State v. Payano, 2007AP1042-CR.

Citation752 N.W.2d 378,2008 WI App 74
Decision Date15 April 2008
Docket NumberNo. 2007AP1042-CR.,2007AP1042-CR.
PartiesSTATE of Wisconsin, Plaintiff-Respondent<SMALL><SUP>&#x2020;</SUP></SMALL> v. Tony PAYANO, Defendant-Appellant.
CourtCourt of Appeals of Wisconsin

Appeal from a Judgment of the Circuit Court for Milwaukee County: Karen E. Christenson, Judge.1 Reversed and cause remanded.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Patrick Cavanaugh Brennan and James M. Bruss of von Briesen & Roper, S.C., of Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of J.B. Van Hollen, attorney general, and Sarah K. Larson, assistant attorney general.

Before CURLEY, P.J., FINE and KESSLER, JJ.

¶ 1 CURLEY, P.J

Tony Payano appeals from the corrected judgment of conviction entered against him following a jury trial where he was found guilty of one count of second-degree reckless injury while using a dangerous weapon, contrary to WIS. STAT. §§ 940.23(2)(a) and 939.63, and two counts of second-degree recklessly endangering safety while using a dangerous weapon, contrary to WIS. STAT. §§ 941.30(2) and 939.63 (2003-04).2 He contends that the trial court erred by admitting testimony offered by confidential informant Jason Kojis, which was drug-related other acts evidence. We agree with Payano and conclude that the trial court erroneously exercised its discretion in admitting Kojis' testimony and that the admission was not harmless. Accordingly, we reverse and remand for a new trial without the other acts evidence.

I. BACKGROUND.

¶ 2 Payano's first trial in this matter resulted in a hung jury. Following the second jury trial, Payano was convicted of one count of second-degree reckless injury and two counts of second-degree recklessly endangering safety, all while using a dangerous weapon.

¶ 3 Payano's convictions stem from an incident which occurred on October 3, 2005. In the afternoon on that date, several Milwaukee police officers were in the process of executing a no-knock search warrant for the apartment where Payano resided with his family, based on information received from Kojis, a confidential informant for the Milwaukee Police Department.

¶ 4 Prior to the officers' arrival at the apartment building, Payano, his uncle, and his cousins had been out completing job applications. Upon returning to the apartment building, Payano went inside to the apartment where he lived with his family. Shortly thereafter, Payano heard footsteps and his cousin screaming. Once his cousin entered the apartment, Payano locked the door. Payano testified that his cousin was scared and kept saying, "It's not me. It's not me," and "They are confusing me with someone."

¶ 5 Payano asked his cousin who he was referring to, but testified that his cousin did not give him an answer. Upon seeing that the door to the apartment was starting to break as the unknown individuals attempted to get into the apartment, Payano told his mother, who was also in the apartment, to call the police. His mother, who was in hysterics and did not speak English, was unable to make the call. As the door was breaking, Payano retrieved a gun hidden under the couch in the apartment and fired one shot. Payano testified that he did not know that the men on the other side of the door were police officers. He further testified that at the time of the incident, although he knew a few words, he otherwise did not speak English.

¶ 6 After Payano fired the shot, a number of gunshots were fired in response from the individuals outside the door. He testified that he, his cousin, and his mother then sought refuge in the apartment's bathroom, with all three in the bathtub. His mother still had the telephone in her hand, and Payano proceeded to call 9-1-1. After making the call, Payano heard a knock at the bathroom door and the word "police," at which point he left the bathroom. Before doing so, however, he placed the gun in the toilet tank.

¶ 7 The officers' testimony at trial was that two unmarked squad cars pulled up outside of the apartment building where Payano lived and saw a person, who turned out to be Payano's cousin, immediately run into the building. Three officers in plain clothes and one uniformed officer, who was slightly behind the other three, gave chase. The officers testified that they identified themselves as police officers in both English and Spanish as they followed Payano's cousin into the building.

¶ 8 While they attempted to open the door to Payano's apartment using a sledgehammer, the officers continued to identify themselves as Milwaukee police officers. An officer testified that once the door was opened approximately twelve inches, he saw Payano pointing a gun at him and heard one shot fired, which hit him in his left arm. Although the officer was in plain clothes at the time, he wore a bulletproof blue vest over his shirt and his badge hung around his neck.

¶ 9 The State's theory at trial was that Payano fired the shot because he needed time to destroy evidence of drugs in the apartment. Payano's version was that he fired the shot to protect himself, his cousin, and his mother from the intruders who were breaking down the door to his family's apartment.

¶ 10 Kojis did not testify at the first trial. To support the admission of Kojis' testimony during the second trial, the prosecutor argued that the testimony would be presented to rebut Payano's claim that he acted in self-defense. He argued:

What I am going to say is that the finder of fact in determining the reasonableness of firing a shot through a closed door during the execution of a search warrant has an absolute right to know the context that this person who is the subject of the search warrant, a target of the search warrant who fires that shot was observed sorting through the cocaine with the [.]380 on the table the day before. It directly goes to rebut the defense in this case.

¶ 11 In concluding that Kojis' testimony was admissible, the trial court agreed and stated:

The jury [in the first trial], I believe, was left with the impression that this search warrant was somehow arbitrary, based on nothing, that the police came storming into a place with no basis really for doing that, that it may have been somehow a violation of Mr. Payano's rights, that Mr. Payano was a sometime beautician or hair cutter, that his English was not good, and that he had no reason to expect the police to be coming. And in that context, I think self-defense is framed somewhat differently.

....

The jury clearly has to be able to deal with what is reasonable under those circumstances for a reasonable person. I think that the testimony from Mr. Kojis, which clearly places into context what the police were doing there and what Mr. Payano was observed with on the day before, helps the jury to assess reasonability. It does provide, I think, a somewhat different understanding for the jury about what was going on.

It does not obviously give the jury the answer about what was in Mr. Payano's mind or what he understood. Those issues are still for them to deal with.

The trial court prohibited the State from suggesting that Payano was a drug dealer and required that Kojis testify that he did not go to Payano's residence looking for drugs, that neither Kojis nor his friend bought drugs, and that no drug transactions occurred while Kojis was present at Payano's residence.

¶ 12 During the second trial, Kojis testified that on the day prior to the incident, he went to Payano's residence with a friend. On that day, Kojis recalled seeing Payano in the kitchen of Payano's apartment packaging cocaine. In addition, Kojis testified that a .380 caliber pistol was on the table in the kitchen. According to Kojis, neither he nor his friend attempted to buy any drugs, and he did not see anyone else purchase drugs from Payano. The next morning, Kojis testified that he informed the officer of what he observed at Payano's residence. The officer subsequently obtained the no-knock search warrant that led to this incident.

¶ 13 On appeal, Payano argues that the trial court erred when it admitted Kojis' testimony and that the error was not harmless.

II. ANALYSIS.
A. Admission of other acts evidence.

¶ 14 WISCONSIN STAT. § 904.04(2) prohibits the admission of "[e]vidence of other crimes, wrongs, or acts ... to prove the character of a person in order to show that the person acted in conformity therewith." Excluded from this prohibition, however, is "evidence ... offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Id. The list included in the statutory text "is not exclusionary but, rather illustrative." State v. Shillcutt, 116 Wis.2d 227, 236, 341 N.W.2d 716 (Ct.App.1983).

¶ 15 The three-step analytical framework we employ to determine whether other acts of a defendant are admissible is set forth in State v. Sullivan, 216 Wis.2d 768, 576 N.W.2d 30 (1998). First, we analyze whether the State offered the other acts evidence for a purpose that comports with WIS. STAT. § 904.04(2). Sullivan, 216 Wis.2d at 783, 576 N.W.2d 30. Next, we consider whether the other acts evidence is relevant. Id. at 785, 576 N.W.2d 30. Lastly, we "determine whether the [trial] court erroneously exercised its discretion in weighing the probative value of the other acts evidence against the danger of unfair prejudice, confusion of the issues, or misleading the jury, or considerations of undue delay, waste of time or needless presentation of cumulative evidence." Id. at 789, 576 N.W.2d 30.

¶ 16 "[T]he test is not whether this court agrees with the ruling of the trial court, but whether appropriate discretion was in fact exercised." State v. Pharr, 115 Wis.2d 334, 342, 340 N.W.2d 498 (1983) (citation omitted). In reviewing the trial court's decision to admit other acts evidence, we are asked to determine "`whether the trial...

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3 cases
  • State v. Payano
    • United States
    • Wisconsin Supreme Court
    • 21 Julio 2009
    ...Cavanaugh Brennan. ¶ 1 DAVID T. PROSSER, J. This is a review of a published decision of the court of appeals, State v. Payano, 2008 WI App 74, 312 Wis.2d 224, 752 N.W.2d 378, reversing Tony Payano's (Payano) convictions for one count of second-degree reckless injury while using a dangerous ......
  • Payano v. Potter
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 13 Febrero 2014
    ...for this suit. The state's court of appeals vacated the conviction and remanded the case in 2008 for a new trial. State v. Payano, 752 N.W.2d 378, 388 (Wis. Ct. App. 2008). It ruled that the informant's testimony was irrelevant to Payano's claim of self-defense and also unfairly prejudicial......
  • State v. Weiss
    • United States
    • Wisconsin Court of Appeals
    • 23 Abril 2008

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