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Evidence – Other-Acts – “Sullivan” Analysis; Prosecutorial Misconduct

State v. Miguel E. Marinez, Jr., 2011 WI 12, reversing unpublished decision; case activity; prior post; for Marinez: Ralph J. Sczygelski

Evidence – Other-Acts, § 904.04(2) – “Sullivan” Analysis

¶19  To guide courts in determining whether other-acts evidence is admissible for a proper purpose under Wis. Stat. § 904.04(2)(a), we developed a three-prong test.  Sullivan, 216 Wis. 2d at 772-73.  Other-acts evidence is properly admissible (1) if it is offered for a permissible purpose, other than the prohibited propensity purpose, pursuant to Wis. Stat. § 904.04(2)(a), (2) if it is relevant under the two relevancy requirements in Wis. Stat. § 904.01,[14] and (3) if its probative value is not substantially outweighed by the risk or danger of unfair prejudice under Wis. Stat. § 904.03.  Sullivan, 216 Wis. 2d at 772-73.  The party seeking to admit the other-acts evidence bears the burden of establishing that the first two prongs are met by a preponderance of the evidence.  State v. Payano, 2009 WI 86, ¶¶63, 68 n.14, 320 Wis. 2d 348, 768 N.W.2d 832; Hunt, 263 Wis. 2d 1, ¶53.  Once the proponent of the other-acts evidence establishes the first two prongs of the test, the burden shifts to the party opposing the admission of the other-acts evidence to show that the probative value of the evidence is substantially outweighed by the risk or danger of unfair prejudice.  Hunt, 263 Wis. 2d 1, ¶53; Payano, 320 Wis. 2d 348, ¶80.

The first step (proper purpose) “is not demanding,” ¶25. The proponent need only articulate one permissible purpose to satisfy this requirement, ¶25. Nonetheless, identity, albeit a “proper” 904.04 purpose, must in particular “relate[] to a defendant’s signature or imprint,” such that the his identity can be determined through a specific “modus operandi in connection to a separate crime he was known to have committed,” ¶18 n. 13, and ¶25 n. 17.

In a lengthy decision, the court concludes that on a trial for child sexual assault, the child’s videotaped testimony reporting that Marinez severely burned her hand satisfied Sullivan analysis. (This summary is neccessarily terse, by no means comprehensive.)

  • Purpose: context.  The evidence permissibly showed “context for M.M.L.’s statements.  Within context, the circuit court properly admitted this evidence to provide a more complete story of the sexual assault, including the time and location of the assault, as well as to provide greater information from which the jury could assess M.M.L.’s credibility,” ¶26.

The court acknowledges that “context” is a “nebulous” context, and that the vagueness of this doctrine invites illicit expansion of the rule against extraneous misconduct evidence as proof of bad character, ¶28 n. 19, citing, United States v. Taylor, 522 F.3d 731, 734-35 (7th Cir. 2008), and U.S. v. Klebig, 600 F.3d 700, 712-13 (th Cir 2009).

  • Relevance.

¶33  This second prong is significantly more demanding than the first prong but still does not present a high hurdle for the proponent of the other-acts evidence.  “The expansive definition of relevancy in Wis. Stat. § 904.01 is the true cornerstone of the Wisconsin Rules of Evidence.”  Blinka, supra, § 401.1 at 97. …

¶34  Each of the purposes for which the hand-burning evidence was admitted relates to a proposition that is of consequence to the determination, namely, whether the jury believed M.M.L.’s account of sexual abuse at the hands of Marinez.  “A witness’s credibility is always ‘consequential’ within the meaning of Wis. Stat. § 904.01.”  Blinka, supra, § 401.101 at 98.  Like so many child sexual assault cases, this case boiled down to whom the jury believed; the child alleging she was sexually assaulted or the defendant who denies it occurred.  See Blinka, supra, § 404.7 at 217-18 (noting that “[c]hild sexual abuse prosecutions often proceed under three major disabilities: they rely on a single witness who is very young and whose allegations are frequently unsupported by physical evidence”).  The difficult proof issues provide the rationale behind the greater latitude rule.  Davidson, 236 Wis. 2d 537, ¶40.  Thus, it follows that the greater latitude rule allows for the more liberal admission of other-acts evidence that has a tendency to assist the jury in assessing a child’s allegations of sexual assault.  It was reasonable for the circuit court to conclude that the hand-burning references were admissible to add additional context to the limited details of the sexual assault that M.M.L. was able to provide, and to allow the jury to better assess M.M.L.’s credibility, which was the central determination here.

¶35  Additionally, it was reasonable for the circuit court to conclude that M.M.L.’s hand-burning references provided additional context about the time and location of the alleged sexual assault. …

Aside: significantly more demanding but still not a high hurdle? Pretty well sums up just how pointless the first “hurdle” is, doesn’t it? The world’s smallest speed bump.

  • Unfair prejudice.

¶41  … Because the statute provides for exclusion only if the evidence’s probative value is substantially outweighed by the danger of unfair prejudice, “[t]he bias, then, is squarely on the side of admissibility.  Close cases should be resolved in favor of admission.”  Blinka, supra, § 403.1 at 139.

¶42  For the reasons discussed above in the relevancy analysis, we agree with the State that the hand-burning evidence is highly probative because it was “an integral part of the history that the alleged victim provide[d]” and was intertwined with M.M.L.’s sexual assault allegations in the video.  This video testimony was the only opportunity M.M.L. had to tell the jury about the sexual assault because she did not otherwise testify, due to her young age. …

¶44  The hand-burning references were certainly prejudicial to Marinez, as the circuit court noted.  As we have noted, to limit prejudice, the circuit court took several measures to ensure that Marinez was not unfairly prejudiced.  First, the circuit court gave limiting and cautionary instructions to the jury during voir dire and after closing arguments.[22]  Second, the circuit court limited the admission of the hand-burning evidence by restricting what details the prosecutor could bring in, excluding any photos of M.M.L.’s burned hands, and warning the prosecutor not to allow witnesses to dwell on the hand-burning incident.

¶46  The circuit court reasonably concluded that Marinez did not meet his burden of establishing that the probative value of the hand-burning evidence was substantially outweighed by the danger of unfair prejudice.  Therefore, the circuit court did not err ….

Prosecutorial Misconduct

Prosecutorial misuse of other-acts evidence is reviewable only as a function of prosecutorial misconduct, not Sullivan, analysis. Thus, failure to raise contemporaneous objection on that ground risks forfeiture of that argument. Marinez’s allegations of misconduct are rejected as either non-prejudicial or incorrect on the merits, ¶¶47-55.

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