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Evidence – Ongoing Conflict with Deceased, Hearsay – Residual Exception, 3rd-Party Guilt; Sufficiency of Evidence – Homicide

State v. Kevin M. Moore, 2009AP3167-CR, District 2, 12/15/10 

court of appeals decision (3-judge, not recommended for publication); for Moore: Jeffrey W. Jensen; Moore BiC; State Resp.; Reply

Evidence – Frequenting “Gentleman’s Club” as Source of Friction with Deceased

Evidence that Moore spent much time and money at a local “gentleman’s club,” offered by the State to as support for an “ongoing conflict” between Moore and the victim as to his habits, wasn’t “other acts” evidence triggering “Sullivan” analysis.

¶19      The State argues that under Bauer, the Mansion on Main evidence was not “other acts” evidence that required a Sullivan analysis.  We agree.  This is not “other acts” evidence because, as we implied in the Bauer footnote, it was not used to show a similarity between those acts and the crime Kevin was accused of committing.  See Bauer, 238 Wis. 2d 687, ¶7 n.2.  Instead, the proper analysis is the one used by the trial court—whether, if the evidence is relevant, “its probative value is substantially outweighed by the danger of unfair prejudice.”  WIS. STAT. § 904.03.

¶20      The trial court correctly applied a WIS. STAT. § 904.03 analysis to the Mansion on Main evidence.  It acknowledged that there is some prejudice inherent in presenting this type of evidence, stating that “I’m sensitive to that. Everybody has their own walk in life, and sometimes it’s perceived by others maybe in different manners.”  It went on to state:

So what we have here today is … a theory by the State that there [are] financial issues involving this couple.  Does that mean there was such hostile discord in this family that … [Kevin’s] own life-style behavior provided the nexus or motive for what in fact happened?  I don’t know.  And I think what’s important though is that the jury not be denied the opportunity of giving the appropriate weight and credibility to those statements.

Since the trial court applied the proper standard of law and came to a rational conclusion, our inquiry goes no further.  See Hunt, 263 Wis. 2d 1, ¶34.

Evidence – Hearsay – Residual Exception

Evidence of a discussion between the deceased victim and a co-worker, in which the latter said that if anything ever happened to her they would look to her husband first and the deceased said she felt the same way, was admissible.

¶24      Dawn made the admitted statements to her coworker[5] at a restaurant after a meeting in Lousiville, KY.  She was talking about a sensitive and potentially embarrassing subject—her own marital problems.  Her coworker testified that she only saw Dawn have one drink.  She also testified that she herself was not under the influence at the time of the conversation and had not taken Dawn’s statement as a joke.  All of these circumstances are “such that a sincere and accurate statement would naturally be uttered.”  See Anderson, 280 Wis. 2d 104, ¶59.  In addition, it is relevant that the conversation was initiated by the co-worker, not Dawn, which goes to the fact that Dawn was unlikely to have planned in advance to make untrue statements.  See id. Another testament to the sincerity and solemnity of the conversation—Dawn’s coworker called the police to report the conversation the very same day that she learned Dawn had died.  When asked about her reason for doing that, she said that she knew there was a child involved and wanted to do what was necessary to protect Dawn’s son since Dawn could not do that anymore.

¶25      The residual hearsay exception outlined in WIS. STAT. § 908.045(6) is “a compromise between concerns that reliable evidence might be unreasonably excluded by static rules and the law’s obsessive fear of hearsay.”  Anderson, 280 Wis. 2d 104, ¶56.  The trial court found that Dawn’s statements to her coworker were trustworthy, and the facts support a conclusion that they exhibited the level of trustworthiness required under Andersonto be admissible.  We will not disturb the trial court’s decision.  See Hunt, 263 Wis. 2d 1, ¶34.

Evidence – 3rd-Party Guilt

Evidence that a nearby neighbor refused to talk to a defense investigator wasn’t admissible as “Denny” evidence of 3-party guilt, not least because Moore is unable to ascribe any motive to kill.

¶27      We are unpersuaded by Kevin’s argument for many reasons.  First, we hardly think it remarkable or compelling that a person who lives near a crime scene was nearby when it occurred in the early hours of the morning.  Second, we outlined the test in Denny as a three-prong test, where all three prongs must be met, and we have neither the ability nor the desire to change that holding in this case.  See City of Sheboygan v. Nytsch, 2008 WI 64, ¶5, 310 Wis. 2d 337, 750 N.W.2d 475 (“It is well settled that the court of appeals may not overrule, modify, or withdraw language from a previously published decision of the court of appeals.”).  Arguably, our inquiry ends there; however, Kevin accurately points out that Denny was decided in the context of a defendant who sought to introduce evidence of motive where no connection was present, and here, the opposite is true.  Kevin can connect his neighbor to the area of the crime, but has no evidence of motive.

¶28      Kevin appears to ask us to limit our holding in Denny to its particular fact situation.  But our reasoning in Denny applies here, as well:

[E]vidence that simply affords a possible ground of suspicion against another person should not be admissible.  Otherwise, a defendant could conceivably produce evidence tending to show that hundreds of other persons had some motive or animus against the deceased—degenerating the proceedings into a trial of collateral issues.

Denny, 120 Wis. 2d at 623-24.  If we were we to distinguish Kevin’s case from Denny based on the particular type of inculpatory evidence he seeks to present, we would open the door to defendants pointing the finger at any and every individual who can be placed near the crime scene at the time a crime is committed.  No doubt Kevin himself could find several other neighbors who were in the area at the time and therefore had the “opportunity” to kill Dawn.  We adhere to our decision in Denny and hold that the trial court correctly analyzed and excluded evidence inculpating a third party based on Kevin’s inability to show any possible motive.  We see no “legitimate tendency” here.

Sufficiency of Evidence – Homicide

¶30      Dawn was brutally beaten and murdered between 5:30 and 5:40 in the morning on November 13, 2006.  Multiple people in the area heard screams around that time.  Though Kevin claims not to have been aware that anything was wrong until around 7:30 a.m., his own testimony places him awake and in the house when the murder occurred.  Approximately an hour later, he went to buy chocolate milk. To do that, he had to go into the garage where part of the bloody struggle took place and drive out of his driveway, past his wife’s body. Although he told investigators he knelt by his wife’s body and shook her to see if she was all right, his clean appearance when the police arrived did not match those statements, particularly since he explicitly stated that he had not changed his clothing since 2:00 a.m.  There were no signs of forced entry or ransacking, and there was expert testimony that the struggle between Dawn and her assailant began inside the home, rather than in the garage.

¶31      There is no question that Kevin has a different version of the facts, supported by other testimony, that he wishes the jury had accepted.  But that is not the question we have to answer. Instead, we have to answer whether the record supports the jury verdict when viewed in the light most favorable to the State.  See Poellinger, 153 Wis. 2d at 501.  We believe that it does.  Because we find against Kevin on all of his claims, we affirm his conviction.

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