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§ 904.04(2), “Reverse Misconduct” – Felony Conviction of 3rd-Party, as Relevant to Felon-in-Possession

State v. Patrick Jackson, 2007 WI App 145, PFR filed 6/6/07
For Jackson: Marcella De Peters

Issue/Holding: On a prosecution for felon in possession of a firearm, based on the allegation that the defendant “handled” a gun in a gun store, evidence of a 3rd-party’s prior felony conviction was admissible, where: the identity of the person who touched the gun was disputed; and, the 3rd-party acknowledged in an extrajudicial statement, admitted into evidence as against his penal interest, that he and not the defendant had touched the gun:

¶17 As Jackson also argues, evidence of Carlos Williams’s prior felony conviction enhanced his out-of-court admission to Papka that he, and not Jackson, handled the gun in the store because it subjected him to being charged with possessing a firearm while a felon. Indeed, this is the very rationale underlying the admission of hearsay statements that are against the declarant’s penal interest; the potential consequences of such an admission makes it unlikely that the out-of-court declaration is not true. See State v. Buelow, 122 Wis. 2d 465, 477, 363 N.W.2d 255, 262 (Ct. App. 1984) (“The circumstantial guaranty of reliability for the exception against interest is the assumption that persons do not make statements which are damaging to themselves unless satisfied for good reason that they are true.”). Further, the State, apparently deliberately, left the jury with the false impression that Carlos Williams did not have a felony record when it asked Sergeant Bennett the following question to which Bennett replied, “no”: “Did you have any reason to believe that Carlos Williams was a felon or person prohibited for any reason by either a felony conviction or a domestic violence injunction that there was any prohibition in Carlos Williams handling a gun at that time?” Although true to the extent that it reflected Bennett’s knowledge in February of 2004 when the West Milwaukee officers went to the gun store and arrested Jackson, it left the jury with the misleading impression that Carlos Williams was not a felon. Additionally, in her closing argument, the prosecutor told the jury: “So for some reason Carlos Williams–and this speaks to his character–when he sees police officers feels the need to flee stores [sic].” (Emphasis added.) It was equally or even more likely that, as a convicted felon, Carlos Williams did not want to hang around a gun store when the police were there. But, of course, the jury did not know that Carlos Williams was a convicted felon, and the trial court’s apparent failure to recognize that Carlos Williams’s felony status was a significant fact for the jury to use in weighing the truthfulness of what Carlos Williams told Papka was a misapplication of the law and, accordingly, an erroneous exercise of discretion.

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