State v. Jackson

• Decision Date: 22 January 2014
• Docket Number: No. 2011AP2698–CR.,2011AP2698–CR.
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Curtis L. JACKSON, Defendant–Appellant–Petitioner.
• Court: Wisconsin Supreme Court

352 Wis.2d 249

841 N.W.2d 791

2014 WI 4

STATE of Wisconsin, Plaintiff–Respondent,

v.Curtis L. JACKSON, Defendant–Appellant–Petitioner.

No. 2011AP2698–CR.

Supreme Court of Wisconsin.

Argued Sept. 18, 2013.

Decided Jan. 22, 2014.

For the defendant-appellant-petitioner, there were briefs by James Rebholz and Rebholz & Auberry, Wauwatosa, and oral argument by James Rebholz.

For the plaintiff-respondent, the cause was argued by Marguerite Moeller, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.

ANNETTE KINGSLAND ZIEGLER, J.

¶ 1 This is a review of an unpublished decision of the court of appeals, State v. Jackson, No. 2011AP2698–CR, unpublished slip op., 345 Wis.2d 62, 2012 WL 4799459 (Wis.App. Oct. 10, 2012), that affirmed the judgment and order of the Milwaukee County Circuit Court,¹ which convicted Curtis L. Jackson (“Jackson”) of second-degree reckless homicide by use of a dangerous weapon, and denied his motion for a new trial.

¶ 2 Jackson's petition for review presents the narrow question of whether a defendant in a homicide prosecution may introduce evidence of the victim's reputation for violence, when the defendant did not know of the victim's reputation at the time of the offense.

¶ 3 The issues underlying this case are more complex than as set forth in the petition for review. Specifically, this court must decide whether the circuit court improperly excluded trial evidence regarding both the shooting victim's reputation for violence and the victim's specific violent acts.

¶ 4 Jackson was charged with first-degree intentional homicide by use of a dangerous weapon, contrary to Wis. Stat. §§ 940.01(1)(a), 939.50(3)(a), and 939.63(1)(b) (2009–10),² a class A felony. Jackson argued that the victim was behaving in a threatening manner, that he believed the victim was armed, and that he killed the victim in self-defense. Jackson had neither met the victim, nor knew of the victim's character prior to the night of the shooting.

¶ 5 In support of his self-defense theory, Jackson moved the circuit court to admit character evidence. While the motion cited to several statutory provisions, it focused on the admission of three specific acts to prove the victim's character for violence. The motion did not set forth a foundational basis for the admission of reputation testimony. The circuit court denied the motion. Following his jury trial Jackson brought a postconviction motion for a new trial in which he argued, in part, that the trial court erred by not allowing Jackson to introduce character evidence to show that the victim was the “first aggressor” in the confrontation. The circuit court also denied Jackson's postconviction motion, and Jackson appealed.

¶ 6 The court of appeals affirmed the circuit court, relying on McMorris v. State, 58 Wis.2d 144, 205 N.W.2d 559 (1973). In the court of appeals, Jackson conceded that the specific acts of violence were inadmissible to prove the character of the victim under Wis. Stat. § 904.05(2), but argued that the victim's violent character could still have been proved by reputation testimony under § 904.05(1).³ Jackson did not appeal the circuit court's exclusion of other acts evidence under Wis. Stat. § 904.04(2).⁴ The court of appeals affirmed the circuit court, concluding that a “defendant's prior knowledge of the victim's character, either by reputation or specific acts, has consistently been a prerequisite to admission of such evidence as part of a self-defense claim.” Jackson, No. 2011AP2698–CR, unpublished slip op., ¶ 21.

¶ 7 Jackson petitioned this court for review, which we granted on February 12, 2013.

¶ 8 We hold that the circuit court did not erroneously exercise its discretion in denying Jackson's motion to admit character evidence. The circuit court properly determined that in order for specific acts of violence to be admissible, “character or a trait of character of a person” must be “an essential element of a charge, claim, or defense.” In a homicide case where a claim of self-defense is raised, character evidence may be admissible as evidence of the defendant's state of mind so long as the defendant had knowledge of the prior acts at the time of the offense. McMorris, 58 Wis.2d at 152, 205 N.W.2d 559. We also conclude that the circuit court did not err in denying Jackson's motion to admit testimony that the victim had a reputation for violence under Wis. Stat. § 904.05(1). Jackson failed to establish a proper foundation for the court to determine that evidence of the victim's reputation for violence was admissible. We further conclude that, even assuming error occurred, that error was harmless. Therefore, we affirm the decision of the court of appeals.

I. FACTUAL BACKGROUND

¶ 9 On November 4, 2008, Milwaukee Police Department Officer Frank Galloway (“Officer Galloway”) responded to a shots fired call at 3776 North 60th Street in the City of Milwaukee. Upon arrival, Officer Galloway was directed by witnesses to the rear of the residence where he found the victim, Angelo McCaleb (“McCaleb”), lying on his back.

¶ 10 McCaleb was declared dead at the scene. His body was later transported to the Milwaukee County Medical Examiner's Office where an autopsy confirmed that McCaleb had died as the result of a single gunshot wound to the chest.

¶ 11 While at the scene, Officer Galloway encountered Jackson. Officer Galloway asked Jackson if he knew who had shot the victim, to which Jackson responded: “I did it. I shot him. The gun is over there on top of the car. Sorry, I did not mean to do it.” Officer Galloway took Jackson into custody.

¶ 12 Although the five witnesses to the shooting differed on the details, the basic facts are undisputed. On the evening of November 4, 2008, Tanya Davis “Davis”) borrowed Jackson's car to go to a bar. While at the bar, Davis met McCaleb and his friend Wayne Johnson (“Johnson”) and had drinks with them. It would later be established that McCaleb had a .18 blood alcohol concentration at the time of his death. While Davis was at the bar, Jackson left phone messages asking her to return his car. Davis testified that McCaleb responded to these messages by saying “fuck that nigger” in reference to Jackson.

¶ 13 Davis eventually returned the car to Jackson's house. She was followed by McCaleb and Johnson. Upon arriving, McCaleb and Johnson got into an argument with Jackson and two women, Francheska Garcia (“Garcia”) and Lawanda Knight (“Knight”), who lived with Jackson at the time. Jackson would later testify that, when he knocked on McCaleb's car window, McCaleb said that Jackson “had some fuckin' nerve knockin' on somebody's car window like that.” Jackson and McCaleb then argued, “yelling back and forth” about whether Davis would be going back out that evening. During the course of the argument, Jackson testified that McCaleb “lunged” at Garcia with his fist “clenched” and “[a]nger in his face.” This was corroborated by testimony from Garcia, who stated that McCaleb stepped towards her “like to hit” her at one point during the argument. Jackson then retrieved a handgun from his vehicle.

¶ 14 Knight later testified that Jackson used that gun to shoot McCaleb only after McCaleb got “so mad” and returned to Johnson's car as if to retrieve something. McCaleb then walked back towards Jackson “really fast with one hand behind his back,” saying “something for you, motherfucker.” Further, Knight told police that McCaleb was “pulling at his waistband as if he was going for a gun.” In an interview with a Milwaukee Police Department detective following the shooting, Jackson said that McCaleb was behaving in a threatening manner, and that he believed McCaleb had armed himself as well. McCaleb was, in fact, unarmed.

II. PROCEDURAL POSTURE

¶ 15 On November 8, 2008, Jackson made his initial appearance. The criminal complaint alleged a single count of first-degree reckless homicide while armed, contrary to Wis. Stat. §§ 940.02(1) and 939.63, a class B felony. Cash bail was set at $150,000.

¶ 16 On November 17, 2008, the court held Jackson's preliminary hearing. Following testimony from a Milwaukee Police Department detective regarding the circumstances of the shooting, the State moved to bind Jackson over for trial. Jackson moved to dismiss the charge, arguing that he had acted in self-defense. ⁵ The court denied Jackson's motion to dismiss, granted the State's motion, and Jackson was bound over for trial.

¶ 17 On December 9, 2008, Jackson was arraigned on the Information which charged him with one count of first-degree reckless homicide while armed. Jackson waived a reading of the Information and pled not guilty to the charge. On February 6, 2009, the court held a pretrial conference and set a trial date of May 4, 2009.

¶ 18 On February 12, 2009, the State filed an Amended Information which charged Jackson with first-degree intentional homicide by use of a dangerous weapon, contrary to Wis. Stat. §§ 940.01(1)(a), 939.50(3)(a), and 939.63(1)(b), a class A felony.

¶ 19 On April 7, 2009, Jackson filed a Motion to Admit Character and Habit Evidence.⁶ Jackson offered three prior acts of violence by McCaleb as evidence of his “history of violent and assaultive behavior.” First, Jackson offered McCaleb's 1995 conviction for criminal trespass and disorderly conduct for McCaleb's role as one of a dozen individuals involved in a home invasion altercation where McCaleb pretended to have an object that appeared to be a firearm or other weapon and during the invasion struck an individual repeatedly with a bar stool. Second, Jackson offered a November 7, 2004, City of Milwaukee assault and battery citation McCaleb received for pushing his girlfriend during a domestic dispute outside of a tavern. Finally, Jackson offered a January 18, 2008, citation McCaleb received for, after being at a party, kicking in the door of an individual named Adam Comp (“Comp”) and punching him.

¶ 20 Jackson argued in his pretrial motion...