Court allows 'other acts' evidence

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A defendant charged with resisting arrest can present other acts evidence that the arresting officer has previously mistreated suspects, the Wisconsin Court of Appeals held on Mar. 14 in reversing a conviction.

On Jan. 7, 2004, Milwaukee Police Officer Jason Mucha, together with fellow officer Paul Lough, went to a residence to conduct a drug investigation. They observed a male exit the rear of the residence and run toward a white four-door sedan.

Officers Brad Westergard and Mucha then searched the area for the vehicle in an unmarked squad, and saw a white four-door Chevy Lumina parked with the engine running. Walter T. Missouri was seated in the front passenger seat.

According to Missouri, his girlfriend had parked the car in front of her friend’s home and had just run inside to return a video, when the police approached with weapons drawn. He heard them say: “Don’t you f’ing move or I’ll shoot you in the f’ing face.”

Missouri stated he was then struck with a hard object in the back of the head. He leaned over and began honking the horn so that there would be witnesses. He stated that Mucha then put his pistol to Missouri’s neck and said: “Let go of the wheel or I’ll blow your brains through the roof.” Missouri testified that he was then violently pulled from the vehicle, beaten by the police, and that while he was on the ground, they put a baggie of cocaine in his mouth.

According to Mucha, Missouri resisted arrest, and they discovered a baggie of cocaine bindles in his mouth.

Missouri was charged with possession with intent to deliver, and resisting an officer.

Missouri moved for a preliminary ruling as to the admissibility of testimony from Booker Scull. Scull would have offered testimony that he had been mistreated by Officer Mucha on two prior occasions.

Milwaukee County Circuit Court Judge Mel Flanagan denied the motion, applying the three-part test of State v. Sullivan, 216 Wis. 2d 768, 772-73, 576 N.W.2d 30 (1998), to determine whether Scull’s “other-acts” testimony should be admitted.

Missouri was found guilty, and afterwards, moved for a new trial, based on newly discovered evidence — four more witnesses who would testify that they had been mistreated by Mucha. The court denied the motion, for the same reasons it denied admission of Scull’s testimony.

Missouri appealed, and the court of appeals reversed, in a decision by Judge Ted E. Wedemeyer.

The court held that the testimony of Scull should have been admitted as “other-acts” evidence, pursuant to Rule 904.04(2).

The court found that first prong of Sullivan — the evidence is introduced for a purpose other than that the witness acted in conformity with his conduct on a prior occasion — was satisfied.

The court reasoned, “the defense wanted to introduce Scull’s testimony to show that Mucha had a motive to lie and cover up what he had done, and that this was intentional, not the result of mistake or accident. The Scull evidence would also be used to show that Mucha intended to frame Missouri for a crime, which occurred because Mucha’s prejudice toward black people causes him to commit physical assaults and use excessive force.”

The court also found the evidence was relevant to a consequential fact, and thus, satisfied the second prong, reasoning, “the Scull testimony is very similar in substance and time to what occurred in the instant case. The Scull testimony would be very relevant in questioning Mucha’s credibility and truthfulness. It would be relevant to show that Mucha had a motive to lie about what happened between him and Missouri, that Mucha had the intent to frame Missouri for a crime he did not commit, and that Mucha’s conduct was not an accident.”

Finally, the court found that the probative value would not be substantially outweighed by the danger of unfair prejudice.

The court reasoned, “Our system depends upon all witnesses being forthright and truthful and taking seriously the oath to tell the truth when testifying in a legal proceeding. Evidence that challenges the credibility of a State’s witness promotes that goal and cannot be summarily dismissed as overly prejudicial.”

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The court added, “When the jury hears all of the witnesses who can provide relevant information on the issues, it can make a fair assessment as to who is being truthful. This is of particular importance in a case that relies primarily on whether the officer or the defendant is telling the truth. It is not appropriate for this court, nor was it appropriate for the trial court, to assume that the defendant was lying and the officer was telling the truth.”

The court also found that the evidence was admissible under Rule 906.08(2), citing State v. Williamson, 84 Wis.2d 370, 383, 267 N.W.2d 337 (1978), which held, “The bias or prejudice of a witness is not a collateral issue and extrinsic evidence may be used to prove that a witness has a motive to testify falsely.”

The court concluded, “The defense here argued that Mucha had a bias or prejudice against black people who were not immediately compliant with his orders. Thus, that bias/prejudice can be explored through extrinsic evidence to attack Mucha’s character.”

For the same reasons, the court held that the testimony of the other four witnesses would be admissible. Accordingly, the court reversed and remanded the case to the trial court for a new trial that includes the other acts evidence.

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David Ziemer can be reached by email.