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Particular Examples of Misconduct, § 904.04(2) – Bias of Prosecution Witness

State v. Walter T. Missouri, 2006 WI App 74
For Missouri: Jeffrey W. Jensen

Issue: Whether evidence of police officer Mucha’s mistreatment of a 3rd-party (Scull) in an otherwise unrelated but similar instance was admissible to further defendant Missouri’s claim that Mucha was untruthful in denying physical abuse against and planting evidence on Missouri.

Holding: This evidence satisfied the three-part test of  State v. Sullivan, 216 Wis. 2d 768, 772-73, 576 N.W.2d 30 (1998) (1. acceptable purpose; 2. relevance; 3. probative value not substantially outweighed by unfair prejudice).

Acceptable purpose. Although “Scull’s testimony could not be admitted for the purpose of showing that because Mucha mistreated Scull, he also must have mistreated Missouri …, § 904.04 does allow character evidence to be admitted for other purposes,” ¶14:

¶15      Specifically, “other-acts” character evidence can be admitted to show “proof of motive … intent … or absence of mistake or accident.” WIS. STAT. § 904.04(2).  It can also be admitted to show the bias or prejudice of a witness.  State v. Williamson, 84 Wis. 2d 370, 383, 267 N.W.2d 337 (1978). Here, the defense wanted to introduce Scull’s testimony to show that Mucha had a motive to lie and cover up what he had done, and that this was intentional, not the result of mistake or accident. The Scull evidence would also be used to show that Mucha intended to frame Missouri for a crime, which occurred because Mucha’s prejudice toward black people causes him to commit physical assaults and use excessive force. We conclude that the Scull evidence satisfied the “other purpose” prong of the Sullivan test.


¶16      We also conclude that the Scull evidence was relevant to a consequential fact. Here, the Scull testimony is very similar in substance and time to what occurred in the instant case. The Scull testimony would be very relevant in questioning Mucha’s credibility and truthfulness. It would be relevant to show that Mucha had a motive to lie about what happened between him and Missouri, that Mucha had the intent to frame Missouri for a crime he did not commit, and that Mucha’s conduct was not an accident. Thus, we also conclude that the second prong of the Sullivan test is satisfied.

Unfair prejudice.

¶17      The final prong addresses whether the probative value of the Scull testimony would be substantially outweighed by the danger of unfair prejudice, waste of time or confusing the jury. See WIS. STAT. § 904.03. Would it unfairly prejudice the State to allow Scull’s testimony? We think not. The State, like this court, operates with the priority of searching for truth and justice. Our system depends upon all witnesses being forthright and truthful and taking seriously the oath to tell the truth when testifying in a legal proceeding. Evidence that challenges the credibility of a State’s witness promotes that goal and cannot be summarily dismissed as overly prejudicial. When the jury hears all of the witnesses who can provide relevant information on the issues, it can make a fair assessment as to who is being truthful. This is of particular importance in a case that relies primarily on whether the officer or the defendant is telling the truth. It is not appropriate for this court, nor was it appropriate for the trial court, to assume that the defendant was lying and the officer was telling the truth. Resolution of credibility issues and questions of fact must be determined by the factfinder.

Missouri’s break. But it might be worth recalling that “bias or prejudice of a witness is not a collateral issue[,] and extrinsic evidence may be used to prove that a witness has a motive to testify falsely,”  State v. Tito J. Long, 2002 WI App ¶18, quoting  State v. Williamson, 84 Wis. 2d 370, 383, 267 N.W.2d 337 (1978); also,   State v. Jon P. Barreau, 2002 WI App 198, ¶51 (potential bias of witness relevant). This case seems to be a variation on that theme, illustrating if nothing else the idea that there are fewer restrictions on evidence of bias than on other types of “character” evidence. Nonetheless, the fact that the court engages full-blown Sullivan  analysis before finding admissibility is potentially problematic, and if nothing else raises the question of when that test must be satisfied where the claim is one of bias. Certainly Missouri’s claim is a bit more removed than most, in that bias was arguably indirect (as opposed to, say, a prior hostile relationship between witness and defendant). But that distinction isn’t entirely satisfying. Long is instructive. There, the State sought to show that defense witness were gang members and thus sworn to “a street code of silence among gang members in relating to police.” The court did not bother with Sullivan analysis, but instead hinged admissibility merely on the fact that the witness was affiliated with the gang, ¶19. Again: evidence of bias is always relevant. Proving it, of course, is something else. And when you get right down to it, proof of bias in Long was “indirect.” What, then, of Missouri? His argument was apparently a very narrow one, and perhaps that explains the holding:

¶22      In addition, “[t]he bias or prejudice of a witness is not a collateral issue and extrinsic evidence may be used to prove that a witness has a motive to testify falsely.”  Williamson, 84 Wis. 2d at 383. The defense here argued that Mucha had a bias or prejudice against black people who were not immediately compliant with his orders. Thus, that bias/prejudice can be explored through extrinsic evidence to attack Mucha’s character. As long as this evidence is direct and positive and not remote and uncertain, it may be received to discredit the testimony of the witness.  See id. at 383 n.1. Here, we are convinced that the Scull testimony satisfies these requisites. Thus, we conclude that the trial court erroneously exercised its discretion in refusing to allow the defense to present its witnesses who would have attacked the credibility of Officer Mucha. The jury should hear the defense witnesses so that it can make a fair and informed determination as to what truly happened in this case.

You would think, too, that a cop’s statement, “I can come over here any time I want, nigger,” ¶6, establishes bias a bit deeper than against merely non-compliant African-Americans. (Missouri’s race isn’t explicitly noted in the opinion, but CCAP confirms that he’s African-American.) Why isn’t the epithet alone enough to show that Scull had a demonstrative animus against African-Americans? And if that’s so, then why isn’t thatalone enough to support admissibility. (It might also have been said that the mere multiplicity of instances of misconduct increased the risk of job loss, thus creating an additional incentive to lie.) But without knowing the record it is impossible to say for certain. If the claim is one of bias against the non-compliant, then it will surely be necessary to show a closely similar instance of non-compliance. And if that is all that Missouri argued, then the court’s analysis is understandable. But the the court’s stress on defense proof of something “very similar in substance and time to what occurred in the instant case” is potentially problematic if meant to apply generally to claims of bias; at the least, the holding shouldn’t be extended beyond these very particular facts. (The court also holds admissible on grounds of newly discovered evidence, four other instances of similar misconduct involving Mucha, ¶¶23-25; the court essentially incorporates the same analysis: “closeness in time, the similarity of” facts.)

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