State v. Kami L. Jennings, 2011AP2206-CR, District 2, 6/27/12
Evidence, introduced by the State, as to the defendant’s belief in reincarnation was inadmissible:
¶15 While the parties did not brief the issue, we hold that Jennings’ testimony should have been excluded as inadmissible character evidence under Wis. Stat. § 904.04(1). See State v. Earl, 2009 WI App 99, ¶18 n. 8, 320 Wis. 2d 639, 770 N.W.2d 755 (we may affirm on different grounds than those relied upon by the circuit court). Section 904.04(1) provides that “[e]vidence of a person’s character or a trait of the person’s character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion ….” The exception, as it pertains to an accused, is when an accused offers evidence of his or her character, or when the prosecution offers evidence in rebuttal. § 904.04(1)(a). The prosecution may not lead with evidence about the accused’s character. See 7 Daniel D. Blinka, Wisconsin Practice, Wisconsin Evidence § 404.4, at 160, 164 (3d ed. 2008). That is what happened here. The State argues that it needed to elicit Jennings’ belief in reincarnation as a way to explain her “bias against Mr. Troha and his family” after Jennings testified that Bradley was controlling and abusive during their marriage. Evidence of Jennings’ belief in reincarnation, though, is irrelevant to the crimes charged against her. Furthermore, Jennings’ marriage to Bradley was not on trial. As Jennings never raised the issue of her belief in reincarnation on direct examination, the State was not permitted to elicit this highly prejudicial gossip during cross-examination.
The prosecutor never disclosed this matter before introducing it at trial, ¶2; defense counsel didn’t lodge a contemporaneous objection, apparently because he had been blindsided, ¶11. As a result, the court of appeals declined to deem the issue forfeited, ¶14.