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Preservation of Issue: Offer of Proof

State v. Shon D. Brown, 2003 WI App 34, PFR filed 2/3/03
For Brown: Robert T. Ruth

Issue/Holding: Where defendant was charged with theft and operating without consent relating to property and a vehicle that he had permission to take but failed to deliver to the agreed out-of-state destination, his proffer that he drove to a truck stop where he abandoned the vehicle was insufficient to preserve the issue of whether the trial erred in excluding his testimony due to failure to comply with notice of alibi requirement, § 971.23(8)(a) and (b):

¶16. We conclude, however, that there is a threshold problem in our consideration of whether Brown’s proposed testimony constitutes an alibi for purposes of Wis. Stat. § 971.23(8). Although the State does not expressly argue that Brown made an insufficient offer of proof to preserve for appellate review the claimed error in the exclusion of his proposed testimony, its argument strongly suggests that is the case. The State notes in its argument, for example, that “Brown’s proffer does not even indicate where Brown allegedly abandoned the truck, when he did so or what he meant by having or seeking `better prospects.'” The only indications in the record of what testimony Brown proposed to give were a one-sentence paraphrase by his counsel (“I drove the truck there and I abandoned it for better prospects.”) and the court’s similarly terse summary (“[H]e did have possession of the vehicle, left the vehicle at a truck stop and left the keys and left.”). …¶19. Brown did not request an opportunity to give his testimony outside the presence of the jury as an offer of proof, and he did not submit an affidavit or other statement detailing what he planned to say. We thus do not know when or where Brown would have claimed he abandoned the truck, or whether he would have attempted to give an account of his subsequent movements. It is therefore difficult for us to determine whether his testimony would have truly constituted an alibi (“I was elsewhere.”) as the State claims, or simply an attempt to negate certain elements of the charged offenses, as Brown suggests. Without a proper offer of proof, neither we nor the trial court can know with certainty what the contours of Brown’s testimony would have been, or whether his testimony and the cross- examination it would necessarily invite, taken as a whole, would constitute an alibi defense.

¶20. In short, we conclude that Brown’s offer of proof was inadequate for us to conclude on appeal that the testimony he wanted to give was not an alibi requiring notice under Wis. Stat. § 971.23(8). See, e.g., State v. Robinson, 146 Wis. 2d 315, 329, 431 N.W.2d 165 (1988) (concluding “that the offer of proof by the defendant did not state an evidentiary hypothesis underpinned by a sufficient statement of facts to enable this court to conclude with reasonable confidence that the evidentiary hypothesis could be sustained”); State v. Padilla, 110 Wis. 2d 414, 430, 329 N.W.2d 263 (Ct. App. 1982) (“`An offer of proof need not be syllogistically perfect but it ought to enable a reviewing court to act with reasonable confidence that the evidentiary hypothesis can be sustained and is not merely an enthusiastic advocate’s overstated assumption.'”) (citation omitted).

Brown was employed by a moving company but made it only about half-way, to Gary, Ind., where the truck and some of its original contents were found months later. As suggested, all he apparently wanted to testify to was that he’d abandoned the stuff; the learned trial court wouldn’t allow it because he hadn’t submitted a notice of alibi. Why is this an alibi — “I was elsewhere” — at all? The court doesn’t say, indeed doesn’t reach the alibi issue, but instead ducks it on the procedural point of insufficient offer of proof. But this seems to put the cart before the horse: if “alibi” wasn’t implicated, then the testimony couldn’t be barred for failure to comply with the notice of alibi statute. So, does this mean that, when the defendant’s testimony might present an alibi but s/he didn’t file a notice of alibi, the defendant has the burden of showing just how the testimony was in fact not related to alibi? Possibly, though the court certainly doesn’t put it in these terms. But can the court put this onus a defendant? Terse or not, the proffer isn’t self-evidently an alibi, which gets somewhat into the merits of the related question of whether there was a defense of territorial jurisdiction, which the court treats separately and is separately summarized. The proffer might support harmless-error affirmance, but that assumes that barring defendant’s testimony (more concretely, barring him denial of the necessary element of intent) is subject to harmless error analysis as opposed to structural error. See, e.g., Commonwealth v. Caldron, 383 Mass. 86, 417 N.E.2d 958 (1981).

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