Friday

Argument III

THE TRIAL COURT ERRONEOUSLY VIEWED §904.03 AND §904.04(2), ALLOWING STATE WITNESS, THOMAS AVERY UNDER HEARSAY TO TESTIFY AT TRIAL THAT THE DEFENDANT HAD SELF-INFLIC­TED A GUNSHOT WOUND SHOWCASING A PROPEN­SITY TO USE FIREARMS NEXUSED TO THE COMMIS­SION OF THE PREDICATED OFFENSE OF 8/19/1996.

THE COURT HELD IN STATE V. HUTNIK, 39 WIS. 2D. 754, 159 N.W. 2D. 733 (6/28/1968), THAT IN THE MAKING OF THE DETERMINATION OF THE ADMISSIBILITY OF OTHER EVENTS OR OCCURRENCES THAT MAY SHOW INTENT, THE QUESTION IS ONE OF REMOTENESS AND NOT OF CHRONOLOGY EVIDENCE OF OFFENSES COMMITTED PREVIOUS TO THE CRIME UNDER PRO­SECUTION MAY BE ADMITTED AS IN THE CASE OF PRIOR OFFENSES, IF NOT TOO REMOTE. IN PROOF OF CRIMINAL INTENT, THE CONDUCT OF THE DEFENDANT ON OTHER OCCASIONS CLOSELY CONNECTED IN POINT OF TIME AND PLAN MAY BE RELEVANT TO THROW LIGHT ON THE DEFEND­ANT 'S MOTIVES AND INTENTIONS WHILE DOING THE ACT COMPLAINED OF. THE INTENTION WITH WHICH A PARTCULAR ACT IS DONE OFTEN CON­STITUTES THE BURDEN OF INQUIRY, AND TO PROVE THE INTENT IT BE­COMES NECESSARY TO EXTEND THE EXAMINATION BEYOND THE PARTICULAR TRANSACTION WHEN THE ACCUSED IS UPON TRIAL. ID. FOR THE PURPOSE OF PROVING INTENT, NOT OF PROVING 'THE ACT ITSELF. IT'S OFTEN PERMISSIBLE TO SHOW OTHER CRIMINAL TRANSACTIONS OF THE SAME SORT SPRINGING FROM THE MENTAL CONDITIONS. ID. (EMPHASIS ADDED)

THOMAS AVERY VOLUNTEERED INFORMATION THAT THE DEFENDANT HAD SELF-INFLICTED A GUN SHOT WOUND SOME MONTHS PRIOR TO THE 8/19/96 INCIDENT. FOLLOWING P.O. HECK WAS ALLOWED TO TESTIFY THAT THE DEFENDANT HAD SHOT HIMSELF IN FEB. OR MARCH OF 1996. (A:164: 8-23)

DEFENSE COUNSEL HAD ARGUED THAT IT WAS IRRELEVANT INFORMA­TION THAT THE DEFENDANT HAD GUNS OR FIRED GUNS IN THE PAST. (A:162; 6-11) THE STATE OPPOSED DEFENSE COUNSEL'S MOTION, BECAUSE THOMAS AVERY HAD BASICALLY RECANTED HIS IDENTIFICATION OF THE DEFENDANT BEING THE DRIVER OF THE CAR. (A:162: 17-19)

THE COURT RULED THAT IT WAS ISSUE OF IDENTIFICATION UNDER §904.04 (2) REASONING THAT THE JURY NEEDED THAT RELEVANT INFOR­MATION TO MAKE IT REASONABLE WHILE DENYING DEFENSE COUNSEL'S MOTION. (A:163: 7-18)

The trial court erroneously concluded that the information that Thomas Avery provided to law enforcement in respect to the defendant self-inflicting a gun shot wound does not go to identification, because thomas avery knew who the defendant was because he had had a problem with the defendant allegedly a couple days' prior to the incident. (a:189: 1-5) The trial court erroneously viewed §904. 03, wherein the court is to find that such evidence sustains probative value and is not outweighed by its prejudicial affects before the jury.
The Hutnik Court/ Supra, reasoned that when a court con­siders evidence of other occurrences to show criminal transac­tions of the same sort springing from like mental conditions, it's to consider the undue consumption of time, if it creates a substantial danger of undue prejudice or of confusing the issues or of misleading the jury or to unfairly surprise a party who has not had reasonable ground to anticipate that such evi­dence would be offered. id. at 754.
The trial court's decision to allow evidence of the defend-ant SELF-INFLICTING A GUNSHOT WOUND SHOWED AN ALLEGED PROPENSITY TO FIRE GUNS CREATING UNDUE PREJUDICE, WHILE MISLEADING THE JURY AND WAS A SURPRISE TO DEFENSE COUNSEL WHO HAD NOT REASON­ABLE GROUND TO ANTICIPATE THAT SUCH EVIDENCE WOULD BE OFFERED PREMISED ON THE FACT THAT THOMAS AVERY HAD PHYSICALLY VIEWED THE DEFENDANT TWO (2) DAYS BEFORE THE INCIDENT OF 8/19/96 (A:189: 1-5) , SHOWCASING THAT THOMAS AVERY PHYSICALLY KNEW WHO THE DEFENDANT WAS ABROGATING THE IDENTIFICATION RULING .ID.
SINCE THE JURY WAS ALLOWED TO HEAR INFORMATION THAT THE DEFENDANT HAD SELF-INFLICTED A GUNSHOT WOUND, IT CAN NOT BE DEEMED THAT THE DEFENDANT HAD BEEN FAIRLY TRIED BEFORE THE JURY, WHEN THE MINDS OF THE JURORS HAVE BEEN PREJUDICED BY THE ACCUSED FORMER MISCONDUCT, WHICH DIVERTED AND PERVERTED THE JURY FROM A DELIBERATE AND IMPARTIAL CONSIDERATION OF THE QUESTION WHETHER THE REAL EVIDENTIARY FACTS FASTEN GUILT UPON THE DEFENDANT BEYOND A REASONABLE DOUBT. SEE MULKOVICH Y. STATE/ 73 WIS. 2D. 464, 243 N.W. 2D. 198 (6/30/1976).
FOOTNOTE 3: THE RECORD SHOWS THAT IDENTIFICATION BY THOMAS AVERY WAS NOT AN ISSUE FOR THOMAS AVERY, PER SB (A:189: 1-5)/-AN ERRON­EOUS ARGUMENT BY THE STATE, AND AN ERRONEOUS DECISION BY THE TRIAL COURT. FOR IT'S WELL SETTLED CASE LAW THAT OTHER ACTS IS RELEVANT IF A REASONABLE JURY COULD FIND BY THE PREPONDERANCE OR WEIGHT OF THE EVIDENCE THAT THE DEFENDANT COMMITTED THE ACT ON TRIAL. WHETHER THE JURY FINDS THE DEFENDANT COMMITTED THE OTHER ACT BY THE PREPONDERANCE OF THE EVIDENCE, THEN IT BECOMES A QUESTION OF LAW THAT THIS COURT DECIDES WITHOUT WEIGHING CRED­IBILITY OR DETERMINING WHETHER THE STATE PROVED THE DEFENDANT COMMITTED THE ACT ON TRIAL. THE TRIAL COURT ERROR OF ADMITTING EVIDENCE OF THE DEFENDANT SELF-INFLICTING A GUNSHOT WOUND DOES EFFECT THE SUBSTANTIAL RIGHTS OF THE APPELLANT SEEKING REVER­SAL IN THE INSTANT CASE. SEE STATE V. NORWOOD, 287 WIS. 2D. 679, 706 N.W. 2D. 683 (2005).