had been crying and had a bloody face. The circuit court granted the State's request and State told issued a material witness warrant for Steve Stone. ¶9 In its opening statement, the the about testimony that it would hear: You are actually going to hear from a witness who heard Diane cry, whimper. And he got up and he walked 4 jury No. 2005AP1920-CR into the bedroom and he saw Sam on top of Diane as Diane was crying and as she was bleeding from her face and whimpering. And at that time Sam got off her and that incident was over. ¶10 Steve Stone was not called as a witness on the first day of Nelis' trial, but the court reminded Steve Stone that he was still under subpoena and that he was out on bond. day, the State called Steve Stone as a witness. testified that he "kind of" remembered The next Steve Stone talking to law enforcement officers after the alleged sexual assault incident involving Nelis and Diane S. He said he remembered telling law enforcement officers that he heard a noise and went to check it out. He said that when he looked in the bedroom, Nelis and Diane S. were together, but he denied that Nelis was on top of Diane S. ¶11 Steve Stone testified that he did not remember telling law enforcement officers that Diane S. was a bloody mess, but said that she was "pretty banged up." He did not remember whether Diane S. was crying or bleeding. On cross-examination, Steve Stone said that he felt pressured to give a statement to the police. He said that someone else wrote out the statement, and that he signed it without reading it. Steve Stone said that he did not want to give a statement to the police because Nelis is his friend, and he did not want to be involved. At the conclusion of Steve Stone's testimony, the court told him that he could "step down." ¶12 The State then called as a witness Tony (Williams), a sheriff's deputy for Ashland County. 5 Williams Williams No. 2005AP1920-CR testified that when he went to Amy Jenson's house to execute a search warrant seeking evidence of a sexual assault, he asked Steve Stone if he would give a written statement. Williams testified that Steve Stone asked Williams to write the statement down for him, because his handwriting was not good. ¶13 back to After Williams wrote down the statement, he read it Steve Stone, who confirmed correct, and Steve Stone signed it. that the statement was Williams then read Steve Stone's statement: The night Sam [Nelis] and his girlfriend were here I heard muffled sounds coming from the back bedroom. I went to check on her. She was a bloody mess. I heard scuffling around. She was bloody and crying. When I turned on the lights everything stopped. I was passed out but the noise from the back room woke me up. The noise was not right. ¶14 The State then called Police Chief Stone to testify. Police Chief Stone testified that he accompanied Williams to the home of Amy Jenson and spoke with Steve Stone about the incident involving Nelis and Diane S. Police Chief Stone said that he did not take a written statement or make a record because Steve Stone was going to give a statement to Williams. ¶15 When the State questioned Police Chief Stone about what Steve Stone had told him, counsel for Nelis objected on hearsay grounds. The prosecutor responded that Steve Stone's statement was an inconsistent statement. the prosecutor to direct the question The court then told to the part of statement that was inconsistent with Steve Stone's testimony. 6 the No. ¶16 2005AP1920-CR According to Police Chief Stone, Steve Stone said that he heard moaning sounds and then heard Diane S. say "no" and "stop, stop." Steve Stone then went into the bedroom and saw Nelis on top of Diane S., and Diane S. was struggling to get away from Nelis. Steve Stone then saw that Diane S.'s face was bleeding. ¶17 Nelis' counsel then objected to Police Chief Stone's testimony regarding Steve constitutional grounds. statements Crawford, violated because Stone's oral statement on He argued that the admission of the Nelis' Steve right Stone to was confrontation "unavailable," under since he testified earlier and could not remember some details of his statement to the police. ¶18 The circuit court ruled that there was no violation of Nelis' right to confrontation because Steve Stone was available for cross-examination, trial. when he had testified earlier in the The court reasoned that Nelis had ample opportunity to ask all the questions that he wanted of Steve Stone. ¶19 David Stone, a witness for the defense, offered testimony relevant to the sexual assault charge. David Stone testified that Nelis and Diane S. had been arguing. David Stone said that when the argument ended, Diane S. went to bed, but later came out of the bedroom crying and angry. He testified that Diane S. went back into the bedroom with Nelis, and never said anything about Nelis assaulting her. ¶20 Nelis argued at trial that the evidence did not show that he and Diane S. had sexual intercourse on the night at 7 No. issue. 2005AP1920-CR He further argued that, even if they did have sexual intercourse that night, it was consensual. ¶21 The jury found Nelis guilty of battery, battery, and second-degree sexual assault. aggravated The circuit court sentenced Nelis to concurrent sentences of two years (one year of initial confinement and one year of extended supervision), six years (four years of initial confinement and two years of extended supervision), and twenty-five years (fifteen years of initial confinement and ten years of extended supervision), on the three counts, respectively. ¶22 Nelis filed a post-conviction motion pursuant to Wis. Stat. § (Rule) 809.30, requesting dismissal of the charges against him and a new trial. post-conviction motion. The circuit court denied Nelis' Nelis appealed the circuit court's denial of his post-conviction motion, and argued on appeal that Steve Stone's oral statements should not have been admitted as prior inconsistent statements, and that the admission of those statements violated his right to confrontation, since Steve Stone was unavailable to testify about the oral statements given to Police Chief Stone. ¶23 The court of appeals affirmed the decision of the circuit court and held that the admission of the oral statements did not violate Nelis' Sixth Amendment right to confrontation because Steve Stone testified at trial and was fully available for cross-examination, and that the statements he gave to the police were not presented until after he had given inconsistent in-court testimony. The court of appeals also noted that Nelis' 8 No. 2005AP1920-CR attorney was able to cross-examine Police Chief Stone fully in regard to Steve Stone's prior statements. ¶24 Nelis filed a petition for review in this court, and we granted the petition for review. Nelis claims that his right to confrontation under Crawford was violated when Police Chief Stone was permitted to testify as to undisclosed oral statements of Steve Stone, under the guise of prior inconsistent statements, after Steve Stone had been excused as a witness. II ¶25 Since Nelis raises the issue of whether his right to confrontation was violated, we must first determine whether the oral statements of Steve Stone, as testified to by Police Chief Stone, were admissible under the rules of evidence in Wisconsin. State v. Tomlinson, 2002 WI 91, ¶41, 254 Wis. 2d 502, 648 N.W.2d 367. ¶26 The question of whether the circuit court erred when it admitted such evidence is subject to an erroneous exercise of discretion standard. State v. James, 2005 WI App 188, ¶8, 285 Wis. 2d 783, 703 N.W.2d 727; Martindale v. Ripp, 2001 WI 113, ¶28, 246 Wis. 2d 67, 629 N.W.2d 698. The circuit courts have "broad discretion to admit or exclude evidence[,] . . . [and] we will upset exercised their that decisions only they James, discretion." where 285 have erroneously Wis. 2d 783, ¶8 (citations omitted). ¶27 If Steve Stone's statements were admissible under the rules of evidence, then we must resolve whether the admission of those statements violated Nelis' right to confrontation. 9 State No. 2005AP1920-CR v. Manuel, 2005 WI 75, ¶25, 281 Wis. 2d 554, 697 N.W.2d 811. Whether the admission of hearsay evidence violated a defendant's right to confrontation review de novo. presents a question of law, which we Id. (citing State v. Weed, 2003 WI 85, ¶10, 263 Wis. 2d 434, 666 N.W.2d 485). III ¶28 This case really involves evidentiary issues and does not require a detailed analysis of the United States Supreme Court's decision in Crawford, 541 U.S. 36. The State argues that Steve Stone's oral statements were not hearsay, but were admissible under Wis. Stat. § 908.01(4)(a) as prior inconsistent statements. Section 908.01(4)(a)3 provides that a prior inconsistent statement is not hearsay and is admissible if the 3 Wisconsin Stat. § 908.01(4)(a) states in relevant part: (4) Statements which are not hearsay. A statement is not hearsay if: (a) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is: 1. Inconsistent with the declarant's testimony, or 2. Consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or 3. One of identification of a person made soon after perceiving the person. . . . 10 No. 2005AP1920-CR declarant "testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is: (1) inconsistent with the declarant's testimony. . . ." ¶29 Nelis does not argue that Steve Stone's statements were consistent with his earlier testimony at trial, but rather he contends that Steve Stone's oral statements to Police Chief Stone were not admissible as prior inconsistent statements due to the lack of cross-examination, and were not admissible under any of the hearsay exceptions. was not subject statements to to the Nelis asserts that Steve Stone cross-examination police because concerning such statements disclosed until Police Chief Stone testified. his were oral not Nelis argues that Steve Stone was not, "subject to cross-examination" concerning his oral statements and that his statements were, therefore, inadmissible. ¶30 Wis. Stat. § 908.01(4)(a). Nelis statements further were argues inadmissible that under Steve Stone's Wis. Stat. § 906.13(2)(a). Section 906.13(2)(a) provides: Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless any of the following is applicable: 1. The witness was so examined while testifying as to give the witness an opportunity to explain or deny the statement. 2. The witness has not been excused from giving further testimony in the action. 3. require. The interests 11 oral of justice otherwise No. ¶31 the 2005AP1920-CR The State argues that Nelis did not object at trial to admission of the statements on the ground of Wis. Stat. § 906.13(2)(a), and therefore waived that issue. See State v. Huebner, 2000 WI 59, ¶10, 235 Wis. 2d 486, 611 N.W.2d 727 ("It is a fundamental principle of appellate review that issues must be preserved at the circuit court."). The State contends that Nelis' objection that the oral statements of Steve Stone were hearsay was insufficient to preserve Nelis' claim now that the statements were inadmissible under § 906.13(2)(a). We agree with the State's argument that Nelis' objection to the oral statements was not specific enough to preserve his claim that the admission of Steve Stone's oral statement contravened § 906.13(2)(a). An objection is sufficient to preserve an issue for appeal, if it apprises the court of the specific grounds upon which it is based. In Interest of Corey J.G., 215 Wis. 2d 395, 405, 572 N.W.2d 845 (1998). not indicate the specific A general objection that does grounds for inadmissibility of evidence will not suffice to preserve the objector's right to appeal. State v. Tutlewski, 231 Wis. 2d 379, 384, 605 N.W.2d 561 (Ct. App. 1999). ¶32 Further, we are satisfied that Police Chief Stone's testimony regarding Steve Stone's oral statements to the police was not hearsay, since such statements were properly admissible as prior inconsistent Wis. Stat. § 908.01(4)(a). During statements direct examination under by the State, Steve Stone testified that he did not see Nelis on top of 12 No. Diane S. when he entered the bedroom, and 2005AP1920-CR that he did not remember whether Diane S. was crying or bleeding. ¶33 Police Chief Stone later testified that Steve Stone told him that he had seen Nelis on top of Diane S., and that Diane S. was crying and bleeding. given to Police statements Chief were Stone admissible Steve Stone's oral statements were not under hearsay. Rather, the Wis. Stat. § 908.01(4)(a), because Steve Stone was a testifying witness who testified at trial concerning his statements to the police on the night in question, because he was subject to cross-examination concerning those statements, and because the prior oral statements were inconsistent with his testimony at trial. ¶34 During the direct examination of Police Chief Stone, Nelis' counsel objected to the oral statements of Steve Stone on the grounds that the statements were inadmissible pursuant to Wis. Stat. § 908.04(1)(c), claiming that Steve Stone was unavailable, thus not "subject to cross-examination," and that the statement violated Crawford, 541 U.S. 36. Nelis' confrontation right under Nelis' counsel did not, however, object on the ground of Wis. Stat. § 906.13(2)(a). We are satisfied that, because Nelis did not object to the admissibility of Steve Stone's oral statements on the ground of § 906.13(2)(a), such argument was waived for failure to specificity before the circuit court. state it with sufficient State v. Givens, 217 Wis. 2d 180, 195, 580 N.W.2d 340 (Ct. App. 1998). ¶35 demanded Nelis that argues the that, State during provide 13 any pretrial proceedings, statements of he witnesses No. which it intended to introduce at trial. 2005AP1920-CR Nelis claims that the State never disclosed any oral statements by Steve Stone, nor did it summarize any such oral statements in writing. ¶36 The State argues that it was not required to disclose to Nelis the oral statements that Steve Stone gave to Police Chief Stone, nor was it required to reduce such oral statements to writing. The State contends that its duty to disclose was limited to the duties listed in the discovery and inspection statute, in this case specifically Wis. Stat. § 971.23, and that Nelis did not expand the State's obligation merely through his discovery demand. ¶37 We are satisfied that the State complied discovery obligations under Wis. Stat. § 971.23. with its We agree with the State's argument that it was not required by § 971.23 to disclose or to summarize the oral statements of Steve Stone. The only oral statements that the prosecutor was required to summarize and disclose to the defense were the oral statements of the defendant himself, and the names of witnesses to such oral statements. statute also See Wis. Stat. § 971.23(1)(b). requires that the prosecutor That discovery disclose "[a]ny relevant written or recorded statements" of a witness it plans to call at trial. Wis. Stat. § 971.23(1)(e). The oral statements of Steve Stone to Police Chief Stone obviously were not written, nor were they recorded. ¶38 Furthermore, Nelis was put on notice of the fact that there would be trial testimony about what Steve Stone saw and heard in regard to the alleged sexual assault incident. 14 Steve No. 2005AP1920-CR Stone and Police Chief Stone were both on the State's witness list, which was disclosed to Nelis pursuant to Wis. Stat. § 971.23(1)(d). ¶39 Nelis also had notice again of the fact that Steve Stone would testify, and notice of the subject matter of his expected testimony because on the morning of August 23, 2004, the first day of Nelis' trial, the State asked the court for a material witness warrant for the apprehension and appearance of Steve Stone. The State argued that the material witness warrant was necessary because Steve Stone did not appear in court that morning, despite subpoena. the fact that he had been served with a The court inquired about the testimony that Steve Stone was expected to provide, and the prosecutor responded that Steve Stone had given a statement that he had walked into the bedroom during the alleged sexual assault, that he had seen Nelis on top of Diane S., and that Diane S. had been crying and had a bloody face. The court then granted the request for a material witness warrant. ¶40 Additionally, in the State s opening statement, counsel for the State told the jury that it would be hearing from a witness who heard Diane S. cry, saw her bleeding, and saw Nelis on top of her. Although the State was not required to disclose the oral statement of Steve Stone, the State's witness list, the hearing on the material witness warrant request for the appearance of Steve Stone, and the State's opening statement all put Nelis on notice that there would be testimony at trial regarding Steve Stone's observations 15 of the alleged sexual No. assault incident. We are satisfied that, 2005AP1920-CR under such circumstances, the State complied with its discovery obligations under Wis. Stat. § 971.23. ¶41 his We next address Nelis' argument that the admission of oral statements, through Police Chief violated his right to confrontation. Clauses of the United States and Stone's testimony, Under the Confrontation Wisconsin Constitutions, criminal defendants are guaranteed the right to confront the witnesses against them. State v. Hale, 2005 WI 7, ¶43, 277 Wis. 2d 593, 691 N.W.2d 637; U.S. Const. amend. VI; Wis. Const. art. I, § 7. ¶42 Nelis argues that the introduction of the oral statements of Steve Stone, through the testimony of Police Chief Stone, violated his right to confrontation under Crawford, 541 U.S. 36 because Steve Stone's statements were testimonial in nature. they We agree that his statements were testimonial, since were "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."4 4 In State v. Manuel, 2005 WI 75, ¶37, 281 Wis. 2d 554, 697 N.W.2d 811, we noted that there are three types of testimonial statements: (1) "[E]x parte in-court testimony or its functional equivalent that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially[.]" 16 No. ¶43 2005AP1920-CR The United States Supreme Court stated in Crawford that "when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his [or her] prior testimonial statements." U.S. at 59 n.9 (citation omitted). Crawford, 541 The United States Supreme Court did not explain more fully in Crawford what it meant by "the declarant appears for cross-examination at trial." Id. However, the Court previously stated, in United States v. Owens, 484 U.S. 554, 561 (1988), that a witness is ordinarily regarded as "'subject to cross-examination' when he [or she] is placed on the stand, under oath, and responds willingly to questions." The Confrontation Clause guarantees effective cross-examination . . . only "an opportunity for not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware v. Fensterer, 474 U.S. 15 (1985) (emphasis in original). ¶44 Nelis argues confrontation under permitted to use, as Stone, as conveyed that a Crawford by violation occurred evidence, Police the Chief oral of when his the statements Stone's trial right State was of Steve testimony. (2) "[E]xtrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions." (3) "[S]tatements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." (citing Crawford v. Washington, 541 U.S. 36, 51-52 (2004)). 17 to No. 2005AP1920-CR Nelis asserts that he did not have a prior opportunity to crossexamine Steve Stone concerning his oral statements to Police Chief Stone. He argues that is because the oral statements were not disclosed until Police Chief Stone was called as a witness, after Steve Stone had already testified and was told by the court that he could "step down," and that Steve Stone was not required to remain for possible recall to the witness stand. ¶45 Although Steve Stone testified at trial, Nelis argues that Steve Stone did not have the opportunity to explain or deny his alleged oral statements because the State did not examine him concerning such statements, and the oral statements were not made known prior to Police Chief Stone's testimony. The State argues right that there was no violation of Nelis' to confrontation under Crawford because Steve Stone testified at trial and was cross-examined by the defense. ¶46 Nelis' right to confrontation was not violated because "the Confrontation Clause places no constraints at all" on the use of prior testimonial statements when the declarant appears for cross-examination, as did Steve Stone. at 59 n.9 (citation omitted).5 Crawford, 541 U.S. It makes no difference, under the circumstances here, whether the burden is on the State or on Nelis to show that Steve Stone was available for further crossexamination after the court told 5 him he could "step down." We agree with the concurrence that Nelis' right to confrontation under Crawford is not implicated. Concurrence, ¶¶53, 73, 80. However, because Nelis raised arguments concerning Crawford in his briefs and at oral argument, we address those arguments here. 18 No. 2005AP1920-CR Steve Stone testified at trial and was cross-examined concerning his statements to the police; therefore, Nelis' right to confrontation was not violated. ¶47 that Although it is not necessary to our holding, we note the record does for further unavailable testimony at trial. August 24, 2004. not establish that cross-examination Steve after Stone his was earlier He was called as a witness and testified on After Steve Stone was subjected to direct, cross, and redirect examination, the court could "step down." There is nothing in the record indicating the whereabouts of Steve Stone after that. told him that he The record certainly demonstrates that Steve Stone had been examined extensively, at trial, about assault. his observations concerning the alleged sexual We are satisfied that the record presented fails to establish that Steve Stone was unavailable, so that he could not have been recalled to testify again about his observations after the testimony of Police Chief Stone. ¶48 We are satisfied that there was no violation of Nelis' right to confrontation, since Steve Stone was subject to crossexamination concerning the statements. Steve Stone testified at trial, and Nelis' counsel had a full and fair opportunity to cross-examine him about his observations and his statements to the police, as well as the opportunity to cross-examine Police Chief Stone police. regarding Steve Stone's oral statements to the On cross-examination, Nelis' attorney asked Steve Stone questions about his statements to police on the night of the alleged sexual assault incident. 19 These facts, combined with the No. fact that the record does not establish 2005AP1920-CR that Nelis was unavailable for recall to the stand, satisfy us that there was no violation of Nelis' right, under the United States and Wisconsin Constitutions, to confront the witnesses against him. U.S. Const. amend. VI; Wis. Const. art. I, § 7. IV ¶49 This is a review of an unpublished per curiam decision of the Court of Appeals, affirming the decision of the Ashland County Circuit Court, which entered a judgment of conviction following a jury trial against Samuel Nelis as a repeat offender, on one count each of battery, aggravated battery, and second-degree sexual assault by use of force. ¶50 We hold that the oral statements of Steve Stone were properly admitted as prior inconsistent statements of a witness in accord with Wis. Stat. § 908.01(4)(a), and that the State was not required to disclose such oral statements in advance. We further hold that Nelis' right to confrontation as explained in Crawford was not violated because Steve Stone testified at trial about the sexual assault incident and his statements to the police, and was subject to cross-examination concerning those statements. The record does not establish that he became unavailable for recall to the stand after he testified. ¶51 By the Court. The decision of the court of appeals is affirmed. 20 No. ¶52 ANN WALSH BRADLEY, J. 2005AP1920-CR.awb (concurring). I agree with the majority that under Wis. Stat. § 908.01(4)(a), Steve Stone's oral statements to Chief Stone are admissible because they are not hearsay. I part ways with the majority, however, because it misapplies that rule of evidence by ignoring an essential part of the text. Rather, applying the plain words of the entire text, I conclude that the statements are admissible because Steve Stone testified at trial and the defendant chose to rest on a record that is insufficiently developed to show any subsequent unavailability. ¶53 I also write separately because the majority needlessly addresses the constitutional issue of whether Nelis had the opportunity to cross-examine Steve Stone for the purposes of Nelis' Sixth Amendment right to confrontation under Crawford v. Washington, 541 U.S. 36 (2004). Because there is no showing of unavailability, Crawford is not implicated in this case. Nevertheless, in the course of its unwarranted analysis, the majority takes an expansive view of when a defendant has had the opportunity to cross-examine, thereby having the effect of narrowing the constitutional right to confrontation afforded under Crawford. This case can be, and should be, decided on the rules of evidence alone. I ¶54 statements Section from 908.01(4) the excludes definition 1 of several "hearsay." categories Among of those No. exclusions are some prior statements by 2005AP1920-CR.awb witnesses. The rule provides in relevant part: 908.01(4) Statements which statement is not hearsay if: are not hearsay. A (a) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is: 1. Inconsistent testimony . . . . ¶55 The majority with the maintains that declarant's Steve Stone's oral statements to Chief Stone are not hearsay under § 908.01(4)(a), for three reasons: (1) because Steve Stone "testified at trial concerning his statements to police on the night in question"; (2) "because he was subject to cross-examination"; and (3) "because the prior oral statements were inconsistent with his testimony at trial." Majority op., ¶33. ¶56 It is correct that Steve Stone testified about some of his statements to police and was subject to cross-examination. It is also true that Steve Stone's statements to Chief Stone were inconsistent with his trial testimony. However, the requirement under § 908.01(4) is not simply that the witness be "subject to witness cross-examination." be "subject to Rather, it demands cross-examination that concerning the the statement" (emphasis added). ¶57 The fact that Steve Stone was subject to cross- examination about some statements he made to police does not automatically suffice to show that he was "subject to crossexamination concerning" his oral 2 statements to Chief Stone. No. 2005AP1920-CR.awb Here, Nelis did not have the opportunity to cross-examine him regarding his statements to Chief Stone. Nelis had no indication that Steve Stone had made oral statements to Chief Stone, and that the State would seek to introduce such statements at trial. ¶58 The majority maintains that Nelis was "on notice of the fact that there would be trial testimony about what Steve Stone saw and heard in regard to the alleged sexual assault incident." Majority op., ¶38. However, the question is whether Steve Stone was subject to cross-examination concerning his statements to Chief Stone. Knowing that there would be trial testimony regarding some of Steve Stone's statements does not provide notice of the particular oral statements to Chief Stone that are at issue here, and does not thereby create the opportunity for cross-examination on those statements. ¶59 It is important to note that the majority's conclusion that Steve Stone was subject to cross-examination concerning the statements is statements would acknowledged not based be that on Nelis introduced. the notice At having oral argument notice argument, was not of that the the State sufficient strength that it could not "hang its hat" on that argument. Apparently the majority agrees with the State and likewise does not ultimately "hang its hat" on any notice argument. ¶60 Instead, the majority bases its conclusion on the facts that (1) Steve Stone "testified at trial concerning his statements to police on the night in question"; (2) "was subject statements to were cross-examination"; inconsistent with 3 and his (3) his testimony Steve Stone "prior at oral trial." No. 2005AP1920-CR.awb Majority op., ¶33. Such an analysis totally ignores an essential part of the text of § 908.04(1) that the declarant must be subject to cross-examination "concerning the statement" to Chief Stone. ¶61 Being subject to cross-examination concerning just any statements to just any police officer does not comport with the plain language of Wis. Stat. § 908.04(1). I conclude that when Steve Stone was on the witness stand, he was not subject to cross-examination concerning his statements to Chief Stone. ¶62 This conclusion is buttressed by an examination of the rules of evidence that address how a witness is to be examined concerning a prior statement under Wis. Stat. § 906.13(2)(a). That rule provides that a witness must be given the opportunity, while testifying, to explain or to deny the statement: 906.13 Prior statements of witnesses. . . . . (2) Extrinsic evidence statement of a witnesses. of prior inconsistent (a) Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless any of the following is applicable: 1. The witness was so examined while testifying as to give the witness an opportunity to explain or deny the statement. 2. The witness has not been excused from giving further testimony in the action. 3. ¶63 I The interests of justice otherwise require. am not alone in rejecting the analysis of the majority. Contemplating the fact situation before us, a leading 4 No. 2005AP1920-CR.awb treatise on Wisconsin evidence concludes that for purposes of Wis. Stat. § 908.04(1), a witness is not subject to cross- examination "where the prior statement is never mentioned during the examination of the witness, the witness is then excused from testifying, and the statement is later proffered through extrinsic evidence (i.e., another witness or a document)." 7 Daniel D. 2001). Blinka, This Wisconsin conclusion Practice: by such Evidence sound 544 authority (2d ed. further underscores why I cannot embrace the majority's analysis. II ¶64 that Nevertheless, Steve Stone's I think oral that statements the to majority Chief is Stone correct are not hearsay, and that they are therefore admissible. I conclude that the statements are admissible because Steve Stone testified at trial and the defendant chose to rest on a record that is insufficiently developed to show any subsequent unavailability. ¶65 In addressing whether Steve Stone was subject to cross-examination concerning his statements to Chief Stone after Chief Stone's testimony, Nelis now simply asserts that Steve Stone was unavailable, and that Nelis had no prior opportunity to cross-examine him on those statements. Precluding the statements, however, requires more than the mere assertion that the declarant is unavailable, as Nelis does here. ¶66 At trial, the only objection raised by Nelis regarding unavailability was based on an assertion that Steve Stone was unavailable due to his lack of memory. Apparently he was unable to recall some of the details of his statements given to the 5 No. 2005AP1920-CR.awb police. Now, however, Nelis raises the argument that Steve Stone was unavailable due to his absence from the trial. ¶67 Wis. Stat. § 908.04 sets forth what the record must reflect in order to show "unavailability" for the purpose of admitting out-of-court statements into evidence. It provides in relevant part: 908.04. Hearsay exceptions; definition of unavailability. declarant (1) "Unavailability as a situations in which the declarant: unavailable; witness" includes (a) Is exempted by ruling of the judge on the ground of privilege from testifying concerning the subject matter of the declarant's statement; or (b) Persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the judge to do so; or (c) Testifies to a lack of memory of the subject matter of the declarant's statement; or (d) Is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or (e) Is absent from the hearing and the proponent of the declarant's statement has been unable to procure the declarant's attendance by process or other reasonable means. ¶68 Typically, unavailability however, is will no the be party the typical invoking proponent case. Here of the the the concept evidence. proponent of of This, the statements did not assert unavailability because the prosecution did not believe the witness was unavailable. The statements were offered by the prosecution as prior inconsistent statements, a category that relies on availability. Wis. Stat. § 908.01(4)(a). 6 No. ¶69 Under illogical the that circumstances the burden of of this 2005AP1920-CR.awb case, developing it the appears record on unavailability is on the party that asserts Stone was available. Rather, I conclude that it is the burden of the defense to make a specific enough objection to allow the record to be developed. ¶70 Here, there is an evidentiary vacuum. There is no indication in the record that Steve Stone was unavailable for further cross-examination after finishing his testimony, or that any efforts were made to recall him. The record is utterly silent as to where Steve Stone was after the circuit court told him that he could step down. We note that there is no indication that he was excused from testifying. We do not know if he remained in the courtroom, if he went home and stayed there such that he might have been readily recalled to the stand, or if he disappeared from the face of the earth, making him unavailable. ¶71 Likewise, there is no indication in the record that Nelis made Nelis makes any no attempt to argument procure that Steve Steve Stone's Stone is attendance. exempted by privilege, that he would refuse to testify on the subject matter of his statements to Chief Stone, or that he would testify as to lack of knowledge of the subject matter of his statements to Chief Stone. See Wis. Stat. § 908.04(1). ¶72 We are left with a record that on its face indicates availability. The contention that Steve Stone was not subject to cross-examination concerning his statements to Chief Stone after Chief Stone testified must rest upon the claim that Steve Stone was unavailable. Steve Stone was 7 available prior to Chief No. 2005AP1920-CR.awb Stone's testimony, and there is no indication in the record that Steve Stone became unavailable after Chief Stone's testimony or that Nelis attempted examination. Thus, insufficiently to Nelis procure chose developed to to Steve rest Stone on a for record demonstrate any crossthat is subsequent unavailability. I conclude that because Steve Stone testified at trial and that the record fails to demonstrate any subsequent unavailability, the statements are admissible under § 908.01(4) because they are not hearsay. III ¶73 I would end the inquiry there. Since there is no showing of unavailability, Crawford is not implicated. Crawford applies to the admission of statements from witnesses who are "absent from trial" and unavailable to testify. Crawford, 541 U.S. at 59. Even the majority acknowledges that the case is not really about Crawford. Majority op., ¶28. ¶74 Where a case is not really about a constitutional right, then we ought not make determinations about important aspects of that right. It is unwise for courts to unnecessarily address constitutional issues when the case can be disposed of on other grounds. ("Normally this court will not address a constitutional issue if the case can be disposed of on other grounds." State v. Hale, 2005 WI 7, ¶42, 277 Wis. 2d 593, 691 N.W.2d 637; see also State v. Manuel, 2005 WI 75, ¶25 n.4, 281 Wis. 2d 554, 697 N.W.2d 811.) ¶75 Instead, The majority, it engages in though, an does analysis 8 not of end its Nelis' inquiry. right to No. confrontation under Crawford. different circumstances. However, Moreover, 2005AP1920-CR.awb Crawford the concerns majority's very discussion appears to needlessly narrow Crawford. ¶76 made to Because In Crawford, the state introduced a recorded statement police by of marital the the defendant's privilege, unavailable to testify at the trial. wife. the 541 U.S. at defendant's Id. at 40. 39-40. wife was The Supreme Court determined that the recorded statement was inadmissible. It held that in order for the state to introduce testimonial statements by persons who do not appear at trial, the Sixth Amendment right to confrontation demands that the declarant be unavailable and that the defendant have had a prior opportunity for cross-examination. Id. at 68. Thus, the issue in Crawford was whether the state could introduce a testimonial statement by a declarant who was unavailable and had not appeared at trial. In the present case, Steve Stone did appear at trial, and there is no indication in the record that he was unavailable after the court told him that he could "step down." This is therefore not a Crawford case. ¶77 Rather than simply noting that this is not a Crawford case, the majority concludes that for the purposes of Crawford, Nelis had sufficient opportunity to cross-examine Steve Stone regarding his statements to Chief Stone. It cites to a footnote in Crawford stating that "when the declarant appears for crossexamination at trial, the Confrontation Clause places no constraints at all on the use of his [or her] prior testimonial statements." Majority op., ¶43 (citing Crawford, 541 U.S. at 59 9 No. 2005AP1920-CR.awb n.9). Although the majority recognizes that the meaning of "the declarant appears for cross-examination at trial," is unclear, it concludes that Steve Stone's appearance suffices. Id., ¶46. ¶78 This conclusion is unwarranted and unnecessary. As earlier noted, Nelis did not cross-examine Steve Stone regarding his statements to Chief Stone because Nelis had no notice that such oral statements would be introduced. More importantly, Crawford did not involve a witness who appeared at trial, and it did not contemplate a situation, such as the one here, in which a witness is cross-examined concerning some statements, and in which the State introduces other statements by the witness after the witness steps down. Crawford therefore leaves a gap with regard to cases like this one.1 ¶79 Because the majority takes an expansive view of when a defendant has had the opportunity to cross-examine a declarant under Crawford, it has the effect of answering questions that are not before us, thereby narrowing Crawford. Specifically, the majority's view would allow the State to introduce Steve Stone's statements to Chief Stone, even if Nelis could demonstrate that 1 The majority notes that "a witness is ordinarily regarded as subject to cross-examination when he [or she] is placed on the stand, under oath, and responds willingly to questions." Majority op., ¶43 (citing United States v. Owens, 484 U.S. 554, 561 (1988)(emphasis added)(internal quotations omitted)). It fails to acknowledge, however, that this case may not be "ordinary." 10 No. 2005AP1920-CR.awb Steve Stone was subsequently unavailable,2 and even where Nelis had no indication that the State would seek to introduce Steve Stone's statements admitting the to Chief statements Stone. under I such am not certain circumstances that would be consistent with Nelis' right to confrontation under Crawford.3 Because that is not the case before us, I would not reach the question. ¶80 In sum, I disagree with the majority's conclusion that because Steve Stone was cross-examined, it follows that he was cross-examined concerning his statements to Chief Stone. Rather, I conclude that the statements Wis. Stat. § 908.04(1) because and Nelis chose developed to determine that to show rest any because on Steve a Stone record subsequent Crawford are that admissible testified is not at trial insufficiently unavailability. is under implicated Further, here, I the majority undertakes an unwarranted constitutional analysis that has the effect confrontation of narrowing afforded under the constitutional Crawford. right to Accordingly, I respectfully concur. 2 The majority indicates that whether "Steve Stove was unavailable for further cross-examination after his earlier testimony at trial" is "not necessary to our holding." Majority op., ¶47. As noted in the text, whether Steve Stone became unavailable after his initial testimony may well impact the proper outcome of the case. 3 At oral argument, the State conceded that the court of appeals' analysis the very analysis now embraced by the majority is inadequate for confrontation purposes. See State v. Nelis, No. 2005AP1920-CR, unpublished slip op., ¶27 (Wis. Ct. App. May 4, 2006). 11 No. ¶81 2005AP1920-CR.awb I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this concurrence. 12 No. 1 2005AP1920-CR.awb

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