PUBLISHED
OPINION
COURT OF
APPEALS
DECISION
DATED AND FILED
November
17, 1999
Marilyn L. Graves
Clerk, Court of Appeals
of
Wisconsin
NOTICE
This opinion is subject to further editing. If published, the official version will
appear in the bound volume of the Official Reports.
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.
No. 98-2089-CR
STATE OF
WISCONSIN IN COURT OF APPEALS
DISTRICT
II
State of Wisconsin,
Plaintiff-Respondent,
v.
Earl L. Miller,
Defendant-Appellant.
APPEAL from judgments of the circuit court for Racine County: GERALD P.
PTACEK, Judge. Affirmed.
Before Brown, P.J., Nettesheim and Snyder, JJ.
¶1. SNYDER, J. Earl L. Miller appeals from his conviction for conspiracy to
commit armed robbery with the threat of force contrary to §§ 939.31 and
943.32(2), Stats., kidnapping contrary to §940.31(1)(a), Stats., and operating a vehicle
without the owner's consent resulting in the death of another contrary to § 943.23(1r),
Stats. Miller raises the following issues on appeal: (1)whether sufficient evidence was
presented to show that his taking of the vehicle from the victim, Juan Bueno, was a
substantial factor in causing Bueno's death; (2) whether the trial court erred in allowing
evidence of Miller's flight from police after the court agreed that fleeing and eluding charges
constituted a separate incident; (3) whether the court erred in refusing to instruct the jury
regarding the testimony of a witness who was granted immunity; and (4) whether the court
erred in admitting hearsay evidence indicating that Miller had shot Bueno.
¶2. First, we conclude that because the taking of Bueno's vehicle played a
prominent role in, and set into motion events leading to, Bueno's death, there was sufficient
evidence to establish that Miller's theft of the vehicle was a substantial factor in causing
Bueno's death. Next, we are persuaded that the trial court properly ruled admissible
evidence of Miller's flight from the police. As to the immunized witness jury instruction,
case law shows that a cautionary instruction is inappropriate in the present case because the
immunized witness testified on behalf of Miller, not the State. Finally, we conclude that the
trial court properly admitted evidence of Miller's involvement under the prior consistent
statement exception to the hearsay rule. We therefore affirm the judgments.
BACKGROUND
¶3. On February 25, 1997, Miller, Mecquon Goodwin and Jamal Cronin devised
a plan to steal cocaine from Bueno during a purported drug transaction which was to occur
the following day. On February 26, Bueno arrived at Goodwin's residence but did not have
any drugs. As a result, Miller and Goodwin seized Bueno and drove off with him in his
vehicle in order to obtain drugs from his residence. While Goodwin drove, Bueno sat in the
front passenger seat and Miller sat behind him with a firearm. Some time later, Bueno
attempted to escape from the vehicle and Miller shot him in the back. Bueno later
died.
¶4. On March 1, 1997, in a separate incident, a city of Racine police officer
observed a vehicle being driven without proper registration. While following the vehicle, the
officer activated his lights and the car sped up and swerved into oncoming traffic to evade
the officer. When the vehicle was forced to stop, the driver fled and the police apprehended
him. The officers discovered the driver to be Miller.
¶5. The State initially charged Miller with the following counts relating to both
the February 26 and March 1 incidents: first-degree intentional homicide, party to the crime
of armed robbery with the threat of force, party to the crime of kidnapping, party to the
crime of operating a vehicle without the owner's consent resulting in the death of another,
fleeing and eluding an officer and first-degree recklessly endangering safety. On May 9,
1997, Miller moved the trial court to sever the fleeing and eluding and the first-degree
recklessly endangering safety charges from the kidnapping and murder charges. The State
agreed with Miller and the court ordered the charges severed. The State then amended the
information to include charges of conspiracy to commit armed robbery with the threat of
force, party to the crime of kidnapping and party to the crime of operating a vehicle without
the owner's consent resulting in the death of another.
¶6. On June 24, 1997, a jury trial was commenced. Miller was subsequently
found guilty of the charges set forth in the amended information. He now appeals. We will
discuss additional facts as needed.
DISCUSSION
A. Substantial Factor Test
¶7. Miller contends that there was insufficient evidence to establish beyond a
reasonable doubt that his taking of Bueno's vehicle was a "substantial factor" in
causing Bueno's death pursuant to the charge of operating a vehicle without the owner's
consent resulting in the death of another. We disagree with Miller because sufficient
evidence was presented.
¶8. When a defendant challenges the sufficiency of the evidence supporting his
or her conviction, this court may not reverse the conviction "unless the evidence,
viewed most favorably to the state and the conviction, is so insufficient in probative value
and force that it can be said as a matter of law that no trier of fact, acting reasonably, could
have found guilt beyond a reasonable doubt." State v. Poellinger,
153 Wis.2d 493, 501, 451 N.W.2d 752, 755 (1990). If there is any possibility that the fact
finder could have reached the appropriate inferences from the evidence adduced at trial to
find the requisite guilt, we may not overturn the verdict even if we are persuaded that the
fact finder should not have found guilt based on the evidence presented. See
id. at 507, 451 N.W.2d at 758.
¶9. Section 943.23, Stats., prohibits operating the vehicle of another without that
person's consent. Miller was charged under subsecs. (1g) and (1r) of § 943.23.
Subsection (1g) reads as follows:
Whoever, while possessing a dangerous weapon and by
the use of, or the threat of the use of, force or the weapon against another, intentionally
takes any vehicle without the consent of the owner is guilty of a Class B felony.
Under subsec. (1r), the penalty for violating subsec.
(1g) is increased to a Class A felony if the person causes the death of another.
¶10. At trial, the jury was instructed in the following manner as to the penalty
enhancer in subsec. (1r):
If you find the defendant guilty of aiding and abetting the
taking of a vehicle by threat of force while armed with a dangerous weapon, you must
answer the following question. Did the defendant cause the death of Juan Bueno. Before
you may answer this question yes, you must be [certain] beyond a reasonable doubt that
the defendant's taking of the vehicle was a substantial factor in causing the death of Juan
Bueno.... [Emphasis added.]
This instruction is consistent with the suggested jury
instruction for § 943.23(1r), Stats., found at Wis JI-Criminal 1465, cmt. 6.
¶11. Two recent cases shape Wisconsin's jurisprudence regarding the definition
of a "substantial factor" in the context of homicide. In State v.
Oimen, 184 Wis.2d 423, 516 N.W.2d 399 (1994), our supreme court was
asked to consider whether a defendant could be convicted of felony murder if one of his
coactors was killed by the intended victim during an attempted robbery. In its discussion,
the court determined that the defendant was a substantial factor in the death of the coactor
because he was the ringleader responsible for planning the details of the robbery. The court
was not persuaded by the fact that the "immediate" cause of the coactor's death
was the intended victim and that the defendant was not present when his coactor was shot
and killed. See id. at 436, 516 N.W.2d at 404-05. In addressing
causation, the court noted that a "`substantial factor' need not be the sole cause of
death." Id.
¶12. In State v. Owen, 202 Wis.2d 620, 551 N.W.2d 50 (Ct.
App. 1996), the defendant was charged with recklessly causing great bodily harm to a child
contrary to § 948.03(3)(a), Stats., when the defendant slapped the chest of a
three-month-old child and the child later died. See Owen, 202 Wis.2d at
627, 551 N.W.2d at 53. Upon review, we recognized that "to establish causation, the
State must prove beyond a reasonable doubt that [the defendant's] acts were a substantial
factor in producing great bodily harm to [the child]." Id. at 631,
551 N.W.2d at 55. A "substantial factor," we determined, "need not be
the sole or primary factor causing the great bodily harm." Id. We
concluded that there was sufficient evidence to establish that the defendant's act of slapping
the victim was a substantial factor in producing great bodily harm to the victim.
¶13. Miller contends that because a "substantial factor" means a
primary or main reason, the Owen court's additional language that a
substantial factor need not be a "primary factor" should be overruled. Miller
suggests that the language in Owen would permit "completely
attenuated events to satisfy the requirements of the causation element." We
disagree.
¶14. We first consider the specific language used in Oimen
and Owen. The Oimen court stated that a substantial
factor need not be "the sole cause," and the Owen court added
that a substantial factor need not be "the sole or primary factor." The holding in
Owen is not inconsistent with Oimen;
Owen merely adds the word "primary" to its discussion of a
substantial factor. Both cases use a definite article in explaining that a substantial factor need
not be limited to one sole or primary cause. In Oimen, the primary or, as
the court put it, "immediate" cause of the coactor's death was gunfire from the
intended victim. However, because the defendant played a significant role in directing the
robbery and "set into motion the events that [led] to [the coactor's] death," he
was nonetheless considered a substantial factor. Oimen, 184 Wis.2d at
437, 516 N.W.2d at 405. Thus, we conclude that a substantial factor contemplates not only
the immediate or primary cause, but other significant factors that led to the ultimate
result.
¶15. Here, there was sufficient evidence to establish that Miller's taking of
Bueno's vehicle was a substantial factor in causing Bueno's death. After the original plan to
rob Bueno of his drugs went awry, an alternative plan was conceived. Miller and Goodwin
took Bueno's car in order to drive themselves and Bueno to Bueno's house to obtain the
drugs. While in Bueno's car, Miller shot Bueno when he attempted to jump out of the car.
He died from the gunshot wound. Based on this evidence, a reasonable jury could have
inferred that were it not for Miller's taking of the car, Bueno would never have been shot
because he would not have been trying to escape from the vehicle. Under these
circumstances, the theft of the car was a substantial factor in causing Bueno's death because
the taking of the car set into motion the events that led to his death. See
id.
¶16. Miller contends that the focus of his and his coactors' actions was never on
the vehicle but on obtaining drugs. The vehicle, however, was an integral instrument in the
commission of Bueno's kidnapping. Miller and Goodwin intended to use the vehicle to
obtain drugs from Bueno's home. When Bueno attempted to escape from the car, he was
shot. Thus, the vehicle and its taking played a prominent role in Bueno's death. We are
convinced that there was sufficient evidence for a reasonable jury to conclude that the taking
of Bueno's vehicle was a substantial factor in causing his death.
¶17. Miller is wrong in suggesting that our holding in Owen
allows "completely attenuated events" to satisfy causation. To say that a
substantial factor "need not be the sole or primary factor" is not to say that any
peripheral incident will suffice. Indeed, the language in Owen, as in
Oimen, was not intended to set forth an exhaustive definition of a
"substantial factor." Rather, it was meant to clarify the threshold for a
substantial factor. In State v. Serebin, 119 Wis.2d 837, 350 N.W.2d 65
(1984), the court did define a substantial factor, explaining that it is "a factor actually
operating and which ha[s] substantial effect in producing the death as a natural result,"
id. at 848-49, 350 N.W.2d at 71 (quoting Wis JI-Criminal 1160 (1962),
entitled "HOMICIDE BY RECKLESS CONDUCT"), and that it refers to
"the proximate, primary, efficient, or legal cause of such harmful result,"
id. at 849, 350 N.W.2d at 71 (quoting 1 Wharton's Criminal Law §
26, at 122-26 (14th ed. 1978)). We are not persuaded that the "substantial
factor" standard, as presently set forth, permits completely attenuated
events.1 We therefore reject
Miller's request to overrule Owen.2
B. Evidence of Fleeing and Eluding
¶18. Miller argues that the trial court erred in permitting the State to introduce
evidence of his flight from officers and in allowing a jury instruction on flight after the court
had agreed to sever the flight charges from the kidnapping and murder charges. We are
satisfied that the trial court properly found the flight evidence to be admissible.
¶19. At Miller's May 9, 1997 hearing addressing his motion to sever the flight
charges, the State concurred with Miller that "the fleeing and eluding is a totally
separate factual incident" and promised that the charges would be "tried
separately should they both go to trial." The court granted Miller's motion, agreeing
that the flight was "a different factual basis and incident" from the charges
relating to the murder.
¶20. At trial, the court permitted the State to introduce evidence of flight despite
the fact that the charges had been severed. The court weighed the relevancy of the evidence
under § 904.01, Stats., against the danger of unfair prejudice under § 904.03,
Stats. The court concluded that "while [Miller's flight] might be removed by days, it's
clearly related, it's clearly relevant evidence in my mind, and I don't find that there's any
danger of unfair prejudice based upon the facts available to the defense in response to
it."
¶21. It is well established that evidence of flight and resistance to arrest has
probative value as to guilt. See State v. Knighten, 212 Wis.2d 833, 839,
569 N.W.2d 770, 772 (Ct. App. 1997). "Analytically, flight is an admission by
conduct. The fact of an accused's flight or related conduct is generally admissible against
the accused as circumstantial evidence of consciousness of guilt and thus of guilt
itself." State v. Winston, 120 Wis.2d 500, 505, 355 N.W.2d 553,
556 (Ct. App. 1984) (citation omitted). To be admissible, the defendant's flight need not
occur immediately following commission of the crime. See Gauthier v.
State, 28 Wis.2d 412, 420, 137 N.W.2d 101, 105-06 (1965) (defendant escaped
from custody while awaiting trial). Evidence of flight is inadmissible where there is
"an independent reason for flight known by the court which cannot be explained to the
jury because of its prejudicial effect upon the defendant." Liggins v.
State, 726 So.2d 180, 183 (Miss. 1998).
¶22. Here, Miller's flight from the police occurred three days after Bueno's
death. While not part of the original criminal episode, evidence of flight was admissible
because it indicated Miller's consciousness of guilt. In ruling on Miller's motion to preclude
the flight evidence, the trial court noted that Miller would have the opportunity at trial to
present evidence rebutting the State's evidence wherein Miller could show that "[his]
state of mind was that he was running because he was aware of a warrant being outstanding
for his arrest [for a crime unrelated to Bueno's homicide]." Such rebuttal evidence
would not have represented an independent reason for flight that could not be explained to
the jury due to its prejudicial effect. See id. We are convinced that the
court properly exercised its discretion.
¶23. Miller complains that the State waived its claim at trial that evidence of his
flight should be admitted because the State had conceded at Miller's motion hearing that the
fleeing was a "totally separate incident." Miller, however, confuses the issue of
severance with the issue of admissibility of evidence. Severance is addressed by §
971.12(3), Stats., which provides that
[i]f it appears that a defendant or the state is prejudiced by a
joinder of crimes or of defendants in a complaint, information or indictment or by such
joinder for trial together, the court may order separate trials of counts, grant a severance of
defendants or provide whatever other relief justice requires.
At Miller's motion hearing, the State did not concede
prejudice as to flight evidence and the court did not address the issue. Instead, the State
simply agreed to pursue the fleeing and eluding charges at a separate trial. While §
971.12(3) indicates that prejudice is a ground for severing charges, it does not state that
evidence of the severed charges is necessarily unfairly prejudicial and thus must be precluded
under § 904.03, Stats. That determination is left to the discretion of the court. We
therefore reject Miller's waiver argument.
¶24. Miller further asserts that evidence of flight should not have been admitted
because it was improper "other acts" evidence. Miller cites to State v.
Locke, 177 Wis.2d 590, 502 N.W.2d 891 (Ct. App. 1993), which involved a
defendant who sought severance of sexual assault charges stemming from a 1989 incident and
a separate 1991 incident. The court stated that the test for determining whether a court has
failed to order severance involves an analysis of other acts evidence. See
id. at 597, 502 N.W.2d at 894. As indicated above, however, the issue here is
not whether Miller's flight charges should have been severed, but whether evidence of his
flight was admissible. The two-step "other acts" analysis in
Locke, therefore, is not applicable because Miller's motion to sever was
granted.
C. Immunized Witness Jury Instruction
¶25. Miller argues that the trial court erred in refusing to instruct the jury that
one of his witnesses, Jason Mirkovich, had been granted immunity from prosecution. We
conclude that the court did not err in refusing to instruct the jury because Mirkovich was not
given immunity in return for testifying and because he testified on behalf of Miller, not the
State.
¶26. At trial, Miller called Mirkovich as his first witness. Mirkovich stated that
he was with Goodwin and Cronin when they devised the plan to rob Bueno, that Cronin was
the primary instigator in setting up Bueno and that he, Mirkovich, did not know Miller.
Mirkovich indicated that he went to the police the day after Bueno's murder whereupon he
was granted immunity from prosecution if he would tell the police what he knew about
Bueno's death. Mirkovich explained the immunity agreement as follows:
Q. And at the time you spoke with Investigator Wanggaard
were you advised anything about what you would tell them and what you might be
prosecuted for by either your attorney or Investigator Wanggaard?
A. Yes.
Q. What were you told?
A. We were told basically that we could get immunity, well, basically we told
them everything we knew. We told them the truth, and then we would have immunity, you
know, before we told them everything we knew, we had immunity on us.
Q. That's immunity for everything having to do with the armed robbery, the death,
whatever occurred on the 26th involving Mr. Juan Bueno?
A. Correct.
Q. And up to this point have you been charged with anything about that
incident?
A. No.
¶27. At the close of evidence, Miller requested
that the court give pattern jury instruction Wis JI-Criminal 246, entitled "TESTIMONY
OF WITNESS GRANTED IMMUNITY." This instruction states:
You have heard the testimony of (name of
witness) who has received immunity. This means that (name of
witness') testimony and evidence derived from that testimony cannot be used in a
later criminal prosecution of (name of witness).
This witness, like any other witness, may be prosecuted for testifying
falsely.
You should consider whether receiving immunity affected the testimony and
give the testimony the weight you feel it deserves.
The trial court denied Miller's request, reasoning that
the instruction was inapplicable because there had been no formal granting of immunity.
¶28. The decision to give or not to give a requested jury instruction lies within
the trial court's discretion. See State v. McCoy, 143 Wis.2d 274, 289,
421 N.W.2d 107, 112 (1988). We will not reverse such a determination absent an erroneous
exercise of discretion. See State v. Morgan, 195 Wis.2d 388, 448, 536
N.W.2d 425, 448 (Ct. App. 1995).
¶29. In State v. Jones, 217 Wis.2d 57, 576 N.W.2d 580 (Ct.
App. 1998), this court recently addressed the district attorney's power to enter into a
precharging agreement with an individual not to exercise the discretionary power to prosecute
in exchange for information about a criminal investigation. There, the State agreed to
recommend a reduced sentence for several crimes, including attempted intentional homicide,
in return for Jones's information about an unrelated double homicide. See
id. at 59, 576 N.W.2d at 581. The State also agreed not to prosecute Jones on
the double homicide if he would testify for the State about those crimes. See
id. at 59-60, 576 N.W.2d at 581. We concluded that this agreement was
properly conceived under the discretionary power of the district attorney. We did not
discuss, however, under what circumstances a jury instruction concerning witness immunity
is required.
¶30. In State v. Nerison, 136 Wis.2d 37, 401 N.W.2d 1
(1987), our supreme court addressed the necessity of an immunized witness jury instruction.
The court determined that a defendant's right to a fair trial is not violated by the State
offering concessions in exchange for accomplice testimony against a defendant if there is
(1) full disclosure of the terms of the agreements struck with
the witnesses; (2) the opportunity for full cross-examination of those witnesses concerning
the agreements and the effect of those agreements on the testimony of the witnesses; and (3)
instructions cautioning the jury to carefully evaluate the weight and credibility of the
testimony of such witnesses who have been induced by agreements with the state to testify
against the defendant.
Id. at 46, 401 N.W.2d at 5
(emphasis added).
¶31. In the present case, Mirkovich was granted immunity from prosecution in
exchange for providing information to the police about Bueno's murder. The nonprosectuion
agreement was entered into before charges were filed against Miller. As such, Mirkovich's
immunity deal was a precharging decision as recognized in Jones and
therefore not governed by § 972.08, Stats., and not subject to judicial scrutiny.
¶32. This court is persuaded that where an immunized witness testifies favorably
for the defense, an immunized witness jury instruction is not required. We first note that
Nerison only commands a cautionary instruction where the witness agrees
with the State "to testify against the defendant."
Nerison, 136 Wis.2d at 46, 401 N.W.2d at 5 (emphasis added). There is
no corollary provision that an instruction is mandatory whenever a witness has been given a
concession by the State. Second, the purpose of the instruction is to warn the jury that the
witness obtained some sort of concession in exchange for his or her testimony on the State's
behalf. See State v. Smith, 170 Wis.2d 701, 716, 490 N.W.2d 40, 47
(Ct. App. 1992). It is important that the jury be instructed that a witness informant may
have a motive to lie. See Nerison, 136 Wis.2d at 46, 401 N.W.2d at 5
(citing Hoffa v. United States, 385 U.S. 293, 311-12 (1966)).
¶33. While we recognize that a cautionary instruction is normally an important
part of the due process safeguards to which a defendant is entitled, these safeguards are not
implicated here. Mirkovich made a deal with the State to give information about the crime
to the police. Once Mirkovich provided his information, no further agreement was struck to
testify for the State. Cf. Jones, 217 Wis.2d at 59-60, 576 N.W.2d at
581. Instead, Miller called Mirkovich to testify on his behalf.
¶34. During his testimony, Mirkovich stated that he was not familiar with Miller
and stressed that Cronin was the primary player involved in planning the robbery of Bueno.
If anything, Mirkovich's testimony exculpated Miller. Case law indicates, however, that an
immunized witness jury instruction is inappropriate where a witness offers exculpatory
testimony. See United States v. Wuliger, 981 F.2d 1497, 1508-09 (6th
Cir. 1992). We therefore conclude that because the fundamental protections underlying the
immunized witness jury instruction were not at play in this case, the court properly refused
to instruct the jury on Mirkovich's immunity.
D. Prior Consistent Statements
¶35. Miller's final contention is that the trial court erred in admitting as
evidence hearsay statements allegedly made by Goodwin to Cronin and Tameeka Goodwin
concerning Miller's killing of Bueno. Because we conclude that the court properly applied
the prior consistent statement exception to the hearsay rule, we reject Miller's
argument.
¶36. The admission of evidence is generally within the discretion of the trial
court. See State v. Pharr, 115 Wis.2d 334, 342, 340 N.W.2d 498, 501
(1983). We review a trial court's ruling on the admissibility of evidence for a misuse of
discretion. See State v. Buelow, 122 Wis.2d 465, 476, 363 N.W.2d 255,
261 (Ct. App. 1984). To sustain a discretionary ruling, we need only find that the trial court
examined the relevant facts, applied a proper standard of law and, using a rational process,
reached a reasonable conclusion. See Franz v. Brennan, 150 Wis.2d 1,
6, 440 N.W.2d 562, 564 (1989).
¶37. Goodwin testified at trial that he drove Miller and Bueno to get drugs from
Bueno's house. He stated that while he was driving, Miller shot Bueno when he tried to
escape from the car. Goodwin testified that later that day he went to his sister Tameeka's
house, that Tameeka, Cronin and Charles Hardy were at the house, and that he told Cronin
and Hardy that Miller shot Bueno.
¶38. On cross-examination, Miller inquired of Goodwin whether he was at
Tameeka's house after the shooting and whether Cronin and Hardy were also there.
Goodwin responded that they were. Miller then asked Goodwin whether he told his brother
Jeryale that only he (Goodwin) and Bueno had gone to get drugs in Bueno's car:
Q. Did you tell Jeryale that night that just you and Juan
Bueno left together in Mr. Bueno's car?
A. Could you repeat it again?
Q. Did you tell Jeryale, your brother, the night of the 26th at Tameeka's house
that just you and Mr. Bueno left your Charles Street address in Mr. Bueno's car?
A. I don't remember.
Q. You don't remember if you did or not. Might you have told him that?
A. I don't think so.
Q. Possible?
A. No.
Q. No. So do you remember now?
A. It's a possibility. I don't know. I don't think so.
¶39. Following Goodwin's testimony, the State
called Cronin, who testified that Goodwin spoke to him while at Tameeka's house.
Q. Did Mecquon say anything to you?
A. He just gave me- He reimbursed me with my money that day for the cocaine
and said he didn't get no cocaine.
Q. Did he tell you what had happened?
A. He said that Mr. Bueno got shot.
Q. Who did he say did the shooting?
At this point, Miller objected to the prosecutor's
question on hearsay grounds. The trial court initially sustained the objection but then
reversed its decision on the basis of prior consistent and inconsistent statements as explained
in the following colloquy.
[Prosecutor]: Your Honor, actually [Miller's] counsel
questioned him on-Mr. Goodwin on this issue whether or not he said that to anyone at the
home. I believe this is proper rebuttal of that impeachment.
[Defense counsel]: I don't.
THE COURT: Certainly the testimony of Mr. Goodwin is called into question.
Prior consistent and inconsistent statements in my opinion are admissible. So I will allow it
based on the fact that it's already been testified to.
Cronin then testified that Goodwin told him that Miller
had shot Bueno.
¶40. Later, the State called Tameeka Goodwin. The prosecutor asked her,
"Did you hear your brother, Mecquon Goodwin, make any statement as to what
happened that afternoon regarding Juan Bueno?" Tameeka responded, "When he
came in, he was saying Earl [Miller] shot him." Miller objected to the testimony. The
court overruled his objection, explaining that "[a]gain, it's really a witness whose
credibility is in issue. There's case law. It's the rules of evidence. Prior consistent and
inconsistent statements become admissible, so I will allow it."
¶41. Hearsay evidence is ordinarily not admissible except where provided by
statute or by rules adopted by the supreme court. See § 908.02, Stats.
Hearsay is defined as "a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted." Section 908.01(3), Stats. A statement is not hearsay if
[t]he 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.
Section 908.01(4)(a). A prior consistent statement of a
witness is not hearsay and may be offered for substantive purposes if: (1) the declarant
testifies at trial and is subject to cross-examination concerning the statement; (2) the
statement is consistent with the declarant's testimony; and (3) the statement is offered to
rebut an express or implied charge against the declarant of recent fabrication or improper
influence or motive. See Ansani v. Cascade Mountain, Inc., 223 Wis.2d
39, 52, 588 N.W.2d 321, 327 (Ct. App. 1998), review denied, 225 Wis.2d 489,
594 N.W.2d 383 (1999).
¶42. The prior consistent statement here is Goodwin's declaration to Cronin and
Tameeka that Miller shot Bueno. Our first consideration under §908.01(4)(a), Stats.,
is whether Goodwin testified at trial and was subject to cross-examination concerning this
statement. There is no dispute that Goodwin testified at trial, but Miller argues that because
Goodwin was not specifically cross-examined about the prior consistent statement, Cronin's
and Tameeka's statements were inadmissible hearsay. We cannot agree. The requirement
that the declarant be "subject to cross-examination concerning the statement"
simply means that the declarant must have been subject to cross-examination, not
that the declarant must have been cross-examined about the statement. As the
United States Supreme Court has noted, "Ordinarily a witness is regarded as `subject to
cross-examination' when he is placed on the stand, under oath, and responds willingly to
questions." United States v. Owens, 484 U.S. 554, 561 (1988)
(addressing Fed. R. Evid. 801(d)(1), the federal equivalent to §908.01(4)(a), Stats.).
The prior consistent statement rule gives the opponent the "opportunity to
cross-examine the declarant on the prior statement." 7DanielD. Blinka, Wisconsin
Practice: Evidence § 801.4 at 423 (1991) (emphasis added). Contrary to Miller's
argument, he was afforded the opportunity to and did in fact cross-examine Goodwin.
¶43. Next, there is no question that Cronin's and Tameeka's testimony in court
was consistent with Goodwin's testimony. Finally, we are persuaded that the statement was
offered to rebut an implied charge against Goodwin of recent fabrication. During Goodwin's
cross-examination, Miller repeatedly asked him whether he told his brother Jeryale that only
he (Goodwin) and Bueno had gone to get drugs in Bueno's car. As the State contends,
Miller's persistent questioning implied that Goodwin testified untruthfully when he stated that
he told Cronin that he, Miller and Bueno had driven to Bueno's house and that Miller had
shot Bueno. The cross-examination called Goodwin's credibility into question.
Consequently, the State was entitled to introduce Goodwin's prior consistent statements to
rebut the implied charge that Goodwin's testimony was fabricated.3
By the Court.-Judgments affirmed.
Recommended for publication in the official reports.
1 Miller also contends that State v. Owen, 202 Wis.2d 620, 551 N.W.2d
50 (Ct. App. 1996), permits "secondary events" to satisfy the causation
requirement. To the extent that "secondary" means not the primary or immediate
cause, we agree. Because "the sole or primary factor" refers to only one factor,
there may be other "secondary" factors that also rise to the level of a substantial
factor. Contrary to Miller's suggestion, not all "secondary factors" are
"completely attenuated" or "unimportant" events.
2 Miller is misguided in requesting that we overrule a previously published decision of this
court. The court of appeals is bound by its previous decisions and may not overrule, modify
or withdraw language from its prior published decisions. See Cook v.
Cook, 208 Wis.2d 166, 189-90, 560 N.W.2d 246, 255-56 (1997).
3 Miller also objects that the trial court never adequately explained what made Cronin's and
Tameeka's responses either consistent or inconsistent statements. To the extent that the trial
court's explanation was insufficient, we are satisfied that the court had an ample basis for
exercising its discretion in overruling Miller's hearsay objection. See State v.
Pharr, 115 Wis.2d 334, 343, 340 N.W.2d 498, 502 (1983).
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