Wisconsin Supreme Court: When a defendant raises self-defense, evidence of a victim’s reputation for violence is admissible to show who was the first aggressor even if the defendant was unaware of that reputation

State v. Curtis L. Jackson, 2014 WI 4, affirming an unpublished court of appeals decision; majority opinion by Justice Ziegler; Justice Bradley concurs; Chief Justice Abrahamson dissents; case activity

In a decision that clarifies the rules regarding evidence of the victim’s character in cases involving self-defense, the supreme court holds that a defendant may present evidence about the victim’s reputation for violence even if the defendant was not aware of that reputation at the time of the offense. The court denies Jackson relief, however, after concluding that his proffer of reputation evidence was insufficient and that any error in excluding the evidence was harmless.

Jackson raised a self-defense claim to a charge of homicide. (¶¶4, 9-14). He moved to admit evidence about three prior instances of violent conduct by McCaleb, the victim. (¶¶5, 19-20). Jackson conceded he did not know about the prior conduct when he shot McCaleb, and so was not seeking admission of the evidence under McMorris v. State, 58 Wis. 2d 144, 205 N.W.2d 559 (1973) (evidence of the victim’s violent character is admissible only if the defendant knew of same).  Instead, he argued the evidence was admissible as “other acts evidence” under § 904.04(2) and as character evidence under § 904.04(1)(b). (¶¶20, 101). The circuit court denied Jackson’s motion. It concluded the evidence was inadmissible as “other acts” under State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998). It also agreed with the prosecutor that character evidence was admissible only for credibility, and that Jackson’s proffered evidence wasn’t relevant on that issue. (¶¶22-25).

On appeal Jackson renewed his character evidence claim (but not his “other acts” claim), arguing that he should have been allowed to prove McCaleb’s character through evidence of his reputation for violence, as permitted under § 904.05(1), not through the prior violent acts cited in his motion. The court of appeals decision adopted the state’s argument that evidence of a victim’s reputation for violence was admissible only if it was known to the defendant at the time of the offense. (¶21). In the supreme court, however, the state changed its position, and conceded that evidence of a victim’s reputation for violence is admissible under §§ 904.04(1)(b) and 904.05(1). The supreme court agrees (¶¶46-48), at least when there is a dispute about whether the defendant or the victim was the first aggressor:

¶79  It is certainly true that in some self-defense cases there is a genuine factual dispute over which party started a confrontation. In those cases, evidence of the victim’s character for violence might be admissible and the circuit court is endowed with the discretion to make that determination. See, e.g., Werner v. State, 66 Wis. 2d 736, 226 N.W.2d 402 (1975). The circuit court is empowered to balance the “modest” probative value of the reputation testimony against the prejudice and the general prohibition against propensity evidence. Wis. Stat. §§ 904.01, 904.03.

But the court concludes Jackson didn’t clearly apprise the circuit court that he was seeking admission of reputation evidence as opposed to evidence about McCaleb’s prior violent acts. His pretrial motion “muddled its discussion” of those two distinct categories of evidence and that his written motion and oral argument in the trial court “never explained how first aggressor is at issue so as to affect the admissibility of character evidence.” (¶20). Further, the court decides, Jackson never established a foundation–despite the modest requirements for laying such a foundation (¶¶72-73)–and never proffered of evidence specific to McCaleb’s reputation for violence, for reputation is not proven by testimony about specific acts. (¶¶49-52). And, even if Jackson had satisfied those requirements, any error in excluding the evidence was harmless because the most relevant testimony regarding McCaleb being the first aggressor was already before the jury. (¶¶85-91). “The jury heard from five witnesses who testified to the events that led up to the shooting and the fact that McCaleb was undisputedly violent on the evening in question. Hearing that ‘McCaleb had a reputation for violence’ would have been anticlimactic at best.” (¶80).

Chief Justice Abrahamson dissents, concluding that: 1) Jackson did clearly argue he was seeking the admission of reputation evidence and made a sufficient offer of proof (or, to the extent he didn’t, was precluded from doing so by the trial court’s erroneous ruling on the issue)  (¶¶100-23); and 2) that the trial court’s erroneous exclusion of all evidence of the victim’s character was not harmless. (¶¶125-44). Justice Bradley agrees with the dissent’s first conclusion, but agrees with the majority that any error was harmless. (¶¶93-95).

It is important to keep clear the different rules at play here, for as this decision illustrates, keeping them straight is crucial both to making the best argument for admissibility and to preserving evidentiary claims for review by avoiding the “muddle” the majority perceived in Jackson’s argument.

The first rule is that McMorris evidence–specific acts of violence by the victim known to the defendant–is evidence admitted to show the defendant’s state of mind, which is why they must be known to him; thus, it is not offered to show the victim’s character or propensity, and should be seen as being admissible under § 904.04(2) (though the court has never explicitly decided whether McMorris evidence is admissible under § 904.04(2) or § 904.05(2), State v. Daniels, 160 Wis. 2d 85, 96 n.5, 465 N.W.2d 664 (1991)). Next, there’s the exception under § 904.04(1)(b) to the ban on character or propensity evidence, which allows use of character as circumstantial evidence of a crime victim’s conduct when the evidence is pertinent (relevant) to an issue in the case. This rule–not McMorris–is the basis for admissibility here, for whether Jackson or McCaleb was the first aggressor is pertinent to the claim of self-defense. Finally, there’s § 904.05, which dictates how character may be proven once when it’s admissible under § 904.04(1). Section 904.05 distinguishes between character as circumstantial evidence of conduct–which under § 904.05(1) can be proven only with reputation or opinion evidence–and character as a substantive issue, i.e., “an essential element of a charge, claim, or defense”–which under § 904.05(2) may also be proven with specific instances of conduct.

Jackson limited his appellate argument to the admissibility of reputation evidence, and the supreme court now makes it clear that, unlike McMorris evidence, the defendant need not have known about the victim’s reputation. That makes sense because the reputation evidence isn’t about the defendant’s state of mind; it’s circumstantial evidence that the victim has a turbulent and violent character, and so it fits neatly under §§ 904.04(1)(b) and 904.05(1). But what about the argument Jackson didn’t make: Namely, that in addition to reputation evidence, evidence of the victim’s prior violent acts, even though unknown to the defendant, should be admissible as character evidence under §§ 904.04(1)(b) and 904.05(2) because establishing that the victim was the first aggressor is a substantive issue, “essential” to the defendant’s claim of self-defense? It makes sense that who was the initial aggressor is essential to a self-defense claim given that under § 939.48(2) provocation by the defendant can limit, or even preclude, reliance on self-defense, and cases from other jurisdictions have held that evidence of specific acts is admissible to prove a victim’s character for violence, e.g., Commonwealth v. Adjutant, 824 N.E.2d 1 (Mass. 2005). Moreover, if it’s available, evidence of specific acts is more powerful (¶68), while the comparatively lower probative value of reputation evidence (¶67) makes it easier for a trial court to exclude it under § 904.03.

Unfortunately, the court says McCaleb’s specific acts would not have been admissible because no character trait was an essential element of self-defense. (¶¶81, 84). Its discussion of this issue is merely conclusory, which is only to be expected since, as the court itself explains, Jackson didn’t raise this issue on appeal and apparently “agrees” the acts weren’t admissible under this theory. (¶¶81, 84). Despite the court’s lack of analysis, its conclusion isn’t easily dismissed as dicta, see Zarder v. Humana Ins. Co., 2010 WI 35, ¶¶52 n.19, 58, 324 Wis. 2d 325, 782 N.W.2d 682 (lower court may not dismiss as dicta statements from a supreme court opinion); State v. Picotte, 2003 WI 42, 61, 261 Wis. 2d 249, 661 N.W.2d 381 (when appellate court of last resort intentionally takes up, discusses, and decides a question germane to, though not necessarily decisive of, the controversy, the decision is not dicta, but a judicial act of the court which it will thereafter recognize as a binding decision). Thus, arguing for the admission of specific instances of conduct to prove character in a case like Jackson’s will require an acknowledgment of the court’s treatment of the question and an argument that, if it isn’t dicta, the supreme court’s analysis was cursory and its conclusion wrong.

A final practice note: Jackson argued in the court of appeals that trial counsel was ineffective for failing to make a sufficiently clear argument and evidentiary proffer for the reputation evidence. The supreme court doesn’t address this issue, apparently because (according to the state’s brief (p. 19) and Jackson’s reply brief (p. 10 n.9 )) Jackson didn’t specifically renew the ineffective claim in his petition for review. Ultimately it didn’t matter here, as the court’s conclusion harmless error conclusion no doubt means it would also have concluded any deficient performance was not prejudicial.