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Defense win: New OWI trial ordered because of erroneous admission of evidence of defendant’s prior hit-and-run conviction

State v. Marty S. Madeiros, 2021AP405-CR, District 4, 10/27/22 (not recommended for publication); case activity (including briefs)

Evidence of Madeiros’s prior hit-and-run conviction was admitted at his trial on OWI 5th, over his objection. This other-acts evidence was inadmissible because it wasn’t probative of any non-propensity purpose and the error in admitting the evidence wasn’t harmless, so Madeiros is entitled to a new trial.

Early one cold morning in December 2017 police found Madeiros’s car in the ditch with its light on and a flat tire. They found him about an hour later, intoxicated and walking along a public trail. He told police the car stalled out and that he started drinking after he left the car, consuming alcohol he’d brought with him. (¶¶3-4, 14-15). The officers were skeptical, and brought up and discussed with him his conviction for a June 2017 hit and run for which he was on probation, with an absolute sobriety condition; in that case Madeiros had abandoned his damaged car about a mile away from where he’d hit another vehicle and didn’t report the accident till the next day. (¶¶5, 12).

Madeiros was charged with OWI 5th, PAC 5th, and obstructing an officer. (¶6). Before trial, Madeiros moved to exclude evidence of his prior OWIs and the hit and run as inadmissible other-acts evidence. (¶7). The state agreed the prior OWIs shouldn’t come in, but insisted that Madeiros’s conviction for hit and run, his license revocation for that conviction, and his being on probation with a no-alcohol condition should be admitted because they would “really … put[] things into perspective” for the jury and because they were relevant to Madeiros’s intent to mislead the officers about what had occurred on the night in question. (¶¶8-9). The circuit court agreed and let the evidence in—though without referring to or engaging in any analysis under § 904.04(2) or State v. Sullivan, 216 Wis. 768, 576 N.W.2d 30 (1998). (¶¶10, 28).

After a thorough yet compact statement of the rules governing the admission of other-acts evidence (¶¶20-25), the court of appeals explains why the circuit court erred in admitting the hit-and-run evidence. As a prelude, the court observes that the evidence of the June 2017 hit and run “had an obvious tendency to encourage the jury to make inferences about Madeiros’s character and propensity, and the admission of the evidence created a risk that the jury would convict him based upon those inferences”—namely, that he has a problem with drinking, an overall disregard for the law, and a propensity to flee to avoid the consequences of his crimes. From that, the jury could readily infer that, because Madeiros broke the law once in June 2017, it is likely that he did so again in December 2017. “These are precisely the types of inferences that are prohibited by Wis. Stat. § 904.04(2)….” (¶27).

But in ruling the hit-and-run evidence was admissible, the circuit court apparently didn’t consider this “obvious risk,” for, as noted, it didn’t cite Sullivan or expressly consider Sullivan’s three-step framework. While it said the evidence was relevant to “context” and “intent,” it didn’t provide any on-the-record explanation of how the evidence was probative of those non-propensity purposes, and it didn’t weigh the probative value of the evidence against its prejudicial effect. (¶28). Nevertheless, the state defends the circuit court’s ruling by arguing that: (1) the evidence is not other-acts evidence at all and, therefore, its admissibility is not governed by § 904.04(2)(a) and Sullivan; or (2) in the alternative, the evidence was admissible under § 904.04(2) to prove context, modus operandi, and intent.

The court of appeals rejects both arguments.

(1) The state asserts the prior hit-and-run is not other-acts evidence because, to prove obstruction, it had to prove (among other things) that Madeiros knowingly provided the officers with false information intended to make it more difficult for the officers to investigate his actions in this case; thus, the state asserts, “information about [Madeiros’s June 2017] hit and run … was a substantive part of his lie to the police, … part of the crime of obstruction and not an ‘other act’ at all.” (¶30).

Whoa, wait: Prior conduct was “a substantive part” of his current alleged lie? The court of appeals is definitely not buying this specious claim:

¶31     The State is wrong, both on the law and on the facts.

¶32     As for the law, the State does not point to a single case providing that a suspect’s mention of a prior crime in the course of providing false information to officers removes that prior crime from the realm of other acts governed by Wis. Stat. § 904.04(2)(a) and Sullivan. Generally speaking, we need not consider arguments that are unsupported by legal authority. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992).

¶33     Further, even if we were to accept the State’s premise that, under the right circumstances, a suspect’s discussion of a prior crime could be a substantive part of an obstruction charge, we cannot reach that conclusion here. We first observe that the State made no showing—nor does it even suggest—that Madeiros made an affirmative misrepresentation about the prior crime that was calculated to obstruct the investigation into what occurred on the charged occasion. See Wis. Stat. § 946.41(2)(a). The officers discussed the June 2017 hit and run when they confronted Madeiros about his actions on December 30, 2017, and Madeiros truthfully acknowledged that he had been convicted for the hit and run, that he was on probation, that his license was revoked, and that he was subject to a probation condition of absolute sobriety as a result of his hit and run conviction.

(2) The state’s alternative thesis that the evidence was admissible for the non-propensity purposes of “context”—that is, putting things in “perspective,” as the state argued before trial (¶¶9, 44)—or modus operandi or intent doesn’t survive application of the Sullivan test. Even if are all permissible purposes under the first Sullivan step (¶41), the hit-and-run evidence isn’t relevant to those purposes beyond a showing Madeiros’s propensity. Specifically, the details of the prior offense provided no perspective on the OWI offense “apart from proving that Madeiros had broken the law once and was likely to have done so again.” (¶45). The same is true of modus operandi. (¶¶46-47). As for intent, which is an element of obstruction but not OWI, the evidence might be probative if Madeiros had lied to the officers about the hit and run offense; but he didn’t, so the evidence isn’t probative of intent to mislead the police. (¶¶48-51).

Finally, the court concludes the erroneous admission of the 2017 hit-and-run offense evidence wasn’t harmless. The state didn’t develop a harmless error argument, which could be taken as a concession that the error isn’t harmless, but the court nevertheless proceeds in a methodical fashion to the explain why it couldn’t meet its burden to prove harmlessness had it tried. (¶¶53-61).

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