State v. Scheidell

SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

¶ 56. (dissenting). The defendant in the case at bar sought to introduce evidence to show that other crimes of a similar nature have been committed by some other person to cast doubt upon the identification of the defendant as the person who committed the crime charged. The defendant was attempting to use "other act" evidence to exonerate himself.

¶ 57. I agree with the majority opinion that the admissibility of this defensive use of other acts evidence is assessed using the three-step analytical framework set forth in State v. Sullivan, 216 Wis. 2d *312 768, 771-72 , 576 N.W.2d 30 (1998); 7 Daniel D. Blinka, Wisconsin Practice: Evidence, § 404.5, at 41 (Supp. 1999). Again, the Sullivan framework for assessing the admissibility of other-acts evidence is the following:

(1) Is the other acts evidence offered for an acceptable purpose under Wis. Stat. § (Rule) 904.04(2), suchas 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?

¶ 58. The defendant satisfies the first step of the analysis. The defendant is seeking to introduce the other acts evidence for purposes of proving the identity of the perpetrator of the crime charged.

¶ 59. As to the second step, relevance and probative value of the other acts evidence for purposes of proving identity depends on the similarities and dissimilarities between the other act and the charged crime.

*313 ¶ 60. I agree with the majority opinion that a more stringent standard applies when the state seeks to introduce other acts evidence to prove the defendant's identity as the perpetrator of the crime charged 1 than when an accused seeks to introduce other acts evidence to cast doubt on the accused's identity as the perpetrator of the crime with which the accused is charged. In other words, a less stringent standard of similarity between the crime charged and the other act is applied when an accused proffers other acts evidence for purposes of exoneration. See Majority op. at 300, 304.

¶ 61. The majority opinion summarizes the points of similarity between the crime charged and the other act advanced by the defendant as the following:

Both crimes took place within four blocks of each other; both were committed only five weeks apart; both occurred between 5:00-5:30 a.m.; in both cases a lower-story apartment window was a suspected point of entry; each victim was awakened in her bed to find a man armed with a knife straddling her; the assailant wore a mask and covered his head with a jacket or part of a jacket; the assailant was about 5T0", white, and slender; the assailant either attempted or completed the same crime; first-degree sexual assault; and the assailant chose similar victims: a single young, white woman.

Majority op. at 308. The majority then states that "we do not agree that the two incidents are so distinctively *314 similar as to support the inference that some unknown third party, and not Scheidell, committed the charged crime." Majority op. at 308.

¶ 62. Ironically, in prior cases involving the state's proffers of other acts evidence to prove the identity of an accused the similarities between the crime charged and the other acts have been fewer than the similarities the majority requires of the other acts evidence proffered in this case. See, e.g., State v. Speer, 176 Wis. 2d 1101, 1117 , 501 N.W.2d 429 (1993) (state's evidence that defendant previously burglarized homes with "For Sale" signs in front during daylight hours admitted to prove identity in burglary case); State v. Rutchik, 116 Wis. 2d 61,70 , 341 N.W.2d 639 (1984) (state's evidence that defendant previously burglarized a house while the occupants were at a funeral after reading of funerals in obituaries admitted to prove identity in burglary case); Sanford v. State, 76 Wis. 2d 72, 80-81 , 250 N.W.2d 348 (1977) (state's evidence that defendant engaged in prior rape in a garage and used his jacket for the victim admitted to prove identity in rape case); Hough v. State, 70 Wis. 2d 807, 815, 235 N.W.2d 534 (1975) (state's evidence that defendant previously stated to 15-year-old girl his preference for virgins admitted to prove identity in rape case).

¶ 63. I agree with the court of appeals that the other act evidence proffered by the defendant in this case bears sufficient similarity to the crime with which the defendant was charged to be admissible.

¶ 64. As to the third step, the majority states it need not address the prejudice prong of the analysis because it concludes the other act evidence is inadmissible. Majority op. at 310. Nevertheless the majority in a footnote concludes that the probative value of the evidence is substantially outweighed by the danger of *315 confusion of issues and by undue delay of the trial. Majority op. at 305 n.12.

¶ 65. I have considered such factors as confusion of issues, misleading the jury, undue delay and waste of time. Evidence of a similar incident occurring while the defendant was in jail will not consume a great deal of time, mislead or confuse the jury, or cause undue delay. I conclude that the introduction of the other act evidence proffered by the defendant in this case would have resulted in nothing more than the ordinary prejudice to the state's case that will always result when a defendant exercises his or her constitutional right to present a defense.

¶ 66. The State has failed to prove that the circuit court's error in refusing to admit the other act evidence was harmless error.

¶ 67. For the reasons stated, I would affirm the decision of the court of appeals. Accordingly, I dissent.

¶ 68. I am authorized to state that justices WILLIAM A. BABLTICH and ANN WALSH BRADLEY join this dissent.

The state should meet a high standard for probative value, that is, show "a concurrence of common features and so many points of similarity between the other acts and the crime charged that it can reasonably be said that the other acts and the present act constitute the imprint of the defendant." State v. Fishnick, 127 Wis. 2d 247, 263-64 , 378 N.W.2d 272 (1985)