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No error in excluding text message containing purported apology for getting defendant in trouble

State v. Salar Zangana, 2020AP1228-CR, District 1, 6/29/21 (one-judge decision; ineligible for appeal); case activity (including briefs)

At his trial on battery and disorderly conduct charges, Zangana tried to introduce a text message he received that purported to be an apology one of the complaining witnesses. (¶¶2-4). The message was properly excluded as hearsay and evidence about what the message meant was inadmissible because it involved privileged communication between spouses.

Zangana offered the text as a prior inconsistent statement of Renee, a complaining witness. But the text wasn’t sent by Renee; it was sent by her husband. Since the husband was the declarant, he would have be called to testify to Renee’s purported inconsistent statement. Since he wasn’t called as a witness, the trial court correctly excluded the text as hearsay. (¶¶5, 8-11).

Further, though Zangana argued the text is Renee’s statement apologizing for getting him in trouble, she denied on the stand that she had seen the message or talked to her husband about it before he sent it. Any other evidence about what Renee and her husband discussed concerning the meaning of the message is inadmissible under § 905.05, the marital privilege. Thus, the trial court correctly precluded Zangana from questioning Renee about her discussions with her husband about the text. (¶¶4, 11-15).

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