State v. Payano

ANN WALSH BRADLEY, J.

¶ 108. {dissenting). 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 Kojis' other acts testimony and its prejudicial effect.

¶ 109. I refer to a tape of the 911 call Payano placed after he fired the shot that injured the officer and before he was apprehended in his bathroom. It is difficult to imagine a piece of evidence more probative of Payano's mental state than an audio recording of that call. Yet, where is the tape? What was said during that call? The majority notes that the tape is not in the record and it moves on, untroubled.1

¶ 110. Balancing probative value and prejudicial effect is an extremely fact-specific process. Yet, here, the majority engages in a balance without weighing essen*416tial evidence that was repeatedly played to the jury and permeated the testimony in various phases of the trial. At a minimum, the court should supplement the record with the 911 tape before conducting this balance.

¶ 111. If this tape is unavailable, however, and I were required to evaluate an incomplete record, I would agree with a unanimous court of appeals that the circuit court erroneously exercised its discretion when it admitted Kojis' testimony. "[T]he probative value of Kojis' testimony, if any, is negligible" and if believed, it could readily provoke the jury to punish Payano due to a perception that he was a drug dealer rather than for the crime charged. State v. Payano, 2008 WI App 74, ¶¶ 28, 30, 312 Wis. 2d 224, 752 N.W.2d 378. Accordingly, I respectfully dissent.

I

¶ 112. The issue for us upon review is whether the circuit court erred in admitting other acts evidence of Payano's drug activity that occurred the day before he fired the shot. The majority concludes that the evidence is relevant to provide context and to rebut Payano's theory of self defense. After conducting a balancing test, the majority determines that the evidence was properly admitted because the probative value of the evidence outweighed the danger of unfair prejudice.

¶ 113. There was no question at trial that Payano shot a police officer. Rather, the essential issue that the jury was required to decide was what Payano believed at the time of the shooting. Did he knowingly shoot at the officer behind the door in order to buy time and destroy evidence? Or did he shoot at the door to protect himself and his family, believing that the people behind the door were trying to hurt him?

*417¶ 114. The tape from Payano's 911 call was entered into evidence during both trials and repeatedly played to the jury. Both the defense and the prosecutor attempted to use the tape to bolster their arguments about Payano's claim of self-defense. Nevertheless, the tape is not part of the record on appeal. See majority op., ¶ 17 n.4.

¶ 115. Certainly, Payano's own words during that phone call would have been extremely probative of his belief at the time. During his closing arguments, the prosecutor stated: "The best thing that the defense has going for it clearly is the 911 tape, and that's why it's played over and over. I don't blame them."

¶ 116. Defense counsel argued that the tape demonstrated that Payano thought that he had shot at someone who was breaking in to kill him rather than a police officer. In his opening statement, he said: "And the State will have you believe that this person, Tony Payano, who called 911 is the same person who intentionally fired upon a police officer. So I ask you to ask yourselves is that behavior consistent with somebody who believes they have just committed a crime?"

¶ 117. During closing arguments, defense counsel argued: "Seconds after that chaotic scene [when Payano shot at the door], Tony Payano made that call, in a matter of seconds .... And you can hear Tony, somebody shooting, somebody shooting, and [his mother] screaming, she's in the background, oh, my God, over and over.... [A]nd most important here, why is a guy who knows he fired against a cop, why would his first instinct be to call 911? Is that the conduct of somebody who knows that they fired on a cop? No, of course not. That is the conduct of somebody who is acting to *418protect his mother and his cousin and himself from people breaking down his door, when he thought they were going to kill him."

¶ 118. The prosecutor asserted that Payano made the call in order to falsely create evidence of his innocence: "Now I don't know for sure whether or not Tony Payano deserves an Academy Award for his performance on that day, but. . . unlike every other piece of evidence in this case, that piece of evidence was created by the defendant who is on trial[.]"

¶ 119. Balancing probative value and prejudicial effect is an extremely fact-intensive inquiry. Yet, the majority attempts to perform the balance without reviewing the most important piece of evidence in the record. Rather than performing the balance in a vacuum, the majority should supplement the record with the evidence that is at "the heart of this case" — the 911 tape.

II

¶ 120. On this record, however, the majority concludes that the other acts evidence was properly admitted. Kojis, a paid informant, testified at trial that the day before the arrest, he walked into Payano's kitchen and saw him "bagging up cocaine." According to Kojis, who said he was familiar with the sale of cocaine because he "grew up in that environment," this was no small amount of cocaine for personal use. Rather, it was "a bunch of bagged packages of cocaine along with large chunks."

¶ 121. He testified that he was familiar with the "packaging that people in the City and County of Milwaukee use for cocaine" and explained to the jury how cocaine is bagged, the terminology used, and the *419quantities in which it is sold. It was Kojis' opinion that Payano had a "relatively large amount."

¶ 122. After testifying about the presence of the drugs, Kojis turned his attention to the gun which he observed on the kitchen table next to Payano. He told the jury that he had "experience around pistols" and that this gun was a "semi automatic." After further questioning, he identified it as a "380," whereupon the prosecutor displayed to the jury either the gun or a picture of the gun and asked several more questions about it.

¶ 123. The State argued, and the majority agrees, that the evidence was relevant to show context — that the officers were legitimately at the door in the first place. The circuit court accepted this rationale: "The jury [in the first trial], I believe was left with the impression that this search warrant was somehow arbitrary, based on nothing, that the police came storming in a place with no basis really for doing that, that it may have been somehow a violation of Mr. Payano's rights ... ."

¶ 124. The problem with the context argument is that it is used to admit evidence that is not relevant to the elements of the charged offense. 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. 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." Payano, 312 Wis. 2d 224, ¶ 25.

¶ 125. The State also argued, and the majority agrees, that the evidence was relevant to rebut Payano's claim of self defense because it would show that Payano *420would be more likely to expect police officers at his door. Like the court of appeals, I am not persuaded that Kojis' testimony about the presence of cocaine and a gun at Payano's residence supports the inference that Payano would reasonably have known that it was the police at his door.

¶ 126. Instead, I agree that "the alleged presence of cocaine at his residence the day before the shooting no more supports the proposition that he 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." Id., ¶ 24.

¶ 127. The probative value of evidence largely depends on the degree of its relevance. See Daniel D. Blinka, Wisconsin Practice Series: Wisconsin Evidence § 404.6, at 183 (3d ed. 2008). The other acts evidence here is probative of little if anything other than Payano's character as a drug dealing criminal and the inference that he will behave accordingly. Ultimately, like the court of appeals, I conclude that the probative value of Kojis' testimony is negligible, if at all.

¶ 128. On the other hand, testimony tending to show that Payano was a drug dealer presents the classic danger of unfair prejudice. Notably, no cocaine, cocaine residue, or drug paraphernalia was found at Payano's residence, and Payano was not charged with any drug-related crime. Yet, Kojis' testimony clearly left the impression that Payano was a dangerous drug dealer.

¶ 129. Compounding the prejudice here is that the circuit court failed to give a limiting instruction, even though it had earlier explained that it intended to give such an instruction in order to reduce the danger of unfair prejudice. See majority op., ¶ 34, n.6. Thus, the jury was not instructed about the limited legal purpose *421for which the other acts evidence was admitted. This left the jury unguided and free to draw legally impermissible inferences from the other acts evidence. I conclude that Kojis' testimony had a tendency to influence the outcome of the trial by improper means by arousing the jury's sense of horror and provoking its instinct to punish or otherwise base its decision on something other than the crime charged. See State v. Sullivan, 216 Wis. 2d 768, 789-90, 576 N.W.2d 30 (1998).

¶ 130. Here, the balance is clear. As discussed above, the probative value of the evidence was negligible — if at all. By contrast, the danger of unfair prejudice was extremely high. Like the court of appeals, I conclude that the probative value was far outweighed by the danger of unfair prejudice.

¶ 131. For the reasons discussed above, I respectfully dissent.

¶ 132. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this dissent.

A transcript of the tape was marked as an exhibit. It, too, is missing from the appellate record.