*1 Plaintiff-Respondent, Wisconsin, State
v. L. Jackson, Curtis Defendant-Appellant-Petitioner.
Supreme Court 18, argument September No. 2011AP2698-CR. Oral January —Decided
2014 WI (Also 791.) reported in 841 N.W.2d *6 For the defendant-appellant-petitioner, there were James Rebholz and Rebholz & Auberry, by briefs Wauwatosa, and oral argument by James Rebholz.
For the plaintiff-respondent, the cause was argued by Moeller, Marguerite assistant attorney general, with Hollen, whom on the brief was J.B. Van attorney general. 1. ANNETTE ZIEGLER, ¶ KINGSLAND J. This is review an unpublished decision of the court of Jackson, appeals, State v. No. 2011AP2698-CR, unpub- (Wis. lished slip op. Ct. Oct. App. 2012), that affirmed the judgment and order of the Milwaukee County Circuit Court,1 ("Jackson") which convicted L. Curtis Jackson of second-degree reckless homicide use of by a danger- ous and denied weapon, his motion for a new trial. Jackson's petition
¶ for review presents narrow question whether a defendant in a homicide prosecution may introduce evidence of the victim's reputation violence, when defendant did not know of the victim's at time of the offense. 3. The issues underlying this case are more
complex than as set forth in petition for review. Specifically, this court must decide whether the circuit court excluded improperly trial evidence regarding both 1 The Honorable presided Daniel L. Konkol pretrial over the proceedings and the trial. The Honorable Richard J. Sankovitz presided postconviction over the motion for a new trial. shooting and the victim's for violence specific acts. violent
victim's first-degree charged inten- with was 4. Jackson contrary dangerous weapon, of a use tional homicide 939.50(3)(a), 940.01(l)(a), §§ to Wis. Stat. 939.63(l)(b) felony. (2009-10),2 ar- A Jackson a class threatening behaving in a gued was the victim armed, and he believed the victim manner, that Jackson had in self-defense. he killed the victim char- of the victim's victim, nor knew met the neither shooting. night prior to the acter theory, support Jackson his self-defense In character evidence. court to admit the circuit moved statutory provisions, cited to several the motion While three acts admission of on the it focused prove *7 motion The character for violence. the victim's the admission basis for forth a foundational did not set testimony. reputation denied the The circuit court brought Following jury trial Jackson his motion. postconviction in he trial which motion for a new argued, part, not trial court erred that allowing introduce character evidence Jackson to aggressor" in the the "first that the victim was show also denied Jackson's The circuit court confrontation. appealed. postconviction motion, and Jackson appeals court, circuit affirmed the The court of relying State, 58 2d 205 N.W.2d McMorris v. Wis. on (1973). appeals, Jackson conceded In the court of 559 specific inadmissible to were acts of violence prove Stat. victim under Wis. the character of the 904.05(2), argued § charac the victim's violent but by proved could still have been ter 2 are to Statutes subsequent references to the Wisconsin All indicated. unless otherwise the 2009-10 version 904.05(1).3 § appeal under Jackson did not the circuit court's exclusion of other acts evidence under Wis. Stat. 904.04(2).4 § appeals The court of affirmed the circuit concluding prior knowledge court, that a "defendant's by reputation specific character, victim's either or consistently prerequisite acts, has been a to admission part of such evidence as of a self-defense claim." Jack- unpublished son, slip op., 2011AP2698-CR, No. ¶ 21. petitioned ¶ 7. Jackson this court for review, granted February which we on 12, 2013.
¶ 8. We hold that the circuit court did not errone- оusly denying exercise its discretion in Jackson's mo- tion to admit character evidence. The circuit court properly specific determined that in order for acts of violence to be admissible, "character or a trait of char- person" acter of a must be "an essential element of a charge, claim, or In defense." a homicide case where a may claim of self-defense is raised, character evidence Wisconsin provides: Stat. 904.05 (1) Reputation opinion. or In all cases which evidence of person admissible, character or a proof trait of character of a may by testimony be made by testimony toas or in the opinion. cross-examination, inquiry form of an On is allowable in specific relevant instances. (2) Specific instances conduct. In cases in which character person aor trait of character of a is an essential element of a claim, charge, defense, proof may or also be made of person's instances of the conduct. *8 904.04(2) § provides, Wisconsin Stat. in relevant part: (a) Except provided (b), par. crimes, as evidence of other
wrongs, prove or acts is person not admissible to the character of a person in order to conformity show that the acted in therewith. This subsection does not exclude the evidence when offered for purposes, motive, proof intent, other opportunity, such as of preparation, plan, knowledge, identity, or absence of mistake or accident. defendant's state of as evidence of the
be admissible knowledge long had of the the defendant mind so as McMorris, prior time of the offense. acts at the at also that the circuit court 2d 152. We conclude Wis. denying to аdmit err in Jackson's motion did not a for violence the victim had 904.05(1). Jackson failed to establish under Wis. Stat. proper to for the court determine that foundation for violence was the victim's assuming that, further conclude even admissible. We Therefore, error occurred, error was harmless. we appeals. the court of affirm decision I. FACTUAL BACKGROUND 2008, Police 9. On November Milwaukee De- ("Officer Galloway") Galloway partment Frank Officer responded call at 60th to a shots fired 3776 North City Upon arrival, Officer Street Galloway Milwaukee. directed witnesses the rear of the was Angelo victim, he residence where found the McCaleb ("McCaleb"),lying on his back. dead 10. McCaleb was declared at the scene. His
body transported County to the later Milwaukee autopsy Examiner's an Medical Office where confirmed single gunshot died as result of that McCaleb had wound the chest. Galloway scene, While at Officer en- Galloway
countered Jackson. Officer asked Jackson if victim, to he knew who had shot the responded: which Jackson gun I "I did it. shot him. The is over there on Sorry, top I did not mean do it." Officer car. Galloway custody. took Jackson into Although shooting
¶ the five witnesses to the undisputed. details, on facts differed the basic are evening Tanya 4, 2008, On the of November Davis *9 ("Davis") go car to borrowed Jackson's to a bar. While at Wayne bar, met and Davis McCaleb his friend ("Johnson") Johnson and had drinks with them. It would later established be that McCaleb had .18 blood alcohol concentration at the time of his death. While phone messages bar, Davis was at the left Jackson asking her to return his car. Davis testified that Mc- responded messages by saying Caleb to these "fuck that nigger" in reference to Jackson. eventually
¶ 13. Davis returned the car Jackson's She house. was followed McCaleb and arriving, Upon got Johnson. McCaleb and Johnson into argument an with Jackson and two women, Francheska ("Garcia") Knight ("Knight"), Garcia and Lawanda who lived with Jackson at the time. Jackson later would testify he that, when knocked on window, McCaleb's car McCaleb said that Jackson "had some fuckin' nerve somebody's knockin' on car window like that." Jackson argued, "yelling then and McCaleb back forth" going about whether Davis evening. During be would back out that argument, the course Jackson "lunged" testified that McCaleb at Garcia with his fist "[a]nger "clenched" and in his face." This was corrobo- by testimony rated Garcia, from who stated that Mc- stepped point Caleb towards her "like to hit" her at one during argument. Jackson then a hand- retrieved gun from his vehicle. Knight
¶ 14. later testified that Jackson used that gun only got to shoot McCaleb after McCaleb "so mad" and returned to Johnson's as if to car retrieve some- thing. then McCaleb walked back towards Jackson "really saying back," fast with one hand behind his you, "something Knight Further, motherfucker." police "pulling told McCaleb was at his waistband going gun." ifas he for a In an interview with following Department detective Police Milwaukee behaving shooting, in a that McCaleb was *10 Jackson said threatening had manner, and that he believed McCaleb was, fact, in unarmed. himself as well. McCaleb armed II. PROCEDURAL POSTURE 8, Jackson made his 2008, On November 15. complaint alleged appearance. The criminal a initial first-degree single homicide while count of reckless 940.02(1) §§ contrary 939.63, armed, to and Wis. Stat. felony. $150,000. B Cash set at class bail was 17, 2008, the court held 16. On November hearing. Following preliminary Jackson's regard- Department Police detective from Milwaukee ing shooting, the circumstances of the State moved trial. moved dismiss to bind Jackson over for Jackson to arguing charge, he acted self-defense.5 had granted dismiss, to The court denied Jackson's motion for motion, and Jackson was bound over State's trial. 9, ar- On December Jackson was charged
raigned on the Information which him with first-degree one of reckless homicide while count 939.48(1), is which Self-defense detailed Wis. Stat. provides: intentionally person privileged to threaten or use force A against purpose preventing terminating or another what person reasonably be believes to an unlawful interference with person by person. may or The actor his her such other intention- ally only reasonably the actor such force or threat thereof as use necessary prevent or terminate the interference. The believes is intentionally likely may actor not use force which is intended or reasonably great bodily cause or harm unless the actor death necessary prevent or
believes that such force is imminent death great bodily harm to himself or herself. reading armed. Jackson waived a of the Information pled guilty charge. February and not to the On 6, 2009, pretrial the court held a conference set and a trial date May 4, February ¶ 18. On 12, 2009, the State filed an charged Amended Information which Jackson with first-degree by dangerous intentional homicide use of a weapon, contrary §§ 940.01(l)(a), to Wis. Stat. 939.50(3)(a), 939.63(l)(b), felony. and a class A April
¶ 19. On 7, 2009, Jackson filed a Motion to Admit Character and Habit Evidence.6Jackson offered prior three acts of violence McCaleb as evidence of "history his violent assaultive behavior." First, Jackson offered McCaleb's 1995 conviction for criminal *11 trespass disorderly and conduct role McCaleb's as of a one dozen individuals involved in a home invasion pretended object alterсation where McCaleb to have an appeared weapon that be a firearm or other and during repeatedly the invasion struck an individual with a bar Second, stool. Jackson a offered November 7, City battery of Milwaukee assault and citation pushing girlfriend during McCaleb received for his a dispute Finally, domestic of a outside tavern. Jackson January 18, 2008, offered a citation McCaleb received being party, kicking for, after at a in the door of an Comp ("Comp") punching individual named Adam him. 6Although filing, mentioned in this sought Jackson never 904.06, §
to admit evidence of a "habit" under Wis. Stat. nor did the circuit court rule on the issue. Jackson's motion also cites to 906.08, § governs Wis. Stat. which evidence of the character of witness, similarly a develop argument but he fails to an around that opinion, therefore, statute. This not does address habit evidence or evidence of the character aof witness as these issues have not been on appeal. raised pa pretrial argued in his motion 20. Jackson prior
pers admis acts of violence were these three that 904.04(2). § under Wis. Stat. as acts evidence sible other pertinent argued of trait" that "evidence a also Jackson under be admissible character would of McCaleb's 904.04(1)7 § in motion that: conceded his Jackson acquainted Mr. McCaleb was not with
Mr. Jackson previous of acts of violence at not these and was aware shooting, he is able to admit the time of the thus not set forth in pursuant of acts to doctrines these of permit v. the admission McMorris State ... which previously of victim known a specific violent acts a defendant a self-defense case. argued "in a self-defense case nonetheless
Jackson is of the deceased an violent charaсter where the testimony concerning defense," element essential reputation victim's for violence is admissible. Wis. 904.05(1). 904.04(l)(b), §§ motion Jackson's Stat. prior acts its of McCaleb's violent muddled discussion evidence. While men- its reference with tioning reputation evidence, did not Jackson's motion any offer foundation for admission 904.04(1) "Character Evidence Gener Wisconsin Stat. ally" provides, part: in relevant person's person's character or trait Evidence of proving purpose for the
character not admissible occasion, *12 conformity particular person on a acted in therewith except: (b) 972.11(2), Except provided Character victim. as in s. of pertinent of of a trait of character of the victim the crime evidence same, accused, by by prosecution or the to rebut the or offered an peacefulness the victim offered evidence of a character trait of prosecution in a homicide case to rebut evidence that the the aggressor. the victim was first Further, evidence. while Jackson's motion contained phrase aggressor," phrase merely quote the "first is 904.04(l)(b). language Jackson never ex- plained aggressor first at how is issue so as to affect the admissibility pretrial of character The evidence. motion specific focused on the admission of the three acts sought prove Jackson to introduce to McCaleb's char- acter. April responded 21, 2009, 21. On the State opposed
Jackson's motion. The motion, State Jackson's arguing prior that McCaleb's acts of violence were not argued specific The admissible. State that the acts of being violence irrelevant, were too distant in time and factually too distinct from the circumstances of the argued assuming specific that, case. The State also probative any had value, acts that value was substan- tially outweighed by prejudice that would result admitting from them. The State asserted that these specific unfairly acts would indicate that the victim had conformity past acted in with his conduct. The State did respond not Jackson's citation to and, like the motion, defendant's on focused instead admissibility specific of the three acts violence. April hearing, 27, 2009, 22. On at the motion the circuit court denied Jackson's motion. The court prior specific concluded that McCaleb's acts were inad- got "[fit's missible under McMorris because be some- thing doing that the defendant Otherwise, knew. it something improper. So since the defendant did not acts, know about those I don't believe the defense go explained is allowed to into those." The court further acts violence were also not admis- as sible other acts evidence:
Again, you have indicated that people these two other, didn't even each know so I don't think that *13 the something do to any type of motive to substantiates first qualifies I think it even under the defendant. don't analysis. I regard So analysis to the Sullivan [sic] with if that, you get beyond but even don't think can even be have, I value would substan- you probative think prejudice, of unfair tially outweighed danger prejudice, so that evidence is not admissible. excluded With the acts violence and other acts evidence both character
on defense could be read reflect that the record grounds, to admit an albeit attempt, fleeting, counsel then made that McCaleb was a or opinion violent person: all, I
Okay. guess, I first of understand Then asking going Then how the Court is ruling. Court's I'm but specifically omitting specific then acts rule — think specifically I that it is admissible for asking proffer opinion reputation еvidence and defense McCaleb, witness, lay assuming I can a foun- Mr. can, dation, I I that McCaleb is a believe Mr. violent person he is a person, opinion the witness' that violent reputation for violence. and that McCaleb had a however, identify witness, failed to attempt, This or even coun- foundation, clarify establish a what the statement "McCaleb had a sought sel to admit was for violence." admissibility The then focused on the State credibility it of character evidence as related to stated: evidence,
Judge, understanding character my is it cred- the admissible character evidence bears on obviously I on ibility and don't think would bear credibility since the victim is here to defend himself not opinions, or I don't think as to those accusations so they're under the character evidence relevant statute. *14 perhaps fully digesting court, The not that Jackson's argument admissibility had shifted the from admissibility acts to of the statement "McCaleb reputation replied: violence," had for I right. agree.
All I don't believe that those matters relevant, they would be so would not be allowed. Despite specifically responding the court not argument, her counsel did not
object rulings, specific ruling to the court's ask or for a clarify Further, on evidence. counsel did not request request opportunity her and did not the proffer. specifically In make a addition, counsel did not aggressor raise the first Instead, issue. counsel stated: right. Okay. [DEFENSE All COUNSEL]: So the denying proffer Court opinion the defense and reputation— evidence,
THE COURT: 2, Character I Number believe that is what it is entitled.
[DEFENSE COUNSEL]: Yes. THE that, COURT: entirety, And its is denied. [DEFENSE Okay. Well, All right. COUNSEL]: there was one other [relating matter to a different motion].... pre-
After the had court addressed the balance the trial matters, Jackson's did counsel not insist on a specific ruling court, from the nor did she ask to make proffer preserve appeal, the and issue instead concluded:
I really, think that except boilerplate for the more limine, motion in that we have then all addressed issues that the defense has raised these two motions. jury six-day 2009, a trial 26. On October theory began.8 was that Jackson short, In the State's jealous he and because and killed McCaleb shot angry, acting in self-defense. than fearful and rather only during party armed who was Jackson was testimony to the effect The elicited State confrontation. relation- he was in a committed Jackson believed ship Davis, and he had received information with night kissing hugging McCaleb that she was Testimony shooting. that McCaleb and indicated "yelling arguing and back and forth" had been Jackson shooting. Testimony also indicated that the fatal before just charged at before McCaleb was McCaleb Jackson *15 shot. acting
¶ he in 27. Jackson contended that was testimony jury McCaleb, heard that self-defense. The being taller, heavier, and more was described as who up home in a Jackson, than drove to Jackson's muscular jury deeply tinted The high heard black car windows. with acting testimony and and McCaleb was drunk belligerently, such as and that he shouted statements somebody's "you got must some fuckin' nerve knockin' on "you am," I that," don't know who the fuck window like you?" jury fuck are The heard that McCaleb and "whothe approached "liketo hit" her with his one the witnesses "[ajnger during face" the "clenched"and his course fist argument. jury The also heard that McCaleb up" "you got had me fucked and he "some- stated just thing you, fatal before the shot motherfucker" theory entirely fired. of the case was was Jackson's himself, Jackson testified and focused on self-defense. witnesses, from that he acted in еlicited other 8May 2009, The 4, was Jackson's initial trial date. court trial due to a conflict with a was forced to reschedule Jackson's prior adjourned homicide case.
a and manner, restrained reasonable and that he shot only charged McCaleb after McCaleb at him. specifically
¶ 28. Neither the State nor Jackson argued aggressor" until "first after all evidence had presented aggres- been at To the trial. extent that first presented during sor trial, at or before the it was closing arguments, argued "[t]his the State's it when just Angelo acting isn't one-sided. This isn't McCaleb creating being aggressor control, out of chaos and argument out there. This is an between both he and Mr. Jackson." jury 12, 29. On October 2009, the found Jackson
guilty second-degree of the lesser-included offense of contrary armed, reckless homicide while to Wis. Stat. 940.06(1) §§ 939.63(1), felony. and D class The court judgment against entered the of conviction Jackson, presentence investigation report. ordered On 15, 2009, December Jackson filed a sen- tencing memorandum For time, with court. the first provided document, this Jackson a foundation that Comp single knew McCaleb outside of violent January 18, incident 2008, on mentioned in Jackson's motion to admit character evidence. January 31. On 2010, the court sentenced years imprisonment, comprised
Jackson to 15 of ten years years *16 of initial confinement to be followed five supervision. January of extended On 29, 2010, Jackson pursue postconviction filed a notice of to intent relief. having On 6, December 2010, after received appeal extensions, two in Jackson filed a notice of the appeals. sought Thereafter, court of Jackson dismiss to appeal prejudice. that 2011, without On March 21, the appeals granted court of Jackson's motion to dismiss because in Jacksоn needed to first raise the issues
postconviction court. v. before the circuit State motion (Wis. unpublished 2010AP2961-CR, order Jackson, No. 2011). App. Ct. Mar. postcon- 15, 2011, filed a On June Jackson pursuant a new trial to Wis. Stat.
viction motion for alleged motion in the circuit court. Jackson's 809.30 it of erred denied admission that the circuit court when specific prior acts "the and of vio- victim's "[t]he argued that court's decision lence."9 Jackson prejudiced denying and Jack- the motion was erroneous impeaching prevented him from the son because it theory 'aggressor' prosecution that was the Jackson put argued He this the one 'who all stuff motion.'" "determining pertained that the evidence to who aggressor, apprehension of the and the defendant's argued danger." the evidence was admis- Jackson regardless the of whether Jackson knew of victim's sible violent tendencies:
Notwithstanding the of apprehension reasonable conduct, prove courts to allow character evidence to tending form to show the victim's some of evidence been for the violent character should have admissible purpose the supporting limited defendant's self- aggressor. defense claim that victim was first postconviction motion was the first time that Jackson's possible began to outline a defense foundation testimony, sentencing citing memo- postconviction seemingly randum. The motion averred through sought "[t]he trial counsel defendant Comp offer the Adam and others alleged postconviction Jackson also his motion that jury improperly been and that he received had instructed as a of the defective ineffective assistance counsel result instruction. *17 reputation [sic]
establish McCabe's and character for against strangers citing violenсe and others" to the sentencing memorandum. Counsel failed to indicate argument properly pretrial how this was made or how any proffer before trial established a foundational basis reputation testimony. for the postconviction
¶ 34. In his motion, Jackson did excluding not assert that the circuit court erred in specific three violent acts other as acts evidence under 904.04(2). § Wis. Stat. July responded 21, 2011, 35. On the State
Jackson's motion for a new trial. The State contended prior that the circuit court's exclusion of McCaleb's acts proper of violence been had exercise of discretion. The majority jurisdictions State noted that in the adopted specific have Evidence, the Federal Rules of prior prove acts are inadmissible to a victim's conduct if the acts are unknown to the defendant because acts are not to an relevant element of the The offense. State may conceded that be admissible to prove argued character, a victim's violent but that since lay proper Jackson failed to foundation for testimony, properly that evidence was excluded. 17, 2011, 36. On October the circuit court de- postconviction
nied Jackson's motion without an evi- dentiary hearing. The court concluded that McCaleb's prior properly violent acts had been excluded. The postconviction court that, act, reasoned as a supposed Jackson had not shown Mr. "how McCaleb's propensity throwing punch the first an essen- tial element of self-defense" therefore admissible 904.05(2). under Wis. Stat. Jackson did not assert he knew McCaleb such that the evidence estab- would any lish that "he had to fear reason Mr. McCaleb." The any authority court noted that not Jackson did "offer *18 clаim of proposition to a it is essential that the has a violent that the victim demonstrate to self-defense - "[a]nd it think about concluded, The court character." put generally on a self-defense allow defendants do we propensity the had that victim evidence case without kind Mr. hence evidence time; All the for violence? cannot be deemed at trial to introduce wished Jackson argument that As to Jackson's his defense." essential specific acts in order introduce he needed to theory prosecution "impeach that Jackson was put motion,'" 'aggressor' all this stuff the one 'who aggressor not issue was the first noted that the court also closing arguments, it arguably and so raised until even point. The that evidence at late" to introduce was "too any point raise, at failed to that Jackson court concluded [that] "any argument or evidence trial, in the earlier showing rebutting that Mr. Mc- with evidence needed aggressor." first was the Caleb postconviction concluded court also ¶ 37. The specific show "does not tend to evidence that the acts aggressor." a first the character of Mr. McCaleb had assuming "specific in- that even The court outlined past generally violent were of the victim's stances three admitted the court would not have admissible, the particular here." The Mr. Jackson instances offered why be inad- each instance would also outlined court evidentiary deficiencies, The court noted missible. stating sufficient 2004 acts "lacked that the 1995 and concluding probative on, The court went value." triggered trial over have satellite the 2008 act "would aggressor not, or was the first . . . Mr. McCaleb whether long lamented as courts have kind of sideshow that consisting excluding character the reasоn for specific than of conduct rather instances testimony." opinion or
¶ 38. The court noted that in some circumstances a victim's for violence could be admissible, but State, concluded that Werner v. 736, Wis. 2d (1975), precludes specific N.W.2d402 the use of acts of prove aggressor "[e]vidence violence to the first issue: past acts of violence from Mr. McCaleb's are not prove propensity admissible to that he has a for violence acting or that Mr. Jackson was in self-defense." ¶ 39. On 21, November 2011, Jackson filed a appeal judgment notice of from the of conviction en- January denying tered 19, 2010, on and from the order his motion for a new trial entered on October arguments post- Jackson renewed the he raised in his *19 evidentiary motion, conviction differently. but framed the issue arguing specific Rather than that the three improperly acts of violence were excluded, Jackson "[i]f... conceded that the defendant was not ac- quainted specific with the victim or his instances of prior violent conduct to encounter, their violent the introducing defendant is limited to evidence of the by way reputation opin- victim's violent character of or argument, ion evidence." Jackson's time, for the first focused on the exclusion of as to McCaleb's reputation for violence, rather than the exclusion of the specific prior argued allowing acts. He that not testi- mony regarding McCaleb's for violence de- opportunity pos- nied him the to show that McCaleb likely sessed a violent character and was the first aggressor. appeal Jackson did not the circuit court's prior exclusion of McCaleb's violent conduct as other 904.04(2). acts evidence under Wis. Stat. May
¶ 9, 2012, 40. On the State filed its brief in appeals. the court of The State noted the shift position, argued Jackson's and then that evidence is also inadmissible where the defendant is reputation. The State the also
unaware of victim's lay argued any to Jackson had failed that event any reputation proper foundation for evidence. appeals ¶ 10, 2012, court of 41. On October the Jackson, the circuit court. No. affirmed slip unpublished op., ¶¶ 14, 23. The 2011AP2698-CR, appeals respect concluded with exclusion court of prior knowledge of that "a defendant's of evidence by reputation character, acts, or either victim's consistently prerequisite admission been a of has part Id., 21. as of a self-defense claim." such evidence knowledge Jackson not have of McCaleb's Because did appeals concluded character, the court that violent properly circuit court had excluded evidence Although it in Id. Jackson did not raise his character. rejected argument briefing, appeals also the court of prove prior be acts could admitted opportunity and lack of accident motive, "McCaleb's or reasoning an mistake," that none those were element Id., claim. 22. of Jackson's self-defense petitioned review, court for Jackson this granted February 12, which we on
III. OF STANDARD REVIEW *20 ¶ 43. "This not a circuit court will disturb court's admit decision to or exclude evidence unless circuit erroneously Weborg exercised its v. court discretion." Jenny, ¶ 41, 668, 2012 WI 341 816 67, Wis. 2d N.W.2d (citing Ringer, ¶ 69, 24, 191 State v. 2010 WI 326 448). "A 351, 2d 785 circuit court Wis. N.W.2d errone ously applies improper if it exercises its discretion an legal reasonably standard or makes decision not
272 by supported (citing the facts of record." Id. Johnson v. Corp. 2, ¶ Cintas No. 31, 22, 2012 WI 493, 339 Wis. 2d 756). 811 N.W.2d "[A]
¶ 44.
circuit court's erroneous exercise of
discretion does not warrant a
if
new trial
the error was
Weborg,
(citing
¶
harmless."
341
2d 668,
Wis.
43
State v.
Harris,
¶15,
2008 WI
85,
IV ANALYSIS analysis begins understanding 45. Our with the that "the circuit court's decisions admit or exclude great evidence are entitled to deference.. . ." State v. Head, ¶99, 2002 43, WI 255 2d 194, Wis. 648 N.W.2d (citing Ripp, 413 Martindale v. 113, 29, WI 698). Wis. 2d 629 N.W.2d This court will reverse a discretionary only if decision the circuit court's exercise of discretion "is based on an error of law."Id.
¶ 46. In this case, the circuit court was called upon, part, to consider whether character evidence §§ was admissible under Wis. Stat. 904.04 and 904.05. general "[e]vidence person's As a rule, of a character or person's a trait of the character is not admissible for the purpose proving person conformity that the acted in particular therewith on a occasion.. . ." Wis. Stat. 904.04(1). exception general ¶ 47. An to this rule "pertinent" admission of character evidence of a victim offered a criminal defendant: *21 972.11(2), evidence of a in s.
Except provided as the crime the victim of trait of character of pertinent accused, to rebut by prosecution or the by an offered peaceful- same, trait of evidence of a character the or in a by prosecution the victim offered ness of that the victim was to rebut evidence homicide case aggressor. first 904.04(l)(b). §
Wis. Stat. exception satisfied, has been one 48. When may presented way in the form evidence be character testimony. opinion Stat. Wis. or 904.05(1). exception § satisfied and has been When specific admit instances defendant seeks to prior it the case that conduct, however, must be victim's an character" of the victim "is or a trait of "character charge, claim, defense." Wis. of a оr essential element 904.05(2). § Stat. sought pretrial motion, Jackson In his support prior in McCaleb
admit three violent acts argument in self-defense. that he shot McCaleb his argued prior admissible that the ways. acts were Jackson argued First, Jackson two different as other acts acts were admissible McCaleb's violent 904.04(2). Second, Jackson under Wis. Stat. prior argued admis- violent acts were that McCaleb's of McCaleb's "character for violence" sible as evidence 904.05(1) (2). 904.04(l)(b), §§ and under Stat. Wis. Although passing, motion and mentioned Jackson's argument of McCaleb's never focused on the admission argument "reputation violence," but rather for admissibility on the before the circuit court focused words, the focus of acts. In other McCaleb's postconviction pretrial motions, and both the attention, the court's was on therefore the focus of attempt establish McCaleb's character Jackson's *22 by introducing specific violence these three acts of violence. Jackson never established a foundation or proffer made a for the admission of the statement reputation "McCaleb had a for violence." Jackson also requested specific ruling regard- never ing a from the court admissibility the of that evidence. Reputation evidence, such as the statement reputation proven
"McCaleb had violence," a for is not testimony specific Specific the admission of acts. persuasive act has far more value than the reputation one-liner "X had a for violence," and so it is appealing specific much more to introduce acts evi- surprisingly dence. Not then, the focus of Jackson's counsel, State, and the trial court was on the specific general admission of the three acts, and not reputation testimony.
¶ 51. The record reflects that counsel never clearly argued lay the foundation and for admissibil- ity reputation testimony before the circuit court. If reputation testimony Jackson's counsel did intend that admitted, be it when seemed the State and the court following argument, were not that counsel should have requested clarified issue, laid foundation, and specific ruling reputation on Instead, evidence. moving papers do not set forth the foundation for admissibility, proffer argu- an oral was not made at properly preserved ment, and thus, the issue was not appeal. argue Pretrial, Jackson did not sought evidence he to introduce would be "McCalebhad analysis for violence." He did not frame his general reputation in terms of the admission of evi- aggressor. argue dence to establish first He did not aggressor although McCaleb was the first trial, at he argued aggressor closing claims the State first in its introducing gen- argument. first mention of Jackson's "reputation to establish first for violence" evidence eral Although postconviction aggressor motion. in his was argues defect in the circuit court's that the Jackson now testimony, general ruling it exclusion of postconviction telling pretrial mo- that his is also admissibility primarily in terms of the tions are cast pretrial in his motion. acts he offered the three of error that a has held that "all claims This court bring be consolidated defendant can should criminal appeal." Lo, 107, v. 2003 WI motion or State into one (emphasis in 2d 44, 264 Wis. N.W.2d *23 original). are that are not so consolidated barred Claims why showing of a sufficient reason "absent raised . ..." Id. claims were not reputa- evidence, in the form of 53. Character opinion, specific acts, and other acts evidence tion, may or requires
appear intertwined, but each a different analysis seemingly legal Jackson con- for admission. by reputation evidence, and flated character in before the acts, and other acts evidence his motions though reputation evidence is the circuit court. Even clarify appeal, in an the law this focus of this effort opinion evidence, character will address other acts opinion evidence, or and character shown by specific incidents of conduct. Each eviden- shown unique analysis. tiary principle case, In carries a this properly however, we conclude that the circuit court excluding in the evidence under exercised its discretion any principles. of these
A. Other Acts Evidence argued pretrial motion 54. Jackson his that prior three acts of violence were admissible as other 904.04(2). § Wis. Stat. Postconvic- acts evidence under that the trial court erred tion, argued Jackson has not Pretrial, the other acts evidence. Jackson excluding conviction, conduct disorderly asserted that the 1995 citation, 2004 assault and and the 2008 battery citation relevant disorderly conduct were show "motive, McCaleb's and lack of accident or opportunity mistake." The circuit court these rejected arguments that not offered for an and concluded the evidence was case, was irrelevant acceptable purpose, value of the evidence alternatively probative outweighed by danger prejudice. 55. The of other acts evidence is admissibility using analysis: addressed a three-step (1) acceptable Is the other acts evidence offered for an (Rule) 904.04(2),
purpose § under such Wis. Stat. intent, establishing motive, prepa- opportunity, as ration, identity, plan, knowledge, or absence of mistake or accident?
(2) relevant, considering Is the other acts evidence facets of relevance set forth in Wis. Stat.
the two (Rule) in assess- 904.01? The first consideration the other acts evidence ing relevance is whether of conse- proposition relates to a fact or *24 determination of the action. The quence to the assessing relevance is second consideration value, is, probative has whether tendency the other acts evidence has a whether more consequential proposition make the fact or be probable probable or less than it would without the evidence.
(3) the other acts evidence probative Is the value of outweighed by danger of unfair
substantially misleading prejudice, confusion of the issues or 277 jury, delay, or considerations of undue waste presentation time or of of needless cumulative (Rule) § See Wis. 904.03. evidence? Stat. Sullivan, 768, 772-73, 2d State v. 216 Wis. 576 N.W.2d (1998) (footnote omitted). 30 properly Here, 56. the circuit court excluded the past evidence of violent conduct under each McCaleb's prongs of the three of the Sullivan test. although First, his recited lan motion 904.04(2)
guage Sullivan, from Wis. Stat. Jackson failed to connect the instances violence with any permissible purposes of the described those propo sources. The Sullivan made court clear that the showing nent of other acts evidence has the burden of prong analysis. how the evidence meets each 216 separate analysis required A Wis. 2d at 774. piece for each Hunt, of evidence. 81, 43, State v. 2003 WI Wis. 2d N.W.2d purportedly
¶ 58. Jackson offered the evidence to opportunity "motive, show McCaleb's and lack acci- explained dent or mistake" but he never how evidence mеt the criteria for admission as other acts "you evidence. The circuit court determined that have people indicated that these two didn't even know each any type I other, so don't think that substantiates something motive do to the defendant. I don't think qualifies analysis [sic] it even under the first with regard analysis." Simply to the Sullivan stated, Jackson failed to show the other how acts evidence was related acceptable purpose an under the statute. agree
¶ 59. Second, we with the circuit court that Jackson failed to show how the other acts evidence is *25 904.04(2). § Stat. Jackson did relevant under Wis. not past consequential show that the conduct related to a probative fact, did he In a nor show its value. first- degree appli- case, intentional homicide self-defense is (1) reasonably if defendant cable the believed that he or facing great she was a threat of "imminent death or (2) bodily reasonably harm," and believed the amount of "necessary prevent" force used was the threat. See 939.48(1); Stat. 805. Wis. Wis. JI —Criminal At least part past he because was unaware of McCaleb's conduct, the reasonableness of Jackson's beliefs was not impacted by Thus, that conduct. as the circuit court concluded, these acts McCaleb were irrel- evant. Third, the circuit court determined that the
probative substantially outweighed by value was prejudice: qualifies analysis
I think it under the don't even first I regard analysis. with to the Sullivan So don't [sic] you get that, you if beyond even think can but even have, probative substantially I think the value would be outweighed by danger prejudice, preju- unfair dice, so that evidence is not admissible. purposes evidence, 61. For of other acts properly applied before it to the
circuit court the facts prior proper legal standard and excluded the three acts record, Based on the we cannot conclude of violence. erroneously its discre- that the circuit court exercised appeal his on tion. Given that Jackson has focused evidence, that he now character agrees. we can conclude
B. Character Evidence argued court, Before the Jackson circuit prior admitted to show "evi- that three acts could be *26 pertinent under trait" of McCaleb's character dence of 904.04(1). argued § that "in a Stat. Jackson also Wis. the violent character of self-defense case where defense," element of the testi- deceased is an essential concerning reputation mony for is the victim's violence identify any in did not witnesses admissible. Jackson testify that "McCaleb had a his motion who could lay violence," and he did not a foundation admissibility general testimony. of that Jackson for the also did not show how McCaleb's violent character was charge, claim, defense," "an element of a or essential specific under such that the acts were admissible Wis. 904.05(2). § Stat. rejected argu-
¶ 63. The circuit court Jackson's probative and concluded: "I think the value ments substantially outweighed by danger would be prejudice, prejudice,
unfair so that evidence is not admissible." "[ejvidence Generally speaking, person's
¶ 64. of a person's character or a trait of the character is not purpose proving person admissible for the that the conformity particular acted therewith on a occa- 904.04(1). § "[T]he sion .. . ." Wis. Stat. law of evidence propensity disdains use of character to show way." Blinka, behave in a certain 7 Daniel D. Wisconsin (3d § 405.1, Practice Series: Wisconsin Evidence at 225 2008). agrеe. ed. We exceptions gen- are, however, 65. There to this "pertinent rule,
eral one of which is of a prosecu- character trait" of the deceased in a homicide 904.04(l)(b). § tion. Wis. Stat. character is When at proof may by reputation issue, be made at trial testi- mony, opinion testimony, by specific and acts. Wis. Stat. 904.05(1) (2). and testimony Reputation hearsay form one testify subject's repu- in which a witness will about the community. Opinion testimony permits tation within the testify opinion the witness to about his or her own subject's opinion character. Neither nor testi- mony include conduct, evidence of instances of except perhaps in cross-examination or rebuttal. Reputation opinion sig-
¶ 67. and have persuasive jury they nificant limitations before a because sweeping conclusory Reputa- tend to be of a nature. testimony, particular, aptly dispar- tion "has been but agingly 'irresponsible product described as the of mul- *27 § tiple guesses gossip.'" supra, Blinka, 405.2, at 226. type reputation testimony, This of which would tend to reputation violence," show that "McCalebhad a for does permit jury specific not the hear to about acts ofviolence. spe- hand, 68. On the other the introduction of prove requires analysis. cificacts to character a different proving provided by "Of the three methods of character specific rule, the evidence of instances of conduct is the convincing. possesses most greatest capacity At the same time it prejudice, confuse,
to arouse to surprise, Advisory and to consume time." Committee Proposed Rules, Notes-1972 Fed. R. 405. A court Evid. may properly admissibility consider the value of the against specific competing preju- acts interests such as creating dice, сonfusion, or a trial within a trial. In other probative outweigh prejudicial words, does value through effect? The use of character shown specific requires acts even more than the foundation required reputation opinion for the admission of or testimony. specific character, admit acts To to show character or trait of character must be "an essential charge, claim, element of a Stat. or defense." Wis. 904.05(2). § great The circuit court still retains discre- determining tion whether to admit the evidence. pretrial motion, Jackson stated that In his "pertinent" to his self- violent character was McCaleb's theory, explain little further. defense but made effort to sought prove level, Jackson had At the circuit court by introducing the character for violence McCaleb's specific acts of violence under Wis. Stat. three 904.05(2). Critically, argu- focused his Jackson never admissibility the "McCalebhad ment on the statement reputation Instead, for in the circuit court. he by violence" primarily sought prove that McCaleb was violent introducing specific Jackson now instances conduct. claims that McCaleb's violent character was relevant to determining aggressor
who the first their con- ought frontation such that the circuit court to have allowed that "McCaleb had a appeal, argu- has violence." On Jackson abandoned ment that the circuit court erred it denied admis- when sion of the change instances of conduct. Jackson's him of heart does not afford the relief he re- quests.
¶ 70. We first address whether Jackson laid a proper admitting reputation foundation for evidence— Second, "McCaleb had a for violence." even though apparently agrees Jackson now that the offered specific prior inadmissible, acts are address we whether *28 erroneously the circuit court excluded through McCaleb's violent character in- instance, stances offered. In each we conclude that the circuit court's exercise discretion was not erroneous. Reputation Evidence
¶ 71. Jackson asks this court to find that reputation character evidence "McCaleb had a for vio- despite lence" is admissible the fact that Jackson was
282 reputation shooting. unaware of that at the time of the proper We first discuss whether Jackson laid a founda- reputation tion for the evidence. We hold that he did not. further We conclude that Jackson failed to make a proffer regarding reputation evidence, and so failed to preserve 901.03(1); § appeal. the issue for Wis. Stat. App ¶¶ Winters, 48, 17-19, State v. 2009 WI 317 (holding party Wis. 2d N.W.2d that a challenging ruling excluding a trial court's evidence is obligated proof). to make an offer of reputation
¶ 72. "The foundation for is deliber- ately simplistic. Properly reputation framed, the testi- mony can be elicited in less than a minute. The stream- probative lined foundation befits the evidence's modest supra, proper Blinka, 405.2, value." at 226. A founda- reputation testimony requires showing tion for four elements:
(cid:127) to, belongs about, The knowledgeable witness or is social)
community (residential, business, or to which subject belongs. (cid:127) subject The particular has a for a char-
acter trait. (cid:127) The the reputation. witness knows (cid:127) reputation. The witness testifies Id. Despite requirements,
¶ 73. these relative modest lay Jackson's motions before the trial court failed to reputation testimony. most, foundation for At Jackson's postconviction pointed "Comp motion and others" as testify "[McCaleb's] witnesses who could Notably, and character for violence." such reference was *29 pretrial stage. did the At no time Jackson not made at community Comp identify McCaleb, shared with the Comp's any regarding information nor did he include beyond single knowledge the interaction the of McCaleb stage, January pretrial Thus, in 2008. at the two had seeking it than clear that he was this Jackson made less seemingly testimony. general reputation The focus was any specific circuit foundation, the on the acts. Without necessary findings position make the court was no to testimony. properly reputation admit the knowledge Comp's ¶ of McCaleb's most, 74. At reputation the time as an attach- was included for first sentencing ment in Jackson's memorandum. Even postconviction motion, Jackson's the focus remained on general reputation act rather than evidence began testimony. postconviction At least the motion reputation discuss some foundation for the admission of testimony. Additionally, assuming Jackson believed requested opportu- erred, had he
trial court never admitting nity proffer a foundation for McCaleb's responsibility for violence. Jackson bore the preserve proof in to make an offer of order to issue appeal. Winters, Here, 317 Wis. 2d proffer Jackson's counsel did not make a further to the orally writing, clarify court or in nor did counsel that a ruling sought from the court. 76. Jackson now asks this court to consider Comp provided postconvic- additional information about relying original papers tion, rather than on the motion argument transcript. decline to do so because: We *30 may Error predicated upon not be a ruling which admits or excludes evidence unless a right substantial affected; party and (b) proof. In the ruling cаse is one excluding Offer of evidence, the substance of the evidence was made judge by known to the offer or apparent was from the context questions within which were asked. § 901.03(1); Winters,
Wis. Stat. see also 317 Wis. 2d ¶ 24. Consequently,
¶ 77. the circuit court did not err in precluding admission of evidence because it provided was never with a foundation to admit that proffer regarding evidence, and we are left with no the evidence. Although clearly
¶ 78. it not was raised either postconviction before the trial or courts, Jackson now argues reputation, that McCaleb's violent rather than specific past evidence his acts of violence, is relevant determining aggressor whether he was the first in shooting. may argument the While it be the best appeal, Jackson now has on the record below demon- argument being strates that this was not the advanced adequately presented trial counsel, and not recognize the trial court such that the court would being upon evidence that it was called to admit. The erroneously trial court did not exercise its discretion deciding argument not a character evidence it being never knew was made to the court. certainly
¶ 79. It is true some self-defense genuine dispute cases there is a factual over which party started a confrontation. In cases, those evidence might of the victim's character for violence be admis- sible and the circuit court is endowed with the discre- e.g., See, Werner v. determination. make that
tion to (1975). The 736, State, 2d N.W.2d 66 Wis. empowered "modest" to balance the circuit court is testimony against probative value of against propen general prohibition prejudice §§ sity 904.01, 904.03. Stat. evidence. Wis. only not is the foun- case, however, In this missing and the for the character
dation appeal, preservе proffer issue for but insufficient specifically rule on not asked to court was the circuit admissibility that "McCaleb had the reputation *31 showing first in reference for violence" aggressor. court could extent that the circuit To the reputa- sought perceived counsel to use this that have aggressor issue, the address the first tion evidence to being testimony regarding McCaleb relevant most jury. jury already aggressor The before the first was testified to the events heard from five witnesses who shooting up the fact that McCaleb led to the and that evening question. undisputedly violent on reputation Hearing for violence" that "McCaleb had a Consequently, at best. have been anticlimactic would proper laid, been foundation for the evidence had a presented request properly with a the circuit court been that "McCalebhad to admit aggressor issue, it could still have on the first violence" reasonably cumulative, that it be concluded would drawing propensity danger jury improper an outweighed prejudice of inference and the likelihood probative value. Specific Acts Violence apparently ¶ 81. The State and Jackson now agree specific in this acts evidence is not admissible appeal. case. Jackson does not raise the issue on None- briefly type theless, we will address this of character evidence. Character evidence can be admissible in the specific form of instances of conduct. However, the admissibility specific foundation for the instances of general conduct is different than the foundation for opinion testimony. properly or If character is exception admissibility at propensity issue and the may only met, evidence is acts still be offered if "character or a trait of character... is an essential charge, element of a claim, or defense ...." Wis. Stat. 904.05(2). Nonetheless, even if character or a trait of character is an essential element, the circuit court is authority endowed with the to exercise its discretion regarding admissibility. In case, this a character trait was prove, not an element that the State had to nor was it an element of Jackson's self-defense claim. Thus the circuit properly court prior excluded evidence of McCaleb's got something violent acts. The court ruled: "It's to be doing that the defendant Otherwise, knew. it is some- thing improper. that's So since the defendant did not know about acts, those I don't believe that the defense is go allowedto into those." The decision of the circuit court clearly excluding was not erroneous in this evidence. *32 ¶ specific prior 82. We have held that acts of vio- by may lence the victim be admissible when the defen- dant is aware of the In issue, acts. the case at we are not presented with traditional McMorris evidence. In Mc- Morris, prior the circuit court concluded the acts of violence were known defendant. result, As a prior acts were admissible to show that the defendant's apprehension of the threat from the victim was reason- able, and thus, went to an essential element of self- § 904.05(2); defense. Wis. Stat. Wis. JI —Criminal 805.
287 in the knowledge have such claimed to never Jackson not admissible acts are Thus, the requested case. present as McMorris evidence. McMorris, the court held: In pros- raised in a of self-defense is the issue
When a factual and there is or homicide for assault ecution may, in defense, the defendant support such basis to defense, what the defendant establish support of thе character of turbulent and violent to be the believed of violence prior specific instances proving victim of the incident. knowledge at the time his within 2d at 152.10 58 Wis. charac- prove incidents of conduct to Specific a trait of "character or admissible unless
ter are not claim, a charge, element of ... is an essential character 904.05(2). of evidence § law "[T]he Stat. or defense." Wis. to show propensity the use of character disdains 405.1, at 225. supra, Blinka, way." in a certain behave acts of prior admission of victim's Allowing defendant, would here invite to the violence, unknown Thus, if inference. even improper propensity such an just to the trial the first issue argued aggressor Jackson had acts nonetheless be court, would prior specific such of character" "character or a trait inadmissible because claim, or charge, element of a not "an essential Jackson now agrees. in this case. Apparently defense" 10 held "McMorris Similarly, in State v. Head this court support an inference about the may not be used to 128, WI 99, during incident." 2002 conduct victim's actual may admitted "[i]t 413. But be 2d 648 N.W.2d 255 Wis. the defendant's the reasonableness of 'bear[s] because it on (citing danger the time of the incident.1" Id. apprehension of at State, McMorris, 149); v. 2d at see also Werner 58 Wis. (1975). 736, 226 Wis. 2d N.W.2d *33 C. Harmless Error conclude that the 85. We circuit court did not erroneously its Nonetheless, exercise discretion. if we that it was error were to assume for the trial court to exclude that had a "McCaleb for any part violence,"we also conclude such on error the court harmless. proving
¶ 86. The State bears the burden of
Sullivan,
the error was harmless.
216
2d at
Wis.
an
The court deems
error
if
can
harmless
it
conclude
"beyond
jury
a reasonable doubt that a rational
would
guilty
have
the defendant
found
absent the error." State
Harvey,
¶WI 93, 49,
v.
442,
2002
254
2dWis.
647 N.W.2d
(1999)).
(citing
States,
v.
189
Neder United
1U.S.
improperly
87. When
court has
admitted evi
dence, reversal is not warranted "unless an examination
proceeding
of the entire
reveals
admission ofthe
rights'
party
'affected the
evidence has
substantial
seeking
Armstrong,
the reversal." State v.
223 Wis. 2d
(1999);
331, 368,
we conclude "McCaleb's error, violence" was that error was harmless.11 Even 11 Here, presumed we conclude that this error the court
(cid:127) 289 *35 assuming properly before the circuit issue had been reputation testimony probative is of "modest court, supra, if it 405.2, Thus, at 227. even Blinka, value." reputation general admitted, been had violence" have had a for would "McCaleb paled comparison that was in to the detailed evidence already jury. before Although jury not did hear the sentence jury violence," none-
"McCalebhad jury The heard that McCaleb was violent. theless heard testimony being McCaleb, was described as that who drove taller, up Jackson, more than heavier, and muscular deeply tinted home a black car with to Jackson's jury heard had The McCaleb windows. belliger- acting and was alcohol content .18 blood referring ently. Jackson, Davis to When McCaleb told nigger." He such as "fuck that "you've got shouted statements fuckin' knockin' on a car win-
some nerve "you I dow," am," fuck and "who the don't know who the jury you?" fuck are The heard that McCaleb cаme "like to hit" her with his fist toward one of the females "[ajnger he The "clenched" and that had his face." jury got also "so mad" and went heard McCaleb get something if to from back to his car as returned "speed-walking" Jackson one of his the car toward with got up" yelling "you hands his back me fucked behind *36 just "something you, that had for motherfucker" he fired the fatal shot. before Jackson adding reputation testimony Simply general ¶ 90. reputation a for this that "McCaleb had violence" to case, In this it that errors was harmless. follows counsel's testimony not regarding reputation prejudiced could have Jack Carter, son, See 2010 such that counsel ineffective. State v. 640, WI 40, 37, (citing 2d 695 324 Wis. 782 N.W.2d Strickland (1984)). Washington, v. 466 U.S. 691-93 body substantial of evidence does not create the "rea- probability" Armstrong, a sonable of different outcome. any reputation 2d Moreover, 223 Wis. at 369. witness subject rigorous would been have cross-examination. light At best, that one sentence —in of all the evidence presented fleeting at trial —would have been and cumu- lative. assuming Therefore, circuit court erred denying "modestly" probative admission of the evi- reputation
dence, "McCaleb a had for violence," that light regarding error was harmless in of all the evidence being evening question. McCaleb on violent
V CONCLUSION ¶ 92. We hold court circuit did erro- not neously denying exercise its discretion in Jackson's motion properly admit character The court evidence. circuit
determined that in order for acts of admissible, violence to be or "character a trait char- person" acter of a must be "an of a essential element charge, claim, or defense." In a homicide case where a may claim of raised, self-defense is character evidence be as admissible evidenсe of the defendant's state long knowledge mind so as the defendant had prior McMorris, at acts the time of the offense. Wis. 2d at 152. We also conclude that the circuit court denying did err in not motion Jackson's to admit that the had victim for violence 904.05(1). under Stat. Wis. Jackson failed to establish proper for foundation the court determine evidence of the victim's violence was assuming that, admissible. We further conclude even occurred, Therefore, error that error was harmless. we appeals. affirm the decision of the court of *37 appeals By of the court of the decision Court.—The affirmed. is {concurring).
¶ BRADLEY,J. I 93. ANN WALSH they majority agree deter- when and dissent with the reputation for vio- of the victim's mine that evidence identity the of the first offered to demonstrate lence aggressor claim. is to a defendant's self-defense relevant op., Majority ¶¶ ¶¶ dissent, 96-97, 47-48, 65, 79; 113. ¶ I set forth in determine, further for reasons erroneously denied dissent, the circuit court the that the motion to evidence of victim's the defendant's reputation admit opportu- allowing an the defendant without reputation nity present a better foundation for join Therefore, I Part I of the dissent. evidence. ultimately conclude, however, that for rea I majority opinion, in the the error is set forth sons majority notes, in order to reverse a As the harmless. evidentiary ruling, on an erroneous conviction based probability that the outcome there must be a reasonable the trial have been different without error. would (citing Majority op., Armstrong, 223 87 State v. Wis. 2d (1999)). prob "A 331, 368, 588 N.W.2d reasonable ability probability to undermine confidence sufficient (quoting Id. at 368 Strickland v. in the outcome." (1984)). Washington, agree U.S. 694-95 I with unlikely majority that it is in this would have affected the outcome case. evidence majority join opinion I IV Therefore, Part C. of respectfully concur. {dissent- ABRAHAMSON, 96. SHIRLEY S. C.J. majority holding
ing). agree opinion's implicit I with of the victim's for violence is aggressor on the issue of first when a defen- admissible *38 claim, dant a self-defense raises even when the defen- dant the is unaware of reputation.1 Majority op., ¶¶ 48, of 97. Character evidence a victim’s dis- violent in
position the form of reputation evidence to prove 904.04(l)(b) § provides: Wisconsin Stat. (1) generally. person's Character evidence Evidence of a character person's of purpose or a trait the character not is admissible the proving person conformity of the acted in therewith aon particular occasion, except: Os) provided Except 972.11(2), Character of victim. as in s. evi- pertinent of a trait dence of character of the of victim the crime accused, by by prosecution same, offered an or the to rebut the or peacefulness of a evidence character trait of victim offered prosecution the ain homicide case to rebut evidence that the aggressor was the victim first .... [904.04(1)] (b) "Exception makes clear that evidence a claiming homicide case the aggressor victim was the first prosecution affords the the right rebutting introduce evi- peacefulness dence of the of the victim." of Wisconsin Rules (Judicial § 904.04, Evidence 59 Wis. 2d at R76 Council Note) (1974). Committee's Advisory The Federal Committee's Note elaborates: susceptible being purpose Character evidence is of used for of suggesting person an inference that the acted the occasion in on question consistently with of his character. This use character is often described as "circumstantial." Illustrations are: evidence of a disposition aggressor prove pеrson violent that the was the an affray.... jurisdictions today, In most the circumstantial use character is (2) rejected important may exceptions:... but with an accused pertinent victim, introduce evidence of the character of the inas support charge of a claim of to a ... and self-defense homicide prosecution may case, introduce similar evidence ... in a homicide aggressor, a to rehut claim that deceased was the first however proved.... 904.04, 2d Wisconsin Rules of Evidence at R76-R77 Wis. (Federal Note). Advisory Committee's affray aggressor in an the first that the victim was routinely accepted para- as in the literature digmatic use of character evidence.2 admissible majority disagree, however, I with lay analysis opinion's defendant failed to proper for the introduction of evidence foundation3 through follow and failed to the victim's the first claim that the victim was with a self-defense disagree majority opinion's aggressor. I with also analysis. error harmless
I majority mistakenly opinion concludes 99. The lay proper failed foundation to defendant to that the reputation failed of the and introduce evidence victim's present was the first to the issue that the victim aggressor part as of his self-defense claim.
A majority opinion in on mo- 100. The zeroes the properly papers did not tion to show that the defendant 2 (Peter Evidence, § Wigmore 1A on 63 at 1365 Tillers See 1983) ("[T]he ed., frequent most use of character evidence charged, to against a victim a violent crime is show is when 1 aggressor."); the was first McCormick on Evidence victim the (Kenneth 2013) ed., (noting § Broun 7th ed. that when 193 S. dispute aggressor," the first "the "there is as who was can evidence of the victim's character for accused introduce "reputation opinion and limited to or turbulence violence" acts"); than to 22A Fed. Practice & Proce specific rather (Kenneth Graham, ed., 2d ed. § Evidence 5237 W Jr. dure: 2013) (identifying" disposition' prove 'violent the victim aggressor affray" pertinent in an as a trait admissible was the 404(a)(2)). Federal Rule of Evidence under 3 8, 51, majority op., 71-77. ¶¶ See raise the issue of the victim's for violence to show that the victim was the first aggressor. Majority 73-75. op., ¶¶ 101. On the the contrary, motion clearly sought of
admission evidence of the victim's violence in the form reputation of evidence. Here is the relevant por- tion of the defendant's motion carefully distinguishing between evidence of previous acts and evidence of the victim's violence and seeking admission of latter: the acquainted
3. Mr. Jackson was not
[the victim]
with
not
previous
aware of these
acts of
at
violence
of
shooting,
time
he
thus
is not able to admit
pursuant
these acts
set
doctrines
forth in
State,
(1973)
McMorris v.
Wis. 2d
and State v.
Daniels,
(1991),
¶ motion Moreover, the defendant's 102. pretrial argu- represent entire not the defendants' do of evidence of the victim's ment on the admission reputation for violence. hearing pretrial on the defendant's In the 103. of the victim's character introduce evidence
motion to prior opinion acts or and in the form of testimony, lay attempted a to foundation the defendant reputa- testimony proposed about the victim's for the abruptly and com- result: the circuit court tion. The laying pletely precluded her foun- defense counsel from reputation. about the victim's dation for After the circuit court denied admission Stat. "other acts" evidence under Wis. the defendant's 904.04(2), attempted to foun- defense offer a counsel reputation. the victim's dation for evidence of pertinent part transcript as The is follows: Okay. guess, I COUNSEL]: Then first of
[DEFENSE all, asking ruling. I Court's Then I'm understand the going specifically— to rule then how the Court I think omitting specific asking specifically but facts proffer opinion that it is admissible defense victim], witness, [the evidence of can, I assuming lay foundation, I can a I believe that person, opinion the witness' [the victim] is violent person [the victim] and that had a he is violent reputation for violence.
THE COURT: Mr. Williams? understanding Judge, my char-
[PROSECUTOR]: evidence, it acter the admissible character evidence is obviously I credibility and don't think bears on credibility on since the victim is not here would bear opinions, I himself as those accusations or so defend they're the character evi- don't think relevant under dence statute. *41 right.
THE All I agree prosecutor]. [with COURT: I relevant, don't believe those matters would be so they would not be allowed. right.
[DEFENSE Okay. COUNSEL]: All So court denying proffer opinion is the defense and reputation— evidence, THE COURT: Character Number I be- lieve that what it is is entitled.
[DEFENSE COUNSEL]: Yes. that,
THE
entirety,
COURT: And
in its
is denied.
¶ 106. Defense counsel made a
offer
sufficient
proof.
proof
"The offer of
need not be stated with
complete precision
unnecessary
or in
detail but
it
evidentiary hypotheses underpinned by
should state an
a sufficient statement of
facts warrant the conclusion
urged
adopt."
or inference that the trier
fact
Dodson,
State
65, 73,
v.
219 Wis. 2d
¶ 108. The circuit court never allowed defense lay simply counsel to foundation, better but instead agreed prosecutor's objection with the mistaken ruled that the circuit didn't court "believe that those added). (emphasis matters be would relevant" addressing ¶ Instead of defense counsel's at- tempt to offer evidence of the victim's violence, the circuit court addressed *42 pro- coming grips to with the defendant's acts, never opin- majority reputation testimony. posed Indeed, the digest did "that that the circuit court not ion concedes admissibility argument had shifted from the Jackson's admissibility specific of the statement the acts Majority op., reputation for violence.'" 'McCaleb had a ¶ 24. majority opinion the cir- asserts that The lay attempt preclusion of the defendant's
cuit court's "counsel was not erroneous because a bettеr foundation object rulings, specific or ask for a did not to the court's ruling reputation did counsel evidence," nor defense on [or] "clarify request request opportunity her Majority proffer." op., ¶ 25. make a rul- did for a Defense counsel ask clearly transcript ing reputation evidence, as the on the obviously disagreed counsel with shows. Defense ruling against exceptions her. A bill circuit court's listing objections preserve an is not needed order to explicitly § appeal. bars the issue for Wis. Stat. 805.11 exceptions exception: objection "An use of and bills of necessary ruling not after a or order made. . . . is Exceptions is objec- Evidentiary never be made. . . .
shall § governed by [Wis. Stat.] tions are 901.03."4 transcript majority opinion ¶ 112. dem- The and circuit erred as a matter of law onstrate that the court distinguishing in not evidence of the victim's between part: provides Wisconsin Stat. 901.03 relevant (1) ruling. may predicated upon not be Effect of erroneous Error ruling or a substantial which admits excludes unless affected; right party is (b) evidence, ruling proof. excluding Offer of In case is one judge substance the evidence was made known to offer or apparent questions the context from within which were asked. reputation prior and evidence of the victim's or other simply acts.5 The circuit court barred all evidence of the victim's character. majority opinion properly 113. As the notes,
evidence of the victim's for violence offered identity aggressor to demonstrate the of the first Majority relevant to a defendant's self-defense claim. op., ¶ erroneously 79. Yet the circuit court ruled that categorically evidence is not relevant in a self-defense case. *43 pretrial hearing,
¶ 114. At the the circuit court certainly raising knew that the defendant wаs a self- prosecutor fact, defense claim. In the reminded the circuit court of the self-defense claim mere moments regarding reputation before the discussion In evidence. opposing pretrial prosecu the defendant's motion, the "[McMorris stated, tor State, v. 58 144, Wis. 2d 205 (1973)] very only N.W.2d 559 is clear that the time [evidence prior violence] of acts of can be used in a (em case is if the defendant knew it. . . ." self-defense phasis added). ¶ identity 115. In a claim, self-defense the aggressor significant. first is A defendant loses the privilege to assert a claim of self-defense if he or she was aggressor. § 939.48(2); the first See Wis. Stat. Banks v. (1971) State, (holding 51 Wis. 2d 186 N.W.2d 250 identity aggressor of first anwas essential issue required justice); Wayne reversal the interest of 10.4(e) (2d § R. 2 LaFave, Substantive Criminal Law ed. 2003) ("It generally aggressor said that one who is the brings in an encounter i.e., with one who another — 5 The circuit court similarly erred at postconviction the hearing. motion majority op., See 36-37. ¶¶ may difficulty the not avail with the about other — self-defense."). the
himself of defense additionally majority opinion ¶ notes, As the 116. " '[pjroperly can be framed, the Majority op., ¶ a minute.1" elicited less than (quoting Blinka, Wisconsin Practice Series: 7 Daniel D. 2008)). (3d § 405.2, at Evidence ed. Wisconsin give ¶ not Nevertheless, the circuit court did When counsel asked defendant the minute. defense pretrial eviden- the circuit court's for clarification of tiary ruling, "[the simply that the circuit court stated entirety, evidence], in its is denied." character introduce 118. When a defendant seeks to evi- regarding pertinent character trait dence granted "[w]ide be to defendants victim, latitude should character" in the use of victim's as "circumstantial Blinka, of conduct." 7 Daniel D. Wisconsin (3d Series: Evidence 404.5 ed. Practice Wisconsin 2008). grant The circuit court failed to dеfen- any present- latitude," in latitude,
dant let alone "wide part ing reputation for the victim's violence as defense. eliciting proffer from 120. Rather than a full *44 evidentiary counsel, court
defense the circuit based its ruling understanding law. on an erroneous The reputa- specific circuit court treated acts evidence and way. The court errone- tion evidence the same circuit ously denied defendant's motion to admit evidence reputation allowing without the defen- victim's opportunity present an to for the dant foundation reputation evidence. unambiguously
¶ 121. raised Defense counsel support the defendant's self- victim's precluded making defense claim and from a better proffer "opinion [the and evidence of victim] [the victim] person, . . . that is a violent opinion [the victim] person." witness' is a violent ¶ 122. Defense counsel did all she could do to preserve appeal. the issue for She made a motion to include certain evidence and and then at- tempted proffer. She asked for clarification and was rebuffed. stopped
¶ 123. The circuit court defense counsel making proffer from a better and denied her motion in entirety. proffer its The cannot be viewed as insufficient precluded any proffer. when the circuit court The any, lay failure, if a foundation lies with the circuit court, not with defense counsel.
B misstating In addition to the substance significance pretrial proceedings on the defendant's motion to admit evidence of the victim's reputation, majority opinion repeatedly errs in stating that the defendant did not raise the issue of first aggressor Majority op., ¶¶ at trial. 28, 36, 52, 84.
¶ 125. The of who first, issue attacked whom especially present in the case where the victim was the larger, stronger person,6 saturates the case as an ele- present pro- ment of the self-defense claim. The case vides numerous instances where the defense raised the aggressor issue that the victim trial, was the first at though always even the defense did not use the words aggressor." Nothing requires "first in the law the defen- aggressor" dant to use the two words "first raise this issue in a self-defense claim. See majority op., *45 of that the issue
¶ The record demonstrates 126. part aggressor of the case an essential was first who was presenta- during, parties after the before, and for both identity of the first of the The issue tion of evidence.7 parties' component aggressor of both a consistent was cases-in-chief. opening statement, the defense
¶ In its 127. starting friend] "[the an were victim and his stated that something poised argument violent to start and were advancing basically defendant] [the as and were with retreating." defendant] [the was During ¶ cross-examination direct and 128. identity aggressor first the witnesses, the issue of question- parties' component both was a consistent ing. questioning witnesses, State, in its 129. The companion had or his the victim
asked about whether "take[n] swing take[n] or or a and a hand fist back witness]." slap [the the circuit court In a sidebar with at testimony, regarding defense counsel noted a witness's clearly the that the victim was "here, the defense is my aggressor, .. . acted in self-defense. client first jury making as to who And determination this particular aggressor of circumstances." in this set was During of a wit- direct examination defense counsel's disputed prosecutor and the ness, defense counsel "charging" to describe the victim's use of the word approach the defendant. aggressor closing argument, first In disputed
argument and was central to the defense prosecution. contrast, majority opinion "[n]either asserts In aggressor' until specifiсally argued 'first the State nor Jackson Majority op., trial." presented had been at after all the evidence *46 131. Defense counsel's closing ¶ re- argument stated the first aggressor argument: bigger, stronger,
Two younger men up came to the They got house. They out of the car. aggressive. were They cursing. They were using were F the word. [The victim and companion] his advancing. were [The defen- dants and the other retreating. witnesses] were At point some car, [the victim] ran to the acted like he getting something, was charging came back. And that's [the when defendant] fired the shot. 132. The State disputed
¶ this claim in its own closing statement as follows: escalating
Who's the situation out here? got You one exchange wording and [the defendant] feels that I go need get my gun, get out, up it rack it and have it my at aggressor? side. Who is the [The defendant] certainly that it [the indicates victim] and his friend. you facts,
But when look at you know, what that's aggressor not the case. The [the (empha- defendant] added). sis 133. The question of who was the ¶ first aggressor was the heart of the self-defense claim and was an issue for both parties throughout every stage trial, from the motion, defendant's pretrial to the pretrial hearing on the motion, defendant's to the presentation trial, evidence at to closing statements, and to the postconviction proceedings. 134. The majority opinion
¶ mistakenly states the defendant's "first mention of introducing gen- eral 'reputation for violence' evidence to establish first aggressor was in his postconviction Majority motion." mistakenly majority opinion
op., further The 52. specifically "[n] nor Jackson the State either states aggressor' had the evidence argued after all until 'first Majority op., ¶ also presented 28; see at trial." been majority op., this the record before Based on opinion majority has erred. court, the majority opines Although fault that the lay a foundation failure to the defendant's lies with defendant's and the of the victim's rely that the victim was the defense on failure *47 aggressor, record that I conclude on the basis first lay circuit foundation, but the tried to counsel defense doing precluded so. Addi- from defense counsel court tionally, shows that the record I conclude premise on the claim rested defendant's self-defense aggressor. the first the victim was II again, harmless ¶ the court relies on Once deny A relief.8 conclusion a criminal defendant error to finding requires exists no that there error of harmless 8 find tendency of courts to errors have noted the Scholars the court believes or not based on whether harmless See, Edwards, Harry To Err Is e.g., T. guilty. defendant Legal Error Human, Should Always But Not Harmless: When ("As (1995) Tolerated?, 1167, matters L. Rev. 70 N.Y.U. Be long stand, an error is harmless so many criminal cases now of the defendant's appellate court remains convinced as the it doubts only where raises an error warrants reversal guilt; (footnote omitted); Keith A. culpability.") the defendant's about Scott, Tunnel Multiple The Dimensions Findley & Michael S. (2006) Cases, 291, 349-50 2006 Wis. L. Rev. in Criminal Vision (footnotes omitted): procedural appellate find constitutional or when courts do Even trial, grant Increasingly, they are relief. errors at disinclined appellate encourages courts error doctrine enables harmless they the defendant are satisfied that to overlook trial error when probability" jury acquit "reasonable that the could have Armstrong, ted. See State v. 331, 223 Wis. 2d 368, 588 (1999). N.W.2d 606 If the evidence were may deciding admitted, it well have been a here, factor particularly aggression because the victim's was at the core of the defendant's self-defense claim. majority opinion repu- 137. The asserts that the only "modestly probative."
tation evidence would be
(internal
omitted).
Majority op.,
quotation
¶ 91
marks
Consequently, it determines that such evidence would
"fleeting
majority op., ¶
be
and cumulative,"
90, and
probability"
chang-
could not have had a "reasonable
ing
jury's
majority op.,
(citing
verdict,
State v.
369).
Armstrong, 223 Wis. 2d at
aggressor
clearly
Yet,
the issue of first
disputed by
parties,
with extensive
on
both sides. This is not a case where the facts or
Compare
inferences are uncontroverted.
State v.
Wenger,
225 Wis. 2d
509-510,
was in fact The harmless error doctrine has challenges application Increasingly, of definition and for courts. analysis applied way harmless error in a that turns on an appellate guilt, opposed court's assessment of a defendant's as might whether the error have had an effect on the verdict... . doctrine, cognitive powerful Under this biases can contribute in ways guilty, to a conclusion that the defendant was indeed and that the error was therefore harmless.
305 messy, con- with ¶ contrast, In this case was flicting evidence of the Additional facts and inferences. might made a difference character have victim's violent identity aggres- of the first in the Because outcome. goes defendant's self-defense to the substance sor modestly issue, even is not a collateral claim and jury's impact probative оn a can have an evidence decision-making. Head, in v. 2002 court noted State 140. As the 413, the exclusion of 194, 2d 648 N.W.2d
WI 99, 255 Wis. regarding claim a self-defense evidence substantial fundamentally impair beyond harmless error to "went ability present Head, 255 a defense." the defendant's 194, 2d Wis. long recognized that the case has 141. Our law directly implicates exclusion of evidence
erroneous Nett, State v. claim is not harmless. See a self-defense (1880) (holding that reversal was 524, 7 N.W 344 Wis. excluding required in the circuit court erred when reputation where a defendant of the victim's evidence self-defense); State, 145, 51 Wis. 2d Banks v. raised (1971) required (holding was that reversal N.W.2d250 excluding in evidence that the circuit court erred when may aggressor, the first which the defendant have been self-defense); privilege McMorris eliminate the would (holding State, 2d 205 N.W.2d559 v. 58 Wis. required in circuit court erred when the reversal claim); excluding prior acts for a self-defense Boykins, 272, 279-80, 2d 350 N.W.2d State v. 119 Wis. (Ct. 1984) required App. (holding that reversal was excluding evidence of the circuit court erred when "jury was denied violent character when victim's [defendant's] opportunity asserted de to evaluate evidence"). light of all relevant fense *49 ¶ 142. I see no reason to deviate from these cases in the instant case. jury's
¶ 143. The court cannot read the mind and way knowing repu- has no what effect the excluded jury. tation would have had on the We do contrary majority opinion know, to the at 79, that genuine dispute there was a about whether the victim aggressor degree was the first and the to which his aggression might have led to the defendant's fear for his safety. jury own We do know found the defen- guilty possible dant of the lowest offense, included second-degree reckless homicide.
¶ 144. On the basis of the know, facts we do I probability conclude that there was a reasonable jury could have been convinced additional evi- aggressor. dence that the victim was the first foregoing ¶ 145. For the I reasons, dissent.