State v. Sullivan
216 Wis. 2d 768, 576 N.W.2d 30, 1998 Wisc. LEXIS 42 (1998)
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Rule of Law:
Evidence of "other acts" is inadmissible to prove a defendant's character or propensity to commit a crime but may be admissible for other specific purposes, such as establishing intent or absence of mistake or accident, provided the evidence is sufficiently relevant and its probative value is not substantially outweighed by the danger of unfair prejudice.
Facts:
- In the early morning hours of October 3, 1994, Kevin P. Sullivan and the complainant, his then-girlfriend, were romantically involved.
- After the complainant and Sullivan had been out, Sullivan started drinking, and the complainant left him to go home.
- The complainant, after taking a tranquilizer, awoke to find Sullivan standing over her, insisting on talking.
- When the complainant attempted to leave the bedroom, Sullivan pushed her back onto the bed and, when she tried again, punched her in the mouth and then the cheek.
- The complainant stated that Sullivan pulled the telephone cord out of the wall and kept her in the bedroom for about 30 minutes.
- After Sullivan fell asleep, the complainant ran from the house, drove his car through the yard and over a small fence to an American Legion Hall, where someone called 911.
- A deputy sheriff responded, observed the complainant's swollen and bloody lips, blood spots on her cheek, and a cut inside her mouth, and later found a telephone cord unplugged in the living room and fence debris on Sullivan's car.
- Two years prior, on July 24, 1992, Sullivan, while intoxicated, refused to leave his ex-wife's home, called her a "bitch," and threatened to assault her, but no physical contact occurred between them.
Procedural Posture:
- Kevin P. Sullivan was convicted by a jury in the Circuit Court for Kenosha County, S. Michael Wilk, Judge, of battery and disorderly conduct (acquitted on false imprisonment and intimidation of a witness).
- Sullivan appealed his convictions to the Wisconsin Court of Appeals (Sullivan as appellant, State as appellee).
- The Wisconsin Court of Appeals affirmed the judgments of conviction of the circuit court.
- The Wisconsin Supreme Court granted review of the unpublished decision of the court of appeals (Sullivan as appellant, State as appellee).
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Issue:
Does a circuit court erroneously exercise its discretion by admitting "other acts" evidence under Wis. Stat. § 904.04(2) when the prior act, though sharing some similar circumstances, lacks a sufficiently strong similarity in the type of conduct (physical violence vs. verbal threats) to be probative of the defendant's intent or absence of accident in a subsequent battery charge, and when its probative value is substantially outweighed by the danger of unfair prejudice?
Opinions:
Majority - Shirley S. Abrahamson, Chief Justice
Yes, the circuit court erroneously exercised its discretion in admitting the "other acts" evidence because the prior incident, despite some general similarities, was not sufficiently probative of Sullivan's intent or absence of accident in the battery charge, and its potential for unfair prejudice substantially outweighed any minimal probative value. The court reaffirmed the principles that other acts evidence is not admissible to prove character or propensity to commit a crime. While the State offered the evidence for a permissible purpose (intent or absence of accident), the court found the evidence lacked sufficient probative value to meet the second step of the admissibility analysis. The prior incident, involving verbal abuse and threats without physical contact, was too dissimilar from the charged battery, which involved punching, to reliably infer a specific intent to cause bodily harm. The court emphasized that the probative value of other acts evidence depends on the similarity of circumstances to the charged offense, and here, a key difference (physical violence vs. none) rendered it unconvincing. Furthermore, the court concluded that even if there was minimal probative value, it was substantially outweighed by the danger of unfair prejudice, as the jury could have been improperly influenced to convict Sullivan based on his perceived bad character. This risk was heightened by the prosecutor's extensive references to the other acts evidence in opening and closing statements, using it to portray Sullivan as a bad person, and the broad, untailored cautionary instruction. The error was deemed not harmless because the State's case, particularly regarding the battery charge, was weak due to the complainant's inconsistent testimony and her recantation, and the prosecutor had explicitly stated the other acts evidence was "critical" to prove guilt beyond a reasonable doubt.
Dissenting - N. Patrick Crooks, J.
No, the circuit court did not erroneously exercise its discretion in admitting the "other acts" evidence because it conducted a thorough analysis, the evidence was significantly similar and probative of the defendant's intent or absence of accident, its probative value was not substantially outweighed by unfair prejudice, and the cautionary instruction was adequate. Justice Crooks argued that the circuit court engaged in a detailed and rational process, considering the facts of both incidents and applying the correct legal standards under Wis. Stat. §§ 904.04(2) and 904.03. He highlighted numerous similarities between the two incidents, including Sullivan's intoxication, arguments with a romantic partner at her home, insistence on talking, the woman's refusal, verbal abuse, threats, refusal to leave, and the woman's contact with law enforcement. These similarities, he contended, were sufficient to make the other acts evidence probative of Sullivan's intent or absence of accident, especially given the complainant's recanted testimony that her injuries were accidental. He pointed out that the majority's focus on the lack of bodily harm in the prior act was too narrow, as Sullivan also faced charges like false imprisonment and intimidation of a victim, which involve intent but not necessarily physical injury. The dissent also noted that the circuit court carefully considered and denied admission of other prior acts, and even prohibited certain portions of the admitted incident that were not similar, demonstrating judicial discretion. Finally, Justice Crooks asserted that the cautionary instruction, while broad, was not so broad as to diminish its effect, citing prior cases where similar instructions were upheld.
Analysis:
This case significantly reinforces the strict interpretation and application of the three-step test for admissibility of "other acts" evidence, particularly concerning the relevance and balancing of probative value against unfair prejudice. It clarifies that while other acts may be offered for a permissible purpose like intent, superficial similarities are insufficient; the prior conduct must bear a strong factual resemblance in the type of action to be truly probative, especially in violent crime cases where the prior act lacked violence. The decision underscores the crucial role of the circuit court in articulating its reasoning for admitting or excluding such evidence, and the appellate court's heightened scrutiny when such articulation is lacking. It also serves as a cautionary tale against prosecutors using other acts evidence to paint a defendant as a generally 'bad person,' particularly when direct evidence of intent is weak, emphasizing the heavy burden on the State to prove the error was harmless.
