State v. Scheidell

• Decision Date: 01 July 1998
• Docket Number: No. 97-1426-CR,97-1426-CR
• Citation: 220 Wis.2d 753,584 N.W.2d 897
• Court: Wisconsin Court of Appeals
• Parties: STATE of Wisconsin, Plaintiff-Respondent, d v. Daniel G. SCHEIDELL, Defendant-Appellant.

Page 897

584 N.W.2d 897

220 Wis.2d 753

STATE of Wisconsin, Plaintiff-Respondent, ^d v. Daniel G. SCHEIDELL, Defendant-Appellant.

No. 97-1426-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs April 10, 1998.

Opinion Released July 1, 1998.

Opinion Filed July 1, 1998.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Mitchell E. Cooper, Assistant State Public Defender, Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Attorney General, and James M. Freimuth, Assistant Attorney General.

Before SNYDER, P.J., and NETTESHEIM and ANDERSON, JJ.

ANDERSON, Judge.

In this appeal, we establish a test for admissibility of "other acts" evidence when the defendant seeks to use the evidence defensively to refute his or her identification as the perpetrator of the crime charged. Under the test, the defendant is not required to demonstrate the same degree of similarity between two incidents which the State must demonstrate when seeking to use "other acts" evidence to prove the defendant's identity. The test requires the trial court to balance the probative strength and relevancy of the "other acts" evidence against considerations of possible undue consumption of time, confusion of the issues and misleading of the jury. Because the trial court applied the stringent standards of admissibility usually imposed upon the State and denied Daniel G. Scheidell the fair opportunity to present evidence of a third-party similar crime, we reverse his conviction on one count of armed robbery while masked, §§ 943.10(2)(b) and 939.641, STATS., and one count of attempted first-degree sexual assault while masked, §§ 940.225(1)(b), 939.32 and 939.641, STATS. We remand to the trial court for a new trial.

Early in the morning the sound of window blinds crashing to the bathroom floor woke Jennifer D. She went into the bathroom and noticed that the window was open about one foot wider than when she had gone to bed. After closing the window, she went back to bed. Sometime before 5:30 a.m., she awoke to find a man straddling her. He had his hand over her mouth and she felt an object on her neck. Her t-shirt was pulled up exposing her breasts. Jennifer began to struggle with the assailant who started to hit her with an open hand while trying to pull off her panties. She was able to get one hand free and started to hit her assailant. The assailant had a mask over his face and the rest of his head was covered with a green nylon jacket.

Jennifer testified that she could see the assailant's eyes and thought she recognized the individual. She said, "Danno, what the fuck are you doing." The assailant hesitated, pulled back, but then resumed striking Jennifer. Although Jennifer was able to push the assailant off the bed, he immediately pushed her back down on the bed and then she noticed he had a knife with a serrated edge. During the struggle, she called out "Danno" at least five times; each time the assailant hesitated and then continued striking her. Jennifer was able to bend her legs and kick the assailant in the stomach, forcing him away from the bed. As the assailant walked toward the kitchen, she got off the bed and grabbed a small pistol from her dresser. When she pointed the gun at the assailant and told him to get out, he started running at her. After she cocked the pistol and told the individual that if he did not get out of the apartment she would shoot him, the assailant left the apartment.

Jennifer called the Racine police department and reported the incident. The first officer who responded got a brief account from Jennifer before he saw an individual coming down the stairs in the hallway. Jennifer was in the hallway with the police and she identified Scheidell as her assailant. Scheidell was dressed in a robe or shorts. The officer testified that Scheidell seemed like a person who had just woken up. The officer and Scheidell went upstairs into his apartment where Scheidell gave an exculpatory statement, telling the officer that the last time he had seen Jennifer was at 12:30 a.m. at a local restaurant. After further questioning and a brief search of Scheidell's apartment, he was arrested.

Scheidell was charged with one count of attempted first-degree sexual assault by threat or use of a dangerous weapon and while masked, §§ 940.225(1)(b), 939.641 and 939.32, STATS., and one count of armed burglary while masked, §§ 943.10(1)(a), (2)(b) and 939.641, STATS. On the first morning of the jury trial, the trial court conducted an evidentiary hearing on Scheidell's motion to admit evidence of a similar crime committed while he was in jail awaiting trial on the current charges. According to the offer of proof, approximately five weeks after the attack on Jennifer, Kim C. reported a similar attack. The assault occurred at 5:00 a.m. and the victim was a single white woman living alone in a lower-story apartment. The assailant apparently gained entry through a bathroom window. Like Scheidell, the individual was a slender, white male, approximately 5' 10". He concealed his identity with a mask and a jacket hood. Kim awoke to find the assailant straddling her and holding a large knife. When she screamed he told her to be quiet and she thought the voice sounded familiar. The assailant was unsuccessful in attempting intercourse. The trial court, relying upon State v. Denny, 120 Wis.2d 614, 357 N.W.2d 12 (Ct.App.1984), denied Scheidell's motion:

We don't have any showing that there's any direct connection with the crime that was perpetrated five weeks later to the crime that we are trying here today, and if you look at these, the Denny factors, I think that obviously, and when we're talking about these cases, we're talking with the major issue we're talking about is relevancy, and what they're talking about in this decision to be relevant, these three factors have to be present, and the Court can't make a ruling that these three factors are present.

During the course of the trial, a police officer testified that a left hand print was found on the bathroom wall in Jennifer's apartment near the suspected point of entry. Although the faint outline of three fingers was observable, the print was of no value for comparison purposes. On the last day of trial, Scheidell's counsel sought to admit an impression of Scheidell's left hand and to permit the jury to compare the latent print lifted by the police and the print made by Scheidell. The trial court denied both requests. It concluded that the two prints were made under different circumstances and could mislead the jury. The court also held that expert testimony would be needed to assist the jury and Scheidell's own expert testified that there were no known experts on the comparison of hand print size.

In his postconviction motion, Scheidell renewed both arguments. He asserted that the only issue in this case was the identity of the assailant. He argued that his identity as the assailant was called into question because the alleged assault of Kim C. was strikingly similar. He contended that the trial court improperly relied on Denny, which he reads to be limited to claims by a defendant that a third person had a motive to commit the crime the defendant is charged with. Concerning the hand print, Scheidell maintained that the comparison of hand print sizes was within the abilities of the jury, and the court erred in holding that an expert witness was required. The trial court denied Scheidell postconviction relief.

On appeal, Scheidell asserts that the trial court's ruling barring evidence of a similar third-party crime violated his constitutional right to present a defense. He also maintains that the trial court erred in requiring expert foundation evidence on the size of hand prints and not permitting the jury to compare the latent print with his print.

Third-Party Similar Crime Evidence

"Evidentiary rulings generally are reviewed with deference to determine whether the circuit court properly exercised discretion in accord with the facts of record and with accepted legal standards." Michael R.B. v. State, 175 Wis.2d 713, 720, 499 N.W.2d 641, 644 (1993). We will reverse such a determination only if the trial court erroneously exercises its discretion. See id. "A proper exercise of discretion consists of the court applying the relevant law to the applicable facts in order to reach a reasonable conclusion." State v. Jackson, 188 Wis.2d 187, 194, 525 N.W.2d 739, 742 (Ct.App.1994).

Whether a defendant's right to present a defense was violated is, however, a question of "constitutional fact" that we review de novo. See State v. Heft, 185 Wis.2d 288, 296, 517 N.W.2d 494, 498 (1994). "The due process rights of a criminal defendant are 'in essence, the right to a fair opportunity to defend against the State's accusations.' " State v. Evans, 187 Wis.2d 66, 82, 522 N.W.2d 554, 560 (Ct.App.1994) (quoted source omitted). The right to present evidence "is rooted in the Confrontation and Compulsory Process Clauses of the United States and Wisconsin Constitutions." Id. at 82-83, 522 N.W.2d at 560. The rights granted by the Confrontation and Compulsory Process Clauses are fundamental and essential to achieving the constitutional objective of a fair trial. See Chambers v. Mississippi, 410 U.S. 284, 294-95, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973).

Section 904.04(2), STATS., is available to a defendant to use as a shield. ¹ See State v. Johnson, 184 Wis.2d 324, 336, 516 N.W.2d 463, 466 (Ct.App.1994). Scheidell defended in the trial court on the theory of misidentification. His attempt to use the later crime was for the purpose of establishing, by the similarity of the conduct and assailant in each incident, that one person was responsible for both crimes, and he was not that person because he was in jail when the later crime was committed. Scheidell wants to use "other acts" evidence to exonerate himself. This defensive use...