This is a per curiam decision, so it may NOT be cited in any court of this state as precedent or authority, § 809.23(3)(a) and (b). But we’re bringing it to your attention because the issues may be of interest to trial lawyers and because it is a rare, if not mythical, beast—a reversal for plain error because the testimony of a state’s witness violated State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984).
Hirsi was charged with various offenses arising from a shooting during which a passenger in one car fired shots into another car; the shooter’s car then fled the scene. When it was located a few hours later it was being driven by Guled Abdi; Hirsi was in the passenger seat. Abdi said Hirsi was the shooter, but Hirsi denied it, and none of the people in the car that was shot at said he was the shooter. (¶¶3-10).
All of the people involved in the incident were Somalian, so the state called an expert to testify about Somali culture and the criminal justice system. She said Somalians don’t trust law enforcement and settle things amongst themselves, and thus “have a tendency to fabricate certain events so as to avoid retribution within their community.” (¶11). Citing the expert, the state argued the witnesses who didn’t identify Hirsi were not telling the truth. (¶¶12-13).
The court of appeals agrees with Hirsi that the expert’s testimony infringed on the jury’s role in determining credibility and that state’s argument was especially prejudicial because it was based on race or ethnicity:
¶19 …. [W]e agree with Hirsi that the State’s elicitation of testimony that Somalis have a tendency to fabricate events constituted a Haseltine violation, and that the objectionable testimony was exacerbated by the State specifically invoking it in its closing argument. To explain, it is plain that Henry’s testimony was elicited to impugn the credibility of the witnesses who either stated they could not identify Hirsi as the shooter or affirmatively stated he was not the shooter. Indeed, that is the exact purpose for which the State referenced Henry’s testimony in its closing argument, telling the jury that it should not believe Aaden’s testimony that Hirsi was not the shooter because he was “making it up to protect the Defendant. Why? I don’t know why the cultural bias is that. But you heard the testimony of Tracy Henry about that.” Moreover, the State’s framing of the issue shows that witness credibility was no small matter—in fact, the State told the jury that its credibility determination was what “this case really comes down to.”
¶20 We also generally agree with Hirsi’s argument that the racial and ethnic aspect of Henry’s testimony raises heightened prejudice concerns, as such a notion is firmly supported by our case law. For example, in State v. Burton, 2007 WI App 237, ¶16, 306 Wis. 2d 403, 743 N.W.2d 152, we reversed a defendant’s conviction based upon expert testimony the State introduced “to put a context on who some of [the trial witnesses] are we’re dealing with … why this culture wants to cooperate with [law enforcement], why they don’t, why their stories are different on the street than when they hit a courtroom.” Id., ¶4 (emphases added). In doing so, we explained that such testimony is “unfairly prejudicial” and stated that we “see little, if any probative value in this sort of testimony.” Id., ¶17. Further, in explaining our “view of the low worth of such evidence,” we noted:
The possibilities of such testimony are almost endless— involving the characteristics and motivations of various racial, ethnic, professional, and religious groups, as well as organizations as different as the Boy Scouts and the Compton Crips. The law has wisely looked askance at evidence of group tendencies and motives to lie—or tell the truth—when making credibility judgments about individual members of those groups. The relevance of such group tendencies in predicting a witness’s credibility on a given occasion is extraordinarily weak. Meantime the potential prejudice—in favor of certain groups and organizations and against others—is extraordinarily powerful.
Id., ¶17 (emphases added).
This issue had to be raised on appeal as plain error because Hirsi represented himself at trial and didn’t object to the expert or the state’s closing argument. (¶¶11, 16). The state’s response focused on the lack of objection, and made no attempt to defend the admission or use of the expert’s testimony, so the court of appeals deemed the state to have conceded Hirsi’s arguments. The state also failed to develop a harmless error argument, and the court appropriately declines to develop such an argument on its own. (¶¶21-24).
Because they will likely arise at retrial, the court also addresses three issues related to the admission of other-acts evidence about Hirsi’s involvement in a different shooting two days before the incident in this case. The court holds the evidence was admissible for a proper purpose (identity). (¶¶26-33). Also, it rejects Hirsi’s argument that the trial court was required to instruct the jury that he was acquitted of charges arising from that incident; instead, at retrial, the circuit court should exercise its discretion as to whether to give that instruction. (¶¶34-37). Finally, the court holds there was sufficient foundation for detectives to identify Hirsi as the person in surveillance video of the other shooting. (¶¶38-44).