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  • September 14, 2022

    Excluding Experts and Using Pattern Jury Instruction Not a Court Error

    The trial court in a homicide trial properly excluded prior bad acts evidence and expert witnesses whose testimony was unreliable or would have been confusing, the Wisconsin Court of Appeals has ruled.

    Jeff M. Brown

    Stacks Of Legal Papers Heaped Upon A Table In A Courtroom While A Lawyer Stands Behind The Table

    Sept. 16, 2022 - The trial court in a homicide trial properly excluded prior bad acts evidence and expert witnesses whose testimony was unreliable or would have been confusing, the Wisconsin Court of Appeals has ruled.

    In State v. Ochoa, 2020 AP1981 (June 30, 2022), the Court of Appeals District II also held that the circuit court’s jury instruction accurately stated the law of self-defense.

    Early Morning Shooting

    In the early morning hours of July 30, 2017, inside a house in Oostburg, Sergio Moises Ochoa shot and killed Luis Garcia and Fernando Lopez.

    Jeff M. Brown Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    The Sheboygan County District Attorney charged Ochoa with two counts of first-degree intentional homicide. Ochoa pled not guilty.

    At trial, Ochoa claimed that he shot Garcia, his cousin, and Lopez, his friend, in self-defense. Ochoa argued the two men had consumed cocaine and alcohol and threatened him, causing him to fear for his life.

    Pretrial Motions

    Ochoa sought to introduce evidence of prior bad acts committed by Garcia and Lopez. The circuit court allowed Ochoa to introduce evidence about the victims’ reputations for violence but did not allow him to introduce evidence of prior bad acts.


    Ochoa also sought to call ten expert witnesses. The circuit court ruled that three of the witnesses would be excluded because either the proposed testimony was irrelevant or the witness was unreliable.

    Dispute Over Godfather Role

    Ochoa testified that on the night of July 29, 2017, he visited Garcia and Lopez at Garcia’s house in Oostburg. Ochoa also testified that he returned home but woke up after two or three hours, because he’d remembered Garcia had insisted that he talk with him that night.

    Ochoa testified that when he returned to Garcia’s home early on July 30, he took his gun with him because he was worried about going there alone, given that a robbery had recently occurred near Garcia’s house.

    After Ochoa arrived at Garcia’s house, the two began to argue about Ochoa’s decision to remove Garcia as godfather for his son’s first communion.

    Ochoa testified that he saw Lopez open and close a pocketknife four or five times while uttering words to the effect of “You are so screwed” in Spanish. Ochoa testified that he interpreted Lopez’s statement as deadly threats.

    Ochoa testified that he tried to leave the house by the back door but Garcia came up behind him with a knife and told him he was not leaving. When he walked back into the living room, Ochoa testified, he thought that he was about to be attacked.

    Ochoa shot Lopez. Garcia then lunged at Ochoa and Ochoa shot him.

    Argument Over Jury Instructions

    After the close of testimony, Ochoa and the state argued over jury instructions.

    Ochoa argued that the circuit court erred by declining to modify the pattern jury instruction Wis. JI-Criminal 1016 by adding wording from Wis. JI-Criminal 805. That wording included the statutory definition of the term “reasonably believes.”

    Under Wisconsin law, a defendant can only make out a self-defense defense if the defendant can show that he or she both: 1) reasonably believed that the interference defended against was an unlawful interference; and 2) reasonably believed that the amount of force used in self-defense was necessary to stop the interference.

    Bad Acts Properly Excluded

    In her opinion for a three-judge panel, Judge Shelley Grogan explained that the circuit court’s decision to exclude the prior bad acts evidence was not erroneous.

    Three or four of the prior bad acts, Grogan pointed out, took place 18 years or more before Ochoa shot Garcia and Lopez.

    Additionally, Judge Grogan concluded, the acts – instances of drunken brawling and assault by Garcia and Lopez in bars in Mexico – were dissimilar to their alleged actions just before Ochoa shot them.

    “The Mexico events were in public places—not Garcia’s home—the targeted subjects were strangers—not family—and there were no threats to kill,” Grogan wrote.

    Ochoa also sought to introduce acts of violence by Garcia and Lopez that occurred in the U.S., as well as instances of them bragging about the violent acts they had committed in Mexico and the U.S.

    But Judge Grogan explained that the trial court had properly concluded that a reasonable jury would be unable to find those acts had occurred, because Ochoa provided no details as to when or where those acts had occurred or how often they had occurred.

    Witnesses Properly Excluded

    One of the expert witnesses excluded by the circuit court, Hayes, billed himself as a firearms expert. The circuit court excluded Hayes because his law enforcement experience was “very dated” and because his proposed testimony included an insufficient analysis of the crime scene.

    “The trial court’s decision as to Hayes was not erroneous because it reached a reasonable determination after considering the specific facts and applying the correct law,” Grogan wrote. “It had valid concerns about the reliability of Hayes’s opinions and acted within its gatekeeper function to exclude the witness.”

    The circuit court’s decision to exclude the second expert witness was reasonable, Judge Grogan explained, because his opinions were based in part on information supplied by Hayes.

    And the third expert witness was properly excluded, Judge Grogan reasoned, because that witness would have testified about the meaning of the Spanish phrases uttered by Lopez before Ochoa shot him.

    “No one except Ochoa knew exactly what Lopez said that night, and no one except Ochoa knew the tone or context of those statements,” Grogan wrote.

    Jury Instruction Was Accurate

    Judge Grogan wrote that the circuit court’s decision to refuse to add the requested wording to Wis. JI-Criminal 1016 was not erroneous, “because the instruction, as a whole, provided the jury with an accurate instruction as to the law of self-defense under the facts of this case.”




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    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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