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Erroneous admission of other acts evidence was harmless; letter written by attorney to victim at defendant’s behest was properly admitted

State v. Jeffrey A. Adamczak, 2013 WI App 150; case activity

Admission of other acts evidence

Adamczak was charged with sexual exploitation by a therapist in violation of Wis. Stat. § 940.22 for having sexual contact with Sabrina. He testified the contact occurred, but only after the patient-therapist relationship was over. (¶¶3, 5). Before trial the state moved to admit the testimony of Sarah and Gail, two other patients of Adamczak’s who said he made “inappropriate [sexual] comments” to them during treatment sessions. Applying State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998), the trial court granted the state’s request. (¶¶4, 10-12).

The court of appeals holds the trial court erroneously exercised its discretion. First, the testimony was not offered for an acceptable purpose. The fact the comments were not the type a therapist would make to a patient was not, as the trial court thought, a proper purpose; moreover, the allegations were also dissimilar to the alleged criminal conduct and so did not show motive and intent, as the state claimed. (¶14). Second, the testimony was irrelevant:

¶15      ….  The statements made to Gail and Sarah established that Adamczak might have engaged in boorish behavior towards the two women, but they throw no light on when Adamczak began having sexual contact with Sabrina. As noted, at trial Gail testified that Adamczak never touched, hugged, or kissed her, and never sought to contact her. The same is true with Sarah. Adamczak never touched or kissed her, nor did he contact her. Thus, as Sullivan instructs, their testimony does not have “a tendency to make the consequential fact or proposition more probable or less probable than it would be without the evidence,” see id., because “the probative value lies in the similarity between the other act and the charged offense,” see id. at 786. Here, there is little similarity between the other acts evidence and the charged offense.

But the court’s erroneous exercise of discretion was harmless. Besides the fact that the lack of sexual contact with Gail and Sarah undermined the state’s claim that Adamczak used his position as a therapist to obtain sexual contact with patients, their testimony paled in comparison to the other acts testimony of yet another patient, Christie, who alleged contact exactly like that Sabrina described and whose testimony Adamczak did not challenge. Further, “numerous email exchanges between Sabrina and Adamczak strongly pointed to sexual contact while Sabrina was still his patient.” Thus, the court concludes there was no reasonable possibility that the admission of testimony from patients Gail and Sarah contributed to the conviction. (¶¶17-18).

Admission of letter written to victim by defense counsel

Trial counsel was not ineffective for failing to object to the admission of the letter he sent to Sabrina before charges were filed in which he claimed to be concerned about Adamczak’s mental health due to the issue between Adamczak and Sabrina and suggests that a solution can be found that would not require Sabrina to report Adamczak. (¶¶3, 19). First, the court rejects the argument the letter was improper hearsay:

¶22      There is evidence in the record that Adamczak approved Attorney Boyle writing the letter to Sabrina. Therefore, the letter falls clearly within Wis. Stat. § 908.01(4)(b)3 as a “statement by a person authorized by the party to make a statement concerning the subject.” Here, Adamczak authorized Attorney Boyle to make a statement, i.e., write a letter to Sabrina, concerning her decision to report Adamczak to the authorities. Consequently, the letter was admissible. Trial counsel is not ineffective for failing to bring meritless challenges. State v. Berggren, 2009 WI App 82, ¶21, 320 Wis. 2d 209, 769 N.W.2d 110.

The court also rejects the claim that allowing the letter to be read to the jury “put defense counsel in the position of being an unsworn witness whose credibility was implicitly at issue.” (¶19). Instead, the court concludes, Sabrina testified she did not know what the letter meant, and in any event defense counsel “argued convincingly in his closing argument as to why he sent the letter.” (¶24). Thus, it is “sheer speculation” to believe the letter was seen by the jury as an attempt to bribe or intimidate Sabrina that would have prejudiced the jury against defense counsel and, by extension, the defendant. (¶24).

But isn’t the fact that defense counsel undertook to explain in closing argument why he sent the letter prove that he did become an unsworn witness? And while the court of appeals thought he argued the point “convincingly,” doesn’t that simply underscore the fact that the jury was put in the position of judging defense counsel’s credibility? Furthermore, Sabrina’s testimony about the letter–reproduced in ¶24 of the opinion–seems hardly so benign as the court suggests. She said she ultimately didn’t know what to think, but she also clearly considered, and apparently didn’t dismiss, the possibility the letter was meant as a bribe or intimidation. It’s hard to see why the court concludes from this that she “[c]learly” didn’t believe the letter was meant as either of those things. Of course, even if the court’s reasoning here is quite unsatisfactory, it may be that the admission of the letter, like the admission of the testimony of Gail and Sarah, was harmless (or more precisely, not prejudicial).

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