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Defense win: Witness’s reference to defendant’s prior conviction for similar crime requires new trial

State v. Eric J. Debrow, 2021AP1732, 7/21/22, District 4 (not recommended for publication); petition for review granted, 12/15/22, reversed, 2023 WI 54; case activity (including briefs)

The court of appeals holds Debrow is entitled to a new trial because of the unfair prejudice caused by one witness’s testimony that would have led the jury to conclude Debrow had a prior criminal conviction that led the witness to be “on alert” when Debrow went into the bedroom of two children.

Debrow was charged with child sexual assault of A.B. and C.D. as a persistent repeater under § 939.62(2m)(b)2. because he’d been previously convicted of first-degree sexual assault of a child. Before trial, Debrow was concerned that E.F., the son of his girlfriend who would also testify at trial, knew about his prior conviction, so he moved to exclude that prior conviction from evidence at trial on the ground it was unfairly prejudicial. The state conceded Debrow was correct, and the circuit court granted the motion. (¶¶6-8, 13).

At trial, E.F. testified that he saw Debrow enter the bedroom shared by A.B. and C.D. on the night of the alleged sexual assault of A.B. and heard one of the girls scream. At a sidebar on redirect, the prosecutor proposed asking E.F. whether he had learned anything that caused him to be “on alert” that night. Debrow objected, fearing it would lead to E.F. saying something about the prior conviction, but the trial court said the prosecutor could go ahead, but to “proceed cautiously.” It didn’t go well: E.F. said he had learned something that led him to be “on alert,” after which he was asked if it was based on what he learned from A.B. and C.D. or their mom. No, said E.F., it was from looking on CCAP. (¶¶13-18).

The lawyers made “simultaneous interjections” right as and after E.F. spoke, which affected the court reporter’s ability to make a verbatim record; but the circuit court and the lawyers made it clear that E.F. said he’d looked on CCAP. (¶18). This offers a lesson in the importance of making the record clear if you are concerned it’s not.

Debrow objected, moved to strike E.F.’s response, and moved for a mistrial. The circuit court denied the mistrial motion, and instead crafted a curative instruction that attempted to strike the improper part of E.F.’s testimony. (¶¶19-21).

The state concedes that evidence of Debrow’s prior conviction was unfairly prejudicial and therefore properly excluded and that, in context, E.F.’s testimony that he was “on alert” because of what he learned from CCAP violated the exclusion order because the only reasonable conclusion a juror could draw from the testimony  is that the information E.F. learned from CCAP concerned Debrow. (¶25). But it disputes the idea that the jury would have concluded from E.F.’s statement that Debrow had a prior criminal conviction for child sexual assault, since CCAP includes civil court records, too. The court of appeals disagrees, and finds that is indeed what a reasonable juror would conclude. (¶27). Indeed, “[i]t defies reasonable assumptions to conclude that E.F.’s CCAP research would have cause him to pay close attention to Debrow’s entry into the room of A.B. and C.D. if he had only learned about non-criminal proceedings against Debrow….” (¶26).

Further, based on the standards for curative instructions (¶¶31-32), the court of appeals concludes the circuit court’s curative instruction didn’t ameliorate the prejudice caused by E.F.’s testimony and Debrow is therefore entitled to a new trial:

¶33     …[T]he jury received the following instruction from the circuit court soon after E.F.’s pertinent testimony:

And — and to the extent that — as the State was — was raising an interjection the answer beyond what he gave just now will be — I’ll direct the jury to strike anything else that they — they heard beyond the witness’s statement that he heard from his mother but not the content of anything.

As in [State v.] Penigar, the circuit court’s instruction given to the jury immediately after E.F. testified does not sufficiently identify the evidence that the jury was to disregard. See [139 Wis. 2d 569, 581-82, 408 N.W.2d 28 (1987)]. Rather, the instruction “directs” the jury to themselves “strike” “anything else that they … heard beyond the witness’s statement that he heard from his mother.”… More particularly, the language is difficult to understand and does not identify for the jurors (clearly or otherwise) the testimony that was to be disregarded—i.e., E.F.’s testimony that he learned information on CCAP about Debrow that put him on alert and he was watching his sisters’ room because of it. Importantly, the court’s instruction includes at the end the phrase “but not the content of anything.” This added language muddies the already unclear instruction, and it is likely that language confused the jurors further as to which testimony they were to “strike.” A reasonable juror would have interpreted this particular language as directing the jury to “strike” certain testimony, but to not strike the content of that testimony. Cf. Peters [v. State], 70 Wis. 2d [22,] 32[, 233 N.W.2d 420 (1975)] (in case involving joinder of charges, holding that the jury must be “clearly and unequivocally instructed” and the cautionary instruction “must be given in clear and certain terms”)….

¶34     Further, as alluded to already, the unclear language of the instruction left the jury without clear guidance as to the circuit court’s directions. The court only directed the jury to “strike” “anything else that they … heard.” The use of the term “strike” was quite obscure to any juror in this context…. The jurors were no doubt left to wonder the meaning of this directive, and if it was to affect in any way the information they could properly consider during deliberations. As a result, the circuit court failed to properly instruct the jury about E.F.’s pertinent testimony as the directive was not “given in clear and certain terms.” Peters, 70 Wis. 2d at 32.

Debrow also moved to exclude from evidence presented to the jury that he had a particular pornographic video on his computer as well as other-acts evidence involving a separate incident in which A.B. woke up to find Debrow in her bedroom. The circuit court denied those motions, and in a fact specific discussion, the court of appeals concludes the circuit court properly exercised its discretion in admitting both the video and other-acts evidence, so the evidence will be admissible in Debrow’s retrial. (¶¶38-56).

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