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Extraneous Conduct

State v. Mark E. Johnson, 2011AP2673-CR, District 3, 9/25/12

court of appeals decision (1-judge, ineligible for publication); case activity

Cross-examination of Johnson, on trial for possession of marijuana and bail jumping, as to his marijuana use was proper, but as to his use of cocaine (eliciting an admission) was reversible error:

¶10      Johnson concedes that, after he testified he never possessed marijuana, the State was permitted to cross-examine him about a previous instance where he possessed marijuana.  See Wis. Stat. § 906.08(2).  However, he argues the questions related to cocaine were improper because he “never claimed he never possessed cocaine.”

¶11      We agree.  Wisconsin Stat. § 906.08(2) permits specific instances of conduct to be inquired into on cross-examination if probative of the witness’s truthfulness or untruthfulness.  Consequently, after Johnson testified he never possessed marijuana, the State’s cross-examination about a previous marijuana possession incident was proper.   However, Johnson’s testimony did not “open the door” for the State to also introduce evidence that Johnson previously possessed cocaine.  The circuit court erred when it determined Johnson’s testimony that he never possessed marijuana allowed the State to question him about cocaine.  As such, the cocaine evidence was erroneously admitted.

Moreover, extrinsic proof of Johnson’s marijuana possession, to contradict his denial, was improper under the collateral impeachment rule:

¶17      In Wisconsin, “a rule has evolved that prohibits contradiction … of fact testimony that is collateral to issues of the particular case.”  State v. Spraggin, 71 Wis. 2d 604, 622, 239 N.W.2d 297 (1976).  Stated another way, “Impeachment of a witness on the basis of collateral facts introduced by extrinsic testimony is forbidden.”  McClelland v. State, 84 Wis. 2d 145, 159, 267 N.W.2d 843 (1978) (emphasis added).  “Cross examination on [collateral] matters is to be limited, and it has been said that the examiner must abide by the answers to his questions on immaterial subjects.”  Spraggin, 71 Wis. 2d at 622.

¶18      Evidence is collateral if it does not meet the following test:  “Could the fact, as to which error is predicated, have been shown in evidence for any purpose independently of the contradiction?”  Id. at 623 (citation omitted).  Here, the testimony that Johnson admitted possessing marijuana on a previous, unrelated occasion would have only been admissible to contradict his trial testimony.  Consequently, the evidence was collateral, and the State could not impeach Johnson with extrinsic evidence.  Hagen’s rebuttal testimony was improper.


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