Evidence — motive to lie — stuttering

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Wisconsin Court of Appeals

Criminal

Evidence — motive to lie — stuttering

The trial court erred in prohibiting evidence of the purported victim’s school disciplinary records; and the trial court erred in admitting testimony that the defendant only stutters when he is lying.

“Applying the Sullivan framework here, we conclude that the evidence was offered for an acceptable purpose: showing that the student had a motive to fabricate the assault. If, as Echols portends, the school documents do show that the student had signed a ‘behavioral contract’ just before the assault occurred, and if that contract threatened expulsion should the student become involved in another school-related altercation, the documents would show that the student had a motive to lie about the assault. According to Echols, the student had thrown a snowball at him while he was driving the bus about two weeks before the alleged assault, and, on the morning of the alleged assault, she was threatening to do it again. Contrary to what the trial court found and what the State argues on appeal, this evidence is relevant to show the student knew she would very likely be expelled for throwing and/or threatening to throw a snowball, and that she was trying to point a finger at Echols’ alleged wrongdoing in order to divert attention from her own. Thus, the prohibited evidence was central to Echols’ theory of the case and the real controversy was not tried.”

“We also agree with Echols that the admission of testimony from the safety director that Echols only stutters when he is lying constitutes reversible error. While Echols undoubtedly put his character and credibility at issue and thus invited rebuttal testimony from the State, see WIS. STAT. § 904.04(1)(a) (“Evidence of a pertinent trait of the accused’s character offered by an accused, or by the prosecution to rebut the same” is admissible.), the testimony allowed by the trial court went too far. The safety director’s testimony that Echols’ demeanor was the same every time he lied; when Echols was lying to her his eyes would drop, his head would go down, and he would stutter; and that Echols did not stutter in normal conversation when he was not lying, was inadmissible lay opinion testimony. First, it was not ‘helpful to a clear understanding’ of the safety director’s testimony. See WIS. STAT. § 907.01(2) (capitalization omitted). The safety director testified that sometimes Echols was late for work, and that he sometimes lied about why he was late. The safety director further explained that when Echols lied, he would change his story ‘a little bit’ about why he was late. This was all that was needed to rebut Echols’ character and credibility testimony. Although the State argues that the testimony at issue was necessary to show that Echols actually did lie on the alleged occasions and that it was not unfairly prejudicial, see WIS. STAT. § 904.03, we disagree and conclude that it was (a) unnecessary to make this point, and (b) that the unfair prejudice greatly outweighed any probative value, see id. Nor was the testimony helpful to ‘the determination of a fact in issue’ because whether Echols stuttered when he lied to his employer had nothing to do with whether he assaulted the student. See § 907.01(2). The trial court erred in allowing the testimony.”

Reversed and Remanded.

Recommended for publication in the official reports.

2012AP422-CR State v. Echols

Dist. I, Milwaukee County, Dallet, J., Curley, J.

Attorneys: For Appellant: Missimer, Karyn T., Janesville; For Respondent: Weber, Gregory M., Madison; Uttke, Ralph M., Antigo