Circuit court properly excluded defense evidence, appropriately questioned defendant

State v. Charles A. Page, 2017AP165-CR, District 4, 10/12/17 (one-judge decision; ineligible for publication); case activity (including briefs)

Page claims that the circuit court erred when it classified evidence he sought to introduce as “other acts” evidence and then excluded the evidence because Page hadn’t filed a timely pretrial motion to admit the evidence. He also contends the circuit court abandoned its role as a neutral magistrate in its questioning of Page at trial. The court of appeals rejects the claims.

Page was charged with shining deer and obstructing a warden after he was seen pointing a crossbow at deer and illuminating them with a light. (¶2). His defense was that he was looking for poachers. To support this defense he sought to have a local police chief testify that Page had reported poaching activity to him shortly before this incident. (¶¶3, 10, 12). Trouble is, Page (or, more precisely, his lawyer) broached his plan to call the chief on the morning of trial, and hadn’t filed a timely pretrial motion seeking a ruling on the admissibility of the chief’s evidence or a timely list of witnesses with the chief’s name on it. (¶¶3, 14-15). The circuit court excluded the evidence, saying it was other acts-evidence under § 904.o4(2)(a) and therefore subject to the court’s scheduling order regarding pretrial motions. (¶¶3-4).

Page asserts the chief’s testimony isn’t “other-acts” evidence—and therefore is not subject to the pretrial motion scheduling order—because it wasn’t offered to show Page “acted in conformity” with his prior conduct; instead, it was offered as “context” and intent evidence to bolster his defense he was looking for poachers, not shining deer. (¶10). The court of appeals rejects the claim, holding the whole point of the evidence was to suggest that on the date of the alleged offense Page was acting in conformity with his prior conduct in looking for and reporting poachers. Thus, it was other-acts evidence subject to the admissibility standards of § 904.04(2)(a) and was subject to the pretrial scheduling order, so the circuit court properly exercised its discretion in excluding it based on the lack of a timely motion. (¶¶14-17).

While it doesn’t affect the result, there’s some semantic imprecision about “other-acts evidence” in both Page’s argument and the court’s decision. The court is right that on a practical, common sense level the chief’s testimony was about Page’s “other acts,” though by itself that fact doesn’t determine its admissibility, as the court notes. (¶13). But the court also inaptly characterizes § 904.04(2)(a) as a “general” “prohibition on using other acts evidence.” (¶11). What the statute actually prohibits is the use of other acts to prove character in order to show a person acted in conformity with that character. State v. Sullivan, 216 Wis. 2d 768, 782, 572 N.W.2d 30 (1998) (the statute “forbids a chain of inferences running from act to character to conduct in conformity with the character.”). In other words, as Page argues, citing State v. Bauer, 2000 WI App 206, ¶7 n.2, 238 Wis. 2d 687, 617 N.W.2d 902, what matters is the purpose of the other-acts evidence, not the fact it is evidence of other acts.

But Page himself inaptly argues that because he’s not offering other-acts evidence to prove character, the evidence isn’t “other acts” evidence at all. (Brief-in-chief at 19, 21). That is incorrect; it’s still evidence of “other acts,” of specific instances of conduct, so it was easy for the court of appeals to brush his argument aside. Page’s real argument, put more precisely, is that the chief’s testimony is admissible other-acts evidence under § 904.04(2)(a) because it’s offered for a non-character purpose (context or intent). That argument may not prevail, for as Blinka says other-acts evidence “usually carries dual relevance: it tends to show a character trait while also tending to establish ostensibly different propositions, such as motive, identity and the like.” 7 Wisconsin Practice Series: Wisconsin Evidence § 404.1 (2017). But referring imprecisely to “other acts evidence” when the issue is really whether the evidence is being offered to prove something other than character muddles the argument and clouds the analysis. That’s a bad way to make an argument because, to quote Blinka again, when it comes to other-acts evidence “[c]omplications rapidly arise because the law restricts the permissible range of character evidence. In short, the proponent must identify exactly how the evidence is relevant.” Id. And, one might add, must explain why the evidence isn’t about character or showing action in conformity with that character.

Again, the imprecise use of “other-acts evidence” doesn’t ultimately matter here. Page’s attorney conceded that the pretrial scheduling order required notice of other–acts evidence and that notice of the chief’s testimony or even his status as a witness wasn’t timely provided (¶¶3, 14-15), so the judge could, as a proper exercise of discretion, exclude the evidence on those grounds.

Page also argues the circuit court improperly excluded some of his own testimony about poaching in the same area. This argument fails because the court didn’t exclude (or even rule on) the evidence because the state didn’t object, but only instructed Page’s lawyer to “tread carefully” in eliciting similar other-acts evidence, and Page hasn’t shown the court’s warning limited the evidence Page wanted to elicit. (¶¶18-21).

Finally, Page argues the circuit court stepped over the line of permissible questioning of a witness by a judge. A judge may interrogate a witness, § 906.14(2), but when doing so can’t function as a partisan or advocate, Schultz v. State, 82 Wis. 2d 737, 741, 264 N.W.2d 245 (1978). The court of appeals holds that the judge in this case didn’t step over the line, but only asked a limited number of questions of Page designed to clarify a single aspect of his testimony regarding how the low-light scope of Page’s crossbow worked. (¶¶6, 22-25).