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  • WisBar News
    January 24, 2014

    Supreme Court Clarifies Character Evidence Rules in Homicide Case

    Jan. 24, 2014 – Defendant Curtis Jackson didn’t know Angelo McCaleb before shooting him dead on a November night in 2008. But Jackson argued that McCaleb had a violent character, on display that very evening, and he only acted in self-defense.

    In State v. Jackson, 2014 WI 4 (Jan. 22, 2014), a Wisconsin Supreme Court majority (6-1) upheld Jackson’s conviction for second-degree reckless homicide, concluding that the circuit court rightly excluded evidence about McCaleb’s reputation and criminal past.

    Along the way, the court clarified rules on “other acts evidence, character shown by reputation or opinion evidence, and character shown by specific incidents of conduct.”

    McCaleb was unarmed when Jackson fatally shot him in the chest in Milwaukee, but there was some evidence to suggest that McCaleb might have been armed.

    The two had never met before encountering each other outside Jackson’s residence. McCaleb was with Tanya Davis, who Jackson believed to be his girlfriend.

    Davis had borrowed Jackson’s car before meeting McCaleb and a McCaleb’s friend at a bar. A verbal altercation ensued. At some point, Jackson retrieved his gun.

    One witness said McCaleb retrieved something from his car too before walking towards Jackson “really fast with one hand behind his back” and “pulling at his waistband as if he was going for a gun.” But the state said Jackson did not act in self-defense.

    Jackson, the state argued, had learned that Davis was kissing and hugging McCaleb at the bar, and Jackson thought Davis and he were in an exclusive relationship. Thus, the state argued that Jackson acted out of anger and jealousy, not fear and self-defense.

    Before trial, the circuit court excluded evidence about McCaleb’s reputation for violence as well as specific violent acts that McCaleb had committed in the past. Jackson wanted the jury to hear evidence about McCaleb’s character to support his self-defense claim.

    The motions failed. After trial, Jackson sought a new trial arguing that character evidence should have been allowed to show that McCaleb was the “first aggressor.” Again, Jackson was unsuccessful, and so was his appeal to the court of appeals.

    Majority Rules

    A supreme court majority held that the circuit court was right to deny Jackson’s motion to admit character evidence, and properly excluded “other acts evidence.”

    With respect to other acts evidence, Jackson wanted the jury to hear evidence that McCaleb had previously been convicted on disorderly conduct and assault and battery charges. But the majority agreed that this evidence lacked a proper purpose.

    Such evidence can only be used to show the actor had a motive or a plan, among other things. “Simply stated, Jackson failed to show how the other acts evidence was related to an acceptable purpose under the statute,” Justice Annette Ziegler wrote.

    In addition, the majority ruled that specific acts are not admissible as “character evidence” unless the character or character trait is an essential element of the 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,” Justice Ziegler wrote.

    In this case, Jackson did not know McCaleb before he shot him in the chest, and he did not know that McCaleb has been convicted on crimes of violence in the past.

    Finally, the majority ruled that “Jackson failed to establish a proper foundation for the court to determine that evidence of the victim’s reputation for violence was admissible.”

    Under section 904.04(1)(b), evidence of a homicide victim’s character is admissible for the purpose of proving the victim was the first aggressor. But Jackson did not make it clear that he sought to show McCaleb’s reputation for violence for this purpose.

    Despite any error on the part of the circuit court to exclude evidence, the majority ruled that the error was harmless because the outcome would have been the same.

    Dissent and Concurrence

    Both Chief Justice Shirley Abrahamson and Justice Ann Walsh Bradley agreed with the majority 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.”

    Dissenting, the chief justice thought Jackson laid a proper foundation to admit evidence of McCaleb’s reputation for violence on the basis that he was the first aggressor. She also argued that the circuit court’s failure to admit the evidence was not harmless error.

    “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,” Chief Justice Abrahamson wrote.

    Justice Bradley thought the circuit erred by not allowing the defendant to lay a better foundation for introducing reputation evidence. However, Bradley agreed with the majority that the error was harmless. “I agree with the majority that it is unlikely that the reputation evidence would have affected the outcome in this case,” she wrote.

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