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Evidence of victim’s violent character excluded; evidence of defendant’s other violent acts admitted

State v. Brian J. Anderson,  2013AP913-CR, District 1, 4/15/14 (not recommended for publication); case activity

Anderson appealed his conviction for 1st-degree intentional homicide arguing that the trial court should have admitted evidence of his victim’s violent character under State v. McMorris and excluded “other acts” evidence under State v. Sullivan and § 904.04(2) and 904.03. The court of appeals rejects both arguments.

McMorris evidence: Anderson shot and killed a roommate, whom he believed was covering for a guy who was having an affair with his fiancée. Pre-trial Anderson offered 12 pieces of evidence aimed at showing his roommate’s violent character, including that the roommate told Anderson that he had killed his former drug partner, had slashed another person’s throat, had to take meds in order to control his temper, and so forth. The trial court admitted some of this evidence but excluded most of it for being too remote in time and too vague to be relevant. (¶¶3-5). On appeal Anderson argues that the trial court inappropriately made credibility determinations. The court of appeals holds that when evaluating McMorris evidence, it is within the trial court’s discretion to determine whether it is too remote in time to be relevant. (¶12, citing State v. Hunt, 2003 WI 81, ¶64, 263 Wis. 2d 1, 666 N.W.2d 771).

“Other acts” evidence:  At trial, the State introduced evidence concerning an incident three weeks earlier where Anderson had pistol whipped men who had made sexual comments about his fiancée. (¶¶6-7). After doing a straightforward Sullivan analysis, the court of appeals holds the evidence was admissible, being both probative and relevant for the purposes of showing context, jealousy, and motive, and that the unfair prejudice that might be caused by the evidence did not outweigh its probative value. (¶¶16-19).

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