State v. Scheidell, 97-1426-CR

CourtUnited States State Supreme Court of Wisconsin
Citation595 N.W.2d 661,227 Wis.2d 285
Decision Date30 June 1999
Docket NumberNo. 97-1426-CR,97-1426-CR
PartiesSTATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Daniel G. SCHEIDELL, Defendant-Appellant.

Page 661

595 N.W.2d 661
STATE of Wisconsin, Plaintiff-Respondent-Petitioner,
Daniel G. SCHEIDELL, Defendant-Appellant.
No. 97-1426-CR.
Supreme Court of Wisconsin.
Argued March 3, 1999.
Decided June 30, 1999.

Page 663

For the plaintiff-respondent-petitioner the cause was argued by James M. Freimuth, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.

For the defendant-appellant there was a brief and oral argument by Mitchell E. Cooper, assistant state public defender.


This is a review of a published opinion of the court of appeals, State v. Scheidell, 220 Wis.2d 753, 755, 584 N.W.2d 897 (Ct.App.1998), which reversed and remanded a judgment and order of the circuit court for Racine County, Honorable Emmanuel J. Vuvunas. The defendant, Daniel G. Scheidell, was found guilty by a jury of one count of attempted first-degree sexual assault while masked and one count of armed burglary while masked. The State seeks reversal of the court of appeals' newly-established test to determine the admissibility of other acts evidence committed by an unknown third party which is proffered by the accused on the issue of identity. Instead, the State urges us to apply State v. Denny, 120 Wis.2d 614, 357 N.W.2d 12 (Ct.App.1984) when an accused seeks to use such other acts evidence.

¶2 We do not agree that Denny can be molded to fit the facts of this case. We also decline to adopt the court of appeals' newly-established test. Rather, we conclude that our recent decision in State v. Sullivan, 216 Wis.2d 768, 576 N.W.2d 30 (1998), provides the proper framework when a defendant seeks to introduce other acts evidence that was perpetrated by an unknown third party. Even though the circuit court failed to apply the proper test

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in its denial of Scheidell's offer of proof, we conclude that its determination to exclude the other acts evidence was proper. Accordingly, we reverse the decision of the court of appeals. 1


¶3 The facts are not in dispute. In August 1994, Jennifer D. began working at the Chancery Restaurant where she met Scheidell. When Jennifer and her two roommates were searching for a new apartment in May 1995, Scheidell remarked that two apartments in his building were unoccupied. Only one of the apartments was available, and Jennifer moved into the one-bedroom, studio apartment on the ground floor of the building. 2

¶4 Scheidell was friendly with Jennifer, and stopped by to chat on occasion. Scheidell, who did work around the building, had obtained a key to Jennifer's apartment from the owner of the building. He had asked to keep the key to help paint her bathroom, and allowed a cable company employee into Jennifer's apartment while she was at work.

¶5 At 4:45 a.m., on May 20, 1995, Jennifer awoke to the sound of the window blind falling onto her bathroom floor. She walked into the bathroom and noted that the casement window which she had left ajar for air was now open approximately one foot.

¶6 Jennifer shut the window and attempted to go back to sleep. Approximately 30 minutes later, Jennifer awoke with a man straddling her waist. The assailant was wearing a black, knit ski mask with holes for the eyes and mouth, and a nylon jacket draped around his head.

¶7 The assailant had pulled up her shirt, exposing her chest, he had his hand over her mouth, and she felt an object at her throat. When Jennifer struggled to break free, he began hitting her in the face with an open hand and tried to pull off her underpants. She was able to get one hand free and began hitting her assailant.

¶8 Jennifer testified that she could see his eyes and believed she recognized the assailant as Scheidell. She said his name and asked him what he was doing. The assailant hesitated for a few seconds, pulled back, and then started hitting her again. Jennifer managed to push the assailant off her bed, but he shoved her back down to the bed at which point she noticed that he had a knife with a serrated edge. 3 During the struggle, Jennifer called out "Danno," Scheidell's nickname, at least six times; each time the assailant hesitated and then resumed hitting her harder. She also managed to expose the left side of the man's face from the bottom of the eye to the top of the lip. Based on the assailant's distinctive body and walk, Jennifer was certain her attacker was Scheidell.

¶9 Jennifer was again able to kick the assailant away from the bed, allowing her to retrieve a pistol from her dresser. She pointed the pistol at the intruder and he lunged at her. She cocked the trigger, and she told the assailant that if he did not leave, she would shoot him. The assailant

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left her apartment having never uttered a word.

¶10 Jennifer called the Racine police department to report the incident. When the police arrived, Scheidell was coming down the stairs and appeared to have just woken up. Jennifer was brought into the hallway where she accused Scheidell of assaulting her. 4 An officer took Scheidell up to his apartment where Scheidell voluntarily gave a statement. After a limited search of Scheidell's apartment and the outside alley, the police arrested him.

¶11 Scheidell was charged with one count of first-degree sexual assault while masked, Wis. Stat. §§ 940.225(1)(b), 939.32, 939.641 (1993-94), 5 and one count of armed burglary while masked, Wis. Stat. §§ 943.10(2)(b) and 939.641. On the first morning of the jury trial, the circuit court heard arguments on Scheidell's intent to present evidence of a similar crime committed by an unknown third party while he was in jail. According to the offer of proof, a police report, Kim C. was attacked in her second floor apartment approximately five weeks after the attack on Jennifer and approximately four blocks away. The offender, reportedly, a white male, age 35 to 40, with a thin build, entered through a previously damaged window, he was wearing some type of hood and possibly a white mask, and he used a butcher knife with a dull, rusty blade.

¶12 According to the proffer, at approximately 5:00 a.m., Kim C. awoke with a hand on the bare skin of her back just above her buttocks. When she attempted to get up and turn around, the offender forced her back down by applying pressure to her back with his hand. The offender said, "Get down!" or "Stay down!" The voice sounded familiar, but Kim could not identify her attacker. He then laid on top of Kim's back, and placed the knife on her neck. Kim stated that she grabbed the knife and pushed it away without cutting herself, but the offender retained control of the knife and stayed on top of her.

¶13 Kim begged the offender not to hurt her baby, he ordered her to "Stay down!" Kim then told the offender to "Do whatever it is you've got to do. Please don't put it into my butt," to which he responded, "Okay." The offender completed the attack without vaginal or anal entry, and then got up and put his pants on. The offender asked Kim her name, and then told her to "Put your head down. Keep your face down. Keep it down!" Kim covered her head, and the offender covered her buttocks and legs with a blanket. He then fled through the broken window.

¶14 The circuit court excluded the evidence based on Denny, 120 Wis.2d 614, 357 N.W.2d 12. Applying Denny, the circuit court concluded that while the crimes were strikingly similar, there was no showing of any direct connection between the crimes; therefore, the evidence was irrelevant and inadmissible. 6 The jury found Scheidell guilty on both counts and Scheidell was sentenced to 25 years in prison on each count to run concurrently.

¶15 Scheidell filed a motion for post-conviction relief, arguing that the circuit court erred by excluding the evidence of the third-party similar crime evidence and his comparative handprint evidence. The circuit court denied Scheidell's post-conviction motion. Scheidell appealed.

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¶16 The court of appeals reversed. 7 The court first held that Denny was inapplicable because Scheidell sought admission of the third-party similar crime evidence to raise a doubt that he was the person who assaulted Jennifer; thus, the protections of Denny 's "legitimate tendency" test were not necessary. Scheidell, 220 Wis.2d at 762-63, 584 N.W.2d 897. The court next held that the modus operandi test, adopted in State v. Fishnick, 127 Wis.2d 247, 378 N.W.2d 272 (1985), where the state seeks to introduce other acts evidence for purposes of "identity" pursuant to Wis. Stat. § 904.04(2), should not be applied to a defendant seeking to present such evidence. Scheidell, 220 Wis.2d at 765-66, 584 N.W.2d 897.

¶17 Instead, the court of appeals modified State v. Garfole, 76 N.J. 445, 388 A.2d 587 (1978), and adopted a new standard of admissibility: "when a defendant seeks to offer 'other acts' evidence regarding identification, prejudice is no longer a factor and the trial court should use an admissibility standard that concentrates on the simple relevancy as to guilt and innocence." Scheidell, 220 Wis.2d at 766, 584 N.W.2d 897. Under this test, similarities between the other acts and the charged crime are not essential; rather, the relevancy of the other acts evidence should be balanced against considerations of confusion of the issues or misleading the jury. Id. at 763-64, 766, 771, 584 N.W.2d 897. The court of appeals then concluded that the circuit court's decision to exclude the evidence constituted reversible error. Id. at 773, 584 N.W.2d 897.

¶18 In our order granting the State's petition for review, we limited the issue on review to what the appropriate test for admissibility of other acts evidence committed by an unknown third party should be when the evidence is proffered by the defendant to prove identity.


¶19 The constitutional right to present evidence is grounded in the confrontation and compulsory process clauses of Art. I, § 7 of the Wisconsin Constitution and the Sixth Amendment of the United States...

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