State v. Sullivan
| Decision Date | 25 March 1998 |
| Docket Number | No. 96-2244-CR,96-2244-CR |
| Citation | 216 Wis.2d 768,576 N.W.2d 30 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Kevin P. SULLIVAN, Defendant-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
For the defendant-appellant-petitioner there were briefs and oral argument by Steven D. Phillips, Assistant State Public Defender.
For the plaintiff-respondent the cause was argued by William C. Wolford, Assistant Attorney General with whom on the brief was James E. Doyle, Attorney General.
This is a review of an unpublished decision of the court of appeals, State v. Sullivan, No. 96-2244-CR, unpublished slip op., 1997 WL 134599 (Wis.Ct.App. Mar. 26, 1997), affirming judgments of conviction of the Circuit Court for Kenosha County, S. Michael Wilk, Judge.
This case involves the admissibility of "other acts" evidence under Wis. Stat. § (Rule) 904.04(2)(1995-96). 1 Kevin P. Sullivan, the defendant, was convicted of battery to a woman with whom he was romantically involved (hereafter, the complainant) and of disorderly conduct. 2 The other acts evidence admitted was the testimony of the defendant's ex-wife and a neighbor that two years earlier the defendant had abused his ex-wife, not physically, but by using insulting and intimidating words including threats to assault her.
Two issues are raised in this review. First, did the circuit court erroneously exercise its discretion in admitting the other acts evidence? See Wis. Stat. §§ (Rule) 904.04(2) and 904.03. Second, if the circuit court erred in admitting the other acts evidence, was the error harmless?
The first issue, the admissibility of other acts evidence, is addressed by using the three-step analysis set forth below. This analytical framework (or one substantially similar) has been spelled out in prior cases, 3 in Wis. JICriminal No. 275 Comment at 2 (Rel. No. 28--12/91) and in Wis. JICriminal No. 275.1 Comment: Other Acts Evidence (Rel. No. 24-1/90).
The three-step analytical framework is as follows:
(1) Is the other acts evidence offered for an acceptable purpose under Wis. Stat. § (Rule) 904.04(2), such as establishing motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident?
(2) Is the other acts evidence relevant, considering the two facets of relevance set forth in Wis. Stat. § (Rule) 904.01? 4 The first consideration in assessing relevance is whether the other acts evidence relates to a fact or proposition that is of consequence to the determination of the action. The second consideration in assessing relevance is whether the evidence has probative value, that is, whether the other acts evidence has a tendency to make the consequential fact or proposition more probable or less probable than it would be without the evidence.
(3) Is the probative value of the other acts evidence substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence? See Wis. Stat. § (Rule) 904.03.
If the other acts evidence was erroneously admitted in this case, the second issue presented is whether the error is harmless or prejudicial.
The circuit court admitted the other acts evidence. The court of appeals affirmed the judgments of conviction of the circuit court. For the reasons set forth, we reverse the decision of the court of appeals. We conclude as follows:
(1) The other acts evidence in this case was proffered to establish the defendant's intent or absence of accident under Wis. Stat. § (Rule) 904.04(2).
(2) With regard to relevance, the other acts evidence relates to a consequential fact in this case, namely the defendant's intent or absence of accident. The other acts evidence is dissimilar enough from the incident upon which the charged offenses were based that the evidence is not probative of the defendant's intent or absence of accident.
(3) Even if the other acts evidence had probative value with regard to the defendant's intent or absence of accident, the probative value of the other acts evidence is substantially outweighed by the prejudicial effect to the defendant.
(4) The admission of the other acts evidence in this case is reversible error.
We first comment on the circuit court's and the court of appeals' mode of addressing other acts evidence. In this case, the circuit court admitted the other acts evidence. Although the prosecutor, the proponent of the evidence, and the circuit court referred to the three-step framework described above, they failed to relate the specific facts of this case to the analytical framework. The prosecutor and the circuit court did not carefully probe the permissible purposes for the admission of the other acts evidence; they did not carefully articulate whether the other acts evidence relates to a consequential fact or proposition in the criminal prosecution; they did not carefully explore the probative value of the other acts evidence; and they did not carefully articulate the balance of probative value and unfair prejudice.
The proponent and the opponent of the other acts evidence must clearly articulate their reasoning for seeking admission or exclusion of the evidence and must apply the facts of the case to the analytical framework. The circuit court must similarly articulate its reasoning for admitting or excluding the evidence, applying the facts of the case to the analytical framework. This careful analysis is missing in the record in this case and has been missing in other cases reaching this court. Without careful statements by the proponent and the opponent of the evidence and by the circuit court regarding the rationale for admitting or excluding other acts evidence, the likelihood of error at trial is substantially increased and appellate review becomes more difficult. The proponent of the evidence, in this case the State, bears the burden of persuading the circuit court that the three-step inquiry is satisfied.
The court of appeals affirmed the judgments of the circuit court, concluding that the other acts evidence was relevant to the issues of intent and absence of accident and was admissible to show the defendant's propensity to commit the charged offenses. See Sullivan, unpublished slip op. at 9-10. In reaching this conclusion, the court of appeals expressed concern that the supreme court and the court of appeals over the years have chipped away at Whitty v. State, 34 Wis.2d 278, 149 N.W.2d 557 (1967), this court's seminal decision regarding other acts evidence. Referring to State v. Friedrich, 135 Wis.2d 1, 398 N.W.2d 763 (1987), and State v. Plymesser, 172 Wis.2d 583, 493 N.W.2d 367 (1992), the court of appeals concluded that Sullivan, unpublished slip. op. at 7-8. 5
In light of the decision and comments of the court of appeals, we take this opportunity to reaffirm the vitality of Wis. Stat. § (Rule) 904.04(2) and Whitty, as both the State and the defendant have urged us to do.
The defendant was convicted after a jury trial of battery to the complainant contrary to Wis. Stat. § 940.19 and disorderly conduct contrary to § 947.01. The conviction stems from an incident which occurred in the early morning hours of October 3, 1994, between the defendant and the complainant, his then girlfriend.
The complainant and the deputy sheriff who responded to the complainant's call for help gave different accounts of what happened that day.
According to the deputy, on October 3, 1994, at approximately 5:20 a.m., he responded to a call made from the American Legion Hall in Silver Lake. Inside the Legion Hall, he found the complainant upset and crying. The deputy observed that the complainant's lips were swollen and bloody and that there were blood spots on her left cheek. The inside of her mouth was also cut. The deputy photographed the complainant's injuries. 6
The deputy testified that the complainant said she and the defendant had been fighting and that she feared the defendant. According to the deputy, the complainant said she and the defendant had been out earlier that night, the defendant had started drinking, and she had left him to go home. The complainant also told the deputy that the defendant becomes hostile and violent when intoxicated.
According to the deputy, the complainant said she went to bed and awoke to find the defendant standing over her. She attempted to leave the bedroom, but the defendant pushed her back onto the bed. When she tried again to leave, he punched her in the mouth. She pleaded with him to let her leave the house, but he punched her in the cheek.
According to the deputy, the complainant said that at one point she told the defendant she was going to call the sheriff's department, whereupon the defendant pulled the telephone cord out of the wall. The complainant stated that the defendant kept her in the bedroom for about 30 minutes, after which time he fell asleep; she then ran from the house, got into the defendant's car and drove to the American Legion Hall. The bartender there called for help. According to the deputy, the complainant said she had been in such a panic to get away from the defendant that she drove through the yard and over a small fence.
The deputy further testified that the complainant said she did not want the defendant to be arrested or charged. She refused to give the deputy a written statement and refused medical treatment. The complainant said she wanted only to be safe from the defendant and to have him out of her house. She gave the deputy permission to go to her house to find the defendant.
The deputy testified that when he arrived at the...
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State v. Johnson
...of undue delay, waste of time or needless presentation of cumulative evidence? See Wis. Stat. § (Rule) 904.03. State v. Sullivan, 216 Wis. 2d 768, 772-73, 576 N.W.2d 30 (1998) (footnote omitted). ¶33 Johnson contends this evidentiary decision should be reviewed de novo because it implicates......
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...the beneficiary of the error, bears the burden of proving beyond a reasonable doubt that the error was harmless. State v. Sullivan, 216 Wis.2d 768, 792, 576 N.W.2d 30 (1998); see also Arizona v. Fulminante, 499 U.S. 279, 306-08, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (harmless error doctrin......
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...to introduce against the defendant under Wis. Stat. § 904.04(1)(b) and (2) is handled in a similar fashion. See State v. Sullivan, 216 Wis.2d 768, 576 N.W.2d 30 (1998). 10. Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 11. In State v. Wright, the court of appeals noted the......