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Evidence of citizen complaints against arresting officer was not admissible to impeach officer’s truthfulness

State v. Richard P. Hessil, 2013AP944-CR, District 2, 10/23/13; court of appeals decision (1-judge; ineligible for publication); case activity

Hessil, charged with resisting an officer, disorderly conduct, and failure to obey a traffic officer, unsuccessfully moved to admit evidence of citizen complaints and police employment records to cast doubt on the arresting officer’s character for truthfulness, citing Wis. Stat. §  904.04(2). The evidence Hessil sought to admit included allegations of theft from an arrestee, excessive use of force during a traffic stop, inaccuracies and misstatements in reports, a profiling stop, entering a home without a warrant, and threatening family members of suspects with charges. (¶¶6-7). Hessil claimed that the officer, Brian Pergande, was the aggressor, that Pergande’s testimony about what happened during their altercation was a lie, and that the other acts were relevant and probative to what he wanted to prove to the jury. He relied on State v. Missouri, 2006 WI App 74, ¶¶5-12, 22, 291 Wis. 2d 466, 714 N.W.2d 595, which held a defendant who claimed an officer attacked him without provocation and planted contraband on him should be able to present evidence of similar unprovoked attacks by the officer because the evidence was relevant to a consequential fact: The officer might have a motive to lie about unprovoked attacks on citizens.

The court of appeals rejects Hessil’s claim. Applying the “other acts” test under State v. Sullivan, 216 Wis. 2d 768, 772-73, 576 N.W.2d 30 (1998), the court concludes that four of the five specific allegations about Pergrande don’t meet the second part of the test–relevance to the proposition that Pergande was the aggressor and had a motive to lie about his aggressiveness. They also fail the third part of the test because they would have involved confusing “minitrials” about the allegations or their probative value, if any, was outweighed by the danger of unfair prejudice. (¶¶13-16). The one specific allegation that does meet the second prong–relevance to Pergande’s proclivity for unprovoked pugnaciousness–still fails the third prong:

¶17      …. First, it is only one complaint. That hardly shows a penchant for unprovoked violence and lying to cover it up. It does not show that Pergande is the doppelganger of the officer who allegedly assaulted Missouri and numerous others. Second, we have no idea as to the outcome of the complaint.  It was a mere allegation by a person subject to a third-time operating while intoxicated charge.  We do not know if that person’s credibility was tested by cross-examination or anything else about it for that matter. …

¶18      …. Not only is it only one complaint of which we do not know the outcome, if evidence of this complaint were admitted, the trial court would need to preside over a trial within a trial. We agree with the trial court that this would distract from the question of whether Hessil is guilty of the charges alleged against him. Because the complaint is unsubstantiated, it is inherently unreliable and could only unfairly prejudice the jury.

Nor does a recent newspaper article revealing additional alleged improprieties by Pergande constitute newly discovered evidence. As with four of the five episodes Hessil sought to admit at trial, the newly discovered evidence is in no way similar to the character trait that Hessil was trying to show the jury. (¶19).

A technical note about the basis for admissibility under the Rules of Evidence: The court says it agrees with Daniel Blinka that although Missouri “framed its analysis in terms of Wis. Stat. § 906.08(2), the decision ‘is best analyzed as an instance of permissible bias (blatant self-interest) impeachment.’” (¶11, quoting 7 Daniel Blinka, Wisconsin Practice Series § 608.2, at 481 n.4 (3d ed. 2008)). It overstates the matter to say Missouri “framed” its analysis in terms of § 906.08(2), as the decision was based primarily on Sullivan and § 904.04. Missouri, 291 Wis. 2d 466, ¶¶13-19. The § 906.08(2) discussion is lagniappe. Id., ¶¶20-21.

Be that as it may, under § 906.08(2) a witness’s character for truthfulness or untruthfulness may be inquired into on cross by asking the witness about previous specific instances of untruthful conduct–such as fraud, misrepresentation, or lying–that are not remote in time. The conduct can’t be proven with extrinsic evidence, so the cross-examiner is bound by the witness’s answer. Blinka, at 481-82 & n.4; see also, e.g., McClelland v. State, 84 Wis. 2d 145, 155-56, 267 N.W.2d 843 (1978). In Missouri the evidence the defendant sought to present was relevant to establishing the officer’s alleged pattern of similar misconduct and specific motivation to lie about it, not to establish that the officer had engaged in specific instances of conduct probative of untruthfulness. While some of the evidence Hessil was seeking to elicit might have been admissible under § 906.08(2)–for instance, the allegations of theft from arrestees–there’s no indication from the opinion or the parties’ briefs that he tried to get that evidence in by cross-examining Pergande about the allegations.

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