*1 Wisconsin, Plaintiff-Respondent-Petitioner, State Defendant-Appellant. Thomas John Rutchik, Supreme Court Argued September 9, No. 81-2352-CR. 1983. January 4, Decided 1984.
(Also reported 639.) in 341 N.W.2d *3 plaintiff-respondent-petitioner For the cause was the argued attorney general, by Becker, David J. assistant attorney general, Follette, with Bronson La on the C. briefs. oral defendant-appellant
For the and there was a brief argument by public Weiss, Steven state P. assistant defender. the court of of a decision
DAY, is a review This J. court for reversing judgment of the circuit appeals judge, Fisher, circuit county, Hon. Michael S. Kenosha burglary under sec. convicting Rutchik Thomas J. are raised issues Three (a), 1979-80.1 943.10(1) Stats. admitting err in (1) trial court Did the review: prior convictions? nature of defendant’s the evidence of rulings admission of on trial court’s Did his counsel and mislead crimes evidence of counsel? thereby deny assistance him effective and sending a written err in trial court (3) Did the prosecution witness transcript made of a statement defendant’s evidence of jury? We conclude admitted, properly and that previous convictions deny the rulings matter defendant on the did court’s also conclude of counsel. We assistance effective transcript jury sending any, error, if the decision of harmless. therefore reverse We judgment of con appeals and reinstate the court viction. February evening 28, p.m. on the
At about 9:00 George at- Foley returned home from Mr. and Mrs. Foley’s tending visitation for Mrs. deceased funeral home sister, They accompanied two Marie Terrill. were Mary Wynn Foley. Upon children, en- adult and Robert Wynn tering house, front discovered that Mrs. ajar jewelry were scattered about door was boxes Foley upstairs Mrs. later de- the floor of bedroom. missing. termined that two of her necklaces were Foley gone around a side Meanwhile Robert had when he noticed door of the house with his brother-in-law standing yard. someone He ran toward back *4 person, defendant, who fled he later as the identified caught Foley gave up alley. down an chase and Robert gotten with the into his defendant after defendant had any Burglary. intentionally “943.10 enters Whoever following places person in lawful without the consent of the felony possession in such and with or a intent to steal commit place felony: guilty is of a Class C Any “(a) building dwelling.” or Foley the defendant what asked he had been car. Robert Foley’s yard. doing responded back The defendant in the looking Foley for his brother. Robert took that he away. license number it the car’s as drove The car down registered in the name of defendant’s father. charged day and the next arrested defendant was The made a state- burglary. the defendant At that time with being in the ever police in which he denied ment to the Foley’s yard. was tried and convicted He alley or the county July 29, on Kenosha jury court for a in the circuit judgment on August 20th, the court entered 1981. On indetermi- to an the defendant the verdict sentenced eight years prison. in not to exceed nate term properly ad- trial is court The first issue whether concerning defendant’s the nature of mitted evidence prior convictions. requested limine, pretrial in the defendant
In a motion raising ruling prohibit matter of the state from a ap- activity. motion was criminal defendant’s complaint parently a statement motivated in burglarizing the defendant had been convicted temporarily occupants were left vacant while the house complaint also recited state- attending a funeral. police at the time made to defendant ment a friend police that told in which she arrest in 1978 of defendant’s empty be the house would he knew told her newspaper. obituary having in the read from crimes prohibit other granted motion to The court prosecution’s case it related insofar as however, that “if some- expressly stated, chief. The court case which would thing brought up in the defendant’s concerning crimes, the court testimony permit case, direct But the state’s state. on would not bar necessity to comment be appear would no it would there regard crimes.” The testimony to other on or offer *5 ruling intro- complied with the court’s and prosecution prior in its case convictions chief. no evidence of duced After he in his own testified behalf. The defendant testified, the court sum- he had been called but before hearing and conducted a counsel to the bench moned both jury. purpose of the hear- presence out of ing inquire number of the defendant’s into Having that the correct convictions. determined seven, the court instructed the defendant number as follows: you understand, Rutchik, “You Mr. that if are asked regard question you ever been convicted of have you crime, yes, you’re and answer and then how asked many the you and answer what has been determined to be number, being seven, at least in that correct questions you instance there will be no further asked of concerning crimes, etc.; you the nature of the if do truthfully, right not answer then counsel has the to delve deeply convicted. you more were into the nature of the crimes and when you (Emphasis Do understand that?” added.) testimony
In examination, his on direct having Foley’s yard admitted in the been back on the evening February 25th. he He said reason lied in police his statement was because he was afraid being “pinned” past with the because of his reputation and community. in the On the witness having stand he denied burglary. committed the He said he inwas the area nearby. to visit his brother who lived He had been to his brother’s house but no one was home. walking As he was car, back people to his he heard shouting. stepped Foley’s He into yard back to see what the disturbance was about and saw someone run through yard. The defendant then ran down the alley got Foley into his car when up Robert ran questioned him. *6 cross-examination, prosecution immediately
In its inquired the nature and circumstances of the de- into prior fendant’s convictions. Counsel hearing objected. held in which A was the State re- quested prior permission elicit convictions evidence particular, 904.04(2), under In sec. Stats. 1979-80. regarding prosecutor wished to examine the witness complaint. hearing in mentioned After arguments sides, agreed on both the court to allow the stating: questions “Well, validity I think posi- there’s some to the state’s regard particular in
tion to the one offense. Court regard does have some in reluctance this because the person that a Court does feel should be convicted of solely may one offense on the basis of what he done have past. in the brought up, “This area unfortunately, whole in testimony regard the defendant’s to how he thought community of in the problems and all of the he’s past. permit had because And the Court will coun- go particular sel to into to, the one crime in if neces- sary, get questions concerning into he whether or not previously got himself involved in criminal activities to support drug habit.” governs use of 904.04(2), Stats.,
Section which prior evidence misdeeds states: conduct; prove “Character evidence not admissible to crimes,
exceptions; other crimes. ... Other wrongs wrongs, crimes, or other ORacts. Evidence of person prove the character of acts is not admissible to in This offered portunity, conformity therewith. order show that he acted when evidence subsection does not exclude the motive, op- purposes, preparation, proof for other such as identity, knowledge, intent, plan, or absence of mistake or accident.” general exclusion; jury is not rule one of permitted on the inference to convict someone based again. likely How to do so he is law once
if he broke offered for when is admissible ever, evidence crimes general prove criminal than to purpose other some the de If the evidence of accused. disposition of the case, burglaries it allowed is to be fendant’s one or more of relevant it is shown must be Additionally, value purposes. named substantially out must not be evidence the other crimes danger Whitty prejudice. weighed by of undue 557, denied, cert. 149 N.W.2d State, 34 2dWis. probative value of other crimes (1967). The U.S. place part upon time, “depends in its nearness in *7 sought alleged element the crime or and circumstances to proved.” Whitty, 2d at 34 Wis. 294. be prior crime of the estab- that the evidence We conclude operation and therefore method of was lished a definite identity intent. preparation, plan, admissible show opened crimes evidence the door to other The defendant testimony that placed intent in with his when he his issue evening Foley’s yard presence on the of Feb- in back ruary The state at- 25th was and innocent.2 coincidental by introducing tempted that to rebut that claim evidence having in from read obituaries the defendant knew the Foleys away evening, newspaper that the the would be burglarized previously that a house while the he had residents were at a funeral. he told a friend defendant admitted that in 1978 obituary gone to
that he had read the column and then argues opened The state also to other crimes door brother, when called witness for the the defendant’s as a prosecution, had testified on cross-examination that previously burglaries. been Because we hold that convicted evidence was terms the trial rendered admissible within the ruling by story happened court’s to be the defendant’s of how he Foley’s yard evening burglary, in the on the we do not reach question testimony. of the effect of the brother’s defendant’s burglary. the residence and committed a The state ad- thing duced evidence the defendant did the same chief, prosecution In its case in case. had called Jeffrey Yorton, an inmate with the defendant at county jail. Yorton testified that the defendant told him go Foleys he decided to because he had been “paging through the obituaries and saw that this [the Foley’s was near house, house] his brother’s or some- thing order, in that it obituary but was out of the col- Although umn.” the defendant denied that he read Marie obituary,3 having Terrill’s he admitted read the Kenosha News February for obituary 25th which that printed. Moreover, reading he admitted re- article porting a car theft printed that was just on page opposite obituary column.4 admissibility ruled
This court
on
of other crimes
904.04(2), Stats.,
Hall,
evidence under
sec.
State v.
2dWis.
ting In two of crimes. pistol clerk the sales in his waist band until his concealed ringing up purchases. began The court concluded his stating: relevant, “[T]he entire the evidence operandi to show that is relevant of all the crimes modus robbery ‘sprang like from a and armed murder the Clark mental evincing thereby plan, condition,’ scheme or part rob- murder and armed to commit on Hall’s intent probative bery. . . . was also as This identity 2d at assailant.” 103 Wis. station Clark omitted.) (Citations 144. similarity the crime case the factual between
In this charged previous incident closer. and the was even previous relevant to show conviction is evidence of selecting plan preparation or the defendant’s printed means of funeral notices victims tending obituary It is also relevant column. identify perpetrator the defendant as burglary. Finally, in- defendant’s it is Foley’s that he was in the tent. The defendant admitted yard evening The State on the the crime was committed. having knew from adduced evidence that the defendant newspaper obituary read the that Marie Terrill had died. The fact the defendant had earlier additional burglarized occupants at a funeral house while the were and that on that occasion he had learned the house would empty certainly having be from read the obituaries relevant to show what he was there for. Supreme of Kansas admitted crimes Court present
evidence under facts similar to the case in State Wasinger, P.2d In that Kan. appealing case, the defendant was from a conviction attempted burglary. trial, At the State introduced *9 they testimony policemen who testified that of two saw grocery standing- in men front of a the late store two evening. gro- One of the men had the screen door standing cery open store and was between screen and man, door. The later as the defend- identified standing away ant, a was few feet with his back to the began police approached, wall. car As the the defendant walking away gesture and as he walked a made or mo- later, tion with his hand. A few seconds the man left standing doorway closed the and also screen away. walked stopped. being Upon
Both men were asked what he doing, going that he answered to girl During weapons see his friend. a frisk of the other man, police discovered a screwdriver. It was also pried determined that the lock and latch had loose been grocery from the front door store.
In Wasinger, the state also introduced evidence of a previous incident which the defendant stood lookout partner pried open. while case, a door In that up position defendant ap- took where he could see proaching signaled partner any- traffic and whenever coming. one was objected prior defendant admission of the
incident as inadmissible other crimes The trial evidence. court Supreme admitted evidence and the Kansas affirmed, stating: Court significant “There are similarities between the two cases,
instances of criminal In conduct. both in what appears served as a preconceived plan, have been a defendant pry partner attempted lookout while his open the building front door of a business with a screw- driver. Evidence of crime a defi- established operation nite method and, thus, preparation, showed plan, motive, 602-603, and intent.” Kan. 556 P.2d at (Citations at omitted.) 192-193. *10 question that the crucial stated court further case, is the issue, the in instant crucial “The intent. grocery- in front the in of actions of his intent defendant he apartment area was ar- cove where in and the store girlfriend’ ‘only to see If was there rested. defendant 603, at Kan. crime.” 220 claimed, committed no as he he in Likewise, one of the crucial issues P.2d at 193. presence in the If the defendant’s this case is intent. evening burglary was, backyard as Foley’s the on innocent, he claimed, purely and he coincidental guilty burglary. of using recognized propriety of evi-
This
has
court
prove
In Barrera
of
criminal
intent.
dence
acts
(1980) cert
State,
2d
offering evidence that Herman and the defendant had committed robbery an armed grocery of a market four days earlier. The court admitted the evidence for the purpose showing of that when the defendant entered the post office he help intended to Herman rob it. The court said: “Finally, genuine developed, only as the case issue requisite was whether Brunson harbored the intent to help post Herman rob the Gotha In office. his statement investigators, placed which was in evidence before the evidence, other crime Brunson admitted that he was with post Herman place in the office when the crimes took only he, Brunson, and was story throughout any denied idea had Herman going robbery. to commit a Brunson reiterated the testimony gov- that later his at trial. The clearly ernment had a substantial need for evidence helped Magik Brunson had Herman four rob the Market days earlier, precious for there was little other evidence unknowing innocent,
to contradict Brunson’s claim anof Brunson, state of mind.” F.2d at 361. 404(b) The Brunson case was decided under Fed R Evid which states: crimes, wrongs, “Evidence of other or acts is not admissible prove person a character of order to show that he acted conformity however, may, It therewith. be admissible for other purposes, proof motive, intent, prepara- opportunity, such as of tion, plan, knowledge, identity, or absence of mistake or accident.” burglary previous conviction is likewise
The defendant's among show, under our statute to admissible relevant and evening February on the things, intentions his 25th. prior meets sec- also
The evidence admissibility requirement as other crimes evi- ond Although judge explicitly the trial did state dence. not weighing probative he value of evidence against effect, prejudicial his comments at the time its balancing was admitted reflect of those evidence clearly Those comments show that two considerations. judge recognized prejudice and considered the judge expressed attends other crimes evidence. The his “reluctance” admit the evidence “because the court person that a does feel should be convicted one solely may offense on the done basis of what he have past.” The decision to admit the under these implies circumstances conclusion that its outweighs any possible prejudice. value record that from examination We conclude testimony why “explaining” in view the defendant’s yard, Foley’s conviction for he was in back *12 probative burglary circumstances was under similar outweighed probative prejudicial that value ef- its its recognize two incidents occurred that the fect.6 We years apart7 and that our cases have held several 6 question make trial court’s failure to On the of whether a explicit value the evidence is determination the of requires outweighed by possible prejudicial re its effect uphold discretionary versal, will a Court said: court “[T]his of which would decision the trial court if the record contains facts fully support its discre trial had it exercised court’s decision State, 408, 425, 25 tion.” Haskins 294 N.W.2d v. 97 2dWis. (1980) 800, (quoting 791, State, v. 2d N.W.2d Hammen 87 275 Wis. (1979)). 709 7 25, August 1978. The on earlier committed
75 assessing important temporal proximity is an factor in Whittey prior State, probity criminal acts. v. 34 of However, State, in v. at 294. Vanlue 96 Wis. 2d Wis. 2d prior 81, (1980), we held that a 467 offense N.W.2d year and a half earlier not so remote committed probative of defendant’s More- as not to be intent. assessing over, impact we have held that passage relevancy prior of time on the crimes evi- dence, periods of confinement will not included in be computing the time between incidents. v. Sanford State, 72, ; 76 Wis. 2d N.W.2d 348 State Hungerford, 236, 260, 2dWis. N.W.2d defendant, Rutchik, was confined the Wiscon- Reformatory Bay State sin at Green from the time of. September 1978 conviction until of 1980 when he was parole. parole released on He was still on at the time of Foley burglary. circumstances, Under the the earlier probity incident was not so remote as to lose its in the Foley burglary. appeals question
The court of did not reach the whether the trial court’s decision to admit the evidence was correct on the It merits. reversed the on conviction grounds impaired trial court had defend- ability ant’s to make an on informed decision whether to take telling the stand first him he would not be questioned about prior the nature of his convictions and allowing then prosecutor This, to do so. court said, denied the defendant effective of coun- assistance sel and fair trial. appeals’ source of the court of error lies its separate
failure purposes two for which evidence convictions is admissible. Evidence of other crimes, wrongs or acts is admissible for the substantive purpose proving motive, opportunity, intent, etc. as
76 admissible 904.04(2), It is also Stats.
specified in sec. purposes under 906.09.8 When sec. impeachment for scope of impeachment, admitted is evidence such may ask the examiner very limited. The inquiry is and if so of a crime convicted ever been if he has witness nature and inquiry into the many further times. No how permitted.9 of the crimes circumstances rulings separate on other made two trial court The hearing ruling, at made The first evidence. crimes admissibility of limine, addressed the on the motion 904.04(2), sec. prove the merits under the evidence prosecution could not use said the court Stats. The might per- it be case in chief but evidence in its matters defense defendant raised mitted if the rendering admissible. The second other crimes evidence called, ruling, immediately after the defendant made Impeachment by crime. evidence of conviction “906.09 credibility attacking purpose For the GENERAL rule. witness, of a crime is of a that he has been convicted party cross-examining him is not concluded admissible. his answer. may “(2) be conviction of a crime Exclusion. Evidence substantially outweighed value is excluded if its danger prejudice. of unfair Admissibility question inquiring “(3) with of conviction. No respect crime, with of evidence to conviction of a nor introduction pur- respect judge permitted until determines thereto shall be suant be excluded. to s. 902.04 whether evidence should adjudications. “(4) juvenile adjudica- Juvenile Evidence of tions is not under this rule. admissible Pendency appeal. “(5) pendency appeal there- of an from Evi- does not render evidence of conviction inadmissible. pendency appeal dence of the of an is admissible.” commenting State, In on Rice v. 196 Wis. N.W. (1928), Wigmore that a cross- characterized the Wisconsin rule may examiner for the the crime as not ask the defendant name of § queer (Chadbourn Wigmore, 987, p. “a rule.” 3A Evidence 1970). rev. *14 impeachment. the evidence for the use of with do had to permit therefore, clear, that the court did not It is rulings. contrary to its own evidence crimes of other use ruling, the assur issued its the court second time At the The use given defendant were accurate. to the ances nonimpeachement purposes other crimes ruling judge’s on the motion still controlled beginning exami point, at the of the that in limine. To brought nothing defendant, out to had been nation of the only 904.04(2), It was open under sec. the door Stats. the issue of intent with his the defendant raised after story happened on the eve he to be at scene of how ning burglary that the evidence relevant of the became and admissible.1
Finally, court erred contends the defendant transcript sending jury admitting then to the first Jeffrey Yor- witness of a made the state’s statement to the Yorton that Rutchik had confessed ton. testified County they Kenosha while were both During Yorton, intro- the state examination of Jail. its transcript Yorton and of a conversation between duced police what Loewen in Yorton recounted detective which burglary. Defense him about told receiving object the docu- counsel did not to the court’s exhibit, object permitting the wit- ment as an but did ness to read the statement into the record before sought jury. prosecutor permission have the The arguing read, was admissible statement that the evidence (a) as a under consistent statement sec. 908.01 1 0 relying judge’s assertion he was on the defendant’s ruling deciding second on other crimes evidence in to take simply stand is not credible. An shows examination record that defense witness counsel called the defendant as his next judge the trial called made his counsel to the bench and before ruling. Defendant asks us to believe he relied on an assurance it before was made. request grounds denied the on the
Stats.11 court charge improper there was no of “recent fabrication or required by Hence, influence or motive” as the statute. transcript was received but not as exhibit read jury. con- had until both sides matter stood That how the point, closing arguments jury. At that their cluded *15 jury to the court allow prosecutor requested that the necessary argued this was transcript. The state see the during by suggestion counsel defense made to rebut the suggested had closing argument Loewen that Detective ques- wording in his “fed” to Yorton or answers the state’s was merit to there tions. The court conceded argument jury without statement. out but sent the
Shortly jury requested to retiring, see after transcript. court summoned both counsel stated: present the first to be because “I’ve asked both counsel gone thing they jury apparently had asked for after room, given jury over them in the what was to by made Yorton to Officer Loewen. statement and, arguments previously, “I’ve heard the of counsel argument indicated, I not on the as record, the final which was me, heard, impression with I left the but which something jury, apparently that with the there’s regard ought looked at to be about that statement gained that he Mr. the information
to how Yorton gained, questions him the officer fed loaded whether it was because really I know knew. And while or whether he 11 apply following under definitions “908.01 Definitions. The hearsay. chapter: A are not this Statements which ... hearsay statement is if: “(a) at Prior statement witness. declarant testifies concerning hearing subject trial or cross-examination and is to statement, . . and the statement is: . testimony rebut an offered to “2. with' and is Consistent express implied charge against or him of recent fabrication or improper influence or motive.” concerning things arguments statement, whether or not it was the first time about anybody of with the Yorton, Mr. I think had ever talked to because argument, impression and the that was left the final concerning jurors statement, have to I now get they picture can the true it in to them so that send permit And the will State’s statement. Court go jury.” to in the Exhibit 3 attacks the The defendant court’s action on two grounds. argues proffered First, he that the evidence qualify inadmissible it does not under the since exception hearsay consistent statement We rule. argument unnecessary find it on the defendant’s rule hearsay the evidence is not and is therefore admis- since hearsay if it is sible relevant. The define as “a statutes statement, other than one made the declarant while testifying hearing, at the trial or offered prove the truth of the matter asserted.” Section 908.01 (3), transcript prove Stats. The was not offered to truthfulness It Yorton’s assertions. was offered to *16 suggestion assertions, rebut the that those true whether suggested ques- false, or were “fed” or Yorton hearsay tioner. Since the evidence was not and clearly assessing (though relevant in the value not the substance) testimony, of Yorton’s it is admissible. argues
The defendant next that it was error to send transcript jury to the room. appeals The court of held that the trial action court’s “unduly prejudicially emphasizing had the effect testimony Yorton’s statement over the actual at the Payne trial.” It based State, its decision on 119 Wis. 615, 227 N.W. wherein this court said the jury trial court erred when it sent to the statements the police attorney defendant made to the and the district inequitable This court held such after his arrest. use one side to make its with it allowed case written required rely while the other side was on the jury’s testimony. of oral recollection general principle
We do not abandon but deter- mine that other considerations relevant are this case. closing argument, apparently In his the defense counsel attempted knowledge explain Yorton’s of the details burglary suggesting that Detective Loewen fed questions. him those details in his The trial court was jury transcript convinced that had asked to see the specific purpose testing sug- for the defense counsel’s gestion. allowing jury see no We unfairness in to test plausibility explanation. Though of that a better practice in such a situation would be to read rather than give transcript jury, we conclude prejudice court’s action jury did not so that the ver- dict must be overturned.
By the appeals Court. —The decision of the court of judgment reversed and the of the trial court is affirmed. STEINMETZ, (concurring). agree J. I with the ma- jority; however, my disagreement I write to state only proposed with the dissenting result of opinion, reasoning. but with also its operandi charged modus burglary and of the crime of was not “one that is common-
place.” (Dissenting op. 92.) disagree at I with the state’s position dissenting opinion referred to in the that one previous crime such as this one should not be used as a operandi modus exception to other crimes evidence. I know of no studies nor statistics that deal with the burglaries nature of to lead to a conclusion that operandi modus burglaries of these commonplace. *17 attempts The dissent unique to minimize the character burglary of this by stating that there are law enforce- public spe- publications which caution the to take ment during burglaries precautions order avoid cial possibilities Advice on how to lessen the funerals.
being frequency a victim of crime does not bear on the particular of a method crime commission. Such advice helps only point potential out areas where victims of something vulnerability. crime can to lessen their do operandi modus involved is the invasion of houses great attending occupants when are chances will be publicized scheduled and wakes and Even if burials. operandi degree frequency, modus occurs with it some stylized particularly is a burglary method of and is committing burglary. of a method of is There equating operandi. no mathematical formula for modus study planning committing death To notices in and bur- glaries only is not of antisocial behavior but disregard rights a privacy also for the of victims. planned This behavior is a per- invasion of the homes of personal sons who have a suffered a loss of loved one therefore becomes an identifiable act which cannot be burglary. ghoulish classified just as another be- entering person’s havior of a home, thief which is occupants’ due vacant burial, at a attendance shows a less than human I do not attitude. believe the lack of by reading decent human conduct evidenced obitu- ary planning burglary notices uninterrupted is commonplace. deficiency It akin to the moral grave history. robbers of To commit a once in society’s this manner deserves condemnation. To it do twice, did, considering as this defendant has value as operandi. his modus I find that the identical facts of burglaries these two operandi excep- establish modus tion for evidence, just evidence that the defend- person ant ais of bad character. agree
I majority also unique with the but similarly identifiable characteristics of the two crimes *18 prove identity
allow other evidence to use of crimes and explanation pres- intent on the defendant’s of based charged burglary. at ence the scene I am authorized to state that Justices William G. Day join concurring Callow Roland B. in this opinion.
HEFFERNAN, (concurring dissenting C. J. with opinion). agree wholeheartedly I with the dissent of except interpretation Justice Abrahamson for her McClelland McClelland. was determined not on the basis probative- crimes evidence and whether or not outweighed by prejudice, ness was but was instead de- completely cided on what we referred to in McClelland generalized as “the rule” that the introduction of col- proof lateral impermissible. matters extrinsic We proof concluded that the made the extrinsic evidence in McClelland plain Although constituted error. question posed respect weighing proba- compared tiveness prejudice, as and there was some judge’s discussion of the role in respect, the deci- sion in McClelland evidentiary was not based on that problem. Accordingly, disagree only I interpre- with the tation of McClelland. In all respects, join I dissent.
SHIRLEY ABRAHAMSON, (dissenting). S. J. This case another ever-increasing in the number of cases interpreting excluding the rule evidence, other crimes litigated most rule of evidence. See 2 Weinstein and Berger, Weinstein’s par. Evidence [08], p. 404-47 (1981) ; Wright Graham, Federal Practice and Pro- cedure: Evidence 5239, p. sec.
I would affirm the appeals, decision of the court of although I use a different I dissent from rationale. majority’s reversal of the ap- decision of the court of satisfy I the facts tests peals, because do not believe admissibility of other crimes forth for the have set we 1981-82, 904.04(2), which under sec. Stats. provides as follows: *19 Evidence of wrongs, “(2) crimes, or Other acts. prove crimes, wrongs, acts is admissible to or other person acted of a in order to show that he
the character in conformity does not ex- therewith. This subsection such purposes, the evidence when offered for other clude intent, preparation, proof motive, opportunity, as plan, knowledge, accident.” identity, or or absence of mistake general policy majority 904.04(2), The of sec. as the says, Whitty is one of exclusion of other crimes evidence. State, (1967). 278, 297, v. 34 2d 557 Wis. 149 N.W.2d inference that the law once will someone who broke again legally permissible break it is not a inference. Fur thought thermore, it will is that other crimes evidence jury encourage subtly distract and it to make the in propensity ference of crimes. For reason to commit except 904.04(2) sec. excludes other crimes evidence under limited rele circumstances in which the evidence is impermissible vant without resort to the inference. Paul State, (1903) ; son 89, 98-103, v. 118 94 Wis. 771 N.W. Berger, 404-7, 2 p. Weinstein Weinstein’s Evidence Advisory Note Rule 404 Committee’s Pharr,
In
334,
State v.
115 Wis. 2d
498
N.W.2d
(1983),
just
again
month,
decided
last
under
we
said that
904.04(2)
two-prong
sec.
apply
trial court “must
determining
test
whether other crimes evidence is
requires
prong
admissible.
. . .
first
the trial court
to determine whether the
evidence fits within one of
exceptions
904.04(2).
prong
set forth in sec.
The second
requires the
proba-
trial
court
determine whether the
substantially outweighed by
tive value of the evidence is
danger
prejudice
(Cita-
of unfair
to the defendant.”
omitted.)
(Emphasis added.)1
tions
interpreting
analysis
two-prong
Our
can be read as
cases
required
904.04(2)
ways.
under sec.
in two inconsistent
appears
saying
In one line of cases the court
to be
automatically
prong
triggered upon
904.04(2)
second
a sec.
objection
saying
to evidence. This line of cases can be read as
objects
that where the defendant
to the admission
crimes
evidence and the other crimes evidence is admissible under one of
exceptions,
judge must,
admitting
evidence,
before
weigh
against
prejudice,
the undue
whether
value
weigh-
expressly requested the
or not the defendant
court to do
904.04(2)
ing.
single objection
Thus
under sec.
the defendant’s
weighing.
request
If
does not
includes a
for the
object
right
904.04(2),
to have this
he or she has no
under sec.
Whitty
analysis
appeal.
v.
error
on
reviewed on
This
is based
295,
State,
278,
(1967), cert. denied
34 Wis. 2d
Under evidence, proving that offeror of the has the burden of exception an the evidence of other crimes falls within and that it is relevant to a material in the case. issue burglar- near the that he was testified
The defendant visiting lived brother who home because he ized following other crimes by. the offered close The state 904.04(2). nevertheless reviewed this court In both cases sec. an fell within other crimes evidence held that evidence and probativeness weigh exception. the court refused Nevertheless objected on saying trial counsel had not prejudice, that since prejudice nor this grounds trial court neither of undue grounds obligation on the evidence court had an to exclude prejudice. undue Barrera, require construing McClelland I conclude that objection 904.04(2) objection made is 904.03 under sec. once contrary 904.04. to sec. is would be erroneous. Such construction explains, 904.04 to sec. Committee’s Note As the Judicial Council motive, prove tend to . . . which the “evidence of other crimes automatically identity be ex- It should ... admissible. danger of undue the circumstances the cluded if . . . under all outweighs probative prejudice substantially under value Advisory Com- Federal s. 904.03.” 59 Wis. 2d See also the R79. legisla- analysis mittee’s at 59 Wis. 2d R80 and an Note history showing drafters’ intent Rule 404 tive of Federal value of satisfied that trial court must be danger prejudice applying outweighs the bal- ancing the evi- admits before the trial court test of sec. 904.03 904.04(2), to sec. Committee’s Note dence. See Judicial Council Note, Advisory 2d R79; 59 Wis. Federal Committee’s Wis. 2d *21 Wright Evi- R80; Graham, and Procedure: Federal Practice and Berger, 5240, p. (1972); and Wein- dence see. Weinstein Note, (1982); par. p. Buie 404[18], stein’s Evidence 404-99 Step An- 404(b), a Two Evidence: The Need Other Crimes alysis, (1977). 71 Nw. U.L. Rev. 635 burglarized previously defendant had evidence: a reading from which he knew obituaries would home unoccupied. probably be admissibility evidence other crimes question
The of jury processes analysis requires the inferential nonanalytical ap- sweeping, expected broad, A use. likely to lead to proach or trial court is counsel ruling appellate court not assist an an incorrect and does ruling. Judge reviewing trial As Weinstein court’s written, “The is in the decision to has more reason there crimes], more admit or exclude of other [evidence apt at a it is to be Both bench and bar benefit trial fair. questions admissibility exposed if and rea- critical are clearly Berger, sons stated.” Wein- Weinstein par. [08], pp. stein’s Evidence 404-46 In this case the state asserted at trial that the evidence exceptions, namely, motive, fell within seven intent steal, operation, opportunity, planning, method of identity. knowledge, and more The state said no referring than underly- what it called the defendant’s ing drug problem. exceptions Mere recital of with no explanation of the relation of the offered to both evidence exception claimed and material issue in the case is rendering ruling. of no aid to the trial court identify- The trial court admitted the evidence without ing exception admitting under which it was the evi- dence or the material in the issue case to which the evidence was relevant. majority opinion conclusory fashion in a states op- a definite method “established prepara-
eration and was therefore admissible to show tion, plan, identity Supra, p. 67. and intent.” majority opinion explain does it means what operation” “preparation, plan, “definite method of or identity majority opinion or intent.” The offers no an-
87 affirming of the evidence. alysis the admission As for said: one commentator might “Particularly what be deplored is called to be analysis ‘smorgasbord’ approach of other crimes to
the
long
simply
up a
serves
list
in which the court
evidence
of
any
any attempt to
how
permissible
show
uses without
applicable
case at hand.
. . .
is
to
What
of them are
the
listing
possible
in the
uses
to
is the mere
be avoided
appli-
hope
to be
at
will seem to
reader
least on
Wright
instant case.”
facts of the
cable to the
Graham,
Practice and Procedure: Evidence
Federal
sec.
5240,
p. exceptions
in the
are
listed
statute
Because
mutually
may
determine
exclusive,
difficult
it
be
exception
properly applies.
it
Nevertheless
which
most
analyze
processes
fact
important
the inferential
is
exception
identi-
expected
is
finder
to use so
is
rule, namely,
which
fied and the
exclusion of evidence
only
showing
general disposition to com-
is relevant
for
a
Tarrell,
crime,
a
mit
is not violated. See State
(Abrahamson,
647,
(1976)
662,
Wis. 2d
admissible under
The word
904.04(2)
as used in sec.
has been defined
this court.
Pharr,
834,
In State v.
2d
Wis.
340 N.W.2d
(1983),
adopted
following
this court
definition of
plan
purposes
904.04(2)
of sec.
:
‘plan’
design
904.04(2)
“The word
or
sec.
means
accomplish
particular purpose.
scheme formed to
some
showing
. . .
plan
Evidence
establishes a definite
design,
doing
plan, or scheme which
includes
charged.
Wigmore states,
As
must
act
there
be ‘such a
of common features that
concurrence
are
various acts
*23
materially
general
explained
to
as
be
caused
”
they
plan of
are
which
the individual manifestations.’
Quoting
Spraggin,
also
89, 99,
State v.
2dWis.
252 N.W.2d
(1977).
Alsteen,
723,
See
State v.
2dWis.
(1982)
(Abrahamson,
J.,
The
also holds that the other crime evidence
proves
is
“identity.”
admissible
it
because
The state on
applicability
exception.
review does not assert the
position
argument
single
state
took
at oral
that a
employed
crime in
which
defendant
a modus
operandi frequently
burglaries,
burglariz-
is,
used in
ing the home of a deceased at the
funeral,
time of
is
identify
to
as
defendant
the one who
agree.
committed the
offense
issue here. I
showing
operandi
Other crimes
a modus
are admissible
prove identity
to
com
the crimes show a method of
if
mitting
unique
the crime so
that there is
likelihood
little
persons
two
used
same method
coincidence.
charged
The other crimes and the crime
are so similar
they
“signature”
Whitty
bear the
of the defendant.
State,
278, 295,
;
34 Wis. 2d
Criminal No. 75. the intent in- is entering tentionally place with intent to steal or to felony. 948.10(1), commit a Sec. Stats. 1981-82. element, the in- some mental crimes have
Since most
justify
frequently
the admis-
exception
invoked to
tent
But
other crimes
evidence.
sion of other crimes
intent,
prove
intent must be
evidence to be admissible
Alsteen,
2d
108 Wis.
a material issue in the case. State v.
723, 729,
concedes that
had the
intent.
case,
Intent
is not
in this
issue
other crime
exception.
is not
admissible under
See
Whitty
State,
278,
293,
34 Wis. 2d
Ordinarily the exception, mistake like the intent ex- ception, only is invoked when the absence of mistake is a material issue in case, such as when an accused *25 admits that charged he did the acts but denies the intent necessary to constitute a crime or contends that he did the accidentally. acts Because intent and absence of mis- take are not material case, issues this I conclude that the other crime evidence is not admissible under these exceptions. this crime implicitly contends that other
The state qualify despite its failure was admissible evidence statutory exceptions it because is claimed within in ex- truthfulness the issue of defendant’s on relevant burglarized home and does presence near plaining his propensity. forbidden inference of not raise Cf. 155-157, State, 267 N.W.2d 2d McClelland Wis. says words, In the state the evidence the fact that it makes the existence of relevant because is purposes probable than present for less innocent he evidence, 904.01, sec. Stats. 1981- it without would be rele- is asserting evidence that is also The state 82. impermissible to the purpose resort without this vant for impeached already course, has, of The state inference. introducing of his credibility by evidence the defendant’s convictions, precise. felony to be convictions, prior seven impeachment of apparently feel does not The state to introduce credibility wishes The state sufficient. is ground burglary on of a of the nature evidence other crime jury infer from the can at the scene defendant was real reason the terminology, “intent” (to use the state’s the crime to the one being similar present) was to commit a crime he committed before. being offered, ac- is crime of the other
The evidence pro- the defendant’s cording state, show not to theory of chance. burglary on the pensity to a but commit argues that “chance could (p. 23) brief The state’s scene, presence for at defendant’s account innocently being against person at the scene odds obituary recent- has one whose of the address of a bur- ly previously committed published, after he had been obituary glary person for whom an of a of the residence arguing overwhelming.” appeared The state is had are it relevant because the other crime evidence *26 92 present the likelihood that the defendant
lessens on an innocent mission. explained shooting’ example pre- I in
As discussed significant requires viously, the doctrine of chance simi- significant occurrences, similarity larity of of other charged. crime and the crime In this case the two way offenses must be similar that will show that the presence pur- chance of the defendant’s for an innocent pose unlikely. Wigmore, in this case is Evidence sec. (Chadbourn 1979) ; Roth, Understanding rev. Ad- missibility Diagrammatic Prior Approach, Acts: A Pepperdine L. Rev. theory unpersuasive under
I find the state’s of chance fallacy position facts this of the case. The state’s by comparing application of the doctrine can be seen prove of chance this case to “absence of mistake or application prove with the accident” the doctrine shooting “absence mistake or accident” case single prior described In this case we inci- above. have dent, multiple prior not In crime incidents. this case charged and the crime In involved different victims. case, shooting case, possi- unlike the we have the bility person being perpetrator of a third of the charged possibility, present offense. latter This here owing “identity” to the existence of as the ultimate issue case, severely in this attenuates the doctrine of chance argument. burglaries, multiple The two like the shoot- ings, did operandi, involve same modus but operandi prior burglary charged modus and the crime commonplace. is one that is In this case the alleged crimes are not so distinctive as to be viewed nearly as the same. burglarized
I conclude that an individual evidence that obituary technique using a home does on one occasion by itself, impermissible infer- without resort disposition propensity ence that or defendant had a crime, namely, proved, to be make the fact commit *27 present near a with the the defendant was home that burglarize, any probable more or less than it intent to say the All I without evidence. can from the would be evidence in case that is other crime this is persons of in a class which the of incidence general public. greater among is than the crimes Other be to evidence cannot utilized where resort be had must person the that a a certain more inference of character is question persons likely to have committed act in the than generally. Berger, and Weinstein’s Evidence Weinstein par. Wright 404[01], pp. 404-12, par. ; 404[17] Graham, Federal and Practice and Procedure: Evidence sec. 5248 is but a veil chance
The state’s doctrine of burglarize showing attempt prove identity intent to present the bur- the was near as the reason defendant glarized identi- The of both intent house. inference char- ty light lack of distinctive tenuous in of the is too burglary evi- two The other of the crimes. acteristics only re- if finder the fact case is dence in this relevant impermissible that the individual inference sorts Accordingly, I crimes. disposition such has a commit proffered other crime evidence from the conclude inadmissible. the crime evi- I that
Even if were conclude other conclude, second the admissible under dence was I would analysis 904.04(2), prong applicable to sec. of did court abused discretion. The trial trial court its evi- weigh crime not of the other worth The against 904.03. the factors forth sec. dence set trial entirely trial fault not that of the court. to exercise assisted But failure court was not counsel. discretion is abuse discretion. under
If I
review
record
were nevertheless to
proba-
prong
analysis,
I
conclude
second
would
value,
any,
very
if
tive
crime evidence was
substantially outweighed by
danger
and was
limited
danger
prejudice.
prejudice
unfair
of unfair
that the other crimes evidence induces inferential error.
example,
jury may
this case the
For
have reacted
emotionally to the other crime
found the
guilty
guilty
it
defendant
because
determined he was
charged
it
per
as
but
because
determined he was
bad
may
the other
son. Or
crime evidence
have so dominated
jurors
jurors exaggerated
minds
its
gave
probativeness,
the other crime evidence undue
paid
weight, and
probative evidence,
less heed to other
Whitty
State,
278, 292,
2d
34 Wis.
I also with go jury allowing into the statement court erred transcript read the most, judge have should room. At 725, 717, State, 2d jury. v. 74 Wis. Franklin See 615, Payne Wis. ; State, 199 v. 721 247 N.W.2d (1929). 629-30, 227 258 N.W. prime credibility
Since case, crime that the other issue in the I conclude requires a reversal. prejudicial error constituted 89, 103, N.W.2d 94 252 Spraggin, v. 2d State 77 Wis. 394-395, 249 ; 371, N.W. (1977) Hart v. 2d State, Wis. defendant (1977). may well be 2d 810 “It against charged him, but he is guilty of the offense according a fair trial to the established entitled rules procedure principles State, of law.” Boldt v. 7, 17, Wis. N.W. forth,
For the set I reasons would affirm the decision appeals. of the court of I am authorized to state that joins A. this dissent. Justice William Bablitch corpora a Wisconsin Corporation, Flambeau Products tion, Plaintiff-Respondent-Petitioner, Honeywell foreign Systems, Inc., Information
corporation, Defendant-Appellant.
Supreme Court Argued January 4, No. 82-307. October 1983. Decided 198 4.
(Also reported 655.) in 341 N.W.2d