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  • WisBar News
    May 12, 2015

    Supreme Court Clarifies Test to Admit Third-Party Perpetrator Evidence

    Joe Forward
    Legal Writer

    May 12, 2015 – Convicted of murder, General Grant Wilson appealed to argue that it was error for the trial court to exclude evidence supporting his theory of defense: that another man set him up. Recently, the Wisconsin Supreme Court said it wasn’t an error.

    In State v. Wilson, 2015 WI 48 (May 12, 2015), a supreme court majority (5-2) upheld Wilson’s first degree intentional homicide conviction and clarified the test for circuit courts to use in determining the admissibility of third-party perpetrator evidence.

    Wilson was accused and convicted of killing his ex-girlfriend, Evania Maric, in 1993, and also for attempting to murder Willie Friend, who was with Maric when she was shot.

    Witnesses said they saw a gold Lincoln Continental pull up to Maric’s car, parked outside an after-hours club operated by Friend's brother. Maric, who was romantically involved with Friend, were sitting in the car. The gunman opened fire on both of them. Only Maric was killed.

    At trial, Wilson argued that Friend had lured Maric to the car outside an after-hours club for the purpose of having her killed by a third-party assassin or assassins and framing Wilson for the murder. Wilson sought to introduce the testimony of two women who said they heard Friend previously threaten to kill Maric, but the trial court would not allow it.

    Defense counsel suggested Friend believed Maric was pregnant with his child and wanted to avoid paying Maric child support. The defense also suggested that the third-party assassins fired shots at Friend for show to make it look like Wilson did it.

    After a seven-day trial, Wilson was convicted of murder, attempted murder, and sentenced to life in prison. The circuit court denied his postconviction motion for relief.

    Ultimately, an appeals court reversed, concluding Wilson’s offer of proof was sufficient to show Friend had motive to kill Maric, the opportunity to do so, and a connection to the crime, regardless of whether Wilson’s evidence was sufficient to establish Friend’s guilt.

    It wasn’t harmless error, the appeals court ruled, to exclude testimony from witnesses who saw Friend threaten and slap Maric two weeks before the shooting occurred. The appeals court ruled that Wilson was entitled to a new trial based on the error.

    But a supreme court majority disagreed, clarifying that proffered evidence must create a “legitimate tendency” to believe someone other than the defendant committed the crime, under State v. Denny, 120 Wis. 2d 614, 357 N.W.2d 12 (Ct. App. 1984).

    A defendant, the majority noted, must show a third-party had a motive and the opportunity to commit the crime, as well as a direct connection to it.

    In this case, the majority explained, Wilson’s proffered evidence did not pass the Denny test because the evidence did not show Friend had an opportunity to commit the crime.

    “[W]e conclude that, for a defendant to show that a third party had the ‘opportunity’ to commit a crime by employing a gunman or gunmen to kill the victim, the defendant must provide some evidence that the third party had the realistic ability to engineer such a scenario,” wrote Justice David Prosser for the five-justice majority.

    “Here, Wilson failed to show that Friend had the opportunity to kill Maric, directly or indirectly; consequently, it was not error for the circuit court to exclude Wilson’s proffered evidence,” Justice Prosser explained.

    The majority noted overwhelming evidence that Friend was not the shooter, leaving only the possibility that he conspired with a third-party to have Maric killed. The majority also noted witness testimony that indicated Friend was in real danger of being killed, and that Wilson offered no proof that indicated Friend could have directed Maric’s murder.

    For instance, Wilson did not show that Friend or any of Friend’s associates had access to a car that was similar to Wilson’s car, that Friend called anyone that night, or that Friend or his family owned the type of weapons that were used to carry out the murder.

    “In short, he has not offered any evidence whatsoever indicating that Friend had the means or access or ability to hire assassins to kill Maric at a particular place within a relatively short time frame,” Justice Prosser wrote.


    Justice Annette Ziegler, joined by Chief Justice Patience Roggensack, wrote a 22-page concurrence “to clarify that the majority opinion is intended to reaffirm the Denny test and that certain passages in the majority opinion should not be misconstrued.”

    For instance, the concurring opinion noted a defendant must prove all three prongs of the Denny test – motive, opportunity, and connection – despite the majority’s suggestion that a strong showing on one prong could lower the threshold on another.


    Justice Shirley Abrahamson, joined by Justice Ann Walsh Bradley, wrote a dissenting opinion, concluding that the appeals court was correct to order a new trial.

    “By excluding the defendant’s third-party perpetrator evidence, the circuit court denied the defendant his constitutional right to present a complete defense,” she wrote.

    Abrahamson noted that Wilson was arguing that Friend lured Maric to a place where she could be murdered at his direction, and the facts showed this “opportunity.” Thus, the dissenters said it was wrong to exclude testimony about Friend’s threats to Maric.

    “Willie Friend was the state’s primary witness. With the admission of the defendant’s third-party perpetrator evidence, the jury may not have considered Willie Friend a credible witness,” Justice Abrahamson noted.

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