Aug. 4, 2009 – Evidence of a criminal defendant’s prior bad acts is admissible for the jury’s understanding of the police role in events leading to an arrest as well as to rebut claims of self-defense, the Wisconsin Supreme Court held on July 21 in State v. Payano, 2009 WI 86.

The court majority explained that “other acts” evidence may contextualize police conduct, preventing a jury from forming misleading impressions. This context also enables a jury to better assess the reasonableness of the defendant’s professed need for self-defense.

Dissenting justices argued that evidence admitted to provide “context” may only be relevant to the police actions, rather than the defendant’s conduct at issue. The dissenters also criticized the majority for weighing the probative value of the evidence in this case against its prejudicial effect without having all the facts.

No-knock warrant

Tony Payano shot a police officer as law enforcement, executing a no-knock warrant, struggled to enter his home with a sledgehammer. After he shot the officer, Payano called 911. Payano argued at trial that he did not know the men on the other side of the door were police, although officers testified that they had announced their identity and purpose.

When police finally entered the residence, Payano and several family members had retreated to the bathroom and Payano’s cousin was “soaking wet.” Police recovered Payano’s weapon, but did not find evidence of drugs, drug use, or drug sales.

At trial, Payano asserted that he acted in self-defense, but the state argued Payano had merely sought to buy time to flush drug crime evidence. The jury at Payano’s first trial could not reach a verdict.

Before the second trial, the prosecution moved to introduce other acts evidence that it had not used originally. Specifically, the prosecution wanted the jury to hear the testimony of the confidential informant who claimed to witness packages of drugs and a firearm in Payano’s kitchen, providing the basis for the search warrant. The informant said he did not witness any attempt to buy drugs from Payano.

The prosecution argued that the confidential informant’s testimony would rebut Payano's self-defense claim and provide context to the offense.  The trial court agreed, but informed counsel to avoid any suggestion that Payano was a drug dealer.  The jury convicted Payano on one count of second-degree reckless injury while using a dangerous weapon and two counts of second-degree recklessly endangering safety while using a dangerous weapon.

Payano appealed, claiming the admission of the confidential informant's testimony was error.  The court of appeals agreed, reversed, and remanded for a new trial.

Relevant evidence with a proper purpose

In a majority opinion authored by Justice David Prosser, the supreme court explained that “other acts” evidence is admissible if it is offered for a permissible purpose, if it is relevant, and if its probative value outweighs the danger of unfair prejudice to the defendant.

“Relevancy,” the justices explained, is found when evidence relates to a fact or proposition important to the case outcome, and the evidence has a tendency to make that consequential fact or proposition more or less probable than it would be otherwise.

The court of appeals reasoned that the presence of cocaine and a gun at Payano’s residence “no more supports the proposition that [Payano] thus believed that the men attempting to break down his door were police, than it does the notion that Payano believed they were hoodlums seeking to harm him, his mother, and his cousin, and steal the cocaine.”

In its review, the justices found the circuit court’s assessment of relevancy convincing enough that the court of appeals should not have disturbed it. Specifically, the trial judge remarked that the jury in the first trial “was left with the impression that this search was somehow arbitrary … that it may have been somehow a violation of Mr. Payano’s rights.” The trial judge concluded that the jury would better evaluate the reasonableness of Payano’s self-defense claim if it understood the basis for the warrant and the context of the police entry.

The supreme court majority concluded that this trial asked the jury “to decide between two competing motives for the shooting: to protect his family, as Payano argued; or to buy time to hide drug evidence, as the State argued.” The court noted that establishing “motive” is one of the acceptable purposes for admission of “other acts” evidence outlined in § 904.04 (2).

Accordingly, the court said, the confidential informant’s testimony is relevant: It helped prove a proposition of consequence to determining Payano’s guilt and it makes that proposition more probable than it would be without it.

But writing in dissent, Justice Ann Walsh Bradley – joined by Chief Justice Shirley Abrahamson – argued that while the confidential informant’s testimony may provide “context” for police actions, it does not relate to the elements of the charged offenses. “The circuit court accepted the context argument to admit evidence to defend the actions of the police officers rather than evidence relevant to Payano’s actions,” she wrote.

“As the court of appeals noted, ‘[t]his case does not center on the police officers’ conduct in executing the no-knock search warrant’ and the circuit court’s rationale ‘is not pertinent to our relevancy determination,’” Bradley continued.

Bradley also disputed that the informant’s testimony showed Payano would be more likely to expect police officers at the door. She agreed with the court of appeals that the alleged presence of cocaine could lead Payano to believe other criminals were attempting to rob him just as much as that the police were executing a warrant.

Probative value outweighs prejudice

Lastly, Wis. Stat.   § 904.03 requires the probative value of the evidence to outweigh the danger of unfair prejudice to the defendant, confusion of the issues, or cumulative effect.

When considering the probative value of other acts evidence, the supreme court asked to what extent is the proffered proposition “in substantial dispute,” or “how badly needed” is this evidence?”

Weighed against the answers to those questions is the risk of unfair prejudice, which the court said is the “tendency to influence the outcome by improper means” such as provoking the jury’s instinct to punish or otherwise lead a jury to decide the case on something besides the evidence.

Because it had already found the confidential informant’s testimony not relevant, the court of appeals decided that its probative value was slight and outweighed by the “logical inference” of the confidential informant’s testimony that Payano sold drugs.

But the justices disagreed, finding the testimony to be highly probative because it is “the foundation upon which the State’s case rested.” Without the confidential informant explaining why Payano might have shot his gun knowing the police were at his door, the prosecution cannot connect the shooting to its theory that Payano needed time to dispose of drugs, the court said.

The court majority said that the danger of unfair prejudice to Payano did not outweigh the probative value of such important evidence. The justices added that the circuit court can always mitigate any danger of unfair prejudice with a limiting instructions to the jury, restrictions on arguments by counsel, stipulations, or editing the evidence.

Although the trial judge in this case did not give the jury an instruction to consider the informant’s testimony only for purposes of finding Payano’s motive, the justices were reassured that the attorneys limited their arguments accordingly.

Missing tape

Bradley criticized the court for engaging in the “fact sensitive process” of balancing probative value and prejudicial effect without reviewing the tape of Payano’s call to 911 after he shot the police officer. The record on appeal included neither the tape nor a transcript.

“Without even laying eyes on a piece of evidence that the prosecutor referred to as ‘the heart of this case,’ the majority purports to balance the probative value of [the informant’s] other acts testimony and its prejudicial effect,” Bradley wrote.

Working with the existing record, Bradley said that the court of appeals correctly concluded that the informant’s testimony had little probative value and invited the jury to punish Payano on the inference that he was a drug dealer, although Payano had not been charged with any drug crimes.

“Compounding the prejudice here is that the circuit court failed to give a limiting instruction … This left the jury unguided and free to draw legally impermissible inferences from the other acts evidence,” Bradley wrote.