State v. Payano

• Decision Date: 21 July 2009
• Docket Number: No. 2007AP1042-CR.,2007AP1042-CR.
• Citation: 768 N.W.2d 832,2009 WI 86
• Parties: State of WISCONSIN, Plaintiff-Respondent-Petitioner, v. Tony PAYANO, Defendant-Appellant.
• Court: Wisconsin Supreme Court

768 N.W.2d 832

2009 WI 86

State of WISCONSIN, Plaintiff-Respondent-Petitioner, v.Tony PAYANO, Defendant-Appellant.

No. 2007AP1042-CR.

Supreme Court of Wisconsin.

Argued December 9, 2008.

Decided July 21, 2009.

For the plaintiff-respondent-petitioners the cause was argued by Sarah K. Larson, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.

For the defendant-appellant there was a brief by Patrick Cavanaugh Brennan and von Briesen & Roper, S.C., Milwaukee, and oral argument by Patrick Cavanaugh Brennan.

¶ 1DAVID 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 weapon, contrary to Wis. Stat. §§ 940.23(2)(a)and939.63(2007-08),¹ and two counts of second-degree recklessly endangering safety while using a dangerous weapon, contrary to Wis. Stat. §§ 941.30(2)and939.63.Payano was convicted by a jury in Milwaukee County Circuit Court, with Judge Karen E. Christenson presiding.

¶ 2The State poses two issues for review:

(1) Under State v. Sullivan,216 Wis.2d 768, 576 N.W.2d 30(1998), is "other acts" evidence admissible for the purposes of providing context and rebutting the defendant's self-defense claim, when the evidence was relevant to why police were at the defendant's door, and when the evidence was also relevant to what the defendant knew at that time?[²]

(2) Under Sullivan's independent review doctrine, did the court of appeals independently search the record for other bases to sustain the circuit court's discretionary decision to admit the evidence?

¶ 3 After carefully considering the facts and circumstances, we conclude that the circuit court did not err in admitting the "other acts" testimony of a confidential informant about his observations of the defendant's possession of drugs and a handgun in the defendant's apartment on the day before the police executed a no-knock search warrant at the apartment.The informant's testimony provided context for an incident in which a police officer was shot by the defendant.It explained why the police were at the defendant's apartment, and it provided a plausible explanation of why the defendant fired his gun at a police officer trying to enter the apartment.The informant's testimony served to rebut the defendant's claim that he was acting reasonably in defense of himself and his family.It provided a motive for the shooting.

¶ 4The circuit court determined that (1) evidence of the defendant's very recent involvement with drugs and a gun at the place where the shooting occurred was offered for a proper purpose under Wis. Stat. § 904.04(2);(2) the evidence was relevant under Wis. Stat. § 904.01; and (3) the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice under Wis. Stat. § 904.03.The circuit court did not erroneously exercise its discretion because it reviewed the relevant facts, applied a proper standard of law, and using a rational process, reached a reasonable conclusion.We believe the circuit court offered a cogent explanation for admitting the evidence in the circumstances presented.

¶ 5 Because of our decision on the first issue posed by the State, we find it unnecessary to address the second issue.

¶ 6 Accordingly, we reverse the decision of the court of appeals.

I.BACKGROUND AND PROCEDURAL HISTORY³

¶ 7This case involves the shooting of a Milwaukee police officer during the execution of a no-knock search warrant.Payano does not deny shooting the officer.He asserts that he was acting reasonably in self defense and defense of others.Thus, the facts in this case are critical.

¶ 8 In 2005, Payano, then 19, lived at 905 West Harrison Avenue in Milwaukee.He lived in ApartmentNo. 4 on the second floor of the building with his mother, Ovidia De Los Santos(Ovidia), his father, and his sister.His uncle, Juan Batista(Juan), and his cousin, Joel Batista(Joel), lived in ApartmentNo. 2 on the first floor of the building.Payano's appellate counsel describes Payano as "an immigrant from the Dominican Republic with limited English skills."

¶ 9 On the afternoon of October 3, 2005, Payano returned home to 905 West Harrison Avenue with Juan and Joel.He went upstairs to ApartmentNo. 4 while Juan and Joel remained outside.The family members were situated in these positions when two unmarked Milwaukee police vehicles pulled up to the 905 address to execute a no-knock search warrant for weapons and narcotics in ApartmentNo. 4.Officer Michael Lutz(Officer Lutz), Officer Jon Osowski(Officer Osowski), and Officer Rick Sandoval(Officer Sandoval) arrived in one unmarked vehicle.Sergeant Michael Hartert(Sergeant Hartert) and Detective Lieutenant Michael Dubis(Lieutenant Dubis) arrived in the other vehicle.Sergeant Hartert was in full police uniform.Lieutenant Dubis was dressed in a suit and tie with his badge fastened to his belt.The other three officers, including Officer Lutz, were in a "plain clothes capacity," which generally means "jeans, a t-shirt, a full duty complement of guns, ammunition, bulletproof vest, and [the] badge and identification hanging around [the] neck."

¶ 10 When the police arrived, Joel immediately ran into the building and up the stairs to ApartmentNo. 4.The officers, not knowing whether Joel was the suspect ("Rico") named in the search warrant, chased after him.The officers proceeded with weapons drawn.They claim that they yelled "Police,""Stop, search warrant," and "Hands up," both on the street and inside the building.They claim that these commands were made in both English and Spanish.

¶ 11 In opposition, Payano claims that either he did not hear or understand the officers' commands.Payano testified that he was in ApartmentNo. 4 with his mother, Ovidia, when he heard footsteps and screaming outside the door.Joel then rushed into the apartment, and Payano locked the door.According to Payano, Joel expressed fear upon entering the apartment, saying over and over, "It's not me," and "They are confusing me with someone."Payano testified that Joel did not know how to answer his question: "Who is it?"

¶ 12 The officers arrived at ApartmentNo. 4 and began to break down the door while Joel was attempting to hold it shut.Payano testified that, as events unfolded, Ovidia was crying and screaming hysterically and was unable to comply with Payano's request that she call the police.Payano testified that he was paying attention to the door of the apartment, watching Joel holding the door.

¶ 13He was asked at trial: "Did you know that the men on the other side of the door were police?"He answered: "I never imagined that."

¶ 14 The questions to Payano continued as follows:

Q.There comes a time that you do something to fend off these men.

A.Yes.

Q.What did you do?

A.After a few seconds when no one answered and the door was breaking on both sides, I ran to get the weapon that I had.

Q.And where was that?

A.Under the sofa.

Q.And then what did you do?

A.I ran, and I got near the door.

Q.And at this point, was there still hitting on the door?

A.Never stopped hitting the door.

Q.Was Joel saying anything?

A.As far as I remember, "They are going to kill us."

Q.And then what did you do?

A.I said, I have no other choice.I have no other solution, and according to the way they were breaking the door like that they were not going to spare us alive.

Q.So what did you do?

A.I fired.

According to Payano, neither he, Joel, nor Ovidia "realized that the men at the door were, in fact, police officers."

¶ 15 Payano's gunshot hit and wounded Officer Lutz.Lutz testified to the following:

A.I proceeded to the door.I announce "Milwaukee police.Milwaukee police."I have my gun in my right hand extended before me, and I have my left hand out to push open the door, and I start pushing open the door as I'm yelling, "Milwaukee Police."

Q.As you're pushing that door with the one hand and holding your weapon in the other hand, what happens next?

A.The door gets open approximately 12 inches.And I'm able to see a refrigerator to my left, and I see Mr. Payano leaning over the refrigerator pointing a gun at me.

Q.What happened then?

A.It happened very quickly.Just as the door was opened and I glanced, I didn't have the time to bring my gun over.I heard one shot fired.

Q.And the shot came from where?

A.Mr. Payano.

Q.Who was partially behind the refrigerator?

A.Yes.He took concealing in front of the refrigerator [sic] and was up over the refrigerator.

Q.Over the top of it?

A.Yes.

Q.Was that [a] full height refrigerator or one that wasn't a full?

A.It appeared to be a small or medium size refrigerator.It wasn't a full size larger refrigerator.

Q.So you could see his head over the top of it?

A.Head and shoulders and arms.

Q.Then one shot.Where did it go?

A.I didn't know where it hit initially.I know that I was — I fell backwards and landed on my butt.I was then going to return fire and trying to use a two handed grip, and in the moment when I brought my gun up, I noticed that my left arm wasn't following me.And when I looked behind, I could see it obviously was broken.It was bent back, bent at a very awkward position, and then I noticed I was bleeding.

¶ 16 Officer Lutz suffered severe damage to his left arm.His injuries required three separate surgeries, leaving him with very poor muscle strength in his arm.Officer Lutz was unable to return to active duty because of his injuries.

¶ 17 Payano testified that, after shooting one time in defense of himself and his family, the following transpired:

A.After I fired . . . I heard the gunshots being returned.I fell to the ground because I thought I had been shot several times.

Q.How many gunshots did you...