State v. Oberlander
| Citation | 143 Wis.2d 825,422 N.W.2d 881 |
| Decision Date | 02 March 1988 |
| Docket Number | No. 87-1396-CR,87-1396-CR |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Donald I. OBERLANDER, Defendant-Appellant. |
| Court | Court of Appeals of Wisconsin |
Nathaniel D. Rothstein, Milwaukee, for defendant-appellant.
Donald J. Hanaway, Atty. Gen. and Sharon Ruhly, Asst. Atty. Gen., for plaintiff-respondent.
Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.
Donald Oberlander appeals from convictions for arson and endangering safety by conduct regardless of life. He mainly challenges the trial court's exclusion of certain evidence buttressing his theory that a third party, Mark Neu, actually committed the offense. The excluded evidence would have disclosed to the jury that Neu was, to a reasonable likelihood, previously involved in conduct similar to the arson with which Oberlander was charged. We reverse and remand for a new trial because the trial court's ruling constituted prejudicial error.
Preliminarily, we address Oberlander's other issue--sufficiency of evidence. At trial, the state produced no direct evidence of Oberlander's guilt, but relied solely upon circumstantial evidence. It is true, as Oberlander argues, that when circumstantial evidence is relied upon, the evidence must be sufficiently strong to exclude every reasonable hypothesis of innocence. Peters v. State, 70 Wis.2d 22, 34, 233 N.W.2d 420, 426 (1975). He claims this is not the case here.
We disagree and conclude that the evidence presented was sufficient to convince the jury that there was no reasonable hypothesis of Oberlander's innocence. Expert testimony of an investigator established that the fire was incendiary in nature, deliberately started in a woodpile in a corner of the tavern basement with gasoline used as an "accelerant" to spread the fire. The jury could find motive through testimony that Oberlander had recently increased the insurance coverage of his property, raising the building and personal property coverage by $65,000, and adding business interruption insurance. In addition, there was testimony indicating that Oberlander was having difficulty meeting the terms of a land contract on the property.
There was also evidence from which the jury could find that opportunity was present and proven: Oberlander was the last to leave the tavern, and fire fighters testified that the tavern was secure when they arrived, resulting in an inference of improbability that a stranger could have gained access to the tavern to set it ablaze. A witness testified that he saw Oberlander driving his car three to four blocks from the tavern at a high rate of speed minutes prior to the fire call. The evidence places Oberlander near the scene.
Based on this and other evidence of record, a jury could reasonably conclude that Oberlander was guilty beyond a reasonable doubt. The evidence established that the fire was caused by a criminal agency and identified Oberlander as the one responsible. See State v. Kitowski, 44 Wis.2d 259, 261, 170 N.W.2d 703, 704 (1969). Although other conflicting evidence was presented on virtually every point, the credibility of the witnesses, including that of the defendant, and the weight of the evidence are exclusively for the trier of fact. State v. Wyss, 124 Wis.2d 681, 694, 370 N.W.2d 745, 751 (1985). We conclude that the evidence was sufficient to convict.
We now reach the main issue--whether the trial court erred in excluding evidence relevant to Oberlander's principal defense that a third party, Mark Neu, actually set the fire. While admitting some evidence of Neu's possible involvement, the trial court excluded evidence that Neu had been involved in prior conduct similar to the arson of the tavern.
The offers of proof 1 by Oberlander showed that a concession stand operated by Roger Strupp at the Slinger Speedway had been broken into at night and gasoline poured "all over the floor" of the stand. Strupp testified during the offer of proof that there were unique footprints on the concession stand door (because it had been kicked in) which led him to believe that Neu was responsible. Strupp stated that he confronted Neu, who said "did I do that, and looked real funny." Although admitting his footprints were on the door, Neu did not actually admit to pouring the gasoline. Neu did, however, repair the damaged concession stand.
Oberlander offered this evidence under sec. 904.04(2), Stats., 2 arguing that the evidence was probative of identity. Testimony showed that gasoline was poured over the floor of the bar area of his tavern, saturating portions of the carpet, and over the floor of the kitchen area in one large and several smaller puddles. He reasoned that Neu's prior act, also consisting of nocturnal entry and the pouring of gasoline all over the floor, was correlative.
The trial court offered two different rationales for rejecting the evidence. First, it stated that the evidence did not come under any of the exceptions under sec. 904.04(2), Stats. Alternatively, the trial court stated that only evidence of other acts of a criminal defendant are contemplated by the statute, not the acts of a witness or third party. Specifically, the trial court stated The trial court went on to state,
Whether a defendant may introduce other acts of third parties as evidence and whether attempts to do so are subject to the requirements of sec. 904.04(2), Stats., are questions of first impression in Wisconsin. 4
Courts in other jurisdictions have resolved this issue in three ways. Several courts have held that the general rule concerning other acts evidence is one of exclusion, with the result that it is only other acts evidence of a person as the defendant in a prosecution for a related offense that is admissible. See, e.g., United States v. Kelley, 545 F.2d 619, 623 (8th Cir.1976), cert. denied, 430 U.S. 933, 97 S.Ct. 1555, 51 L.Ed.2d 777 (1977). Other jurisdictions have concluded that other acts evidence of third parties is admissible on a case-by-case basis according to general relevancy considerations. See, e.g., People v. Flowers, 644 P.2d 916, 919 (Colo.), appeal dismissed, 459 U.S. 803, 103 S.Ct. 25, 74 L.Ed.2d 41 (1982). Finally, several jurisdictions have concluded that other acts of third parties should be admissible, but only upon satisfaction of the limitations contained in statutes similar to sec. 904.04(2), Stats., just as with admission of evidence of a defendant's other acts. See, e.g., United States v. Puckett, 692 F.2d 663, 671 (10th Cir.), cert. denied, 459 U.S. 1091, 103 S.Ct. 579, 74 L.Ed.2d 939 (1982); cert. denied sub nom., Krown v. United States, 460 U.S. 1024, 103 S.Ct. 1276, 75 L.Ed.2d 497 (1983).
Upon review of these and other authorities, we conclude that the latter position, admission of evidence of other acts of third parties subject to the limitations of a statute such as sec. 904.04(2), Stats., is most sound.
Those courts that have imposed a blanket restriction precluding third party other acts evidence have done so on the basis that statutes such as sec. 904.04(2), Stats., are limited in scope, reflecting a long standing policy of exclusion which allows other acts evidence under only limited circumstances: to show the motive, intent, etc., of a "person as the accused in a prosecution for a related offense." Kelley, 545 F.2d at 623 (emphasis in original).
However, a blanket restriction on other acts evidence of third parties is not warranted under the language of sec. 904.04(2), Stats. The statute is addressed to use of other acts evidence offered "to prove the character of a person in order to show that he acted in conformity therewith." Sec. 904.04(2) (emphasis added). That person can be a defendant, co-defendant, witness or other third party. See 22 C. Wright & K. Graham, Federal Practice & Procedure sec. 5239 at 457-58 (1978). Moreover, to limit other acts evidence to acts by the defendant could work in many cases to exclude highly probative evidence on an issue relevant to the defendant's presentation of his defense. We note the significant due process and equal protection problems such a position may pose. 5
Courts that admit evidence of other acts of third parties under general relevancy principles have recognized the need for such evidence as often being both probative and relevant to an issue in the case, but have declined to apply the procedural restrictions imposed by statutes such as sec. 904.04(2), Stats. The policy behind such statutes, these courts reason, is to prohibit introduction by the state of evidence of a defendant's bad character unless relevant for some other purpose. See, e.g., State v. Jennings, 35 Wash.App. 216, 666 P.2d 381, 382 (1983). When other acts of third parties are offered into evidence, the defendant's character is not impugned and therefore no danger arises that a jury will convict a defendant based on prior bad acts, making the protections of an "other acts" statute unnecessary. See, e.g., United States v. Edwards, 696 F.2d 1277, 1280-81 (11th Cir.), cert. denied, 461 U.S. 909, 103 S.Ct. 1884, 76 L.Ed.2d 813 (1983).
The Wisconsin Supreme Court has recognized the rationale of protecting defendants when discussing evidence of other acts, stating that:
The character rule excluding prior-crimes evidence as it relates to the guilt issue rests on four bases: (1) The overstrong tendency to believe the defendant guilty of the charge merely because he is a person...
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State v. Oberlander
...for defendant-appellant. DAY, Justice. This is a review of a published opinion by the court of appeals, State v. Oberlander, 143 Wis.2d 825, 422 N.W.2d 881 (Ct.App.1988), which reversed and remanded a judgment and order of the circuit court for Washington county, Honorable Richard T. Becker......