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Particular Examples of Misconduct, § 904.04(2) – “Reverse” Misconduct – Misidentification of Defendant on Similar Crime

State v. Bruce T. Davis, 2006 WI App 23
For Davis: Russell Bohach

Issue/Holding: Evidence that Davis was misidentified as the perpetrator of a crime he could not have committed but which was similar to the crimes he was tried for was admissible:

¶28      Looking at the first factor, the State concedes that this witness’s testimony was offered for identification purposes, an admissible purpose under Wis. Stat. § 904.04(2). As to the second Sullivan factor, the misidentification of Davis as the burglar, under circumstances similar to those of the other burglaries, relates to a fact that was of consequence to the jury’s determination and was relevant. This is not a situation where someone accused of a crime makes a general claim that someone else must have done it. Rather, here we have a burglary victim who twice misidentified Davis as the person he saw in his apartment. This fact provided Davis with the opportunity to attempt to prove that someone else, someone who looks a great deal like Davis, was burglarizing and robbing homes within the same general time frame. Indeed, the State originally charged Davis with the Hartwig burglary in the same complaint as the other burglaries. Consequently, this evidence was of great probative value. Thus, a proper Sullivan analysis would have shifted the balance in favor of admitting the evidence.…

¶30      There is little chance that this witness would have caused an undue diversion or would have confused the jury. The proposed witness’s testimony went to the heart of the dispute. The State contended that Davis committed all the charged crimes. Davis claimed someone else committed them. Indeed, proof that a victim misidentified Davis and that Davis had previously been charged with burglary was significant in determining the identification issue. Moreover, while admitting this evidence may have changed the result of the trial, under our system of law, the State is charged with the duty of seeking justice, not simply obtaining convictions. Making sure that the truly guilty are convicted is tantamount to doing justice. We do not believe the State would have been unfairly prejudiced by the admission of this evidence, evidence that satisfied the Sullivan test and was the foundation of Davis’s defense. Thus, the trial court erroneously exercised its discretion when it denied Davis’s motion to call Hartwig as a witness. As a result, we are satisfied that the real controversy has not been fully tried, and we exercise our statutory right under Wis. Stat. § 752.35 to reverse the judgment of conviction and remand for a new trial.  

Not clear why the court relied on interest-of-justice, § 752.35—typically invoked to gain review of an unpreserved issue—rather than harmless error analysis of a properly preserved issue, as this one appears to have been. Regardless, the court’s language is fairly strong and reminds that the misconduct-evidence door swings both ways.


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