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Trial court properly excluded defendant’s testimony that injunction petitioner was “stalking” him

State v. Randall Ray Madison, 2015AP451-CR & 2015AP452-CR, District 1, 8/11/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Madison, who was charged with violating a domestic abuse injunction obtained against him by L.M., wanted to testify that L.M. “stalks me.” (¶5). The trial court properly exercised its discretion in excluding this testimony.

¶11      The trial court’s discretionary decision here complied with the requisite standard. Aside from Madison’s attempt to testify that the victim was stalking him, there is no support whatsoever for his allegation. Madison did not submit any facts or instances in support of his testimony, nor did he file a motion to admit other acts evidence of this nature. He did not provide any offer of proof, evidence, affidavit, or documentation at the trial court level or with this court to show any basis for his claim that the victim stalked him. Accordingly, the trial court’s decision to exclude his testimony in this regard was not erroneous.

Well, at least the court of appeals managed to identify one legitimate basis for the trial court’s proper exercise of discretion: Madison failed to file a pretrial motion to admit the evidence. The lack of a pretrial motion was a big part of the trial court’s reasoning, though it also thought the evidence wasn’t relevant because the issue in the case was Madison’s violation of a facially valid injunction. True, the trial court also noted the lack of substantiation of Madison’s claim, but it did so in the context of concluding that any error in excluding the evidence was harmless because the jury would probably not have credited his claim. (¶10). The court of appeals, on the other hand, seems to believe Madison’s testimony could be excluded simply because he provided no “support whatsoever for his allegation,” support that should have apparently come in the form of specific “facts or instances” or an “offer of proof, evidence, affidavit, or documentation” showing a basis for his claim that the victim stalked him. But Madison’s sworn testimony is evidence in support of his claim; a lack of specifics and corroborating evidence may undermine the credibility of his claim, but it doesn’t make his testimony inadmissible. Indeed, if bald claims made under oath with little or no specifics or corroboration are inadmissible, a good number of certain types of prosecutions would never get off the ground.

Madison also claims that the prosecutor’s misstatement of evidence in closing requires a new trial. This claim is meritless given that the trial court, in response to trial counsel’s objection, gave a curative instruction that expressly corrected the misstatement and, of course, instructed the jury that arguments of counsel are not evidence. (¶6).

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