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Cross-Examination – Limitations – Witness’s Mental Health; Inadequate Argumentation – Loss of Argument

State v. Anthony M. Smith, 2009AP2867-CR, District 1/4, 3/3/11

court of appeals decision (not recommended for publication); for Smith: Rodney Cubbie, Syovata K. Edari; case activity

Trial court’s limitations on cross-examination with respect to State witness’s “prior mental condition” or use of medications (prescribed for his Bipolar Disorder and Attention Deficit Disorder) upheld as proper exercise of discretion. The witness was taking his medication at the time of the alleged offense, beyond which there is no linkage between his disorders and his ability to recall events or relate them to the jury – therefore, the claim of impermissible limitation on cross-examination lacks factual foundation. The mere fact of mental illness doesn’t impair credibility. “Instead, a finding of relevance requires proof that a disorder has impaired or is capable of impairing the reliability of the witness.  Such proof is lacking here,” ¶¶26-35.

Operative principle, as enunciated by court:

¶25      More specific to the question of how the mental health of a witness might affect the credibility of the witness, our supreme court has determined that “[i]nquiry into the existence of and treatment for mental affliction is proper where it appears that a connection exists between the affliction and the reliability of the witness’s testimony.”  Johnson v. State, 75 Wis. 2d 344, 360-61, 249 N.W.2d 593 (1977).  After citing the above passage with approval in Chapin v. State, 78 Wis. 2d 346, 355-56, 254 N.W.2d 286 (1977), the court added the following observation:

Evidence of mental disorder or impairment may be relevant as affecting the credibility of a witness when it shows that his mental disorganization in some way impaired his capacity to observe the event at the time of its occurrence, to communicate his observation accurately and truthfully at trial, or to maintain a clear recollection of it in the meantime.

¶37      We do not address this claim of error for three reasons.  First, in making this argument Smith fails to cite evidence from the record supporting his contention, and it is not the role of this court to try to determine what facts Smith might be referring to.  See State v. West, 179 Wis. 2d 182, 195-96, 507 N.W.2d 343 (Ct. App. 1993) (this court is not required to search the record to supply facts that may support appellant’s argument). …

¶38      Second, moving from the factual arena to the legal one, Smith’s complete failure to make meaningful citation to the record in making this argument is compounded by the fact that Smith fails to develop an argument that, under applicable legal standards, there was a violation of Wis. Stat. § 904.04.  See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992). …

¶39      Third, regardless of precisely which evidence Smith may be challenging in making this argument, he concedes on appeal that he did not contemporaneously object to the admission of the evidence at issue, and therefore he forfeited the argument.  See State v. Agnello, 226 Wis. 2d 164, 172-73, 593 N.W.2d 427 (1999) (adequate objection necessary to preserve issue for appeal by giving parties and courts notice of disputed issues and “fair opportunity to prepare and address them in a way that most efficiently uses judicial resources”).[7]

¶40      In a section heading only, without matching argument in the short text that follows, Smith contends that trial counsel was ineffective for failing to move for a mistrial “when the State improperly introduced testimony about Smith’s alleged tattoo as well as the implications about other robbery activities of the State’s witnesses.”  Again, we are left without record citations or legal authority sufficient to merit consideration of this assertion, and therefore will not attempt to construct an argument for Smith on appeal.

Possibly minor quibble: the cite to West is incomplete, the supreme court having reviewed that decision, 185 Wis.2d 68, 517 N.W.2d 482 (1994). Though the supreme court reached the merits of the argument, it specifically noted that the court of appeals’ declination to do so “was within the court’s discretion,” 185 Wis. 2d at 85 n. 9. Note that the court could have simply held the argument forfeited for lack of contemporaneous objection, ¶39. Holding, instead, that the argument was lost on appeal sends a message. Hardly seems necessary to add that adequate record citations is pretty basic stuff.

The § 906.09 “counting” rule (generally limiting revelation of a witness’s prior convictions to mere quantity) doesn’t apply where the details relate to bias.

¶49      In this case, the prior offenses were not offered by a party seeking to impeach the witnesses.  Instead, the witnesses were asked about their pending plea agreements, which necessarily included reference to the charges at issue in those agreements, for the purpose of “fronting” to the jury the potential for bias of these witnesses in favor of the party calling the witnesses, namely the State.  The counting rule “applies only where the theory of impeachment is that the witness is less credible because of her criminal record; Wis. Stat. § 906.09 does not apply when the prior conviction is otherwise relevant, as where … the earlier offense demonstrates bias or is admissible as other act of evidence.”  7 Daniel D. Blinka, WISCONSIN PRACTICE SERIES:  WISCONSIN EVIDENCE § 609.1 (3d ed. 2008) (emphasis added); see also State v. Scott, 2000 WI App 51, ¶28, 234 Wis. 2d 129, 608 N.W.2d 753 (life sentence gave witness motive to falsely confess “without risk,” creating bias issue falling outside scope of § 906.09).

¶50      The record supports the State’s argument that the State’s primary purpose in eliciting this testimony was to take the “sting” out of anticipated impeachment by Smith regarding an obvious point of bias of these witnesses that the defense sought to highlight from the outset of the trial. …

¶53      The State’s use of prior convictions here was permissible because the use was, as required, “limited to a proper evidentiary purpose, such as the impeachment of trial testimony or to reflect on the witness’ credibility.”  Virgil v. State, 84 Wis. 2d 166, 183, 267 N.W.2d 852 (1978) (citing United States v. King, 505 F.2d 602, 607 (5thCir. 1974)).  The State did not equate the witness’s guilty pleas or convictions to substantive evidence of the guilt of the accused, which would be impermissible.  See King, 505 F. 2d at 607.[10]

Evidence of Smith’s tattoo, which read “NGM” and testimony that it meant “Just getting money” didn’t cloud the issue of whether Smith participated in the armed robbery as charged, ¶¶55-60.

Testimony of a fellow participant sufficed to establish Smith’s guilt, ¶63.

Smith’s sentence, for being the gunman in an armed robbery, of 7 years 6 months’ confinement and 5 years’ supervision, wasn’t harsh and excessive. Disparity in disposition of codefendant’s case (misdemeanor conviction for receiving stolen property) supported in that latter was the getaway driver and “Smith’s conduct was more dangerous, and therefore required a more severe sentence[.]” Moreover, the sentencing court undertook an “assiduous effort … to calibrate Smith’s sentence to Smith’s individual culpability and rehabilitative needs,” ¶¶64-69.

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