State v. Curtis L. Jackson

2014 WI 4SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP2698-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Curtis L. Jackson,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 345 Wis. 2d 62, 823 N.W.2d 840(Ct. App. – Unpublished)
OPINION FILED: January 22, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 18, 2013
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Daniel Konkol/Richard Sankovitz
JUSTICES:
CONCURRED: BRADLEY, J., concurs. (Opinion filed.)
DISSENTED: ABRAHAMSON, C.J., dissents. (Opinion filed.)
BRADLEY, J., joins Part I of dissent.
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
by James Rebholz and Rebholz & Auberry, Wauwatosa, and oral
argument by James Rebholz.
For the plaintiff-respondent, the cause was argued by
Marguerite Moeller, assistant attorney general, with whom on the
brief was J.B. Van Hollen, attorney general.
2014 WI 4NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2011AP2698-CR
(L.C. No. 2008CF5563)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v. JAN 22, 2014
Curtis L. Jackson, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of an
unpublished decision of the court of appeals, State v. Jackson,
No. 2011AP2698-CR, unpublished slip op. (Wis. Ct. App. Oct. 10,
2012), that affirmed the judgment and order of the Milwaukee
County Circuit Court,1 which convicted Curtis L. Jackson
("Jackson") of second-degree reckless homicide by use of a
dangerous weapon, and denied his motion for a new trial.
¶2 Jackson's petition for review presents the narrow
question of whether a defendant in a homicide prosecution may
1
The Honorable Daniel L. Konkol presided over the pretrial
proceedings and the trial. The Honorable Richard J. Sankovitz
presided over the postconviction motion for a new trial.
No. 2011AP2698-CR
introduce evidence of the victim's reputation for violence, when
the defendant did not know of the victim's reputation at the
time of the offense.
¶3 The issues underlying this case are more complex than
as set forth in the petition for review. Specifically, this
court must decide whether the circuit court improperly excluded
trial evidence regarding both the shooting victim's reputation
for violence and the victim's specific violent acts.
¶4 Jackson was charged with first-degree intentional
homicide by use of a dangerous weapon, contrary to Wis. Stat.
§§ 940.01(1)(a), 939.50(3)(a), and 939.63(1)(b) (2009-10),2 a
class A felony. Jackson argued that the victim was behaving in
a threatening manner, that he believed the victim was armed, and
that he killed the victim in self-defense. Jackson had neither
met the victim, nor knew of the victim's character prior to the
night of the shooting.
¶5 In support of his self-defense theory, Jackson moved
the circuit court to admit character evidence. While the motion
cited to several statutory provisions, it focused on the
admission of three specific acts to prove the victim's character
for violence. The motion did not set forth a foundational basis
for the admission of reputation testimony. The circuit court
denied the motion. Following his jury trial Jackson brought a
postconviction motion for a new trial in which he argued, in
2
All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.
2
No. 2011AP2698-CR
part, that the trial court erred by not allowing Jackson to
introduce character evidence to show that the victim was the
"first aggressor" in the confrontation. The circuit court also
denied Jackson's postconviction motion, and Jackson appealed.
¶6 The court of appeals affirmed the circuit court,
relying on McMorris v. State, 58 Wis. 2d 144, 205 N.W.2d 559(1973). In the court of appeals, Jackson conceded that the
specific acts of violence were inadmissible to prove the
character of the victim under Wis. Stat. § 904.05(2), but argued
that the victim's violent character could still have been proved
by reputation testimony under § 904.05(1).3 Jackson did not
appeal the circuit court's exclusion of other acts evidence
under Wis. Stat. § 904.04(2).4 The court of appeals affirmed the
3
Wisconsin Stat. § 904.05 provides:
(1) Reputation or opinion. In all cases in
which evidence of character or a trait of character of
a person is admissible, proof may be made by testimony
as to reputation or by testimony in the form of an
opinion. On cross-examination, inquiry is allowable
in relevant specific instances.
(2) Specific instances of conduct. In cases in
which character or a trait of character of a person is
an essential element of a charge, claim, or defense,
proof may also be made of specific instances of the
person's conduct.
4
Wisconsin Stat. § 904.04(2) provides, in relevant part:
(a) Except as provided in par. (b), evidence of
other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show that
the person acted in conformity therewith. This
subsection does not exclude the evidence when offered
for other purposes, such as proof of motive,
3
No. 2011AP2698-CR
circuit court, concluding that a "defendant's prior knowledge of
the victim's character, either by reputation or specific acts,
has consistently been a prerequisite to admission of such
evidence as part of a self-defense claim." Jackson, No.
2011AP2698-CR, unpublished slip op., ¶21.
¶7 Jackson petitioned this court for review, which we
granted on February 12, 2013.
¶8 We hold that the circuit court did not erroneously
exercise its discretion in denying Jackson's motion to admit
character evidence. The circuit court properly determined that
in order for specific acts of violence to be admissible,
"character or a trait of character of a person" must be "an
essential element of a charge, claim, or defense." In a
homicide case where a claim of self-defense is raised, character
evidence may be admissible as evidence of the defendant's state
of mind so long as the defendant had knowledge of the prior acts
at the time of the offense. McMorris, 58 Wis. 2d at 152. We
also conclude that the circuit court did not err in denying
Jackson's motion to admit testimony that the victim had a
reputation for violence under Wis. Stat. § 904.05(1). Jackson
failed to establish a proper foundation for the court to
determine that evidence of the victim's reputation for violence
was admissible. We further conclude that, even assuming error
opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.
4
No. 2011AP2698-CR
occurred, that error was harmless. Therefore, we affirm the
decision of the court of appeals.
I. FACTUAL BACKGROUND
¶9 On November 4, 2008, Milwaukee Police Department
Officer Frank Galloway ("Officer Galloway") responded to a shots
fired call at 3776 North 60th Street in the City of Milwaukee.
Upon arrival, Officer Galloway was directed by witnesses to the
rear of the residence where he found the victim, Angelo McCaleb
("McCaleb"), lying on his back.
¶10 McCaleb was declared dead at the scene. His body was
later transported to the Milwaukee County Medical Examiner's
Office where an autopsy confirmed that McCaleb had died as the
result of a single gunshot wound to the chest.
¶11 While at the scene, Officer Galloway encountered
Jackson. Officer Galloway asked Jackson if he knew who had shot
the victim, to which Jackson responded: "I did it. I shot him.
The gun is over there on top of the car. Sorry, I did not mean
to do it." Officer Galloway took Jackson into custody.
¶12 Although the five witnesses to the shooting differed
on the details, the basic facts are undisputed. On the evening
of November 4, 2008, Tanya Davis ("Davis") borrowed Jackson's
car to go to a bar. While at the bar, Davis met McCaleb and his
friend Wayne Johnson ("Johnson") and had drinks with them. It
would later be established that McCaleb had a .18 blood alcohol
concentration at the time of his death. While Davis was at the
bar, Jackson left phone messages asking her to return his car.
5
No. 2011AP2698-CR
Davis testified that McCaleb responded to these messages by
saying "fuck that nigger" in reference to Jackson.
¶13 Davis eventually returned the car to Jackson's house.
She was followed by McCaleb and Johnson. Upon arriving, McCaleb
and Johnson got into an argument with Jackson and two women,
Francheska Garcia ("Garcia") and Lawanda Knight ("Knight"), who
lived with Jackson at the time. Jackson would later testify
that, when he knocked on McCaleb's car window, McCaleb said that
Jackson "had some fuckin' nerve knockin' on somebody's car
window like that." Jackson and McCaleb then argued, "yelling
back and forth" about whether Davis would be going back out that
evening. During the course of the argument, Jackson testified
that McCaleb "lunged" at Garcia with his fist "clenched" and
"[a]nger in his face." This was corroborated by testimony from
Garcia, who stated that McCaleb stepped towards her "like to
hit" her at one point during the argument. Jackson then
retrieved a handgun from his vehicle.
¶14 Knight later testified that Jackson used that gun to
shoot McCaleb only after McCaleb got "so mad" and returned to
Johnson's car as if to retrieve something. McCaleb then walked
back towards Jackson "really fast with one hand behind his
back," saying "something for you, motherfucker." Further,
Knight told police that McCaleb was "pulling at his waistband as
if he was going for a gun." In an interview with a Milwaukee
Police Department detective following the shooting, Jackson said
that McCaleb was behaving in a threatening manner, and that he
6
No. 2011AP2698-CR
believed McCaleb had armed himself as well. McCaleb was, in
fact, unarmed.
II. PROCEDURAL POSTURE
¶15 On November 8, 2008, Jackson made his initial
appearance. The criminal complaint alleged a single count of
first-degree reckless homicide while armed, contrary to Wis.
Stat. §§ 940.02(1) and 939.63, a class B felony. Cash bail was
set at $150,000.
¶16 On November 17, 2008, the court held Jackson's
preliminary hearing. Following testimony from a Milwaukee
Police Department detective regarding the circumstances of the
shooting, the State moved to bind Jackson over for trial.
Jackson moved to dismiss the charge, arguing that he had acted
in self-defense.5 The court denied Jackson's motion to dismiss,
granted the State's motion, and Jackson was bound over for
trial.
5
Self-defense is detailed in Wis. Stat. § 939.48(1), which
provides:
A person is privileged to threaten or
intentionally use force against another for the
purpose of preventing or terminating what the person
reasonably believes to be an unlawful interference
with his or her person by such other person. The actor
may intentionally use only such force or threat
thereof as the actor reasonably believes is necessary
to prevent or terminate the interference. The actor
may not intentionally use force which is intended or
likely to cause death or great bodily harm unless the
actor reasonably believes that such force is necessary
to prevent imminent death or great bodily harm to
himself or herself.
7
No. 2011AP2698-CR
¶17 On December 9, 2008, Jackson was arraigned on the
Information which charged him with one count of first-degree
reckless homicide while armed. Jackson waived a reading of the
Information and pled not guilty to the charge. On February 6,
2009, the court held a pretrial conference and set a trial date
of May 4, 2009.
¶18 On February 12, 2009, the State filed an Amended
Information which charged Jackson with first-degree intentional
homicide by use of a dangerous weapon, contrary to Wis. Stat.
§§ 940.01(1)(a), 939.50(3)(a), and 939.63(1)(b), a class A
felony.
¶19 On April 7, 2009, Jackson filed a Motion to Admit
Character and Habit Evidence.6 Jackson offered three prior acts
of violence by McCaleb as evidence of his "history of violent
and assaultive behavior." First, Jackson offered McCaleb's 1995
conviction for criminal trespass and disorderly conduct for
McCaleb's role as one of a dozen individuals involved in a home
invasion altercation where McCaleb pretended to have an object
that appeared to be a firearm or other weapon and during the
invasion struck an individual repeatedly with a bar stool.
Second, Jackson offered a November 7, 2004, City of Milwaukee
6
Although mentioned in this filing, Jackson never sought to
admit evidence of a "habit" under Wis. Stat. § 904.06, nor did
the circuit court rule on the issue. Jackson's motion also
cites to Wis. Stat. § 906.08, which governs evidence of the
character of a witness, but he similarly fails to develop an
argument around that statute. This opinion, therefore, does not
address habit evidence or evidence of the character of a witness
as these issues have not been raised on appeal.
8
No. 2011AP2698-CR
assault and battery citation McCaleb received for pushing his
girlfriend during a domestic dispute outside of a tavern.
Finally, Jackson offered a January 18, 2008, citation McCaleb
received for, after being at a party, kicking in the door of an
individual named Adam Comp ("Comp") and punching him.
¶20 Jackson argued in his pretrial motion papers that
these three prior acts of violence were admissible as other acts
evidence under Wis. Stat. § 904.04(2). Jackson also argued that
"evidence of a pertinent trait" of McCaleb's character would be
admissible under § 904.04(1).7 Jackson conceded in his motion
that:
Mr. Jackson was not acquainted with Mr. McCaleb
and was not aware of these previous acts of violence
at the time of the shooting, thus he is not able to
admit evidence of these acts pursuant to doctrines set
forth in McMorris v. State . . . which permit the
admission of specific violent acts of a victim
previously known to a defendant in a self-defense
case.
7
Wisconsin Stat. § 904.04(1) "Character Evidence Generally"
provides, in relevant part:
Evidence of a person's character or a trait of
the person's character is not admissible for the
purpose of proving that the person acted in conformity
therewith on a particular occasion, except:
. . . .
(b) Character of victim. Except as provided in s.
972.11(2), evidence of a pertinent trait of character
of the victim of the crime offered by an accused, or
by the prosecution to rebut the same, or evidence of a
character trait of peacefulness of the victim offered
by the prosecution in a homicide case to rebut
evidence that the victim was the first aggressor.
9
No. 2011AP2698-CR
Jackson nonetheless argued that "in a self-defense case where
the violent character of the deceased is an essential element of
the defense," testimony concerning the victim's reputation for
violence is admissible. Wis. Stat. §§ 904.04(1)(b), 904.05(1).
Jackson's motion muddled its discussion of McCaleb's prior
violent acts with its reference to reputation evidence. While
mentioning reputation evidence, Jackson's motion did not offer
any foundation for the admission of reputation evidence.
Further, while Jackson's motion contained the phrase "first
aggressor," the phrase is merely a quote of the language in
§ 904.04(1)(b). Jackson never explained how first aggressor is
at issue so as to affect the admissibility of character
evidence. The pretrial motion focused on the admission of the
three specific acts Jackson sought to introduce to prove
McCaleb's character.
¶21 On April 21, 2009, the State responded to Jackson's
motion. The State opposed Jackson's motion, arguing that
McCaleb's prior acts of violence were not admissible. The State
argued that the specific acts of violence were irrelevant, being
too distant in time and too factually distinct from the
circumstances of the case. The State also argued that, assuming
the specific acts had any probative value, that value was
substantially outweighed by the prejudice that would result from
admitting them. The State asserted that these specific acts
would unfairly indicate that the victim had acted in conformity
with his past conduct. The State did not respond to Jackson's
citation to reputation evidence and, like the defendant's
10
No. 2011AP2698-CR
motion, focused instead on the admissibility of the three
specific acts of violence.
¶22 On April 27, 2009, at the motion hearing, the circuit
court denied Jackson's motion. The court concluded that
McCaleb's prior specific acts were inadmissible under McMorris
because "[i]t's got to be something that the defendant knew.
Otherwise, it is doing something improper. So since the
defendant did not know about those acts, I don't believe that
the defense is allowed to go into those." The court further
explained that the specific acts of violence were also not
admissible as other acts evidence:
Again, you have indicated that these two people
didn't even know each other, so I don't think that
substantiates any type of motive to do something to
the defendant. I don't think it even qualifies under
the first analysis [sic] with regard to the Sullivan
analysis. So I don't even think you can get beyond
that, but even if you have, I think the probative
value would be substantially outweighed by the danger
of prejudice, unfair prejudice, so that evidence is
not admissible.
¶23 With the specific acts of violence excluded on both
character evidence and other acts evidence grounds, the record
could be read to reflect that defense counsel then made an
attempt, albeit fleeting, to admit reputation or opinion
testimony that McCaleb was a violent person:
Okay. Then I guess, first of all, I understand
the Court's ruling. Then I'm asking how the Court is
going to rule then specifically——omitting specific
acts but asking specifically I think that it is
admissible for the defense to proffer opinion and
reputation evidence of Mr. McCaleb, the witness,
assuming I can lay a foundation, I believe I can, that
11
No. 2011AP2698-CR
Mr. McCaleb is a violent person, the witness' opinion
that he is a violent person and that McCaleb had a
reputation for violence.
This attempt, however, failed to identify a witness, establish a
foundation, or even clarify that what counsel sought to admit
was the statement "McCaleb had a reputation for violence."
¶24 The State then focused on the admissibility of
character evidence as it related to credibility and stated:
Judge, my understanding of character evidence,
the admissible character evidence is it bears on
credibility and I don't think that obviously would
bear on credibility since the victim is not here to
defend himself as to those accusations or opinions, so
I don't think they're relevant under the character
evidence statute.
The court, perhaps not fully digesting that Jackson's argument
had shifted from the admissibility of the specific acts to
admissibility of the statement "McCaleb had a reputation for
violence," replied:
All right. I agree. I don't believe that those
matters would be relevant, so they would not be
allowed.
¶25 Despite the court not specifically responding to her
reputation evidence argument, counsel did not object to the
court's rulings, or ask for a specific ruling on reputation
evidence. Further, counsel did not clarify her request and did
not request the opportunity to make a proffer. In addition,
counsel did not specifically raise the first aggressor issue.
Instead, counsel stated:
[DEFENSE COUNSEL]: All right. Okay. So the
Court is denying the defense proffer opinion and
reputation—
12
No. 2011AP2698-CR
THE COURT: Character evidence, Number 2, I
believe that is what it is entitled.
[DEFENSE COUNSEL]: Yes.
THE COURT: And that, in its entirety, is denied.
[DEFENSE COUNSEL]: Okay. All right. Well,
there was one other matter [relating to a different
motion] . . . .
After the court had addressed the balance of the pretrial
matters, Jackson's counsel did not insist on a specific ruling
from the court, nor did she ask to make a proffer to preserve
the issue for appeal, and instead concluded:
I think that really, except for the more boilerplate
motion in limine, that we have then addressed all the
issues that the defense has raised in these two
motions.
¶26 On October 5, 2009, a six-day jury trial began.8 In
short, the State's theory was that Jackson shot and killed
McCaleb because he was jealous and angry, rather than fearful
and acting in self-defense. Jackson was the only party who was
armed during the confrontation. The State elicited testimony to
the effect that Jackson believed he was in a committed
relationship with Davis, and that he had received information
that she was hugging and kissing McCaleb the night of the
shooting. Testimony indicated that McCaleb and Jackson had been
arguing and "yelling back and forth" before the fatal shooting.
Testimony also indicated that McCaleb charged at Jackson just
before McCaleb was shot.
8
May 4, 2009, was Jackson's initial trial date. The court
was forced to reschedule Jackson's trial due to a conflict with
a prior adjourned homicide case.
13
No. 2011AP2698-CR
¶27 Jackson contended that he was acting in self-defense.
The jury heard testimony that McCaleb, who was described as
being taller, heavier, and more muscular than Jackson, drove up
to Jackson's home in a black car with deeply tinted windows.
The jury heard testimony that McCaleb was drunk and high and
acting belligerently, and that he shouted statements such as
"you must got some fuckin' nerve knockin' on somebody's window
like that," "you don't know who the fuck I am," and "who the
fuck are you?" The jury heard that McCaleb approached one of
the witnesses "like to hit" her with his fist "clenched" and
"[a]nger in his face" during the course of the argument. The
jury also heard that McCaleb stated "you got me fucked up" and
that he had "something for you, motherfucker" just before the
fatal shot was fired. Jackson's theory of the case was entirely
focused on self-defense. Jackson testified himself, and
elicited testimony from other witnesses, that he acted in a
restrained and reasonable manner, and that he shot McCaleb only
after McCaleb charged at him.
¶28 Neither the State nor Jackson specifically argued
"first aggressor" until after all the evidence had been
presented at trial. To the extent that first aggressor was
presented at or before the trial, it was during the State's
closing arguments, when it argued "[t]his isn't one-sided. This
isn't just Angelo McCaleb acting out of control, creating chaos
and being the aggressor out there. This is an argument between
both he and Mr. Jackson."
14
No. 2011AP2698-CR
¶29 On October 12, 2009, the jury found Jackson guilty of
the lesser-included offense of second-degree reckless homicide
while armed, contrary to Wis. Stat. §§ 940.06(1) and 939.63(1),
a class D felony. The court entered the judgment of conviction
against Jackson, and ordered a presentence investigation report.
¶30 On December 15, 2009, Jackson filed a sentencing
memorandum with the court. For the first time, in this
document, Jackson provided a foundation that Comp knew McCaleb
outside of the single violent incident on January 18, 2008,
mentioned in Jackson's motion to admit character evidence.
¶31 On January 19, 2010, the court sentenced Jackson to 15
years imprisonment, comprised of ten years of initial
confinement to be followed by five years of extended
supervision. On January 29, 2010, Jackson filed a notice of
intent to pursue postconviction relief.
¶32 On December 6, 2010, after having received two
extensions, Jackson filed a notice of appeal in the court of
appeals. Thereafter, Jackson sought to dismiss that appeal
without prejudice. On March 21, 2011, the court of appeals
granted Jackson's motion to dismiss because Jackson needed to
first raise the issues in a postconviction motion before the
circuit court. State v. Jackson, No. 2010AP2961-CR, unpublished
order (Wis. Ct. App. Mar. 21, 2011).
¶33 On June 15, 2011, Jackson filed a postconviction
motion for a new trial pursuant to Wis. Stat. § 809.30 in the
circuit court. Jackson's motion alleged that the circuit court
erred when it denied admission of "the victim's reputation and
15
No. 2011AP2698-CR
specific prior acts of violence."9 Jackson argued that "[t]he
court's decision denying the motion was erroneous and prejudiced
Jackson because it prevented him from impeaching the prosecution
theory that Jackson was the 'aggressor' and the one 'who put all
this stuff in motion.'" He argued that the evidence pertained
to "determining who was the aggressor, and the defendant's
apprehension of danger." Jackson argued that the evidence was
admissible regardless of whether Jackson knew of the victim's
violent tendencies:
Notwithstanding the reasonable apprehension of
courts to allow character evidence to prove conduct,
some form of evidence tending to show the victim's
violent character should have been admissible for the
limited purpose of supporting the defendant's self-
defense claim that the victim was the first aggressor.
Jackson's postconviction motion was the first time that the
defense began to outline a possible foundation for reputation
testimony, citing to the sentencing memorandum. The
postconviction motion seemingly averred that through trial
counsel "[t]he defendant sought to offer the testimony of Adam
Comp and others to establish McCabe's [sic] reputation and
character for violence against strangers and others" citing to
the sentencing memorandum. Counsel failed to indicate how this
argument was properly made pretrial or how any proffer before
9
Jackson also alleged in his postconviction motion that the
jury had been improperly instructed and that he received
ineffective assistance of counsel as a result of the defective
instruction.
16
No. 2011AP2698-CR
trial established a foundational basis for the reputation
testimony.
¶34 In his postconviction motion, Jackson did not assert
that the circuit court erred in excluding the three specific
violent acts as other acts evidence under Wis. Stat.
§ 904.04(2).
¶35 On July 21, 2011, the State responded to Jackson's
motion for a new trial. The State contended that the circuit
court's exclusion of McCaleb's prior acts of violence had been a
proper exercise of discretion. The State noted that in the
majority of jurisdictions that have adopted the Federal Rules of
Evidence, specific prior acts are inadmissible to prove a
victim's conduct if the acts are unknown to the defendant
because the acts are not relevant to an element of the offense.
The State conceded that reputation evidence may be admissible to
prove a victim's violent character, but argued that since
Jackson failed to lay a proper foundation for reputation
testimony, that evidence was properly excluded.
¶36 On October 17, 2011, the circuit court denied
Jackson's postconviction motion without an evidentiary hearing.
The court concluded that McCaleb's prior violent acts had been
properly excluded. The postconviction court reasoned that, as a
specific act, Jackson had not shown "how Mr. McCaleb's supposed
propensity for throwing the first punch was an essential element
of self-defense" and therefore admissible under Wis. Stat.
§ 904.05(2). Jackson did not assert that he knew McCaleb such
that the evidence would establish that "he had any reason to
17
No. 2011AP2698-CR
fear Mr. McCaleb." The court noted that Jackson did not "offer
any authority for the proposition that it is essential to a
claim of self-defense to demonstrate that the victim has a
violent character." The court concluded, "[a]nd think about it
– do we generally allow defendants to put on a self-defense case
without evidence that the victim had a propensity for violence?
All the time; hence evidence of the kind Mr. Jackson wished to
introduce at trial cannot be deemed essential to his defense."
As to Jackson's argument that he needed to introduce the
specific acts in order to "impeach the prosecution theory that
Jackson was the 'aggressor' and the one 'who put all this stuff
in motion,'" the court also noted that the first aggressor issue
was not even arguably raised until closing arguments, and so it
was "too late" to introduce evidence at that point. The court
concluded that Jackson failed to raise, at any point earlier in
the trial, "any argument or evidence needed rebutting with
evidence showing that Mr. McCaleb was the first aggressor."
¶37 The postconviction court also concluded that the
specific acts evidence "does not tend to show that Mr. McCaleb
had the character of a first aggressor." The court outlined
that even assuming "specific instances of the victim's violent
past were generally admissible, the court would not have
admitted the three particular instances offered by Mr. Jackson
here." The court also outlined why each instance would be
inadmissible. The court noted the evidentiary deficiencies,
stating that the 1995 and 2004 acts "lacked sufficient probative
value." The court went on, concluding that the 2008 act "would
18
No. 2011AP2698-CR
have triggered a satellite trial over whether . . . Mr. McCaleb
was the first aggressor or not, the kind of sideshow that courts
have long lamented as the reason for excluding character
evidence consisting of specific instances of conduct rather than
reputation or opinion testimony."
¶38 The court noted that in some circumstances a victim's
reputation for violence could be admissible, but concluded that
Werner v. State, 66 Wis. 2d 736, 226 N.W.2d 402 (1975),
precludes the use of specific acts of violence to prove the
first aggressor issue: "[e]vidence of specific acts of violence
from Mr. McCaleb's past are not admissible to prove that he has
a propensity for violence or that Mr. Jackson was acting in
self-defense."
¶39 On November 21, 2011, Jackson filed a notice of appeal
from the judgment of conviction entered on January 19, 2010, and
from the order denying his motion for a new trial entered on
October 17, 2011. Jackson renewed the arguments he raised in
his postconviction motion, but framed the evidentiary issue
differently. Rather than arguing that the three specific acts
of violence were improperly excluded, Jackson conceded that
"[i]f . . . the defendant was not acquainted with the victim or
his specific instances of violent conduct prior to their violent
encounter, the defendant is limited to introducing evidence of
the victim's violent character by way of reputation or opinion
evidence." Jackson's argument, for the first time, focused on
the exclusion of testimony as to McCaleb's reputation for
violence, rather than the exclusion of the specific prior acts.
19
No. 2011AP2698-CR
He argued that not allowing testimony regarding McCaleb's
reputation for violence denied him the opportunity to show that
McCaleb possessed a violent character and was likely the first
aggressor. Jackson did not appeal the circuit court's exclusion
of McCaleb's prior violent conduct as other acts evidence under
Wis. Stat. § 904.04(2).
¶40 On May 9, 2012, the State filed its brief in the court
of appeals. The State noted the shift in Jackson's position,
and then argued that reputation evidence is also inadmissible
where the defendant is unaware of the victim's reputation. The
State also argued that in any event Jackson had failed to lay a
proper foundation for any reputation evidence.
¶41 On October 10, 2012, the court of appeals affirmed the
circuit court. Jackson, No. 2011AP2698-CR, unpublished slip
op., ¶¶14, 23. The court of appeals concluded with respect to
the exclusion of evidence that "a defendant's prior knowledge of
the victim's character, either by reputation or specific acts,
has consistently been a prerequisite to admission of such
evidence as part of a self-defense claim." Id., ¶21. Because
Jackson did not have knowledge of McCaleb's violent character,
the court of appeals concluded that the circuit court had
properly excluded evidence of that character. Id. Although
Jackson did not raise it in his briefing, the court of appeals
also rejected the argument that the prior acts could be admitted
to prove "McCaleb's motive, opportunity and lack of accident or
mistake," reasoning that none of those were an element of
Jackson's self-defense claim. Id., ¶22.
20
No. 2011AP2698-CR
¶42 Jackson petitioned this court for review, which we
granted on February 12, 2013.
III. STANDARD OF REVIEW
¶43 "This court will not disturb a circuit court's
decision to admit or exclude evidence unless the circuit court
erroneously exercised its discretion." Weborg v. Jenny, 2012 WI
67, ¶41, 341 Wis. 2d 668, 816 N.W.2d 191 (citing State v.
Ringer, 2010 WI 69, ¶24, 326 Wis. 2d 351, 785 N.W.2d 448). "A
circuit court erroneously exercises its discretion if it applies
an improper legal standard or makes a decision not reasonably
supported by the facts of record." Id. (citing Johnson v.
Cintas Corp. No. 2, 2012 WI 31, ¶22, 339 Wis. 2d 493, 811
N.W.2d 756).
¶44 "[A] circuit court's erroneous exercise of discretion
does not warrant a new trial if the error was harmless."
Weborg, 341 Wis. 2d 668, ¶43 (citing State v. Harris, 2008 WI
15, ¶85, 307 Wis. 2d 555, 745 N.W.2d 397). "Application of the
harmless error rule presents a question of law that this court
reviews de novo." Id. (citing State v. Ziebart, 2003 WI App
258, ¶26, 268 Wis. 2d 468, 673 N.W.2d 369).
IV. ANALYSIS
¶45 Our analysis begins with the understanding that "the
circuit court's decisions to admit or exclude evidence are
entitled to great deference . . . ." State v. Head, 2002 WI 99,
¶43, 255 Wis. 2d 194, 648 N.W.2d 413 (citing Martindale v. Ripp,
2001 WI 113, ¶29, 246 Wis. 2d 67, 629 N.W.2d 698). This court
will reverse a discretionary decision only if the circuit
21
No. 2011AP2698-CR
court's exercise of discretion "is based on an error of law."
Id.¶46 In this case, the circuit court was called upon, in
part, to consider whether character evidence was admissible
under Wis. Stat. §§ 904.04 and 904.05. As a general rule,
"[e]vidence of a person's character or a trait of the person's
character is not admissible for the purpose of proving that the
person acted in conformity therewith on a particular
occasion . . . ." Wis. Stat. § 904.04(1).
¶47 An exception to this general rule is the admission of
"pertinent" character evidence of a victim offered by a criminal
defendant:
Except as provided in s. 972.11(2), evidence of a
pertinent trait of character of the victim of the
crime offered by an accused, or by the prosecution to
rebut the same, or evidence of a character trait of
peacefulness of the victim offered by the prosecution
in a homicide case to rebut evidence that the victim
was the first aggressor.
Wis. Stat. § 904.04(1)(b).
¶48 When the exception has been satisfied, one way
character evidence may be presented is in the form of reputation
or opinion testimony. Wis. Stat. § 904.05(1). When the
exception has been satisfied and a defendant seeks to admit
specific instances of the victim's prior conduct, however, it
must be the case that "character or a trait of character" of the
victim "is an essential element of a charge, claim, or defense."
Wis. Stat. § 904.05(2).
22
No. 2011AP2698-CR
¶49 In his pretrial motion, Jackson sought to admit three
prior violent acts by McCaleb in support of his argument that he
shot McCaleb in self-defense. Jackson argued that the prior
acts were admissible in two different ways. First, Jackson
argued that McCaleb's violent acts were admissible as other acts
evidence under Wis. Stat. § 904.04(2). Second, Jackson argued
that McCaleb's prior violent acts were admissible as evidence of
McCaleb's "character for violence" under Wis. Stat.
§§ 904.04(1)(b), 904.05(1) and (2). Although mentioned in
passing, Jackson's motion and argument never focused on the
admission of McCaleb's "reputation for violence," but rather the
argument before the circuit court focused on the admissibility
of McCaleb's specific acts. In other words, the focus of both
the pretrial and postconviction motions, and therefore the focus
of the court's attention, was on Jackson's attempt to establish
McCaleb's character for violence by introducing these three
specific acts of violence. Jackson never established a
foundation or made a proffer for the admission of the statement
"McCaleb had a reputation for violence." Jackson also never
requested a specific ruling from the court regarding the
admissibility of that evidence.
¶50 Reputation evidence, such as the statement "McCaleb
had a reputation for violence," is not proven by the admission
of testimony of specific acts. Specific act testimony has far
more persuasive value than the one-liner "X had a reputation for
violence," and so it is much more appealing to introduce
specific acts evidence. Not surprisingly then, the focus of
23
No. 2011AP2698-CR
Jackson's counsel, the State, and the trial court was on the
admission of the three specific acts, and not general reputation
testimony.
¶51 The record reflects that counsel never clearly argued
to lay the foundation and for admissibility of reputation
testimony before the circuit court. If Jackson's counsel did
intend that reputation testimony be admitted, when it seemed the
State and the court were not following that argument, counsel
should have clarified the issue, laid the foundation, and
requested a specific ruling on reputation evidence. Instead,
the moving papers do not set forth the foundation for
admissibility, an oral proffer was not made at argument, and
thus, the issue was not properly preserved for appeal.
¶52 Pretrial, Jackson did not argue that the evidence he
sought to introduce would be "McCaleb had a reputation for
violence." He did not frame his analysis in terms of the
admission of general reputation evidence to establish first
aggressor. He did not argue that McCaleb was the first
aggressor at trial, although he claims the State argued first
aggressor in its closing argument. Jackson's first mention of
introducing general "reputation for violence" evidence to
establish first aggressor was in his postconviction motion.
Although Jackson now argues that the defect in the circuit
court's ruling was exclusion of general reputation testimony, it
is also telling that his pretrial and postconviction motions are
primarily cast in terms of the admissibility of the three
specific acts he offered in his pretrial motion. This court has
24
No. 2011AP2698-CR
held that "all claims of error that a criminal defendant can
bring should be consolidated into one motion or appeal." State
v. Lo, 2003 WI 107, ¶44, 264 Wis. 2d 1, 665 N.W.2d 756 (emphasis
in original). Claims that are not so consolidated are barred
"absent a showing of a sufficient reason for why the claims were
not raised . . . ." Id.¶53 Character evidence, in the form of reputation,
opinion, or specific acts, and other acts evidence may appear
intertwined, but each requires a different legal analysis for
admission. Jackson seemingly conflated character evidence, by
reputation and specific acts, and other acts evidence in his
motions before the circuit court. Even though reputation
evidence is the focus of this appeal, in an effort to clarify
the law this opinion will address other acts evidence, character
shown by reputation or opinion evidence, and character shown by
specific incidents of conduct. Each evidentiary principle
carries a unique analysis. In this case, however, we conclude
that the circuit court properly exercised its discretion in
excluding the evidence under any of these principles.
A. Other Acts Evidence
¶54 Jackson argued in his pretrial motion that three prior
acts of violence were admissible as other acts evidence under
Wis. Stat. § 904.04(2). Postconviction, Jackson has not argued
that the trial court erred in excluding the other acts evidence.
Pretrial, Jackson asserted that the 1995 disorderly conduct
conviction, the 2004 assault and battery citation, and the 2008
disorderly conduct citation were relevant to show McCaleb's
25
No. 2011AP2698-CR
"motive, opportunity and lack of accident or mistake." The
circuit court rejected these arguments and concluded that the
evidence was not offered for an acceptable purpose, was
irrelevant to the case, and alternatively that the probative
value of the evidence was outweighed by the danger of prejudice.
¶55 The admissibility of other acts evidence is addressed
using a three-step analysis:
(1) Is the other acts evidence offered for an
acceptable purpose under Wis. Stat. § (Rule)
904.04(2), such as establishing motive,
opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or
accident?
(2) Is the other acts evidence relevant, considering
the two facets of relevance set forth in Wis.
Stat. § (Rule) 904.01? The first consideration
in assessing relevance is whether the other acts
evidence relates to a fact or proposition that is
of consequence to the determination of the
action. The second consideration in assessing
relevance is whether the evidence has probative
value, that is, whether the other acts evidence
has a tendency to make the consequential fact or
proposition more probable or less probable than
it would be without the evidence.
(3) Is the probative value of the other acts evidence
substantially outweighed by the danger of unfair
prejudice, confusion of the issues or misleading
the jury, or by considerations of undue delay,
waste of time or needless presentation of
cumulative evidence? See Wis. Stat. § (Rule)
904.03.
State v. Sullivan, 216 Wis. 2d 768, 772-73, 576 N.W.2d 30 (1998)
(footnote omitted).
26
No. 2011AP2698-CR
¶56 Here, the circuit court properly excluded the evidence
of McCaleb's past violent conduct under each of the three prongs
of the Sullivan test.
¶57 First, although his motion recited the language from
Wis. Stat. § 904.04(2) and Sullivan, Jackson failed to connect
the specific instances of violence with any of the permissible
purposes described in those sources. The Sullivan court made
clear that the proponent of other acts evidence has the burden
of showing how the evidence meets each prong of the analysis.
216 Wis. 2d at 774. A separate analysis is required for each
piece of evidence. State v. Hunt, 2003 WI 81, ¶43, 263
Wis. 2d 1, 666 N.W.2d 771.
¶58 Jackson purportedly offered the evidence to show
McCaleb's "motive, opportunity and lack of accident or mistake"
but he never explained how the evidence met the criteria for
admission as other acts evidence. The circuit court determined
that "you have indicated that these two people didn't even know
each other, so I don't think that substantiates any type of
motive to do something to the defendant. I don't think it even
qualifies under the first analysis [sic] with regard to the
Sullivan analysis." Simply stated, Jackson failed to show how
the other acts evidence was related to an acceptable purpose
under the statute.
¶59 Second, we agree with the circuit court that Jackson
failed to show how the other acts evidence is relevant under
Wis. Stat. § 904.04(2). Jackson did not show that the past
conduct related to a consequential fact, nor did he show its
27
No. 2011AP2698-CR
probative value. In a first-degree intentional homicide case,
self-defense is applicable if the defendant (1) reasonably
believed that he or she was facing a threat of "imminent death
or great bodily harm," and (2) reasonably believed the amount of
force used was "necessary to prevent" the threat. See Wis.
Stat. § 939.48(1); Wis. JI——Criminal 805. At least in part
because he was unaware of McCaleb's past conduct, the
reasonableness of Jackson's beliefs was not impacted by that
conduct. Thus, as the circuit court concluded, these specific
acts by McCaleb were irrelevant.
¶60 Third, the circuit court determined that the probative
value was substantially outweighed by the prejudice:
I don't think it even qualifies under the first
analysis [sic] with regard to the Sullivan analysis.
So I don't even think you can get beyond that, but
even if you have, I think the probative value would be
substantially outweighed by the danger of prejudice,
unfair prejudice, so that evidence is not admissible.
¶61 For purposes of other acts evidence, the circuit court
properly applied the facts before it to the proper legal
standard and excluded the three prior acts of violence. Based
on the record, we cannot conclude that the circuit court
erroneously exercised its discretion. Given that Jackson has
focused his appeal on character evidence, we can conclude that
he now agrees.
B. Character Evidence
¶62 Before the circuit court, Jackson argued that three
prior acts could be admitted to show "evidence of a pertinent
trait" of McCaleb's character under Wis. Stat. § 904.04(1).
28
No. 2011AP2698-CR
Jackson also argued that "in a self-defense case where the
violent character of the deceased is an essential element of the
defense," testimony concerning the victim's reputation for
violence is admissible. Jackson did not identify any witnesses
in his motion who could testify that "McCaleb had a reputation
for violence," and he did not lay a foundation for the
admissibility of that general testimony. Jackson also did not
show how McCaleb's violent character was "an essential element
of a charge, claim, or defense," such that the specific acts
were admissible under Wis. Stat. § 904.05(2).
¶63 The circuit court rejected Jackson's arguments and
concluded: "I think the probative value would be substantially
outweighed by the danger of prejudice, unfair prejudice, so that
evidence is not admissible."
¶64 Generally speaking, "[e]vidence of a person's
character or a trait of the person's character is not admissible
for the purpose of proving that the person acted in conformity
therewith on a particular occasion . . . ." Wis. Stat.
§ 904.04(1). "[T]he law of evidence disdains the use of
character to show propensity to behave in a certain way." 7
Daniel D. Blinka, Wisconsin Practice Series: Wisconsin Evidence
§ 405.1, at 225 (3d ed. 2008). We agree.
¶65 There are, however, exceptions to this general rule,
one of which is evidence of a "pertinent character trait" of the
deceased in a homicide prosecution. Wis. Stat. § 904.04(1)(b).
When character is at issue, proof may be made at trial by
29
No. 2011AP2698-CR
reputation testimony, opinion testimony, and by specific acts.
Wis. Stat. § 904.05(1) and (2).
¶66 Reputation testimony is one form of hearsay in which a
witness will testify about the subject's reputation within the
community. Opinion testimony permits the witness to testify
about his or her own opinion of the subject's character.
Neither reputation nor opinion testimony include evidence of
specific instances of conduct, except perhaps in cross-
examination or rebuttal.
¶67 Reputation and opinion testimony have significant
persuasive limitations before a jury because they tend to be of
a sweeping and conclusory nature. Reputation testimony, in
particular, "has been aptly but disparagingly described as the
'irresponsible product of multiple guesses and gossip.'"
Blinka, supra, § 405.2, at 226. This type of reputation
testimony, which would tend to show that "McCaleb had a
reputation for violence," does not permit the jury to hear about
specific acts of violence.
¶68 On the other hand, the introduction of specific acts
to prove character requires a different analysis. "Of the three
methods of proving character provided by the rule, evidence of
specific instances of conduct is the most convincing. At the
same time it possesses the greatest capacity to arouse
prejudice, to confuse, to surprise, and to consume time."
Advisory Committee Notes-1972 Proposed Rules, Fed. R. Evid. 405.
A court may properly consider the value of the admissibility of
specific acts against competing interests such as prejudice,
30
No. 2011AP2698-CR
confusion, or creating a trial within a trial. In other words,
does the probative value outweigh the prejudicial effect? The
use of character evidence shown through specific acts requires
even more than the foundation required for the admission of
reputation or opinion testimony. To admit specific acts to show
character, the character or trait of character must be "an
essential element of a charge, claim, or defense." Wis. Stat.
§ 904.05(2). The circuit court still retains great discretion
in determining whether to admit the evidence.
¶69 In his pretrial motion, Jackson stated that McCaleb's
violent character was "pertinent" to his self-defense theory,
but made little effort to explain further. At the circuit court
level, Jackson had sought to prove McCaleb's character for
violence by introducing the three specific acts of violence
under Wis. Stat. § 904.05(2). Critically, Jackson never focused
his argument on the admissibility of the statement "McCaleb had
a reputation for violence" in the circuit court. Instead, he
primarily sought to prove that McCaleb was violent by
introducing specific instances of conduct. Jackson now claims
that McCaleb's violent character was relevant to determining who
the first aggressor was in their confrontation such that the
circuit court ought to have allowed testimony that "McCaleb had
a reputation for violence." On appeal, Jackson has abandoned
the argument that the circuit court erred when it denied
admission of the specific instances of conduct. Jackson's
change of heart does not afford him the relief he requests.
31
No. 2011AP2698-CR
¶70 We first address whether Jackson laid a proper
foundation for admitting reputation evidence——"McCaleb had a
reputation for violence." Second, even though Jackson
apparently now agrees that the offered specific prior acts are
inadmissible, we address whether the circuit court erroneously
excluded evidence of McCaleb's violent character through the
specific instances offered. In each instance, we conclude that
the circuit court's exercise of discretion was not erroneous.
1. Reputation Evidence
¶71 Jackson asks this court to find that the character
evidence "McCaleb had a reputation for violence" is admissible
despite the fact that Jackson was unaware of that reputation at
the time of the shooting. We first discuss whether Jackson laid
a proper foundation for the reputation evidence. We hold that
he did not. We further conclude that Jackson failed to make a
proffer regarding reputation evidence, and so failed to preserve
the issue for appeal. Wis. Stat. § 901.03(1); State v. Winters,
2009 WI App 48, ¶¶17-19, 317 Wis. 2d 401, 766 N.W.2d 754(holding that a party challenging a trial court's ruling
excluding evidence is obligated to make an offer of proof).
¶72 "The foundation for reputation is deliberately
simplistic. Properly framed, the reputation testimony can be
elicited in less than a minute. The streamlined foundation
befits the evidence's modest probative value." Blinka, supra,
§ 405.2, at 226. A proper foundation for reputation testimony
requires showing four elements:
32
No. 2011AP2698-CR
• The witness belongs to, or is knowledgeable about, a
community (residential, business, or social) to
which the subject belongs.
• The subject has a reputation for a particular
character trait.
• The witness knows the reputation.
• The witness testifies to the reputation.
Id.
¶73 Despite these relative modest requirements, Jackson's
motions before the trial court failed to lay a foundation for
reputation testimony. At most, Jackson's postconviction motion
pointed to "Comp and others" as witnesses who could testify to
"[McCaleb's] reputation and character for violence." Notably,
such reference was not made at the pretrial stage. At no time
did Jackson identify the community Comp shared with McCaleb, nor
did he include any information regarding Comp's knowledge of
McCaleb beyond the single interaction the two had in January
2008. Thus, at the pretrial stage, Jackson made it less than
clear that he was seeking this general reputation testimony.
The focus was seemingly on the specific acts. Without any
foundation, the circuit court was in no position to make the
findings necessary to properly admit the reputation testimony.
¶74 At most, Comp's knowledge of McCaleb's reputation was
included for the first time as an attachment in Jackson's
sentencing memorandum. Even in Jackson's postconviction motion,
the focus remained on the specific act evidence rather than
general reputation testimony. At least the postconviction
33
No. 2011AP2698-CR
motion began to discuss some foundation for the admission of
reputation testimony.
¶75 Additionally, assuming Jackson believed the trial
court had erred, he never requested the opportunity to proffer a
foundation for admitting McCaleb's reputation for violence.
Jackson bore the responsibility to make an offer of proof in
order to preserve the issue for appeal. Winters, 317
Wis. 2d 401, ¶19. Here, Jackson's counsel did not make a
further proffer to the court orally or in writing, nor did
counsel clarify that a reputation evidence ruling was sought
from the court.
¶76 Jackson now asks this court to consider the additional
information about Comp provided postconviction, rather than
relying on the original motion papers and argument transcript.
We decline to do so because:
Error may not be predicated upon a ruling which admits
or excludes evidence unless a substantial right of the
party is affected; and
. . .
(b) Offer of proof. In case the ruling is one
excluding evidence, the substance of the evidence was
made known to the judge by offer or was apparent from
the context within which questions were asked.
Wis. Stat. § 901.03(1); see also Winters, 317 Wis. 2d 401, ¶24.
¶77 Consequently, the circuit court did not err in
precluding admission of reputation evidence because it was never
provided with a foundation to admit that evidence, and we are
left with no proffer regarding the evidence.
34
No. 2011AP2698-CR
¶78 Although it was not clearly raised either before the
trial or postconviction courts, Jackson now argues that
McCaleb's violent reputation, rather than evidence of his
specific past acts of violence, is relevant to determining
whether he was the first aggressor in the shooting. While it
may be the best argument Jackson now has on appeal, the record
below demonstrates that this was not the argument being advanced
by trial counsel, and was not adequately presented to the trial
court such that the court would recognize the evidence that it
was being called upon to admit. The trial court did not
erroneously exercise its discretion in not deciding a character
evidence argument that it never knew was being made to the
court.
¶79 It is certainly true that in some self-defense cases
there is a genuine factual dispute over which party started a
confrontation. In those cases, evidence of the victim's
character for violence might be admissible and the circuit court
is endowed with the discretion to make that determination. See,
e.g., Werner v. State, 66 Wis. 2d 736, 226 N.W.2d 402 (1975).
The circuit court is empowered to balance the "modest" probative
value of the reputation testimony against the prejudice and the
general prohibition against propensity evidence. Wis. Stat.
§§ 904.01, 904.03.
¶80 In this case, however, not only is the foundation for
the character evidence missing and the proffer insufficient to
preserve the issue for appeal, but the circuit court was not
specifically asked to rule on the admissibility of testimony
35
No. 2011AP2698-CR
"McCaleb had a reputation for violence" in reference to showing
first aggressor. To the extent that the circuit court could
have perceived that counsel sought to use this reputation
evidence to address the first aggressor issue, the most relevant
testimony regarding McCaleb being the first aggressor was
already before the jury. The jury heard from five witnesses who
testified to the events that led up to the shooting and the fact
that McCaleb was undisputedly violent on the evening in
question. Hearing that "McCaleb had a reputation for violence"
would have been anticlimactic at best. Consequently, had a
proper foundation for the evidence been laid, and the circuit
court been properly presented with a request to admit testimony
that "McCaleb had a reputation for violence" on the first
aggressor issue, it could still have reasonably concluded that
it would be cumulative, that the danger of the jury drawing an
improper propensity inference and the likelihood of prejudice
outweighed the probative value.
2. Specific Acts of Violence
¶81 The State and Jackson now apparently agree that
specific acts evidence is not admissible in this case. Jackson
does not raise the issue on appeal. Nonetheless, we will
briefly address this type of character evidence. Character
evidence can be admissible in the form of specific instances of
conduct. However, the foundation for the admissibility of
specific instances of conduct is different than the foundation
for general reputation or opinion testimony. If character is
properly at issue and the exception to admissibility of
36
No. 2011AP2698-CR
propensity evidence is met, specific acts may still be offered
only if "character or a trait of character . . . is an essential
element of a charge, claim, or defense . . . ." Wis. Stat.
§ 904.05(2). Nonetheless, even if character or a trait of
character is an essential element, the circuit court is endowed
with the authority to exercise its discretion regarding
admissibility. In this case, a character trait was not an
element that the State had to prove, nor was it an element of
Jackson's self-defense claim. Thus the circuit court properly
excluded evidence of McCaleb's prior violent acts. The court
ruled: "It's got to be something that the defendant knew.
Otherwise, it is doing something that's improper. So since the
defendant did not know about those acts, I don't believe that
the defense is allowed to go into those." The decision of the
circuit court was not clearly erroneous in excluding this
evidence.
¶82 We have held that specific prior acts of violence by
the victim may be admissible when the defendant is aware of the
acts. In the case at issue, we are not presented with
traditional McMorris evidence. In McMorris, the circuit court
concluded the prior acts of violence were known to the
defendant. As a result, the prior acts were admissible to show
that the defendant's apprehension of the threat from the victim
was reasonable, and thus, went to an essential element of self-
defense. Wis. Stat. § 904.05(2); Wis. JI——Criminal 805.
Jackson never claimed to have such knowledge in the present
37
No. 2011AP2698-CR
case. Thus, the requested acts are not admissible as McMorris
evidence.
¶83 In McMorris, the court held:
When the issue of self-defense is raised in a
prosecution for assault or homicide and there is a
factual basis to support such defense, the defendant
may, in support of the defense, establish what the
defendant believed to be the turbulent and violent
character of the victim by proving prior specific
instances of violence within his knowledge at the time
of the incident.
58 Wis. 2d at 152.10
¶84 Specific incidents of conduct to prove character are
not admissible unless "character or a trait of
character . . . is an essential element of a charge, claim, or
defense." Wis. Stat. § 904.05(2). "[T]he law of evidence
disdains the use of character to show propensity to behave in a
certain way." Blinka, supra, § 405.1, at 225. Allowing
admission of a victim's specific prior acts of violence, unknown
to the defendant, would here invite just such an improper
propensity inference. Thus, even if Jackson had argued the
first aggressor issue to the trial court, such prior specific
acts would nonetheless be inadmissible because "character or a
10
Similarly, in State v. Head this court held "McMorris
evidence may not be used to support an inference about the
victim's actual conduct during the incident." 2002 WI 99, ¶128,
255 Wis. 2d 194, 648 N.W.2d 413. But "[i]t may be admitted
because it 'bear[s] on the reasonableness of the defendant's
apprehension of danger at the time of the incident.'" Id.(citing McMorris, 58 Wis. 2d at 149); see also Werner v. State,
66 Wis. 2d 736, 226 N.W.2d 402 (1975).
38
No. 2011AP2698-CR
trait of character" was not "an essential element of a charge,
claim, or defense" in this case. Apparently Jackson now agrees.
C. Harmless Error
¶85 We conclude that the circuit court did not erroneously
exercise its discretion. Nonetheless, if we were to assume that
it was error for the trial court to exclude testimony that
"McCaleb had a reputation for violence," we also conclude any
such error on the part of the court was harmless.
¶86 The State bears the burden of proving that the error
was harmless. Sullivan, 216 Wis. 2d at 792. The court deems an
error harmless if it cannot conclude "beyond a reasonable doubt
that a rational jury would have found the defendant guilty
absent the error." State v. Harvey, 2002 WI 93, ¶49, 254
Wis. 2d 442, 647 N.W.2d 189 (citing Neder v. United States, 527
U.S. 1 (1999)).
¶87 When a court has improperly admitted evidence,
reversal is not warranted "unless an examination of the entire
proceeding reveals that the admission of the evidence has
'affected the substantial rights' of the party seeking the
reversal." State v. Armstrong, 223 Wis. 2d 331, 368, 588
N.W.2d 606 (1999); see also Wis. Stat. § 901.03(1). In order to
support reversal, there must be a "'reasonable probability that,
but for . . . [the] errors, the result of the proceeding would
have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.'" Armstrong,
223 Wis. 2d at 369 (quoting Strickland v. Washington, 466 U.S.
668, 694-95 (1984)).
39
No. 2011AP2698-CR
¶88 In this case, considering the trial as a whole, we
conclude that, if excluding "McCaleb's reputation for violence"
was error, that error was harmless.11 Even assuming the issue
had been properly before the circuit court, reputation testimony
is of "modest probative value." Blinka, supra, § 405.2, at 227.
Thus, even if it had been admitted, the general reputation
evidence "McCaleb had a reputation for violence" would have
paled in comparison to the detailed evidence that was already
before the jury.
¶89 Although the jury did not hear the sentence "McCaleb
had a reputation for violence," the jury nonetheless heard that
McCaleb was violent. The jury heard testimony that McCaleb, who
was described as being taller, heavier, and more muscular than
Jackson, drove up to Jackson's home in a black car with deeply
tinted windows. The jury heard testimony that McCaleb had a
blood alcohol content of .18 and was acting belligerently. When
referring to Jackson, McCaleb told Davis to "fuck that nigger."
He shouted statements such as "you've got some fuckin' nerve
knockin' on a car window," "you don't know who the fuck I am,"
and "who the fuck are you?" The jury heard that McCaleb came
toward one of the females "like to hit" her with his fist
"clenched" and that he had "[a]nger in his face." The jury also
11
Here, we conclude that this presumed error by the court
was harmless. In this case, it follows that counsel's errors
regarding reputation testimony could not have prejudiced
Jackson, such that counsel was ineffective. See State v.
Carter, 2010 WI 40, ¶37, 324 Wis. 2d 640, 782 N.W.2d 695 (citing
Strickland v. Washington, 466 U.S. 668, 691-93 (1984)).
40
No. 2011AP2698-CR
heard that McCaleb got "so mad" and went back to his car as if
to get something and returned from the car "speed-walking"
toward Jackson with one of his hands behind his back yelling
"you got me fucked up" and that he had "something for you,
motherfucker" just before Jackson fired the fatal shot.
¶90 Simply adding general reputation testimony that
"McCaleb had a reputation for violence" to this substantial body
of evidence does not create the "reasonable probability" of a
different outcome. Armstrong, 223 Wis. 2d at 369. Moreover,
any reputation witness would have been subject to rigorous
cross-examination. At best, that one sentence——in light of all
the evidence presented at trial——would have been fleeting and
cumulative.
¶91 Therefore, assuming the circuit court erred in denying
admission of the "modestly" probative evidence, "McCaleb had a
reputation for violence," that error was harmless in light of
all the evidence regarding McCaleb being violent on the evening
in question.
V. CONCLUSION
¶92 We hold that the circuit court did not erroneously
exercise its discretion in denying Jackson's motion to admit
character evidence. The circuit court properly determined that
in order for specific acts of violence to be admissible,
"character or a trait of character of a person" must be "an
essential element of a charge, claim, or defense." In a
homicide case where a claim of self-defense is raised, character
evidence may be admissible as evidence of the defendant's state
41
No. 2011AP2698-CR
of mind so long as the defendant had knowledge of the prior acts
at the time of the offense. McMorris, 58 Wis. 2d at 152. We
also conclude that the circuit court did not err in denying
Jackson's motion to admit testimony that the victim had a
reputation for violence under Wis. Stat. § 904.05(1). Jackson
failed to establish a proper foundation for the court to
determine that evidence of the victim's reputation for violence
was admissible. We further conclude that, even assuming error
occurred, that error was harmless. Therefore, we affirm the
decision of the court of appeals.
By the Court.—The decision of the court of appeals is
affirmed.
42
No. 2011AP2698-CR.awb
¶93 ANN WALSH BRADLEY, J. (concurring). I agree with
the majority and dissent when they determine that evidence of
the victim's reputation for violence offered to demonstrate the
identity of the first aggressor is relevant to a defendant's
self-defense claim. Majority op., ¶¶47-48, 65, 79; dissent,
¶¶96-97, 113.
¶94 I further determine, for reasons set forth in the
dissent, that the circuit court erroneously denied the
defendant's motion to admit evidence of the victim's reputation
without allowing the defendant an opportunity to present a
better foundation for reputation evidence. Therefore, I join
Part I of the dissent.
¶95 I ultimately conclude, however, that for reasons set
forth in the majority opinion, the error is harmless. As the
majority notes, in order to reverse a conviction based on an
erroneous evidentiary ruling, there must be a reasonable
probability that the outcome of the trial would have been
different without the error. Majority op., ¶87 (citing State v.
Armstrong, 223 Wis. 2d 331, 368, 588 N.W.2d 606 (1999)). "A
reasonable probability is a probability sufficient to undermine
confidence in the outcome." Id. at 368 (quoting Strickland v.
Washington, 466 U.S. 668, 694-95 (1984)). I agree with the
majority that it is unlikely that the reputation evidence would
have affected the outcome in this case. Therefore, I join Part
IV. C. of the majority opinion and respectfully concur.
1
No. 2011AP2698-CR.awb
2
No. 2011AP2698-CR.ssa
¶96 SHIRLEY S. ABRAHAMSON, C.J. (dissenting). I agree
with the majority opinion's implicit holding that evidence of
the victim's reputation for violence is admissible on the issue
of first aggressor when a defendant raises a self-defense claim,
even when the defendant is unaware of the reputation.1 Majority
op., ¶¶47, 48, 79.
1
Wisconsin Stat. § 904.04(1)(b) provides:
(1) Character evidence generally. Evidence of a
person's character or a trait of the person's
character is not admissible for the purpose of proving
that the person acted in conformity therewith on a
particular occasion, except:
. . . .
(b) Character of victim. Except as provided in s.
972.11(2), evidence of a pertinent trait of character
of the victim of the crime offered by an accused, or
by the prosecution to rebut the same, or evidence of a
character trait of peacefulness of the victim offered
by the prosecution in a homicide case to rebut
evidence that the victim was the first
aggressor . . . .
"Exception [904.04(1)](b) makes clear that evidence in a
homicide case claiming the victim was the first aggressor
affords the prosecution the right to introduce rebutting
evidence of the peacefulness of the victim." Wisconsin Rules of
Evidence § 904.04, 59 Wis. 2d at R76 (Judicial Council
Committee's Note) (1974).
The Federal Advisory Committee's Note elaborates:
Character evidence is susceptible of being used for
the purpose of suggesting an inference that the person
acted on the occasion in question consistently with
his character. This use of character is often
described as "circumstantial." Illustrations are:
evidence of a violent disposition to prove that the
person was the aggressor in an affray . . . .
1
No. 2011AP2698-CR.ssa
¶97 Character evidence of a victim's violent disposition
in the form of reputation evidence to prove that the victim was
the first aggressor in an affray is routinely accepted in the
evidence literature as a paradigmatic admissible use of
character evidence.2
¶98 I disagree, however, with the majority opinion's
analysis that the defendant failed to lay a proper foundation3
for the introduction of evidence of the victim's reputation and
failed to follow through with a self-defense claim that the
victim was the first aggressor. I also disagree with the
majority opinion's harmless error analysis.
In most jurisdictions today, the circumstantial use of
character is rejected but with important
exceptions: . . . (2) an accused may introduce
pertinent evidence of the character of the victim, as
in support of a claim of self-defense to a charge of
homicide . . . and the prosecution may introduce
similar evidence . . . in a homicide case, to rebut a
claim that deceased was the first aggressor, however
proved . . . .
Wisconsin Rules of Evidence § 904.04, 59 Wis. 2d at R76-R77
(Federal Advisory Committee's Note).
2
See 1A Wigmore on Evidence, § 63 at 1365 (Peter Tillers
ed., 1983) ("[T]he most frequent use of character evidence
against a victim is when a violent crime is charged, to show
that the victim was the first aggressor."); 1 McCormick on
Evidence § 193 (Kenneth S. Broun ed., 7th ed. 2013) (noting that
when "there is a dispute as to who was the first aggressor,"
"the accused can introduce evidence of the victim's character
for turbulence and violence" limited to "reputation or opinion
rather than to specific acts"); 22A Fed. Practice & Procedure:
Evidence § 5237 (Kenneth W. Graham, Jr. ed., 2d ed. 2013)
(identifying "'violent disposition' to prove that the victim was
the aggressor in an affray" as a pertinent trait admissible
under Federal Rule of Evidence 404(a)(2)).
3
See majority op., ¶¶8, 49, 51, 71-77.
2
No. 2011AP2698-CR.ssa
I
¶99 The majority opinion mistakenly concludes that the
defendant failed to lay a proper foundation to introduce
evidence of the victim's reputation and failed to present the
issue that the victim was the first aggressor as part of his
self-defense claim.
A
¶100 The majority opinion zeroes in on the motion papers to
show that the defendant did not properly raise the issue of the
victim's reputation for violence to show that the victim was the
first aggressor. Majority op., ¶¶73-75.
¶101 On the contrary, the motion clearly sought admission
of evidence of the victim's violence in the form of reputation
evidence. Here is the relevant portion of the defendant's
motion carefully distinguishing between evidence of previous
acts and evidence of the victim's reputation for violence and
seeking admission of the latter:
3. Mr. Jackson was not acquainted with [the victim]
and was not aware of these previous acts of violence
at the time of the shooting, thus he is not able to
admit evidence of these acts pursuant to doctrines set
forth in McMorris v. State, 58 Wis. 2d 144 (1973) and
State v. Daniels, 160 Wis. 2d 85 (1991), which permit
the admission of specific violent acts of a victim
previously known to a defendant in a self defense
case. However, Wisconsin Statutes § 904.04(1)(b)
provides for the admissibility of "evidence of a
pertinent trait of character of the victim of the
crime offered by an accused, or by the prosecution to
rebut the same, or evidence of a character trait of
peacefulness of the victim offered by the prosecution
in a homicide case to rebut evidence that the victim
was the first aggressor." Thus in a self defense case
where the violent character of the deceased is an
essential element of the defense, opinion and
3
No. 2011AP2698-CR.ssa
reputation testimony concerning the victim's
reputation for violence is relevant and admissible and
a trial court abuses its discretion in excluding such
testimony. State v. Boykins, 119 Wis. 2d 272, 279
(Ct. App. 1984). Thus such reputation and opinion
evidence is permitted to show that the victim acted in
conformity with his character for violence (Wis. Stat.
§ 904.04(1)(b) and § 904.05(1).
¶102 Moreover, the defendant's motion papers do not
represent the defendants' entire pretrial argument on the
admission of evidence of the victim's reputation for violence.
¶103 In the pretrial hearing on the defendant's motion to
introduce evidence of the victim's character in the form of
prior acts or reputation and opinion testimony, the defendant
attempted to lay a foundation for the proposed testimony about
the victim's reputation. The result: the circuit court abruptly
and completely precluded defense counsel from laying her
foundation for testimony about the victim's reputation.
¶104 After the circuit court denied admission of the
defendant's "other acts" evidence under Wis. Stat. § 904.04(2),
defense counsel attempted to offer a foundation for evidence of
the victim's reputation.
¶105 The pertinent part of the transcript is as follows:
[DEFENSE COUNSEL]: Okay. Then I guess, first of all,
I understand the Court's ruling. Then I'm asking how
the Court is going to rule then specifically——omitting
specific facts but asking specifically I think that it
is admissible for the defense to proffer opinion and
reputation evidence of [the victim], the witness,
assuming I can lay a foundation, I believe I can, that
[the victim] is a violent person, the witness' opinion
that he is a violent person and that [the victim] had
a reputation for violence.
THE COURT: Mr. Williams?
4
No. 2011AP2698-CR.ssa
[PROSECUTOR]: Judge, my understanding of character
evidence, the admissible character evidence is it
bears on credibility and I don't think that obviously
would bear on credibility since the victim is not here
to defend himself as to those accusations or opinions,
so I don't think they're relevant under the character
evidence statute.
THE COURT: All right. I agree [with the prosecutor].
I don't believe that those matters would be relevant,
so they would not be allowed.
[DEFENSE COUNSEL]: All right. Okay. So the court is
denying the defense proffer opinion and reputation——
THE COURT: Character evidence, Number 2, I believe
that is what it is entitled.
[DEFENSE COUNSEL]: Yes.
THE COURT: And that, in its entirety, is denied.
¶106 Defense counsel made a sufficient offer of proof.
"The offer of proof need not be stated with complete precision
or in unnecessary detail but it should state an evidentiary
hypotheses underpinned by a sufficient statement of facts to
warrant the conclusion or inference that the trier of fact is
urged to adopt." State v. Dodson, 219 Wis. 2d 65, 73, 580
N.W.2d 181 (1998) (citing Milenkovic v. State, 86 Wis. 2d 272,
284, 272 N.W.2d 320 (Ct. App. 1978)).
¶107 In any event, despite defense counsel's statement that
she could lay a foundation for the witness's testimony regarding
the victim's reputation, the circuit court accepted the
prosecutor's mistaken objection to the defendant's motion. The
prosecutor erroneously stated the reputation was character
evidence being offered for the credibility of the victim and not
relevant.
5
No. 2011AP2698-CR.ssa
¶108 The circuit court never allowed defense counsel to lay
a better foundation, but instead simply agreed with the
prosecutor's mistaken objection and ruled that the circuit court
didn't "believe that those matters would be relevant" (emphasis
added).
¶109 Instead of addressing defense counsel's attempt to
offer evidence of the victim's reputation for violence, the
circuit court addressed evidence of specific acts, never coming
to grips with the defendant's proposed reputation testimony.
Indeed, the majority opinion concedes that the circuit court did
not digest "that Jackson's argument had shifted from the
admissibility of the specific acts to admissibility of the
statement 'McCaleb had a reputation for violence.'" Majority
op., ¶24.
¶110 The majority opinion asserts that the circuit court's
preclusion of the defendant's attempt to lay a better foundation
was not erroneous because "counsel did not object to the court's
rulings, or ask for a specific ruling on reputation evidence,"
nor did defense counsel "clarify her request [or] request the
opportunity to make a proffer." Majority op., ¶25.
¶111 Defense counsel did ask for a specific ruling on the
reputation evidence, as the transcript clearly shows. Defense
counsel obviously disagreed with the circuit court's ruling
against her. A bill of exceptions listing objections is not
needed in order to preserve an issue for appeal. Wis. Stat.
§ 805.11 explicitly bars the use of exceptions and bills of
exception: "An objection is not necessary after a ruling or
6
No. 2011AP2698-CR.ssa
order is made. . . . Exceptions shall never be
made. . . . Evidentiary objections are governed by [Wis. Stat.]
§ 901.03."4
¶112 The transcript and majority opinion demonstrate that
the circuit court erred as a matter of law in not distinguishing
between evidence of the victim's reputation and evidence of the
victim's prior or other acts.5 The circuit court simply barred
all evidence of the victim's character.
¶113 As the majority opinion properly notes, evidence of
the victim's reputation for violence offered to demonstrate the
identity of the first aggressor is relevant to a defendant's
self-defense claim. Majority op., ¶79. Yet the circuit court
erroneously ruled that reputation evidence is categorically not
relevant in a self-defense case.
¶114 At the pretrial hearing, the circuit court certainly
knew that the defendant was raising a self-defense claim. In
fact, the prosecutor reminded the circuit court of the self-
4
Wisconsin Stat. § 901.03 provides in relevant part:
(1) Effect of erroneous ruling. Error may not be
predicated upon a ruling which admits or excludes
evidence unless a substantial right of the party is
affected; and
. . . .
(b) Offer of proof. In case the ruling is one
excluding evidence, the substance of the evidence was
made known to the judge by offer or was apparent from
the context within which questions were asked.
5
The circuit court similarly erred at the postconviction
motion hearing. See majority op., ¶¶36-37.
7
No. 2011AP2698-CR.ssa
defense claim mere moments before the discussion regarding
reputation evidence. In opposing the defendant's pretrial
motion, the prosecutor stated, "[McMorris v. State, 58
Wis. 2d 144, 205 N.W.2d 559 (1973)] is very clear that the only
time [evidence of prior acts of violence] can be used in a self-
defense case is if the defendant knew it . . . ." (emphasis
added).
¶115 In a self-defense claim, the identity of the first
aggressor is significant. A defendant loses the privilege to
assert a claim of self-defense if he or she was the first
aggressor. See Wis. Stat. § 939.48(2); Banks v. State, 51
Wis. 2d 145, 186 N.W.2d 250 (1971) (holding that identity of
first aggressor was an essential issue that required reversal in
the interest of justice); Wayne R. LaFave, 2 Substantive
Criminal Law § 10.4(e) (2d ed. 2003) ("It is generally said that
one who is the aggressor in an encounter with another——i.e., one
who brings about the difficulty with the other——may not avail
himself of the defense of self-defense.").
¶116 As the majority opinion additionally notes,
"'[p]roperly framed, the reputation testimony can be elicited in
less than a minute.'" Majority op., ¶72 (quoting 7 Daniel D.
Blinka, Wisconsin Practice Series: Wisconsin Evidence § 405.2,
at 226 (3d ed. 2008)).
¶117 Nevertheless, the circuit court did not give the
defendant the minute. When defense counsel asked for
clarification of the circuit court's pretrial evidentiary
8
No. 2011AP2698-CR.ssa
ruling, the circuit court stated simply that "[the character
evidence], in its entirety, is denied."
¶118 When a defendant seeks to introduce evidence regarding
a pertinent character trait of the victim, "[w]ide latitude
should be granted to defendants in the use of the victim's
character" as "circumstantial evidence of conduct." 7 Daniel D.
Blinka, Wisconsin Practice Series: Wisconsin Evidence § 404.5
(3d ed. 2008).
¶119 The circuit court failed to grant the defendant any
latitude, let alone "wide latitude," in presenting the victim's
reputation for violence as part of the defense.
¶120 Rather than eliciting a full proffer from defense
counsel, the circuit court based its evidentiary ruling on an
erroneous understanding of law. The circuit court treated
specific acts evidence and reputation evidence the same way.
The circuit court erroneously denied the defendant's motion to
admit evidence of the victim's reputation without allowing the
defendant an opportunity to present a foundation for the
reputation evidence.
¶121 Defense counsel unambiguously raised the victim's
reputation to support the defendant's self-defense claim and was
precluded from making a better proffer of "opinion and
reputation evidence of [the victim] . . . that [the victim] is a
violent person, the witness' opinion that [the victim] is a
violent person."
¶122 Defense counsel did all she could do to preserve the
issue for appeal. She made a motion to include certain evidence
9
No. 2011AP2698-CR.ssa
and testimony and then attempted a proffer. She asked for
clarification and was rebuffed.
¶123 The circuit court stopped defense counsel from making
a better proffer and denied her motion in its entirety. The
proffer cannot be viewed as insufficient when the circuit court
precluded any proffer. The failure, if any, to lay a foundation
lies with the circuit court, not with defense counsel.
B
¶124 In addition to misstating the substance and
significance of the pretrial proceedings on the defendant's
motion to admit evidence of the victim's reputation, the
majority opinion repeatedly errs in stating that the defendant
did not raise the issue of first aggressor at trial. Majority
op., ¶¶28, 36, 52, 84.
¶125 The issue of who attacked whom first, especially in
the present case where the victim was the larger, stronger
person,6 saturates the case as an element of the self-defense
claim. The present case provides numerous instances where the
defense raised the issue that the victim was the first aggressor
at trial, even though the defense did not always use the words
"first aggressor." Nothing in the law requires the defendant to
use the specific two words "first aggressor" to raise this issue
in a self-defense claim.
¶126 The record demonstrates that the issue of who was
first aggressor was an essential part of the case for both
6
See majority op., ¶27.
10
No. 2011AP2698-CR.ssa
parties before, during, and after the presentation of evidence.7
The issue of the identity of the first aggressor was a
consistent component of both parties' cases-in-chief.
¶127 In its opening statement, the defense stated that
"[the victim and his friend] were starting an argument and were
poised to start something violent with [the defendant] and were
basically advancing as [the defendant] was retreating."
¶128 During direct and cross-examination of witnesses, the
issue of the identity of the first aggressor was a consistent
component of both parties' questioning.
¶129 The State, in its questioning of witnesses, asked
about whether the victim or his companion had "take[n] back a
hand or a fist and take[n] a swing or slap at [the witness]."
In a sidebar with the circuit court regarding a witness's
testimony, defense counsel noted that "here, the defense is
clearly that the victim was the first aggressor, and my client
acted in self-defense. . . . And this jury is making a
determination as to who the aggressor was in this particular set
of circumstances." During defense counsel's direct examination
of a witness, defense counsel and the prosecutor disputed the
use of the word "charging" to describe the victim's approach to
the defendant.
¶130 In closing argument, the first aggressor argument was
central to the defense and was disputed by the prosecution.
7
In contrast, the majority opinion asserts that "[n]either
the State nor Jackson specifically argued 'first aggressor'
until after all the evidence had been presented at trial."
Majority op., ¶28.
11
No. 2011AP2698-CR.ssa
¶131 Defense counsel's closing argument restated the first
aggressor argument:
Two bigger, stronger, younger men came up to the
house. They got out of the car. They were
aggressive. They were cursing. They were using the F
word. [The victim and his companion] were advancing.
[The defendants and the other witnesses] were
retreating.
At some point [the victim] ran to the car, acted like
he was getting something, came charging back. And
that's when [the defendant] fired the shot.
¶132 The State disputed this claim in its own closing
statement as follows:
Who's escalating the situation out here? You got one
exchange of wording and [the defendant] feels that I
need to go get my gun, get it out, rack it up and have
it at my side. Who is the aggressor? [The defendant]
certainly indicates that it was [the victim] and his
friend.
But when you look at the facts, what you know, that's
not the case. The aggressor is [the defendant]
(emphasis added).
¶133 The question of who was the first aggressor was the
heart of the self-defense claim and was an issue for both
parties throughout every stage of the trial, from the
defendant's pretrial motion, to the pretrial hearing on the
defendant's motion, to the presentation of evidence at trial, to
closing statements, and to the postconviction proceedings.
¶134 The majority opinion mistakenly states that the
defendant's "first mention of introducing general 'reputation
for violence' evidence to establish first aggressor was in his
postconviction motion." Majority op., ¶52. The majority
opinion further mistakenly states that "[n]either the State nor
12
No. 2011AP2698-CR.ssa
Jackson specifically argued 'first aggressor' until after all
the evidence had been presented at trial." Majority op., ¶28;
see also majority op., ¶84. Based on the record before this
court, the majority opinion has erred.
¶135 Although the majority opines that the fault lies with
the defendant's failure to lay a foundation for evidence of the
victim's reputation and the defendant's failure to rely on the
defense that the victim was the first aggressor, I conclude on
the basis of the record that defense counsel tried to lay a
foundation, but the circuit court precluded defense counsel from
doing so. Additionally, I conclude that the record shows that
the defendant's self-defense claim rested on the premise that
the victim was the first aggressor.
II
¶136 Once again, the court relies on harmless error to deny
a criminal defendant relief.8 A conclusion of harmless error
8
Scholars have noted the tendency of courts to find errors
harmless or not based on whether the court believes the
defendant is guilty. See, e.g., Harry T. Edwards, To Err Is
Human, But Not Always Harmless: When Should Legal Error Be
Tolerated?, 70 N.Y.U. L. Rev. 1167, 1187 (1995) ("As matters now
stand, in many criminal cases an error is harmless so long as
the appellate court remains convinced of the defendant's guilt;
an error warrants reversal only where it raises doubts about the
defendant's culpability.") (footnote omitted); Keith A. Findley
& Michael S. Scott, The Multiple Dimensions of Tunnel Vision in
Criminal Cases, 2006 Wis. L. Rev. 291, 349-50 (2006) (footnotes
omitted):
Even when appellate courts do find constitutional or
procedural errors at trial, they are disinclined to
grant relief. Increasingly, the harmless error
doctrine enables and encourages appellate courts to
overlook trial error when they are satisfied that the
defendant was in fact guilty. The harmless error
13
No. 2011AP2698-CR.ssa
requires a finding that there exists no "reasonable probability"
that the jury could have acquitted. See State v. Armstrong, 223
Wis. 2d 331, 368, 588 N.W.2d 606 (1999). If the reputation
evidence were admitted, it may well have been a deciding factor
here, particularly because the victim's aggression was at the
core of the defendant's self-defense claim.
¶137 The majority opinion asserts that the reputation
evidence would be only "modestly probative." Majority op., ¶91
(internal quotation marks omitted). Consequently, it determines
that such evidence would be "fleeting and cumulative," majority
op., ¶90, and could not have had a "reasonable probability" of
changing the jury's verdict, majority op., ¶90 (citing State v.
Armstrong, 223 Wis. 2d at 369).
¶138 Yet, the issue of first aggressor was clearly disputed
by the parties, with extensive testimony on both sides. This is
not a case where the facts or inferences are uncontroverted.
Compare State v. Wenger, 225 Wis. 2d 495, 509-510, 593
N.W.2d 467 (1999) (holding that it was harmless error when the
circuit court failed to include evidence of a victim's violent
character because it would only corroborate extensive
uncontroverted evidence); Brandt v. Mason, 256 Wis. 314, 318, 41
doctrine has long posed challenges of definition and
application for courts. Increasingly, harmless error
analysis is applied in a way that turns on an
appellate court's assessment of a defendant's guilt,
as opposed to whether the error might have had an
effect on the verdict. . . . Under this doctrine,
cognitive biases can contribute in powerful ways to a
conclusion that the defendant was indeed guilty, and
that the error was therefore harmless.
14
No. 2011AP2698-CR.ssa
N.W.2d 272 (1950) (holding that it was harmless error to exclude
evidence when the evidence would have simply corroborated an
"undisputed" statement).
¶139 In contrast, this case was messy, with conflicting
facts and inferences. Additional evidence of the victim's
violent character might have made a difference in the outcome.
Because the identity of the first aggressor goes to the
substance of the defendant's self-defense claim and is not a
collateral issue, even modestly probative evidence can have an
impact on a jury's decision-making.
¶140 As the court noted in State v. Head, 2002 WI 99, 255
Wis. 2d 194, 648 N.W.2d 413, the exclusion of substantial
evidence regarding a self-defense claim "went beyond harmless
error to impair fundamentally the defendant's ability to present
a defense." Head, 255 Wis. 2d 194, ¶138.
¶141 Our case law has long recognized that the erroneous
exclusion of evidence that directly implicates a self-defense
claim is not harmless. See State v. Nett, 50 Wis. 524, 7
N.W. 344 (1880) (holding that reversal was required when the
circuit court erred in excluding evidence of the victim's
reputation where a defendant raised self-defense); Banks v.
State, 51 Wis. 2d 145, 186 N.W.2d 250 (1971) (holding that
reversal was required when the circuit court erred in excluding
evidence that the defendant may have been the first aggressor,
which would eliminate the privilege of self-defense); McMorris
v. State, 58 Wis. 2d 144, 205 N.W.2d 559 (holding that reversal
was required when the circuit court erred in excluding prior
15
No. 2011AP2698-CR.ssa
acts evidence for a self-defense claim); State v. Boykins, 119
Wis. 2d 272, 279-80, 350 N.W.2d 710 (Ct. App. 1984) (holding
that reversal was required when the circuit court erred in
excluding evidence of the victim's violent character when the
"jury was denied the opportunity to evaluate [defendant's]
asserted defense in light of all relevant evidence").
¶142 I see no reason to deviate from these cases in the
instant case.
¶143 The court cannot read the jury's mind and has no way
of knowing what effect the excluded reputation testimony would
have had on the jury. We do know, contrary to the majority
opinion at ¶79, that there was a genuine dispute about whether
the victim was the first aggressor and the degree to which his
aggression might have led to the defendant's fear for his own
safety. We do know that the jury found the defendant guilty of
the lowest possible included offense, second-degree reckless
homicide.
¶144 On the basis of the facts we do know, I conclude that
there was a reasonable probability that the jury could have been
convinced by additional evidence that the victim was the first
aggressor.
¶145 For the foregoing reasons, I dissent.
16
No. 2011AP2698-CR.ssa
1