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Instructions — Omitted Element — “Fact-Law Distinction”

See summary of State v. Thomas Scott Bailey Smith, Sr., 2005 WI 104, here.

Omitted Issues – Stalking: Submission to Jury of Prior Conviction for “Violence” Despite Stipulation

State v. Jeffrey A. Warbelton, 2009 WI 6, affirming 2008 WI App 42

For Warbelton: Paul G. Lazotte, SPD, Madison Appellate

Issue/Holding: On a trial for stalking, where one of the elements is prior conviction for “violent crime,” the defendant may blunt prejudicial impact of proof of the prior by stipulating to the existence of the conviction for a violent crime (thus precluding proof of its details), but may not bar altogether submission to the jury of the stipulation:

¶52      In McAllister, the court of appeals addressed the felon in possession of a firearm statute, Wis. Stat. § 941.29, in which one of the elements is a prior conviction of a felony. The court reasoned that evidence offered to prove the element is always relevant. McAllister, 153 Wis.  2d at 529. However, the statute required proof only of the fact of a prior felony conviction. The type of felony conviction and narrative details regarding the felony conviction were not relevant to prove the felon in possession of a firearm charge. Id.¶53      … When the defendant agrees to a sanitized stipulation admitting the prior conviction, there is no need for further proof relating to the nature of the conviction.

¶54      Here, Warbelton offered to stipulate to the fact that he had a prior conviction for a violent crime. The State agreed to the stipulation, and the court determined that evidence about the nature of the prior conviction would not be before the jury. Although Warbelton’s 1995 judgment of conviction was entered into evidence, it was not published to the jury. The jury was told only that Warbelton had been convicted of a violent crime, and that the stipulation was conclusive proof. This procedure was proper under McAllister and Old Chief.

That leaves the little matter of State v. Alexander, 214 Wis. 2d 628, 571 N.W.2d 662 (1997), which holds that on OWI trial, the existence of priors may be stipulated out of the jury’s sight and sound completely:

¶46      Despite the parallels between Alexander and this case, we decline to extend Alexander’s holding to the stalking statute. Alexander is limited to prosecutions for driving while under the influence of an intoxicant or with a prohibited alcohol concentration. In these unique cases, the risk of unfair prejudice is extremely high, given the likelihood that jurors will make prohibited inferences based on the fact of multiple prior convictions, suspensions, or revocations.

¶48      These likely inferences are at the heart of Wis. Stat. § 904.04, [19] the rule that prohibits a verdict based not on proof of the charged offense, but rather on the defendant’s propensity to commit bad acts. In contrast, the element of the stalking statute that requires proof of a prior violent crime does not pose equivalent risks. Here, the jury is not likely to infer that because the defendant was convicted of a prior violent crime, it was a stalking offense. The prior offense could be one of a number of violent offenses. Additionally, the statute does not require multiple prior offenses, and therefore does not suggest a pattern of behavior. Finally, because the element does not imply a particular habit, jurors are unlikely to return a guilty verdict despite insufficient evidence of the crime charged.

But: a few paragraphs earlier, the court canvassed “the legislative history of stalking statutes in Wisconsin and nationally,” ¶34, stressing widespread recognition that stalkers often commit increasingly … you guessed it, violent acts, ¶36. Nope, conviction of a prior violent crime, where there’s a general understanding of stalkers’ tendency toward escalating violence, would mean little if anything to the jury. We are left, then, with Alexander as sui generis; better than nothing, given that it could have been overruled.

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