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State v. Miguel Marinez, No. 2009AP567-CR, Wis SCt rev grant 6/29/10

decision below (unpublished); for Marinez: Ralph Sczygelski

Issues (as provided by the court):

Did the circuit court erroneously exercise its discretion by admitting other acts evidence of the minor child’s videotaped statement without excerption of the hand-burning references?

Did the court of appeals err by applying the de novo standard of review to the circuit court’s decision admitting the minor child’s videotaped statement without excerption of the hand-burning references?

Did the court of appeals err by giving undue weight to the fact that no evidence of Marinez’s conviction for burning the minor child’s hands was introduced to the jury?

Petitions for review aren’t posted, but the court of appeals’ briefs and decision suggest the following. Marinez was charged with sexual assault of a child, his stepdaughter M.M.L. During her videotaped “forensic interview,” the authorities discussed an otherwise unrelated incident in which Marinez burned her hand — the other-act at issue. The State at trial argued admissibility “to establish identity, timing, and venue; to support M.M.L.’s credibility; and to fully establish its case,” ¶10. The trial judge allowed the evidence in for purposes of identity and context, but on appeal the State concedes identity was an improper purpose and argues only “context,” id. The court of appeals articulated the settled 3-part “Sullivan” analysis (which won’t be recited here), and holds that the evidence failed the 1st step, proper purpose. Unlike prior caselaw, where otherwise unrelated misconduct evidence provided a valid context to show why, for example, witnesses had recanted their accusations against the defendant: “Here, in contrast, the hand burning evidence did not explain M.M.L.’s behavior in reporting the incident,” ¶15. That’s basically it, the rest being mere detail as to why the one really had nothing to do with the other.

You may be thinking, hmm, a completely fact-specific case applying well-settled law to a discrete (there’s that word again) context, of no compelling value except to the immediate litigants, exactly the sort of case unsuitable to review. And you wouldn’t necessarily be wrong, State v. McConnohie, 113 Wis. 2d 362, 369, 334 N.W.2d 903 (1983):

This court has stated that it will not ordinarily review a court of appeals decision in a criminal case where only the question of the proper exercise of a trial court’s discretion was before the court of appeals. State v. Outlaw, 108 Wis. 2d 112, 120, 321 N.W.2d 145 (1982). Moreover, subsequent to reorganization of the Wisconsin court system in 1978, the question of whether justice has been done in an individual case is primarily and initially the concern of the court of appeals. A.B.A. Standards Relating to Appellate Courts sec. 3.00, commentary at 4 (1977). While the lack of justice or an erroneous result may trigger a review in this court, it is the general position of this court, pursuant to the standards adopted for reviewing cases (sec. 809.62, Stats.) that this court will not ordinarily review discretionary determinations by the court of appeals where that determination has not, arguably at least, been based on an error of law. …

But you would be short-sighted, focusing too narrowly on standards for review articulated in Rule 809.62. Remember: this is a State’s petition, and the grant of relief by the court of appeals supports review no matter the issue. Besides, when the court gets done with this case it is entirely possible that nothing will remain of Sullivan‘s 1st step, that “context” will always and necessarily allow admissibility of unrelated misconduct — now, that would have widespread precedential value, wouldn’t it?

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