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SCOW tightens test for admission of 3rd-party perpetrator evidence

State v. General Grant Wilson, 2015 WI 48, reversing an unpublished court of appeals summary disposition; opinion by Prosser; concurrence by Ziegler; dissent by Abrahamson; case activity (including briefs)

If this portly opinion had been placed on 40-page reducing plan, it would have gained clarity and exposed its inner motive: ensuring that a 22-year old conviction sticks. In Wisconsin, even when the case against a defendant is overwhelming, he still has the right to present evidence that a 3rd party committed the crime of which he is accused per State v. DennyTo do so, he must show that the 3rd party had a motive and an opportunity to commit, and a direct connection to, the crime charged. SCOW here reaffirms Denny but “engineers” a more stringent “opportunity” test for certain cases.

Wilson was convicted for the homicide of Eva Maric in 1993.  He allegedly drove his Gold Lincoln Continental up to a car where Maric and her boyfriend, Willie Friend, were sitting, fired many shots into the car, and killed Maric leaving Friend (his nemesis) unscathed. An eyewitness saw Friend fleeing and a Gold Cadillac, but she could not place Wilson at the scene of the crime. Wilson claimed to be home at the time. He said that Friend killed Maric–either by shooting her himself or by luring her to the scene, and hiring someone else to kill her and frame Wilson.  So Wilson wanted to introduce testimony by two witness who heard Friend say that he had to “keep Maric in check” and if she wouldn’t be in check then he’d have to kill her, and she knew it.  The witnesses also would have said that they saw Friend hit Maric. The circuit court refused to admit this proffered testimony.

The court of appeals held Wilson was denied his constitutional right to present a complete defense under State v. Denny, 120 Wis. 2d 614, 357 N.W.2d 12 (Ct. App. 1984).  SCOW reversed. Because the State conceded that Friend had a “motive” to kill Maric and “direct connection” to her homicide, SCOW focused on his Friend’s “opportunity” to commit the crime and held that when a defendant claims to have been framed he must prove that the 3rd party “had the realistic opportunity to engineer” the crime. Slip op. ¶10, ¶90 (citations omitted).  “If the third party is to be implicated personally as the shooter, then opportunity might be shown by the party’s presence at the crime scene . . . If the defense theory is that a third party framed the defendant, then the defense might show opportunity by demonstrating the third party’s access to the items supposedly used in the frame-up . . . In all but the rarest of cases, however, a defendant will need to show more than an unaccounted-for period of time to implicate a third party. Slip op. ¶68 (citations omitted).

SCOW refused to consider whether Friend was the shooter in this case because his trial lawyer (who, SCOW noted, had been publicly reprimanded by OLR) relied on the theory that Friend had hired a hit man instead.  SCOW then held:

Wilson has proffered no evidence demonstrating that Friend had the opportunity to arrange a hit on Maric during the relatively short time they were in Maric’s car——no evidence that Friend had the contacts, influence, and finances to quickly hire or engage a shooter or shooters to gun down a woman on a public street.  He has not shown that Friend or his alleged unnamed associates had access to a gold Lincoln Continental similar to Wilson’s.  He has not proffered any telephone records from Friend or Friend’s brother’s house that could have set up the time and place of the hit on short notice.  He has not proffered any evidence of the ownership by Friend or his family of .44 and .25 caliber weapons.  He has not identified any individuals as being the shooter or shooters possibly employed by Friend.  In short, he has not offered any evidence whatsoever indicating that Friend had the means or access or ability to hire assassins to kill Maric at a particular place within a relatively short time frame.  Slip op. ¶85.

Had SCOW entertained the possibility that Friend himself shot Maric it would have had to rule for Wilson or overrule State v. Vollbrecht, 2012 WI App 90, ¶26, which allowed “opportunity” to be shown with evidence that the 3rd party was in the proximity of a murder at the time it was committed.  (The State wanted Vollbrecht‘s test tossed). For more on Vollbrecht see our prior post here. Not liking either option, the majority instead fashioned the nit picky “opportunity” test above supposedly for “I was framed” cases but probably really just for Wilson.  It would be hard for the State to retry him after 22 years, so he’d go free. Trial lawyers normally move to admit or exclude evidence pre-trial, so for Wilson-like cases SCOW seems to be requiring the defendant to nail down the 3rd-party’s guilt (with engineering-like precision) before the State has to lift a finger.  The majority and concurrence stress that a defendant to prove motive, opportunity and direct connection just to get Denny evidence admitted, see Slip op. ¶65 &¶91.  But at the same time, the majority notes that the State need never prove motive in order to establish the defendant’s guilt. Slip op. ¶63. That hardly seems fair. 




{ 1 comment… add one }
  • John leonard May 13, 2015, 3:37 pm

    Third rate casuistry. Could there be some bias?

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