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COURT OF APPEALS
DECISION
DATED AND RELEASED
NOTICE
October 22, 1996
A party may file with the Supreme Court                                                  This opinion is subject to further editing.
a petition to review an adverse decision                                                 If  published,  the  official  version  will
by the Court of Appeals.  See § 808.10 and                                               appear  in  the  bound  volume  of  the
RULE 809.62, STATS.                                                                      Official Reports.
No.   95-3247-CR
STATE OF WISCONSIN                                                                       IN COURT OF APPEALS
                                                                                         DISTRICT I
State of Wisconsin,
                                                                                         Plaintiff-Respondent,
v.
Robert E. Bickham,
Defendant-Appellant.
APPEAL  from  a  judgment  of  the  circuit  court  for  Milwaukee
County:  JEFFREY A. KREMERS, Judge.  Affirmed.
Before Wedemeyer, P.J., Fine and Schudson, JJ.
PER CURIAM.     Robert E. Bickham appeals from a judgment of
conviction entered after a jury found him guilty of possession with intent to
deliver a controlled substance (cocaine), second or subsequent offense, as party
to a crime, and failure to pay the controlled substance tax as party to a crime,
contrary to  §§ 161.16(2)(b)(1),  161.41(1m)(cm)(3),  161.48,  939.05,  139.87(1)&(2),
139.88(2), 139.89, and 139.95, STATS.




No.   95-3247-CR
Bickham claims that:                                                                      (1) the trial court erroneously exercised its
discretion when it limited the use of certain photographs which were admitted
into evidence;  (2) the trial court erroneously exercised its discretion when it
excluded certain cross-examination of Detective Dennis Gardner;  (3) the trial
court erroneously exercised its discretion when it precluded Bickham from
eliciting testimony that a third person (Anthony Bean) committed the crimes
attributed to Bickham; (4) the drug stamp law violates his constitutional right
against self-incrimination; and (5) the drug stamp law subjects him to double
jeopardy  in  violation  of  his constitutional rights.    Because  the  trial  court's
limitation  on  the  photographic  evidence  was  harmless  error;  because  the
exclusion of the cross-examination questioning was harmless error; because the
trial court did not erroneously exercise its discretion in excluding the third party
evidence; and because Bickham waived his right to raise the constitutional
violations, we affirm.
I.  BACKGROUND
On the night of January 30, 1995, a large group of police officers
proceeded to a Milwaukee home to execute a no-knock search warrant for
suspected narcotics at a suspected drug house.   The house was a two-story,
single-family building with a porch on the second-story in the back of the home.
Detective Edwin Bonilla was positioned at the rear of the home.
Bonilla testified that he was approximately twenty-five feet to the east of the
house with a view of the second-story porch.   Bonilla said that after the officers
entered  the  front  door  of  the  home,  Bonilla  heard  a  lot  of  running  and
commands being given for the occupants to get down on the ground.   At this
point, Bonilla indicated that he saw a man come out onto the second-story
porch and toss multiple objects off the porch.   Bonilla shined his flashlight on
the man and ordered him not to move.  The man complied.
Bonilla said no one else was on the porch and that he continued to
shine his flashlight on the man until Officer Willie Brantley stepped onto the
porch and arrested the man.   Bonilla testified that the man was wearing dark
clothing, including a black leather jacket and something that reflected light
around his neck.  Bonilla indicated that he observed the man's profile, including
hair style, stature and weight.
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No.   95-3247-CR
Subsequently, Bonilla entered the home and identified the man
being held by Brantley as the person observed on the porch.   This man, later
identified as Bickham, was wearing a black leather jacket and a gold chain
around his neck.   The tossed items were recovered from the ground.   These
items  included  three  bags  containing  rock  cocaine  and  two  envelopes
containing marijuana.   As a result, Bickham was charged with possession with
intent to deliver and violation of the drug stamp law.1
Bickham's defense at trial was mistaken identity.   He admitted
being at the house during the search.   He admitted going out onto the porch,
but he denied that he tossed anything off of the porch.   He introduced into
evidence  photographs  depicting  the  backside  of  the  house  from  different
vantage points.   He attempted to elicit testimony from Detective Bonilla that
Bonilla was located at the same position as shown in one of the photos, which
was taken twenty-five feet from the home.  This photo showed that very little of
the doorway to the porch could be observed from this distance.   The trial court
excluded  this  cross-examination  and  admitted  the  photos  for  the  limited
purpose of showing the relative locations of the buildings.
Bickham also attempted to elicit from Detective Gardner that two
months after the incident, he had asked witness Latrice Braggs if she knew who
owned the drugs.   Bickham wanted to use this information to demonstrate that
at least one detective was not convinced that Bickham was the perpetrator of the
January  30 incident.    The trial court excluded this questioning on hearsay
grounds.
Bickham also tried to introduce evidence that another individual,
Anthony Bean, who was present in the drug house on January 30, was arrested
five weeks later at a drug house near the one involved in this case.    This
information was intended to show that Bean, rather than Bickham, should have
been charged with the drug offenses arising out of the January 30 incident.  The
trial court excluded this testimony.
1  Bickham was charged with possession (with intent to deliver) of both cocaine and marijuana.
The jury acquitted him of the marijuana charge.
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No.   95-3247-CR
The jury convicted Bickham of possession with intent to deliver
cocaine and the drug stamp violations.   Judgment was entered.   Bickham now
appeals.
II.  DISCUSSION
A.  Evidentiary Issues.
In reviewing a trial court's decision concerning the admission or
exclusion of evidence, we apply the discretionary standard of review.   State v.
Oberlander, 149 Wis.2d 132, 140-41, 438 N.W.2d 580, 583 (1989).  That is, we will
uphold the trial court's ruling unless it erroneously exercised its discretion.   Id.
A trial court properly exercises its discretion if it applied the proper law to the
relevant facts and reached a rational conclusion.   Id.   Moreover, even if the trial
court erroneously exercised its discretion, we will not reverse if the error was
harmless.  State v. Dyess, 124 Wis.2d 525, 543, 370 N.W.2d 222, 231-32 (1985).
Bickham first claims the trial court erred in limiting the purpose
for which the photos were introduced.   The trial court limited the admission to
the purpose of showing the location of the buildings.   Bickham wanted to use
the photos to impeach Bonilla's testimony regarding what Bonilla could actually
see from the position where he claimed he was standing.  We agree that the trial
court should have allowed Bickham to use the photos to impeach the detective's
testimony.   Nonetheless, we conclude that the trial court's error was harmless.
See Dyess, 124 Wis.2d at 543, 370 N.W.2d at 231-32.
Our conclusion is based on the following facts, which demonstrate
that there is no reasonable possibility that the trial court's limitation contributed
to Bickham's conviction.   Bonilla testified that he kept his flashlight shined on
the man on the porch until another officer arrested the man.   Bonilla indicated
that he then went into the house, where the arresting officer was holding this
man, who was identified as Bickham.   The arresting officer identified Bickham
as the man he arrested on the porch.    Given this chain of events, Bonilla's
precise  location  and/or  view  of  the  porch  is  at  best  marginally  relevant.
Moreover, the photos were admitted and available to the jury.   The jurors were
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No.   95-3247-CR
not instructed as to how to use the photos.    Accordingly, the trial court's
limitation on the use of the photos was harmless beyond a reasonable doubt.
Bickham next claims the trial court erred in excluding certain
cross-examination  of  Detective  Gardner.    Bickham  attempted  to  examine
Gardner regarding a conversation he had in March of 1990 with Latrice Braggs,
who was one of Bickham's companions at the house when the search warrant
was executed.   Bickham intended to show that Gardner was still investigating
the crimes with which Bickham was charged because Gardner was uncertain as
to whether the right man had been arrested.    The trial court sustained an
objection, on hearsay grounds, to the following question posed to Gardner:
“And did you ask [Braggs] who owned the items in question, the items and
drugs that were found outside the location?”
We agree that Gardner should have been allowed to answer this
question.  It does not call for hearsay because it merely asks Gardner whether he
asked Braggs a question, rather than asking Gardner what Braggs's response
was.   Nevertheless, we conclude that this error was harmless.   See Dyess, 124
Wis.2d at 543, 370 N.W.2d at 231-32.
The trial court's error was harmless because Bickham was able to
elicit this same information from Braggs, who also testified at trial.   Therefore,
Bickham was allowed to introduce into evidence the fact that Gardner was still
investigating the January 30 incident as late as March.   Accordingly, precluding
Gardner from answering this question was harmless error beyond a reasonable
doubt.
Finally, Bickham claims that the trial court erred in precluding him
from asking a detective about Anthony Bean.   Bickham intended to show that
Bean, who was also present in the house on January 30, was arrested five weeks
later for possessing 110 grams of cocaine, two loaded weapons and more than
$4,300 in cash at a home two houses away from the home involved in the
instant case.
This evidence would be admissible only to the extent that it would
suggest that Bean, not Bickham, committed the crimes with which Bickham was
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No.   95-3247-CR
charged.   Accordingly, in order to be admissible, this evidence must first satisfy
the “legitimate tendency” test set forth in State v. Denny, 120 Wis.2d 614, 625,
357 N.W.2d  12,  17  (Ct.  App.  1984),  which  governs  evidence  of  third-party
culpability.  This test requires the defendant to show that the proffered evidence
satisfies three factors linking the third party to the charged criminal act.   These
factors include:                                                                       (1) that the third party possessed motive to commit the act;
(2) that the third party had the opportunity to commit the act; and (3) that there
was a direct connection between the third party and the charged criminal act.
Id.
We  conclude  that  Bickham  failed  to  show  that  the  evidence
regarding Bean satisfied this test.  There was no evidence that Bean was ever on
the second-story porch or that Bean was in possession of an illegal substance on
January 30.   Accordingly, Bickham has failed to show any “direct connection”
between Bean and the crimes with which Bickham was charged.   We conclude,
therefore, that the trial court did not err in excluding this evidence.
B.  Drug Stamp/Constitutional Violations.
Bickham  also  claims that  his  constitutional  rights  against  self-
incrimination  and  double  jeopardy  are  violated  by  the  drug  stamp  law.
Bickham presents these arguments for the first time on appeal.   We conclude,
therefore, that he has waived his right to raise these issues, and we decline to
address them.   See Wirth v. Ehly, 93 Wis.2d 433, 443-44, 287 N.W.2d 140, 145-46
(1980).
By the Court.—Judgment affirmed.
This opinion will not be published.  See RULE 809.23(1)(b)5, STATS.
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