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Misconduct Evidence, § 904.04 – Particluar Examples: “Context” – Possession of Drugs and Guns, to Refute Self-Defense

State v. Tony Payano, 2009 WI 86, reversing 2008 WI App 74
For Payano: Patrick Cavanaugh Brennan

Issue: Payano was convicted of shooting at police officers who entered his apartment under a no-knock warrant; he claimed self-defense (i.e., defending himself against unknown armed intruders); over objection, the State presented an informant’s testimony that the day before he had been at Payano’s apartment and seen Payano with drugs and a handgun: the issue is whether this testimony was properly admitted to provide “context” for the event.


¶65      The question that inevitably occurs to an outsider looking at this shooting is why Payano shot at the door. This implicates Payano’s claim of self-defense. It also implicates his motive and knowledge. Motive and knowledge are both enumerated purposes for the admission of other acts evidence under Wis. Stat. § 904.04(2).¶66      Payano has never asserted that the other acts evidence was not offered for a proper purpose. In fact, in his brief to this court, Payano explicitly acknowledges that “these are acceptable purposes for offering ‘other acts’ evidence.” The circuit court did not erroneously exercise its discretion on the issue of purpose.


¶72      As the circuit court’s ruling makes clear, the central dispute at trial was whether Payano acted reasonably in self-defense and defense of others when he shot Officer Lutz——whether he knew or should have known it was the police at the apartment door when he shot the gun. In other words, as the State argued, “the jury needed to decide between two competing motives for the shooting: to protect his family, as Payano argued; or to buy time to hide drug evidence, as the State argued.” (Emphasis added.) Payano’s entire defense theory was premised on the fact that he acted reasonably to protect himself and his family when he shot Officer Lutz. Hence, what Payano knew or reasonably believed at the time of the shooting was paramount to the “determination of the action.” Wis. Stat. § 904.01; Sullivan, 216 Wis.  2d at 772; see also Wis. Stat. § 939.48 (1) and (4).

¶75      In sum, Kojis’s testimony and the information he provided to Officer Lutz was offered by the State to undermine Payano’s claim of self-defense and defense of others by offering an alternative theory of the case, that Payano’s shooting of Officer Lutz was criminal rather than privileged. Consequently, the State’s other acts evidence satisfies the first prong of the relevancy analysis because it was offered to help prove a “fact [or proposition] that is of consequence to the determination of” Payano’s guilt or innocence. Wis. Stat. § 904.01.

¶76      The other acts evidence satisfies the second prong of the relevancy test as well, because its admission made the State’s claim——that Payano shot the gun to deter the police from entering the apartment so that he would have time to get rid of drugs——more probable than it would have been without the evidence, and it made Payano’s claim——that he shot the gun to protect himself and his family——less probable than it would have been without the evidence. See Wis. Stat. § 904.01; Sullivan, 216 Wis. 2d at 772; Blinka, supra, § 404.6 at 181; see also Sullivan, 216 Wis. 2d at 784 (“Evidence of other acts may be admitted if it tends to undermine an innocent explanation for an accused’s charged criminal conduct.”); Kourtidias, 206 Wis. 2d at 582 (“[T]his other acts evidence was very relevant to this theory of defense.”).


¶93      There is no denying that the other acts evidence regarding a gun and a large amount of cocaine being present at Payano’s apartment the day before the shooting may have caused the “the jury [to] draw the forbidden propensity [or character] inference.” Blinka, supra, § 404.6 at 185. It is certainly plausible that some members of the jury may have decided to convict Payano based on “improper means” upon hearing the other acts evidence. SeeSullivan, 216 Wis.  2d at 789-90; Johnson, 184 Wis.  2d at 340 (citingC hristensen, 77 Wis.  2d at 61).

¶94      Having said that, this is not a classic case of unfair prejudice, likeMcGowan, where the other acts evidence is so similar in nature to the charged act that there is danger the jury will simply presume the defendant’s guilt in the current case. See McGowan, 291 Wis.  2d 212, ¶¶1-2, 9-10, 23. Moreover, the danger of unfair prejudice is not as great as it would be if the other acts evidence were used to prove Payano’s identity or that he committed the charged offense. Cf. Whitty, 34 Wis. 2d at 294 (“[T]he standards of relevancy should be stricter when prior-crime [or other acts] evidence is used to prove identity or the doing of the act charged than when the evidence is offered on the issue of knowledge, intent or other state of mind. McCormick, Evidence (hornbook series), p. 331, sec. 157.”). Although we cannot say that the other acts evidence presented no danger of unfair prejudice to Payano, the danger was not exceptionally high given the nature of the evidence compared with the nature of the charged offense.

¶95      Instead, similar to the other acts evidence offered in Pharr andJohnson, the evidence offered by the State in this case is directly linked andnecessary to the determination of Payano’s guilt. …

¶103    The court limited the use of the evidence to “a very narrow point”——namely, as proof that Payano shot the gun, knowing that the police were at the door, so that he could get rid of drugs——and there is no suggestion that the evidence was used for any reason beyond that “very narrow point.” In fact, the court of appeals makes mention in two different paragraphs of its opinion that the State did not use the evidence for any improper purpose. See Payano, 312 Wis.  2d 224, ¶¶31, 35 (“[T]he prosecutor complied with the trial court’s restriction . . . .”).

¶104    Although the lack of a cautionary instruction may be the deciding factor in some cases of whether the evidence is admissible under Wis. Stat. § 904.03, see Wis JI——Criminal 275 at 3, that is not the situation here because the probative value of the evidence far outweighed its danger of unfair prejudice, with or without a limiting instruction, see supra, ¶¶93-98.


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