McMorris v. State
McMorris v. State
Dissenting Opinion
(dissenting). Here the defendant, found guilty by a jury of injury by conduct
Here the defendant sought to establish the reasonableness of her apprehensions by (1) testimony as to the general reputation of the person stabbed; and (2) prior incidents involving the person allegedly assaulted and persons other than the defendant. Was, as the trial court ruled, such offered evidence as to other incidents involving other persons inadmissible? Clearly, in a majority of states, the offered testimony is inadmissible,
Where the majority sees no substantial reason for excluding evidence of other incidents, remote in time and not involving the defendant, the writer sees four: The rule that earlier incidents, involving the victim but not the defendant, may be inquired into will surely:
1. Unduly lengthen the trial of assault and homicide cases where self-defense is an issue.
2. Unwisely confuse the jury. Collateralizing the trial to include inquiries into a number of incidents involving the victim, but not the defendant, will, the majority says, “assist” the jury in deciding the case involving the defendant. From such assistance, juries might well pray to be saved. Now the jury must consider not only what the defendant here did in one situation, but also what the victim or complaining witness did or did not do in a half-dozen other situations, none involving the defendant. One self-defense issue could blossom into a half-dozen, for surely the turbulent or violent character of a victim is not affected by a situation in which such victim acted to defend herself, or did nothing at all. Certainly the attention of the jury would be diverted to the collateral issues raised, with the issue of guilt of the defendant overshadowed, or, at least, outnumbered.
3. Unfairly introduce a double standard. Defendant’s brief argues that what defendant sought to show by the excluded evidence was the victim’s “propensities toward violence.” The “propensity” theory argues that one who got drunk six years ago is more likely to have been intoxicated yesterday, than if the earlier lapse from sobriety had not occurred. That is hardly the way to deter
4. Unnecessarily complicate the trial. All that we are talking about is the character and reputation of the assault victim as bearing upon reasonableness of apprehensions claimed by the defendant. The defendant, claim
For the four reasons stated, the writer would not adopt the open door policy as to earlier incidents involving a complaining witness or victim and other persons, but not involving the defendant. Only where such unrelated incidents were observed by a defendant would the writer hold them admissible, and then only in rebuttal where reasonableness of defendant’s claimed apprehensions had been challenged. This would prevent a trial of a defendant on an assault or murder charge from being transformed into a trial of the victim or complaining witness as to characteristics or “propensities.” On this record, on the issue raised, the writer would affirm.
“A person . . . may not intentionally use force which is intended or likely to cause death or great bodily harm unless he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself . . . .” Sec. 939.48 (1), Stats., in material part, quoted in Thomas v. State (1972), 53 Wis. 2d 483, 487, 192 N. W. 2d 864.
See: Annot. (1965), 1 A. L. R. 3d 571-575, Admissibility of evidence as to other’s character or reputation for turbulence on question of self-defense by one charged with assault or homicide. See also: State v. Nett (1880), 50 Wis. 524, 527, 7 N. W. 344.
See: Annot. (1939), 121 A. L. R. pp. 382-390, sec. II.
See: Annot. (1939), 121 A. L. R. pp. 410-415, see. IV (b).
See: Annot. (1939), 121 A. L. R. pp. 382-390, sec. II.
See: Annot. (1939), 121 A. L. R. pp. 390-406, sec. III.
See: 1 Wigmore, Evidence (Sd ed.), pp. 676, 677, sec. 198.
See: Ruffin v. State (1956), 50 Del. 83, 91, 123 Atl. 2d 461, 465, holding inadmissible details of specific offenses allegedly committed by victim, stating: “But there must be a limit to the admission of such testimony. To allow a defendant to put into evidence the details of numerous acts of violence in order to show a deceased’s reputation for violence would permit the introduction into the trial of collateral issues and would in some cases undoubtedly delay the trial of the case for an interminable length of time. . . (This limits the application of State v. Gordon (1935), 37 Del. 219, 222, 223, 181 Atl. 361, cited and relied upon by the majority.)
State v. Duncan (Mo. 1971), 467 S. W. 2d 866, 868, the court stating: “. . . if evidence of specific acts could be relied on to prove that deceased was of a violent disposition it would likely result in the raising of any number of collateral issues, the trial of which might be quite lengthy and also would tend to divert the minds of the jurors from the main issue. If the rule were as defendant contends it should be it is not difficult to imagine a case in which the extensive evidence offered on each side in regard to alleged specific acts of violence by deceased would completely overshadow the main issue concerning defendant’s guilt or innocence.”
Id. at page 868, stating: “. . . Perhaps the most cogent reason for the rule is indicated in State v. Colvin, 226 Mo. 446, 126 S. W. 448, 461, wherein the court approved a quotation that ‘The man’s character is to be judged by the general tenor and current of his life, and not by a mere episode in it.’ We can readily understand that many men who are ordinarily peaceable and law-abiding, on a few occasions in an entire lifetime, may have acted in a rash and turbulent manner. Those few occasions should not be considered appropriate proof that such a man is of a violent and turbulent nature.”
While admissible for some purposes, evidence of prior crimes, incidents or occurrences involving the defendant, “. . . is not admissible for purposes of proving general character, criminal propensity, or general disposition on the issue of guilt or innocence because such evidence, while having probative value, is not legally or logically relevant to the crime charged. . . .” Cheney v. State (1969), 44 Wis. 2d 454, 460, 461, 171 N. W. 2d 339, 174 N. W. 2d 1. See also: 24B C. J. S., Criminal Law, pp. 114— 122, sec. 1915 (17).
Cheney v. State, supra, at pages 460, 461.
Harris v. New York (1971), 401 U. S. 222, 91 Sup. Ct. 643, 28 L. Ed. 2d 1.
Opinion of the Court
The issue on this appeal is whether evidence of prior specific acts of violence by the victim of an assault, against others than the defendant, is admissible in a prosecution for injury by conduct regardless of life,
It is undisputed that the defendant adduced at trial sufficient evidence to raise the issue of self-defense.
Therefore, the question before this court is whether defendant, after establishing a factual basis to raise the issue of self-defense, may introduce evidence of personal knowledge of prior acts of violence on the part of the victim to prove what the defendant believed to be the turbulent and violent character of the victim; and the conditions under which such evidence may be admissible.
Because the evidence submitted in defendant’s offer of proof is pertinent to this appeal, her testimony on direct examination is set forth in detail. She testified as follows:
“Q. What knowledge, if any, did you have ?
“A. What knowledge did I have? I have seen it.
“Q. What have you seen ?
“A. Oh, walking in taverns and bust people upside the head with beer bottles. I have seen her take a shot at her brother-in-law. I have seen her pull guns on her brother-in-law.
“Q. What if anything are you aware of, concerning her husband ?
“A. She shot him.
“Q. That is all I have. Do you want to cross-examine ? Perhaps I can ask one more question. Did those events*148 that you have testified to, occur prior to the difficulties between you and Mrs. Tucker?
“A. Yes, long before, yes.”
On cross-examination, the defendant testified:
“Q. Well, you say, if I may, you say these acts took place long before the fight on July 31st, right?
“A. A-ha such as, yes some of them, when she shot her husband.
“Q. When was that ?
“A. That was in 1966 or ’67. But recently she haven’t put a gun and took a shot at her husband. As of at her brother-in-law, about five or six months ago.
“Q. Were you there when it happened ?
“A. I was right there.
“Q. Where did this happen ?
“A. It happened at the Twenty Grand on the south side of the Twenty Grand, when she pulled a gun on her brother-in-law and shot at him. It happened as recently as maybe four months ago that she jumped on, come behind this man here, and her sister and hit him in the head and put him in the hospital, as recently as about four months ago.
“Q. Where did that happen ?
“A. In the Twenty Grand.
“Q. What was her brother-in-law doing?
“A. Standing up and she just walked up on him. He had been into it with his wife, which is her sister.”
In civil cases it has been recognized that a person’s possession of a particular character trait may be an operative fact which under the substantive law determines the legal rights and liabilities of the parties and, where that character trait is in issue, that trait of character must be open to proof, including a showing of specific acts.
However, the particular issue on this appeal has not been presented to this court for consideration.
We believe those jurisdictions which have adopted rules of inadmissibility of specific acts generally fail to recognize the distinction between evidence for establishing the character or reputation of the victim in the community and evidence for the purpose of explaining or proving the defendant’s motive or apprehensions, by showing what he reasonably believed to be the victim’s character. The court, in Mortimore v. State (1916), 24 Wyo. 452, 475, 476, 161 Pac. 766, stated:
“. . . It is true that the general rule permits the character of the deceased, when admissible at all, to be shown only by evidence of general reputation, and not by evidence of specific acts. . . . But in several well reasoned cases it is held that former specific acts of violence of the deceased showing his brutal or dangerous disposition and character known to the defendant, that is, acts committed in his presence, or communicated to him before the homicide, are admissible in evidence, not for the purpose, primarily, of showing the deceased’s character, but to explain the defendant’s motive and what he might reasonably have apprehended as to the danger. . . . [Citations.]
“The authorities to the contrary seem to regard such evidence as an attempt to show the character of the deceased. But we think the distinction between evidence for that purpose and evidence to show defendant’s actual knowledge of the deceased’s character, in such cases, is coming to be more generally recognized, and that it is a reasonable one. The reason for it appears to us to be*151 at least as strong, if not stronger, than that which permits proof of the general reputation of the deceased for violence. . . .”
The past conduct of a person markedly affects what others may reasonably expect from him in the future. When the accused maintains self-defense, he should be permitted to show he knew of specific prior instances of violence on the part of the victim. It enlightens the jury on the state of his mind at the time of the affray, and thereby assists them in deciding whether he acted as a reasonably prudent person would under similar beliefs and circumstances. In State v. Gordon (1985), 87 Del. 219, 222, 223, 181 Atl. 361, the court stated:
“The question here is whether the accused may testify to specific instances, either known to him personally, or by hearsay, of an affray in which the deceased was the aggressor and had used a knife. The state of mind of the accused is material. The jury is to pass upon his belief, that the deceased was about to attack him. Without doubt, the reputation of the deceased for violence, known to the accused, is admissible; and there seems to be no substantial reason why the belief of the prisoner should not be evidenced by knowledge of specific acts of violence, as well as by knowledge of general reputation for violence, subject, of course, to exclusion in a proper case for remoteness. No such contention is, however, made here.”
When self-defense is asserted in a prosecution for assault or homicide, there is no substantial reason for the exclusion of particular violent acts of the victim, known to the defendant prior to the incident from which the charges arose. As stated in 1 Wigmore, Evidence (3d ed.), pp. 676, 677, sec. 198:
“. . . When the turbulent character of the deceased, in a prosecution for homicide, is relevant . . . there is no substantial reason against evidencing the character by 'particular instances of violent or quarrelsome conduct. Such instances may be very significant; their number*152 can be controlled by the trial Court’s discretion; and the prohibitory considerations applicable to an accused’s character . . . have here little or no force.”12
When the issue of self-defense is raised in a prosecution for assault or homicide and there is a factual basis to support such defense, the defendant may, in support of the defense, establish what the defendant believed to be the turbulent and violent character of the victim by proving prior specific instances of violence within his knowledge at the time of the incident.
In those instances in which the defendant failed to establish a factual basis to raise the issue of self-defense, prior specific acts of violence by the victim would have no probative value. Also, when the defendant seeks to introduce such evidence to establish his state of mind at the time of the affray, it must be shown that he knew of such violent acts of the victim prior to the affray.
The other issues raised are not dispositive of this appeal. However, we conclude it was error to exclude the testimony offered by the defendant, and that such evidence substantially affected the rights of the defendant.
By the Court. — Judgment reversed, and cause remanded for a new trial.
Sec. 940.23, Stats.
Sec. 939.48, Stats.
See: Thomas v. State (1972), 53 Wis. 2d 483, 192 N. W. 2d 864, where the conflict in the testimony between the state’s
See: State v. Sabala (1966), 32 Wis. 2d 95, 101, 102, 145 N. W. 2d 95.
In actions for seduction, evidence may be admitted to show a want of chastity in the woman. Want of previous chastity may be proved by general reputation and specific acts of unchastity. Ward v. Thompson (1911), 146 Wis. 376, 382, 131 N. W. 1006; Stewart v. Smith (1896), 92 Wis. 76, 78, 65 N. W. 736.
See also: McCormick, Evidence (2d ed. hornbook series), p. 443, sec. 187; Proposed Wisconsin Buies of Evidence, sec. 904.04, Character evidence not admissible to prove conduct; exceptions; other crimes. 56 Marq. L. Rev (1973), 210.
1 Jones, Evidence (6th ed.) p. 462, sec. 4:40; 1 Wharton’s, Criminal Evidence (12th ed.), p. 473, sec. 228.
Where self-defense was an issue, it was prejudicial error to refuse evidence tending to show that the victim was “known to be a desperate, fighting, ruffianly man, ready to fight on the slightest occasion.” State v. Nett (1880), 50 Wis. 524, 527, 7 N. W. 344.
Annot. (1965), Admissibility of evidence as to other’s character or reputation for turbulence on question of self-defense by one charged with assault or homicide, 1 A. L. R. 3d 571, 575.
While this court held in State v. Nett, supra, that it was prejudicial error to bar evidence tending to prove the violent character of the accused where self-defense was in issue, there is no record of the specific offer of evidence.
Annot. (1939), Admissibility on issue of self-defense (or defense of another), on prosecution for homicide or assault, of evi-
Such a rule is consistent with sec. 904.05 of the Proposed Wisconsin Buies of Evidence, supra, at page 214.
See: Sec. 904.05 (2) of the Proposed Wisconsin Rules of Evidence, supra,, at page 214.
“Where the evidence of propensity for violence is offered to corroborate other evidence that the victim of the assault was the aggressor, it would not be necessary to show knowledge on the part of the defendant of the victim’s aggressive character. ...” 1 Jones, Evidence (6th ed.), pp. 464, 465, sec. 4:40.
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