|
COURT OF APPEALS DECISION DATED AND RELEASED March 26, 1997 |
NOTICE |
|
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-2244-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
KEVIN P. SULLIVAN,
Defendant-Appellant.
APPEAL from judgments of
the circuit court for Kenosha County:
S. MICHAEL WILK, Judge. Affirmed.
NETTESHEIM, J. Kevin
P. Sullivan appeals from judgments of conviction for battery and disorderly
conduct. The issue on appeal is whether
the trial court properly admitted “other acts” evidence against Sullivan at the
jury trial. Applying current other acts
law, we conclude that the evidence was admissible to show Sullivan’s propensity
to commit the charged offenses. We
therefore uphold the trial court's evidentiary ruling and we affirm the
judgments of conviction.
FACTS AND PROCEDURAL HISTORY
The criminal complaint
charged four counts against Sullivan:
false imprisonment (§ 940.30, Stats.),
battery (§ 940.19, Stats.),
disorderly conduct (§ 947.01, Stats.)
and intimidation of a victim (§ 940.44, Stats.).[1] The charges stemmed from an incident between
Sullivan and his girlfriend, Diane Bonham.
On October 2, 1994,
Bonham reported to the police that some hours earlier, Sullivan had physically
assaulted her at her residence.
Bonham's complaint was processed by Deputy Robert Hallisy. According to Bonham’s statement given to
Hallisy, Bonham and Sullivan had been at a bar in Burlington. While there, Sullivan became
intoxicated. Bonham became angry about
this because she and Sullivan had met while receiving addiction treatment and
they had promised each other that they would not consume alcoholic beverages. Bonham left the bar and went to her
residence. There, she went to sleep but
later awoke to find Sullivan standing over her.
Bonham stated that
Sullivan was angry. Fearing a fight,
Bonham stated that one of them would have to leave. Sullivan replied that he
would not leave. When Bonham tried to
get up from the bed, Sullivan pushed her back down. Twice again she tried to get off the bed. The first time, Sullivan punched her in the
mouth; the second time, he punched her in the cheek causing her to fall back
onto the bed and strike her head against a dresser. Bonham then threatened to call the police. In response, Sullivan unplugged the phone
from the wall.
Eventually, Sullivan
fell asleep and Bonham ran from the residence and drove to the American Legion
Hall in Silver Lake. There, she stated
that Sullivan had beaten her. Someone
at the Legion Hall called the police and Hallisy responded. During his interview with Bonham, Hallisy
observed that Bonham was hysterical, crying and shaking. He also observed that she had blood on her
lips, teeth and gums and that her left cheek was swollen.
Bonham testified at the
preliminary hearing and at the later jury trial. However, her testimony was different from her statement to
Hallisy. Instead, she sought to exonerate Sullivan. While she acknowledged that she and Sullivan
had argued, Bonham testified that she had initiated the physical contact by
pushing Sullivan, causing her to accidentally fall backwards onto a
dresser. She also stated that while
driving from her residence, she had driven her car through a ditch, causing her
head to hit the steering wheel. Bonham
stated that these two events caused her injuries. She stated that she made her false report to the police because
she wanted Sullivan out of her residence.
Prior to trial, the
State sought the trial court’s permission to introduce evidence of ten prior
episodes involving Sullivan and his former wife, Ruth Ann Sullivan. These episodes occurred between July 25,
1992, and August 11, 1993. During these
episodes, Sullivan had verbally abused Ruth, made threatening phone calls to
her, violated court orders directing that he not have contact with her, and
threatened persons associated with her.
The trial court rejected
all of the State's proffered other acts episodes, save the one which inspires
this appeal. The court ruled that one
of the episodes between Sullivan and Ruth was relevant to Sullivan's motive,
intent and knowledge in this case. In
addition, in light of Bonham's claim that her injuries were accidental, the
court also ruled that the evidence was admissible on the question of absence of
mistake.
Accordingly, Ruth
testified at the jury trial that on July 24, 1992, an intoxicated Sullivan
refused to leave her home, insisting that he wanted to talk with her. Ruth refused and repeatedly asked Sullivan
to leave. He still refused, called her
a “bitch,” and threatened to physically assault her. Eventually, the police were summoned.
The jury returned a
verdict finding Sullivan guilty of battery and disorderly conduct and not
guilty of false imprisonment and intimidating a victim. Sullivan appeals from the ensuing judgments
of conviction.
ANALYSIS
Before turning to the
specifics of this case, we first address the current state of the law governing
other acts evidence.
In the seminal other
acts decision of Whitty v. State, 34 Wis.2d 278, 297, 149 N.W.2d
557, 565-66 (1967), our supreme court cautioned that other acts evidence should
be used sparingly, only when reasonably necessary, and that such evidence
normally carried a calculated risk.
However, since that landmark case, the Wisconsin decisions both from the
court of appeals and the supreme court have chipped away at the Whitty
principle. Except for an isolated few,
those decisions have consistently approved the use of such evidence.[2] Some have done so while mouthing the Whitty
rule. Others have simply not addressed Whitty.
This trend has been
noted and, at times, criticized by some members of both the court of appeals
and the supreme court. See, e.g.,
State v. Plymesser, 172 Wis.2d 583, 598-99, 493 N.W.2d 367, 374
(1992) (Bablitch J., dissenting); State v. Johnson, 184 Wis.2d
324, 352-53, 516 N.W.2d 463, 472-73 (Ct. App. 1994) (Anderson J., concurring); State
v. Tabor, 191 Wis.2d 482, 497-500, 529 N.W.2d 915, 921-23 (Ct. App.
1995) (Nettesheim J., concurring in part, dissenting in part); State v.
Rushing, 197 Wis.2d 631, 650-52, 541 N.W.2d 155, 163 (Ct. App. 1995)
(Myse J., concurring).
Our purpose here is not
to lobby for or against the wisdom of this direction in the law. However, we do observe that this evolution
has occurred without any express overruling or modification of Whitty
by our supreme court. As a result, many
of these decisions pretend to follow Whitty but actually do
violence to it. These are awkward
decisions because they force the “square peg” of the evidence into the “round
hole” of Whitty. See
Tabor, 191 Wis.2d at 499, 529 N.W.2d at 922.
This development has
also freed up the trial and appellate courts of this state to follow either Whitty
or the subsequent different law which has followed it. Thus, we have no established law in this
area. Instead, we have choices of law
which produce inconsistent rulings from case to case and from court to court
depending upon the philosophy of the particular judge or court speaking to the
matter.
We, of course, are duty
bound to follow the standing decisions of our supreme court, and it is not
within our power to overrule such a decision.
See State v. Carviou, 154 Wis.2d 641, 644-45, 454
N.W.2d 562, 564 (Ct. App. 1990). But
the question here is which body of reported supreme court law do we
follow. In order to answer the
appellate issue in this case, we must first address this question. To do so, we analyze some of the supreme
court’s post-Whitty decisions.
In State v.
Friedrich, 135 Wis.2d 1, 28, 398 N.W.2d 763, 775 (1987), the supreme
court wrote:
Juries
must have all the relevant facts before them.
A past history of ¼ a
defendant's plans, scheme and motives is relevant. Many judges in this State and a majority of this court have been
aware for years of the need to place all relevant evidence ¼
before the factfinder. ¼ The fact that the evidence also most
certainly shows a propensity to commit such crimes should not deny its
admission into evidence.
Later, in Plymesser,
the supreme court endorsed this language and added the following:
Our cases do not take such a narrow view
of motive ¼. The use of motive in this case parallels its
use in Friedrich: a
motive in an earlier crime is used to show a common cause for both the earlier
and a later crime. The same motive
caused both the prior act and the charged act.
Plymesser, 172
Wis.2d at 594, 493 N.W.2d at 372.
By these holdings, the
supreme court has signaled that a defendant's motive to commit the charged
offense can be established by prior acts which demonstrate the defendant’s
propensity to commit such acts. That
seems contrary to Whitty and § 904.04(2), Stats., which say that other acts
evidence is not admissible “to prove the character of a person in order to show
that the person acted in conformity therewith.” Id.; see also Whitty, 34
Wis.2d at 291-92, 149 N.W.2d at 563.
In addition, in State
v. Speer, 176 Wis.2d 1101, 1114-15, 501 N.W.2d 429, 433 (1993), the
supreme court declared that neither its prior decisions on this topic nor the
other acts statute carries a presumption against admission of other acts
evidence. Again, this seems contrary to
the Whitty statement that the use of such evidence carries a
calculated risk and should be used “sparingly.” Instead, Speer holds that the question is governed
by the trial court's neutral exercise of discretion under the well-established
rules of evidence. See Speer,
176 Wis.2d at 1116, 501 N.W.2d at 434.[3]
When decisions of our
supreme court conflict, we properly follow the more recent cases. See Bruns Volkswagen, Inc. v.
DILHR, 110 Wis.2d 319, 324, 328 N.W.2d 886, 889 (Ct. App. 1982). Based on the post-Whitty
cases, we conclude that Whitty is no longer the law.
With that threshold determination
in place, we uphold the trial court’s ruling admitting the other acts
evidence. Sullivan's prior act
displayed that when women with whom he has a relationship seek to rebuff
Sullivan, he has a propensity to react violently while intoxicated. Under the post-Whitty
decisions, this propensity qualifies as
proper other acts evidence pursuant to § 904.04(2), Stats.
This is so whether we categorize Sullivan's “propensity” as evidence of
his motive, intent or knowledge. We
also observe that the evidence was relevant to rebut Sullivan's theory of
defense which hinged on Bonham's testimony that her injuries were the result of
an accident.
We also reject
Sullivan's further argument that, even if admissible, the prejudicial effect of
the evidence outweighed its probative value.
Speer clarifies that if the probative value of the other
acts evidence is close or equal to its unfair prejudicial effect, the evidence
must be admitted. See Speer,
176 Wis.2d at 1115, 501 N.W.2d at 433.
The evidence is inadmissible only if the prejudicial effect of the
evidence substantially outweighs its probative value. See § 904.03, Stats.
Here, the State was
required to prove all elements of the charged offenses, including Sullivan’s
intent to cause injury to Bonham. To
counter this element, Sullivan contended that Bonham's injuries were
accidental. Given that sharp dispute
between the State's and Sullivan's theories of the case, we see the other acts
evidence as highly probative.[4]
We conclude that the
trial court did not misuse its discretion by concluding that the evidence
qualified as admissible other acts evidence pursuant to § 904.04(2), Stats., and by further concluding that
the probative value of the evidence outweighed its prejudicial effect pursuant
to § 904.03, Stats.
By the Court.—Judgments
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[2] In State v. Johnson, 184 Wis.2d 324, 341 n.4, 516 N.W.2d 463, 468 (Ct. App. 1994), this court had occasion to examine the over one hundred post-Whitty appellate decisions.