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COA holds other acts issue forfeited

State v. James Lee Ballentine, 2019AP1597, 1/20/21, District 2 (not recommended for publication); case activity (including briefs)

Ballentine stood trial for three counts of delivering drugs. The charges arose from controlled buys; James was the informant and buyer. Ballentine’s defense was that James–seeking mitigation in his own drug charges–had framed Ballentine. Ballentine’s theory was that James had come into the alleged sales with the drugs already on him, and that he had concealed this fact by hiding them in such a way that the supervising police officers’ pat-downs would not find them. As part of this defense, Ballentine wished to adduce testimony that James had successfully concealed drugs from a police pat-down before, during an arrest; the drugs were eventually recovered after James ditched them in the police station.

Before trial, the parties argued about whether this evidence could come in. The circuit court decided Ballentine could ask James if he knew how to hide drugs and whether he’d done so before, but he couldn’t go into detail about the police-station incident unless James denied these things. (¶4). On appeal, he argues that this wasn’t enough: that there would have been more value in talking about the facts, and that the trial judge erred in ruling that “waste of time” justified excluding this evidence under Wis. Stat. § 904.03.

The court of appeals–despite no party raising it–holds this claim forfeited by the trial lawyer’s acquiescence to the circuit court’s ruling. Here’s the key passage:

THE COURT: That’s my ruling. You can go into the area. It would be time wasting to present evidence on it if it’s not in dispute. You will know that by the time you get to your case because you will have done your crossexamination. If he was conceding the point, we get your case, I won’t let you waste time by introducing evidence on [a] conceded point. But if it is in dispute then my ruling is that it would be more probative than prejudicial.

[BALLENTINE COUNSEL]: That’s what I have been looking for.

THE COURT: Covering our statutory basis. It’s admissible under [WIS. STAT. §] 904.04 because of permitted purpose. It’s admissible under [WIS. STAT. §] 904.02 because it is relevant on a material point. But it is excluded under [WIS. STAT. §] 904.03 unless he contradicts it on cross. Is there anything that the parties need on that point?

Hmmm. Ballentine’s lawyer said he had been “looking for” a “ruling”; which is indeed what the court gave. The transcript reveals a lot of confusion and discussion before this point in the hearing about exactly what Ballentine sought to introduce and why. Textually, it’s really a stretch to say–as the court of appeals does–that Ballentine’s lawyer was endorsing the substance of the court’s ruling, rather than affirming that the court had ruled on the question he’d presented.

Putting textualism aside, though, that’s just now how any of this works. The parties make their arguments and the judge rules. A losing party’s lawyer doesn’t have to like it, but he or she does, typically, accede, more or less gracefully. That’s how court works, and nobody–least of all judges–wants it otherwise. So it’s galling for the court of appeals to hold that a defense lawyer’s observance of courtroom decorum deprives his client of the ability to appeal. It’s especially so where the state did not even claim forfeiture, leaving Ballentine with no opportunity to address the question. Oddly, the court of appeals doesn’t even dodge the issue by this gambit, since it goes on to hold, gratuitously, that the questions Ballentine was allowed to ask were as good as those he argues he should have been allowed to ask. (¶¶12-13).

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