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10-year history of drug-dealing deemed admissible in case where state declined to charge drug crimes

State v. Jimmy L. Powell, 2013AP1111-CR, 3/27/14, District 4; (not recommended for publication); case activity

This appeal stems from a 1st-degree reckless injury conviction.  Powell, a drug dealer, ran over and/or cut his client’s throat during a deal. His enthusiastic, 38-page initial brief raises 7 issues for review.  This post examines the court of appeals’ decision on 2 of them.

“Other Acts” Evidence Issue: Whether the circuit court erred in admitting “other acts” evidence that Powell had regularly sold cocaine to his victim/buyer when the State never charged him for cocaine dealing?

Holding: The circuit court properly admitted the evidence.  Under Wis. Stat. § 904.04(2)(a), State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998), and State v. Lock2012 WI App 99, 344 Wis. 2d 166, 823 N.W.2d 378, a circuit court may admit “other acts” evidence if (1) it is offered for a proper purpose under § 904.04(2); (2) it is relevant; and (3) its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.

Said the court of appeals: “The first prong is easily met because it merely requires a theoretical proper purpose. ” Slip op, ¶23.  Here that purpose was two-fold: showing the context of the injury (it occurred during a drug deal) and identifying Powell.  Actually, identification wasn’t an issue, and Powell didn’t object to the jury knowing that this injury occurred during a drug deal.  He just didn’t get why 10 years worth of drug dealing was necessary “context” for the crimes charged (1st-degree reckless injury, attempted 1st-degree intentional homicide, and robbery).   You won’t find the answer in the court of appeals decision.  It just skips ahead to “relevance,” accuses Powell of failing to address  these “obvious reasons” why the evidence is relevant–namely: “the history of drug dealing explains and gives context to Powell’s and [the victim’s] late-night meeting in a dimly lit, remote location.” Slip op. at ¶24. Yes, that’s it.

The big battle involved the prejudice prong.  Powell argued that the State’s repeated references at trial to his 10-years of drug dealing and some 520 past drug deals (35 to 40 of which were with the victim) encouraged the jury to, in effect, convict him for uncharged drug crimes.  After all, the jury acquitted him of 2 out of 3 charged crimes.  But the court of appeals held that the evidence of 10 years worth of drug dealing actually helped Powell by allowing his trial lawyer to argue that it made no sense that Powell would kill such a good client.  Slip op. ¶28.

Bond Money Issue: Where the circuit court sets bond for each count (rather setting 1 bond for a complaint charging 3 counts), and the defendant is acquitted of 2 counts, must the State return the bail money for the 2 acquitted counts?

Holding:  The State need not return the bail money posted for the 2 counts on which Powell was acquitted.  The court of appeals relied upon Wis. Stat. § 969.03(5) of the felony bond statute, but that statute clearly does not address the situation where a surety posts bond for a particular count and the bond receipt lists only that count.  So Powell argued that the bail bond agreement was a contract between the surety and the State, and the State had to abide by it.  See U.S. v. Santiago, 826 F.2d 499, 502 (7th Cir. 1987). The court of appeals, invoking the tired refrain “the argument lacks sufficient legal and factual development,” refused to address it.  Slip op. ¶63.  The idea that a bail bond agreement is an enforceable contract may be an issue of first impression for Wisconsin, but it is hardly new or controversial.  See e.gState v. Two Jinn, Inc., 264 P.3d 66 (Idaho 2011).   The question of how the statute and the actual terms of the agreement jive deserved more attention than it received.

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