The state wins its appeal of two circuit court orders, one excluding the use of preliminary hearing testimony of a witness who is now dead, the other excluding other-acts evidence.
Smogoleski is charged with sexual assault of “Emily,” who was under the influence of an intoxicant. The alleged assault occurred at an underage drinking party, and “Jon” was a witness to it. Jon testified at Smogoleski’s preliminary hearing, but died a month later. The circuit court denied the state’s request to use Jon’s prelim testimony at trial.
The limited scope of preliminary hearings—plausibility, rather than credibility or general trustworthiness—usually creates a Confrontation Clause problem. State v. Stuart, 2005 WI 47, ¶¶30-31, 279 Wis. 2d 659, 695 N.W.2d 259. Not here:
¶11 We conclude that Smogoleski’s cross-examination of Jon was not so restricted, and he had an “adequate opportunity” to cross-examine Jon at the preliminary examination. Crawford [v. Washington], 541 U.S. [36,] 57 [(2004)]. As an initial matter, we note that Smogoleski originally waived his right to a preliminary examination. After receiving discovery, however, defense counsel and the State stipulated that a preliminary examination was warranted. As a result, the circuit court, rather than a court commissioner, presided over Smogoleski’s preliminary examination. This also meant that prior to the preliminary examination, defense counsel had all the police reports, including audio recordings, which allowed counsel to engage in a much more thorough cross-examination.
¶13 Smogoleski’s counsel was given great leeway by the State and the circuit court to cross-examine Jon at the preliminary examination. To give some perspective, the State’s questions on direct examination consist of fourteen pages of transcript; defense counsel’s cross-examination consists of twenty-six pages. Defense counsel asked Jon no less than thirty-two questions relating to what, where, and how the genital parts of Smogoleski and Emily were touching. Defense counsel asked no less than thirty-nine questions about Jon’s statements to police (Jon had two interviews with police) and discrepancies in the police reports versus his preliminary examination testimony. Defense counsel asked no less than nine questions relating to Jon’s ability to see in the dark bedroom; no less than sixteen questions relating to Emily’s level or degree of intoxication; no less than four questions about statements that Smogoleski made to Jon about the fact that he and Emily were going to “fuck”/“have intercourse”; questioned Jon as to his level of intoxication; questioned Jon as to whether the person who told Jon that Smogoleski went into the bedroom with Emily was intoxicated; questioned Jon as to his party being “illegal”; and questioned Jon as to his conversations with Emilyabout Emily being “raped.”
Not that the state didn’t object to some of Smogoleski’s questions. It objected 10 times, 7 on grounds of “asked and answered” and 3 on relevance. All the relevancy objections were sustained. The court itself stopped one question without an objection on the grounds it was argumentative. (¶14). While the relevancy objections could in theory have limited the adequacy of Smogoleski’s cross-exam, they didn’t here because his lawyer was able to ask other questions that got at the same points. (¶15).
On the other-acts issue, the state sought to introduce testimony of another woman who passed out at a different party and awoke to find Smogoleski having sexual contact with her. The court of appeals holds the circuit court erroneously exercised its discretion in holding the evidence didn’t satisfy the third prong under State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998). First, the circuit court implied that the greater-latitude rule didn’t apply because both Smogoleski and the witness were under the age of 18 at the time, which is “absolute error,” per the court of appeals. (¶¶19, 21). The circuit court also misapplied the legal standard used under the third prong:
¶22 …. The court, in its recitation of the rule, reversed the language of the third prong; it is not a requirement that the probative value outweigh the risk of unfair prejudice. Instead, the unfair prejudice must outweigh the probative value: The question is whether “the probative value of the other acts evidence [is] 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.” Sullivan, 216 Wis. 2d at 772-73 (emphasis added). “The term ‘substantially’ indicates that if the probative value of the evidence is close or equal to its unfair prejudicial effect, the evidence must be admitted.” State v. Payano, 2009 WI 86, ¶80, 320 Wis. 2d 348, 768 N.W.2d 832 (citation omitted). Further, we note that the court only referenced the “danger of prejudice” or the “danger of prejudicial effect” in its oral decision. The appropriate consideration is whether the evidence is unfairly prejudicial. As our supreme court explained, “[t]he determination of unfair prejudice must be made with great care because ‘[n]early all evidence operates to the prejudice of the party against whom it is offered…. The test is whether the resulting prejudice of relevant evidence is fair or unfair.” Id., ¶88 (second alteration in original; citation omitted). To the extent the court only weighed the danger of prejudice rather than unfair prejudice, the circuit court erred.
Having found the circuit court erroneously exercised its discretion, the court of appeals has no trouble going on to exercise discretion on its own and to find the state’s other-acts evidence is admissible under the third prong. (¶¶23-24).