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No error to allow evidence of prior possession of gun like the one used in shooting

State v. Luis Calderon-Encarnacion, Jr., 2014AP2252-CR, 04/12/2016 (not recommended for publication); case activity (including briefs)

Calderon was found guilty at trial of shooting up the house of his child’s mother. The evidence against him included the fact that he was pulled over 20 minutes after the shooting in a vehicle matching an eyewitness description of the shooter’s, with a silver-and-black revolver containing five spent casings concealed in the fuse panel.

Over defense objection, the state introduced evidence that Calderon had been seen in possession of a similar gun a month before the shooting. The court of appeals conducts a Sullivan analysis and concludes that the evidence was admissible, as it tended to contradict Calderon’s defense that he was not in the vehicle at the time of the shooting and did not know the gun was in the vehicle, and it was not unfairly prejudicial. (¶¶20-30).

The defense also sought exclusion of any testimony about Calderon’s alleged gang affiliation, which the trial court granted. At trial, a police officer came perilously close to violating the court’s order with the following testimony:

Q: Okay. Did she indicate that she had met [Calderon] before?

A: Yes. She indicated to me that she had met [Calderon] once prior to this incident just briefly. She actually knew that his nickname–[Calderon’s] nickname was Luigi and he was also a member of–

at which point the state moved to strike the answer and the circuit court agreed. An officer also testified that Calderon was “a person that we are familiar and have dealt with in the past.” (¶¶12-13). The appeals court concludes that there was no error in the circuit court’s handling of this “gang” testimony as it did not “so permeate the trial as to create a risk of unfair prejudice or confusion of the issues.” State v. Long, 2002 WI App 114, ¶23, 255 Wis. 2d 729, 647 N.W.2d 884.  (¶¶33-37). It then goes on to conclude that, even if any of the above were errors, they were harmless in view of the overwhelming evidence of Calderon’s guilt. (¶¶38-45).

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