State v. Deandre J. Bell ( 2023 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
July 11, 2023
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2021AP2228-CR Cir. Ct. No. 2020CF883
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
DEANDRE J. BELL,
DEFENDANT-APPELLANT.
APPEAL from an order of the circuit court for Milwaukee County:
JONATHAN D. WATTS, Judge. Affirmed and cause remanded for further
proceedings.
Before Brash, C.J., Donald, P.J., and Dugan, J.
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2021AP2228-CR
¶1 PER CURIAM. Deandre J. Bell, charged by the State with two
counts of first-degree reckless homicide in the shooting deaths of his sister and her
girlfriend, appeals a nonfinal1 pretrial order of the circuit court precluding him
from offering at trial certain expert-type testimony. Specifically, Bell argues that
the circuit court erroneously determined that the proffered testimony should be
excluded as “extraneous and superfluous” to the jury’s consideration of and
deliberation on self-defense, use of force, and state of mind issues, among others.
¶2 For the reasons set forth below, we disagree with Bell on this
evidentiary matter, agree that the circuit court properly excluded the proposed
testimony, and remand this case to the circuit court for further proceedings
consistent with this opinion.
BACKGROUND
¶3 According to the voluntary statement made by Bell to law
enforcement immediately after his arrest, Meshala Pabai was his sister, and
Aubrianna Lancaster was her girlfriend. During an argument on February 22,
2020 between Bell and Pabai, the latter pushed the former into a living room wall
and over the arm of a couch; Pabai also choked Bell and punched him in the head.
¶4 After Pabai walked away, Bell decided to go to his room. Now
holding a gun at his side, Bell walked past Pabai’s room; Pabai and Lancaster
came out of the room, and Pabai then pushed Bell into the refrigerator. Lancaster
was standing behind Pabai as she walked toward him.
1
This court granted leave to appeal the order. See WIS. STAT. RULE 809.50(3) (2021-
22). All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
2
No. 2021AP2228-CR
¶5 According to his confession, Bell pointed his gun at Pabai’s
abdomen and “shot an unknown number of times.” According to the criminal
complaint, law enforcement was dispatched to the home following a telephone call
in which the caller reported that her brother shot her and her girlfriend. Upon their
arrival at the home, officers discovered Pabai with multiple gunshot wounds to her
upper chest; she said that her brother Deandre shot her and Lancaster, and that
both Deandre and Lancaster were inside.
¶6 Lancaster was pronounced dead at the scene, and Pabai later died at
the hospital. During their on-site investigation, the responding officers found a
handgun, an open box of 9mm ammunition, and, in the kitchen, six spent casings.
The medical examiner subsequently determined that both Pabai and Lancaster died
from multiple gunshot wounds.
Judicial Proceedings
¶7 After the State charged Bell with two counts of first-degree reckless
homicide in the shooting deaths of Pabai and Lancaster, Bell made several pretrial
filings all substantively related to his position that he had acted in self-defense. In
those filings, Bell identified Conrad Zvara as a use-of-force expert in his witness
list. The State subsequently filed a motion to exclude Zvara’s testimony on the
grounds that the requirements of WIS. STAT. § 907.02(1), which establishes the
standards for admissibility of expert-type testimony, had not been satisfied.
Following briefing on this issue by the parties, the court conducted a pretrial
admissibility hearing.
¶8 At that proceeding, the circuit court received into evidence the report
that Zvara had authored, along with Zvara’s curriculum vitae. The State stipulated
to Zvara’s qualifications—Zvara was retired from the Milwaukee Police
3
No. 2021AP2228-CR
Department and the United States Coast Guard Reserve, and was now employed
as an “[e]xpert [w]itness/[c]onsultant” and as an instructor on concealed carry,
personal defense, use of force, and firearms safety issues. Zvara’s report
explained that he had reviewed police reports, interview videos, the medical
examiner’s reports, and photographs of the crime scene; he also conducted an
interview of Bell. Zvara had been asked to “discuss and explain the dynamics of
deadly force decision making, threat assessment, the reasonableness of multiple
shots fired, whether an ‘unarmed’ attacker can cause death or great bodily harm,
and disparity of force for legally armed citizens[.]” The defense had also
requested that he apply those principles in the context of the shootings for which
Bell was charged.
¶9 In his substantive testimony, Zvara stated that an immediate threat
that requires the use of force is properly assessed according to three criteria—
ability, opportunity, and jeopardy; Zvara referred to this as the “AOJ triad.” He
further explained that “ability” means that the aggressor has the power to kill or
cripple, that “opportunity” means the aggressor can deliver that power
immediately, and that “jeopardy” means that the aggressor’s actions or words (or
both) will lead any reasonable and prudent person to believe that the aggressor
intends to attack immediately. Based on this analytical framework, Zvara testified
that Pabai had exhibited all three characteristics or qualities.
¶10 Based on his understanding and rendition of the account of the
incident, Zvara concluded that Bell did not start or escalate the altercation and
instead attempted to retreat; that Bell’s “ability to react and assess [Pabai’s] threat
against him was badly compromised”; and that there was a disparity of force
dynamics between the two. He stated that all of his opinions, offered to a
reasonable degree of professional certainty, were not legal conclusions about
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No. 2021AP2228-CR
whether Bell’s actions were reasonable but were instead findings about the
presence and absence of various factors that may be relevant in determining
whether self-defense was reasonable.
¶11 On cross-examination, Zvara acknowledged that his assessments
were based on Bell’s own account of what happened—and that his conclusion that
Pabai and Lancaster had the physical capacity to harm Bell was similarly premised
on what Bell had told him during their interview.2
¶12 Importantly, Zvara also testified that the information that he was
offering was outside the experience of jurors; he said that “the vast majority of
people don’t understand concepts of AOJ…. They don’t understand the concept
of disparity of force. They don’t understand why multiple shots might need to be
fired to stop even an unarmed aggressor.” Similarly, in his report he
observed: “Unfortunately, the vast majority of our fellow citizens who make up
our jury pools have no idea of the true intricacies of the proper use of deadly force
in a very dynamic, fast-moving scenario when defending oneself from a
potentially deadly assault.”
¶13 Zvara acknowledged that Bell himself could not articulate concepts
related to “disparity of force,” the “AOJ triad,” the need for multiple shots, and the
threat of force when attacked with bare hands; he also articulated his belief that
Bell could not explain why he acted as he did. That testimony prompted this
2
The account provided by Bell to Zvara in their interview includes some information
beyond that described by Bell to law enforcement immediately after his arrest. These additional,
specific details may or may not be the subject of a defense presentation at trial, but they do not
affect the legitimacy of the circuit court’s pretrial decision to exclude Zvara’s testimony—or our
determination that the circuit court judge did not abuse his discretion in so ruling.
5
No. 2021AP2228-CR
exchange between the State prosecutor and Zvara as to why Zvara was inclined to
interpret Bell’s actual feelings or real beliefs:
[The State]: [I]f a person can instinctively understand the
danger facing them, why can’t a jury instinctively
understand that same thing? Why do they need you to
interpret what somebody is feeling?
[Zvara]: Unless you’re there and experiencing it
yourself, you need—you don’t understand what happened.
You need to be able to articulate, to explain, to go into
detail on all of the things that I’ve mentioned.
And I have yet to find anyone in any of my classes,
which is made of citizens, the same people that make up
our juries, I have yet to find a single person that can explain
to me disparity of force, AOJ, the need for extra shots, what
happens if somebody turns before I stop shooting, all things
of that nature because they base their knowledge on
television and movies and the media, where are—they’re
fairy tales, basically.
¶14 In the end, Zvara acknowledged that he could not offer evidence as
to the subjective element of self-defense and that members of the jury are
empowered to decide “what is reasonable.” He also agreed that concepts like
“disparity of force” and the “AOJ triad” were not factors, terms, or standards
recognized in the trappings of Wisconsin’s self-defense law. When asked to opine
that “Bell’s actions were not unreasonable,” Zvara replied, “That’s correct.”
¶15 Based upon this testimony, the circuit court concluded that Zvara’s
opinion testimony and his exposition testimony must be excluded from the
evidentiary presentation to the jury. While acknowledging that WIS. STAT.
§ 907.04 allows an expert to offer an opinion that embraces an ultimate issue, the
circuit court concluded that Zvara’s various “factors and concepts [regarding the
use of force] inject confusing and extraneous information” that would not prove
helpful to the trier of fact. Among other considerations, the circuit court found
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No. 2021AP2228-CR
that Zvara’s construct of a “reasonable person” was different from the construct of
a “reasonable person” as defined in Wisconsin’s standard jury instructions—
leading to the result that his testimony would be “extraneous and superfluous.”
¶16 Finally, the circuit court noted that expert testimony about legal
matters is inadmissible; that the established factors appropriately invoked to assess
the legitimacy of exposition testimony weigh against the Zvara presentation; and
that the applicable jury instructions on self-defense relevant to the circumstances
of this case fully and satisfactorily define the concept. Notably, the circuit court
rejected Zvara’s contention that jurors have neither the experiential insight nor the
intellectual capacity to evaluate the facts, understand the law, and apply the latter
to the former; the court observed that jurors have “sufficient common sense and
experience to do their job.”
¶17 Subsequently, Bell petitioned for leave to appeal the circuit court’s
nonfinal, pretrial order excluding Zvara’s testimony, and, over the opposition of
the State, we granted that request for appellate review.
DISCUSSION
Standards for Admissibility of Expert Testimony
¶18 It has long been settled that the decision to admit or exclude the
testimony of a proffered expert rests within the discretion of the circuit court.
State v. Dobbs, 2020 WI 64, ¶27, 392 Wis. 2d 505, 945 N.W.2d 609. It is equally
settled that an appeals court reviews the determination of the circuit court under an
erroneous exercise of discretion standard and, to that end, “will not reverse a
circuit court’s decision if the decision ‘had a reasonable basis,’ and ‘was made in
7
No. 2021AP2228-CR
accordance with accepted legal standards and in accordance with the facts of the
record.” Id.¶19 Consistent with this highly deferential standard, this court “will
search the record for reasons supporting the [circuit] court’s decision, and [it] will
sustain a ruling even where [it disagrees,] so long as appropriate discretion was
exercised.” State v. Hogan, 2021 WI App 24, ¶26, 397 Wis. 2d 171, 959 N.W.2d
658. In this undertaking, we do not ask whether we would have admitted the
evidence or whether we agree with the circuit court’s ruling. State v. Chitwood,
2016 WI App 36, ¶30, 369 Wis. 2d 132, 879 N.W.2d 786.
¶20 WISCONSIN STAT. § 907.02(1) provides:
If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education may
testify thereto in the form of an opinion or otherwise, if the
testimony is based upon sufficient facts or data, the
testimony is the product of reliable principles and methods,
and the witness has applied the principles and methods
reliably to the facts of the case.
Applying the language and the meaning of this section, the circuit court serves as a
gatekeeper, ensuring that “the expert’s opinion is based on a reliable foundation
and is relevant to the material issues.” State v. Giese, 2014 WI App 92, ¶18, 356
Wis. 2d 796, 854 N.W.2d 687. The unmistakable goal of the circuit court is to
“prevent the jury from hearing conjecture dressed up in the guise of expert
opinion.” Id., ¶19.
¶21 Expert testimony may be admissible if it will “assist the trier of fact
to understand the evidence or to determine a fact in issue[.]” WIS. STAT.
§ 907.02(1). This section codifies the touchstones articulated by the United States
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No. 2021AP2228-CR
Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S 579
(1993), setting the contemporary standards for admissibility of scientific expert
testimony and imposing upon circuit courts the responsibility to ensure “that an
expert’s testimony both rests on a reliable foundation and is relevant to the task at
hand.” Id. at 584-597.
¶22 Those determinations include whether: (1) “the scientific, technical,
or other specialized knowledge will assist the [jury] to understand the evidence” or
determine a fact at issue; (2) the expert is qualified “by knowledge, skill,
experience, training, or education”; (3) the testimony is “based upon sufficient
facts or data”; (4) the testimony is predicated on “reliable principles and methods”;
and (5) the witness reliably applied those principles and methods to the facts of the
case. State v. Jones, 2018 WI 44, ¶¶7, 29, 381 Wis. 2d 284, 911 N.W.2d 97; see
also Dobbs, 392 Wis. 2d 505, ¶42.
¶23 Under this structure, the proponent of the evidence bears the burden
of proving its admissibility by a preponderance of the evidence. State v. Bucki,
2020 WI App 43, ¶45, 393 Wis. 2d 434, 947 N.W.2d 152. And, even if the
proponent satisfies the criteria of WIS. STAT. § 907.02(1), nothing in its text
mandates the admission of the testimony; indeed, “its language is permissive
rather than mandatory[.]” State v. Stephenson, 2020 WI 92, ¶21 n.9, 394 Wis. 2d
703, 951 N.W.2d 819.
¶24 Stated differently, if the admissibility standards of WIS. STAT.
§ 907.02 are satisfied, the circuit court still retains its discretion to exclude
evidence under WIS. STAT. § 904.03, which provides: “Although relevant,
evidence may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
9
No. 2021AP2228-CR
considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.” See Bucki, 393 Wis. 2d 434, ¶46.
¶25 Finally, it is instructive here to identify and acknowledge the
important difference between exposition testimony—that is, the rendition of an
educational lecture or academic dissertation on scientific or other principles
relevant to the case—and opinion testimony; the former may be permissible under
WIS. STAT. § 907.02(1), but the latter is not, as explained in Dobbs:
For example in this case, if [the expert] applied the
principles and methods to the facts of the case, he would be
giving an opinion on whether or not Dobbs’s dispositional
factors combined with the police interrogation techniques
could have resulted in Dobbs falsely confessing. It is
important to recognize that if [the expert] offered such an
opinion, it would invade the province of the fact[-]finder as
the sole determiner of credibility…. Even if [the expert]
had simply been asked whether any of the factors he
described in his exposition testimony related to Dobbs’s
case, his response would be offering his view about
whether his exposition testimony relates to the particular
facts in Dobbs’s case. This is the very definition of an
opinion.
Id., 392 Wis. 2d 505, ¶36 n.18.
Exclusion of the Expert Testimony
¶26 Both explicitly and implicitly throughout his hearing testimony and
in his written report, Zvara moves between exposition and opinion, effectively
crossing the boundaries between the two and, in so doing, expressly invades the
assigned province of the jury as fact-finder while not providing anything of value
to its deliberation. In writing, Zvara is clear and unmistakable in his purpose,
concluding with this mission statement: “I would like to relate Mr. Bell’s decision
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No. 2021AP2228-CR
to use deadly force to the various aspects I have pointed out in the preceding pages
of this report.”
¶27 Orally, Zvara affirms the same goal; when (as noted above) he is
quizzed by the State as to whether he “wish[es] to testify that in [his] opinion,
Mr. Bell’s actions were not unreasonable,” he responds, “That’s correct.”
Understanding clearly the content and evaluating properly the objective of this
expert testimony, the circuit court rightly concluded that Zvara should be
precluded from offering opinion and exposition testimony during the trial.
¶28 This court has previously held that an expert should not be permitted
to offer conclusions about a defendant’s actual beliefs at the time of the offense,
about the reasonableness of those beliefs, or about the defendant’s state of mind
before, during, and after the criminal act. State v. Richardson, 189 Wis. 2d 418,
426, 525 N.W.2d 378 (Ct. App. 1994). Yet, this is precisely what Zvara means to
do—soliciting and codifying Bell’s account of the crime and then, because Bell
himself is (according to Zvara) unable to articulate effectively his actual intent,
substituting Zvara’s own version of that.
¶29 As the circuit court observed, Zvara has neither the qualifications
nor the ability to discern Bell’s state of mind during the confrontation and fight
with Pabai and, even more importantly, at the time of Bell’s decision to shoot her
and Lancaster. Zvara is likewise not competent to testify about what Bell might
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No. 2021AP2228-CR
have had in mind, Zvara’s various self-defense constructs, including the “AOJ
triad,” “multiple shots,” and “disparity of force” notions, among others.3
¶30 This court, like the circuit court, similarly dismisses Zvara’s
construct of a “reasonable person”—not only because it is fundamentally at odds
with the well-established jury instructions that define the concept rationally and
accessibly but, as before, its endorsement here would tend to remove from the trier
of fact the independent, deliberative assignment given to it. As aptly voiced in
State v. Dalton, 98 Wis. 2d 725, 731, 298 N.W.2d 398 (Ct. App. 1980), the “vice
[inherent in Zvara’s presentation] is that it is clothed with the seeming scientific
knowledge of an expert and thus deceives the jury into believing that it is entitled
to deference and consideration which is unsupported and unwarranted.”
¶31 Issues strikingly akin to those presented by this petition were
addressed by the court in State v. Ochoa, 2022 WI App 35, ¶¶31 & 38-40, 404
Wis. 2d 261, 978 N.W.2d 501 in which Zvara’s expertise was rejected by both the
trial and appellate courts. Among other concerns, Zvara’s proffered testimony
relied on the opinion of another expert who was found unreliable; even more
tellingly, the circuit court affirmed the capacity and competence of the jury to
wrestle with and decide on pivotal questions, absent assistance delivered in a
package of abstractions:
Mr. Zvara’s observations aren’t relevant to those of the
defendant and whether he was reasonable in his thoughts
and action. The jury needs to consider the defendant’s
3
In fact, this record—including a reasonably clear and coherent statement of admission by Bell
shortly after the crime—suggests that Bell might in fact be fully able to articulate what was in his mind. As
the State observes, Bell described plainly and understandably the particular occurrences before, during, and
even after the shootings, suggesting that the “substitute” expertise that Zvara seeks to offer is neither
appropriate nor necessary.
12
No. 2021AP2228-CR
thoughts and actions. So testimony about typical use of
force situations just isn’t relevant…. Zvara focused on use-
of-force principles. Here, the jury was tasked with
assessing whether [the defendant’s] thoughts and actions
were unreasonable. The trial court acted reasonably in
excluding testimony it found to be both unreliable and
irrelevant.
Id. (internal quotation marks omitted). The upshot is that the circuit court in
Bell’s case properly exercised its delegated discretion to find that Zvara’s
proffered opinion expertise would not assist the trier of fact in understanding the
evidence or determining a fact in issue; even more, for the reasons set forth above,
the testimony would likely prove to be extraneous and superfluous, perhaps even
prompting confusion of the issues and affirmatively misleading the jury. See
Bucki, 393 Wis. 2d 434, ¶46.
¶32 All of this opinion-specific analysis applies with equal validity and
strength to the related question of whether Zvara’s proposed expositional
testimony should be admitted. In Dobbs, the Wisconsin Supreme Court adopted
four factors to be met before this type of expertise is properly presented to a
jury—namely, whether the expert is qualified; whether the testimony will address
a subject matter on which the factfinder can be assisted; whether the testimony is
reliable; and whether the testimony will “fit” the facts of the case. Id., 392
Wis. 2d 505, ¶43.
¶33 Importantly, the Dobbs court explained:
“[E]xpert testimony is helpful to the jury,” or fits, “if it
concerns a matter beyond the understanding of the average
person, assists the jury in understanding facts at issue, or
puts the facts in context.” … Establishing the fit of
exposition testimony is particularly important because,
unlike opinion testimony, exposition testimony does not in
and of itself explicitly connect the witness’s expertise to the
particular facts of the case.
13
No. 2021AP2228-CR
Id., ¶¶43-44. This so-called connecting of a “bridging” mandate is especially
problematic here for at least two reasons. First, as noted above, none of Zvara’s
self-defense constructs are reflected in ways explicit or implicit in the instructions
that will presumably be provided to the jury. So, as the circuit court observed, the
abundant problem for the defense is that the definitions of, for instance, the “AOJ
triad” find no footing in the traditional, long-established law of self-defense in
Wisconsin.
¶34 Second is the compelling instruction of Robinson v. City of West
Allis, 2000 WI 126, ¶27, 239 Wis. 2d 595, 619 N.W.2d 692, in which the supreme
court declined to require the presentation of an expert’s opinion to support a
charge of excessive force. In so doing, the court observed that the touchstone for
such a claim is “the objective reasonableness of the use of force.” Id. ¶30.
¶35 Commenting expressly that the decisional issue is one properly
entrusted to the jury, the Robinson court instructed:
We believe the approach of our prior case law belies any
contention that the matter is necessarily beyond the jury’s
comprehension…. [W]e cannot at once emphasize the
jury’s responsibility for applying the standard of
reasonableness and also claim that the issue is beyond the
jury’s comprehension. Requiring an expert as a
prerequisite to a finding of use of excessive force would
essentially remove from the jury the task of applying
standards of reasonableness and replace it with the task of
evaluating the testimony of the parties’ experts.
Id., ¶¶31-32. We believe that this affirmation of the central, reliable role of the
jury is no less applicable in a criminal matter like this one, in which the question
of self-defense is at the fore, than in one in which the judgment turns on a
determination of excessive force.
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No. 2021AP2228-CR
¶36 To that same end, exposition testimony of the sort promoted by Bell
would run afoul of the guidance of WIS. STAT. § 904.03, prescribing, as noted
above, that even relevant evidence may be properly rejected if its probative value
is substantially outweighed by a danger of unfair prejudice, confusion of the
issues, or misleading the jury—in addition to the possibilities of undue delay,
waste of time, or needless presentation of cumulative evidence. While there are
several ways in which the incongruity between the proffered Zvara testimony and
the actual, established state of the law might be witnessed, the State directs
attention to one of the most plausible. The settled law of self-defense incorporates
a fundamental principle of proportionality—that is, limiting the amount of force
that a defendant can use or threaten to use only to that “necessary to prevent or
terminate the interference.” WIS JI—CRIMINAL 805.
¶37 Yet on this same issue, Zvara explained that from his perspective, he
didn’t believe that “the number of shots [was] particularly relevant in this case.”
Along with all of the bases upon which his opinion testimony is rightly excluded,
the prospect of misleading or, at a minimum, confusing the jury on an illustrative
ground like this justifies the exclusion ordered by the trial judge.
¶38 In the end, this record is full of grounds upon which this court can
and should, in the exercise of its highly deferential review, support that
discretionary evidentiary decision. See Hogan, 397 Wis. 2d 171, ¶26. As the
gatekeeper for reliable, relevant, and helpful evidence before the jury, the circuit
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No. 2021AP2228-CR
court here properly declined to permit the introduction of Zvara’s opinion and the
exposition testimony.4 See Daubert, 509 U.S. 579 (1993).
CONCLUSION
¶39 For all of the reasons set forth above and based upon the pretrial
record in this matter to date, we conclude that the circuit court appropriately
exercised its discretion and correctly decided to exclude the proffered testimony of
Bell’s expert witness. Accordingly, we affirm and remand this case to the circuit
court for further proceedings consistent with this opinion.
By the Court.—Order affirmed and cause remanded for further
proceedings.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.
4
On these same grounds, we can and will dismiss as meritless Bell’s argument that, by
this evidentiary ruling, he is denied his constitutional right to present a defense. Bell is fully able
to present virtually the same information through his own testimony, should he choose to do so,
and he has, in any event, failed to meet the standards for a successful constitutional challenge as
set forth in State v. St. George, 2002 WI 50, ¶¶53-55, 252 Wis. 2d 499, 643 N.W.2d 777. Among
other considerations, “there is no constitutional right to present irrelevant evidence.” State v.
Hampton, 207 Wis. 2d 367, 384, 558 N.W.2d 884 (Ct. App. 1996) (citation omitted).
16