State v. Rutchik

SHIRLEY S. ABRAHAMSON, J.

(dissenting). This case is another in the ever-increasing number of cases interpreting the rule excluding other crimes evidence, the most litigated rule of evidence. See 2 Weinstein and Berger, Weinstein’s Evidence par. 404 [08], p. 404-47 (1981) ; Wright and Graham, Federal Practice and Procedure: Evidence sec. 5239, p. 427 (1978).

I would affirm the decision of the court of appeals, although I use a different rationale. I dissent from the majority’s reversal of the decision of the court of ap*83peals, because I do not believe the facts satisfy the tests we have set forth for the admissibility of other crimes evidence under sec. 904.04(2), Stats. 1981-82, which provides as follows:

“(2) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. This subsection does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

The general policy of sec. 904.04(2), as the majority says, is one of exclusion of other crimes evidence. Whitty v. State, 34 Wis. 2d 278, 297, 149 N.W.2d 557 (1967). The inference that someone who broke the law once will break it again is not a legally permissible inference. Furthermore, it is thought that other crimes evidence will distract the jury and subtly encourage it to make the inference of propensity to commit crimes. For this reason sec. 904.04(2) excludes other crimes evidence except under limited circumstances in which the evidence is relevant without resort to the impermissible inference. Paulson v. State, 118 Wis. 89, 98-103, 94 N.W. 771 (1903) ; 2 Weinstein and Berger, Weinstein’s Evidence p. 404-7, Advisory Committee’s Note Rule 404 (1981).

In State v. Pharr, 115 Wis. 2d 334, 340 N.W.2d 498 (1983), decided just last month, we again said that under sec. 904.04(2) the trial court “must apply a two-prong test in determining whether other crimes evidence is admissible. . . . The first prong requires the trial court to determine whether the evidence fits within one of the exceptions set forth in sec. 904.04(2). The second prong requires the trial court to determine whether the probative value of the evidence is substantially outweighed by *84the danger of unfair prejudice to the defendant.” (Citations omitted.) (Emphasis added.)1

*85We also noted in Pharr that implicit within our two-prong analysis is the requirement that other crimes evidence be relevant to an issue in the case. State v. Alsteen, 108 Wis. 2d 723, 729, 324 N.W.2d 426 (1982) ; sec. 904.01, Stats. 1981-82.

Under the first prong of the test, the state, as the offeror of the evidence, has the burden of proving that the evidence of other crimes falls within an exception and that it is relevant to a material issue in the case.

The defendant testified that he was near the burglarized home because he was visiting his brother who lived close by. The state offered the following other crimes *86evidence: the defendant had previously burglarized a home which he knew from reading the obituaries would probably be unoccupied.

The question of admissibility of other crimes evidence requires an analysis of the inferential processes the jury is expected to use. A broad, sweeping, nonanalytical approach by counsel or the trial court is likely to lead to an incorrect ruling and does not assist an appellate court in reviewing the trial court’s ruling. As Judge Weinstein has written, “The more reason there is in the decision to admit or exclude [evidence of other crimes], the more apt it is to be fair. Both bench and bar benefit at a trial if critical questions of admissibility are exposed and reasons clearly stated.” 2 Weinstein and Berger, Wein-stein’s Evidence par. 404 [08], pp. 404-46 (1982).

In this case the state asserted at trial that the evidence fell within seven exceptions, namely, motive, intent to steal, method of operation, opportunity, prior planning, knowledge, and identity. The state said no more other than referring to what it called the defendant’s underlying drug problem. Mere recital of exceptions with no explanation of the relation of the evidence offered to both the exception claimed and a material issue in the case is of no aid to the trial court in rendering a ruling.

The trial court admitted the evidence without identifying the exception under which it was admitting the evidence or the material issue in the case to which the evidence was relevant.

The majority opinion states in a conclusory fashion that the evidence “established a definite method of operation and was therefore admissible to show preparation, plan, identity and intent.” Supra, p. 67. The majority opinion does not explain what it means by “definite method of operation” or “preparation, plan, identity or intent.” The majority opinion offers no an*87alysis for affirming the admission of the evidence. As one commentator said:

“Particularly to be deplored is what might be called the ‘smorgasbord’ approach to analysis of other crimes evidence in which the court simply serves up a long list of permissible uses without any attempt to show how any of them are applicable to the case at hand. . . . What is to be avoided is the mere listing of possible uses in the hope that at least on will seem to the reader to be applicable to the facts of the instant case.” Wright and Graham, Federal Practice and Procedure: Evidence sec. 5240, p. 479 (1978).

Because the exceptions listed in the statute are not mutually exclusive, it may be difficult to determine which exception most properly applies. Nevertheless it is important to analyze the inferential processes the fact finder is expected to use so that the exception is identified and the rule, namely, the exclusion of evidence which is relevant only for showing a general disposition to commit a crime, is not violated. See State v. Tarrell, 74 Wis. 2d 647, 662, 247 N.W.2d 696 (1976) (Abrahamson, J., dissenting opinion) ; State v. Spraggin, 77 Wis. 2d 89, 100, 252 N.W.2d 94 (1977) ; Comment to Wis. J.I.— Criminal No. 275. These exceptions have been explained in the cases and short, simple explanations have been set forth by the Wisconsin Criminal Jury Instructions Committee. See Wis. J.I. — Criminal No. 275.

The majority holds that the other crime evidence is admissible under the plan exception. The word “plan” as used in sec. 904.04(2) has been defined by this court. In State v. Pharr, 115 Wis. 2d 834, 346, 340 N.W.2d 498 (1983), this court adopted the following definition of plan for purposes of sec. 904.04(2) :

“The word ‘plan’ in sec. 904.04(2) means a design or scheme formed to accomplish some particular purpose. . . . Evidence showing a plan establishes a definite prior *88design, plan, or scheme which includes the doing of the act charged. As Wigmore states, there must be ‘such a concurrence of common features that the various acts are materially to be explained as caused by a general plan of which they are the individual manifestations.’ ” Quoting State v. Spraggin, 77 Wis. 2d 89, 99, 252 N.W.2d 94 (1977). See also State v. Alsteen, 108 Wis. 2d 723, 732, 324 N.W.2d 426 (1982) (Abrahamson, J., concurring opinion.)

To be admissible to show plan, the 1978 burglary sought to be shown here would have to have been part of a scheme leading to the commission of a 1981 burglary. Obviously the 1978 and 1981 burglaries do not bear this relationship. On this review the state does not even claim the evidence falls within this exception. And for good reason. It clearly does not.

The majority also holds that the other crime evidence is admissible because it proves “identity.” The state on review does not assert the applicability of this exception. The state took the position at oral argument that a single prior crime in which the defendant employed a modus operandi frequently used in burglaries, that is, burglarizing the home of a deceased at the time of the funeral, is not probative to identify the defendant as the one who committed the offense in issue here. I agree.

Other crimes showing a modus operandi are admissible to prove identity if the crimes show a method of committing the crime so unique that there is little likelihood that two persons used the same method by coincidence. The other crimes and the crime charged are so similar that they bear the “signature” of the defendant. Whitty v. State, 34 Wis. 2d 278, 295, 149 N.W.2d 557 (1967) ; McCormick, Evidence sec. 190, p. 449 (Cleary ed. 1972); Wis. J.I.—Criminal No. 275. This is not such a case. Indeed publications by law enforcement agencies advise *89the public to take special precautions to protect against burglaries during funerals.2

The majority finally concludes that the other crime evidence is admissible to prove intent. Intent refers to the state of mind required for the offense. Wis. J.I.— Criminal No. 75. In burglary, the intent required is intentionally entering a place with intent to steal or to commit a felony. Sec. 948.10(1), Stats. 1981-82.

Since most crimes have some mental element, the intent exception is frequently invoked to justify the admission of other crimes evidence. But for other crimes evidence to be admissible to prove intent, intent must be a material issue in the case. State v. Alsteen, 108 Wis. 2d 723, 729, 324 N.W.2d 426 (1982). Since the defendant in this case denies being the perpetrator, he implicitly *90concedes that the perpetrator had the requisite intent. Intent is not an issue in this case, and the other crime evidence is not admissible under this exception. See Whitty v. State, 34 Wis. 2d 278, 293, 149 N.W.2d 557 (1967), cert. denied 390 U.S. 959; Wright and Graham, Federal Practice and Procedure: Evidence sec. 5242, p. 489 (1978) ; 2 Weinstein and Berger, Weinstein’s Evidence par. 404 [09], pp. 404-52, 404-53 (1982).

The state argued on this review that the other crime evidence is admissible to prove absence of mistake or accident. The state correctly views the mistake-accident exception as a special form of the intent exception. McCormick, Evidence sec. 190, p. 450 (Cleary ed. 1972). Wigmore gives the following example of the mistake-accident exception: The accused admits shooting the victim, but denies an intent to kill; the defense is that the shooting was accidental. Proof of three other shootings at the victim by the accused has significant probative value on the issue of mistake or intent under the doctrine of chance without requiring an inference to character. The chances of an inadvertent shooting by a defendant at the same victim on several successive similar occasions are extremely small. The similarities between the two crimes must be substantial to create significant probative value under the doctrine of chance. 2 Wigmore, Evidence sec. 302, p. 241 (Chadbourn rev. 1979).

Ordinarily the mistake exception, like the intent exception, is invoked only when the absence of mistake is a material issue in the case, such as when an accused admits that he did the acts charged but denies the intent necessary to constitute a crime or contends that he did the acts accidentally. Because intent and absence of mistake are not material issues in this case, I conclude that the other crime evidence is not admissible under these exceptions.

*91The state implicitly contends that this other crime evidence was admissible despite its failure to qualify within the claimed statutory exceptions because it is relevant on the issue of defendant’s truthfulness in explaining his presence near the burglarized home and does not raise the forbidden inference of propensity. Cf. McClelland v. State, 84 Wis. 2d 145, 155-157, 267 N.W.2d 843 (1978). In other words, the state says the evidence is relevant because it makes the existence of the fact that he was present for innocent purposes less probable than it would be without the evidence, sec. 904.01, Stats. 1981-82. The state is also asserting that the evidence is relevant for this purpose without resort to the impermissible inference. The state has, of course, already impeached the defendant’s credibility by introducing evidence of his prior convictions, seven felony convictions, to be precise. The state apparently does not feel this impeachment of credibility is sufficient. The state wishes to introduce evidence of the nature of a prior burglary on the ground that the jury can infer from the other crime evidence that the real reason the defendant was at the scene of the crime (to use the state’s terminology, his “intent” in being present) was to commit a crime similar to the one he committed before.

The evidence of the other crime is being offered, according to the state, not to show the defendant’s propensity to commit a burglary but on the theory of chance. The state’s brief (p. 23) argues that “chance could not account for the defendant’s presence at the scene, for the odds against a person being innocently at the scene of a burglary of the address of one whose obituary has recently been published, after he had previously committed a burglary of the residence of a person for whom an obituary had appeared are overwhelming.” The state is arguing that the other crime evidence is relevant because it *92lessens the likelihood that the defendant was present on an innocent mission.

As I explained in the shooting’ example discussed previously, the doctrine of chance requires significant similarity of occurrences, significant similarity of other crime and the crime charged. In this case the two offenses must be similar in a way that will show that the chance of the defendant’s presence for an innocent purpose in this case is unlikely. 2 Wigmore, Evidence sec. 302 (Chadbourn rev. 1979) ; Roth, Understanding Admissibility of Prior Acts: A Diagrammatic Approach, 9 Pepperdine L. Rev. 297, 302 (1982).

I find the state’s theory of chance unpersuasive under the facts of this case. The fallacy of the state’s position can be seen by comparing the application of the doctrine of chance in this case to prove “absence of mistake or accident” with the application of the doctrine to prove “absence of mistake or accident” in the shooting case described above. In this case we have a single prior incident, not multiple incidents. In this case the prior crime and the charged crime involved different victims. In this case, unlike the shooting case, we have the possibility of a third person being the perpetrator of the charged offense. This latter possibility, present here owing to the existence of “identity” as the ultimate issue in this case, severely attenuates the doctrine of chance argument. The two burglaries, like the multiple shootings, did involve the same modus operandi, but the modus operandi of the prior burglary and the charged crime is one that is commonplace. In this case the prior and alleged crimes are not so distinctive as to be viewed as nearly the same.

I conclude that evidence that an individual burglarized a home on one occasion using the obituary technique does not by itself, without resort to the impermissible inference that the defendant had a propensity or disposition *93to commit the crime, make the fact to be proved, namely, that the defendant was present near a home with the intent to burglarize, any more or less probable than it would be without the evidence. All I can say from the other crime evidence in this case is that the defendant is in a class of persons in which the incidence of burglary is greater than among the general public. Other crimes evidence cannot be utilized where resort must be had to the inference that a person of a certain character is more likely to have committed the act in question than persons generally. 2 Weinstein and Berger, Weinstein’s Evidence par. 404[01], pp. 404-12, par. 404[17] (1982) ; Wright and Graham, Federal Practice and Procedure: Evidence sec. 5248 (1978).

The state’s doctrine of chance is but a veil for an attempt to prove identity by showing intent to burglarize as the reason the defendant was present near the burglarized house. The inference of both intent and identity is too tenuous in light of the lack of distinctive characteristics of the two crimes. The other burglary evidence in this case is relevant only if the fact finder resorts to the impermissible inference that the individual has a disposition to commit such crimes. Accordingly, I conclude from the proffered other crime evidence was inadmissible.

Even if I were to conclude that the other crime evidence was admissible I would conclude, under the second prong of the analysis applicable to sec. 904.04(2), that the trial court abused its discretion. The trial court did not weigh the probative worth of the other crime evidence against the factors set forth in sec. 904.03. The fault was not entirely that of the trial court. The trial court was not assisted by counsel. But failure to exercise discretion is abuse of discretion.

If I were nevertheless to review this record under the second prong of the analysis, I would conclude the proba*94tive value, if any, of the other crime evidence was very limited and was substantially outweighed by the danger of unfair prejudice. The danger of unfair prejudice is that the other crimes evidence induces inferential error. For example, in this case the jury may have reacted emotionally to the other crime evidence and found the defendant guilty not because it determined he was guilty as charged but because it determined he was a bad person. Or the other crime evidence may have so dominated the minds of the jurors that the jurors exaggerated its probativeness, gave the other crime evidence undue weight, and paid less heed to other probative evidence, Whitty v. State, 34 Wis. 2d 278, 292, 149 N.W.2d 557 (1967), cert. denied 390 U.S. 959. I conclude that the admission of the other crime evidence constituted unfair prejudice because it hindered accurate fact finding by allowing an appeal to inappropriate logic and by preventing a rational determination of the truth. For a discussion of unfair prejudice, a phrase rarely defined by the courts, see Gold, Federal Rule of Evidence 103: Observations on the Nature of Unfairly Prejudicial Evidence, 58 Wash. L. Eev. 497 (1983) ; Dolan, Rule 103: The Prejudice Rule in Evidence, 49 So. Cal. L. Eev. 220 (1976).

I also agree with the court of appeals that the trial court erred in allowing the statement to go into the jury room. At most, the judge should have read the transcript to the jury. See Franklin v. State, 74 Wis. 2d 717, 725, 247 N.W.2d 721 (1976) ; Payne v. State, 199 Wis. 615, 629-30, 227 N.W. 258 (1929).

Since the credibility of the defendant was the prime issue in the case, I conclude that the other crime evidence constituted prejudicial error and requires a reversal. State v. Spraggin, 77 Wis. 2d 89, 103, 252 N.W.2d 94 (1977) ; Hart v. State, 75 Wis. 2d 371, 394-395, 249 N.W.2d 810 (1977). “It may well be that the defendant is guilty of the offense charged against him, but he is *95entitled to a fair trial according to the established rules of procedure and principles of law.” Boldt v. State, 72 Wis. 7, 17, 38 N.W. 177 (1888).

For the reasons set forth, I would affirm the decision of the court of appeals. I am authorized to state that Justice William A. Bablitch joins in this dissent.

Our cases can be read as interpreting the two-prong analysis required under sec. 904.04(2) in two inconsistent ways.

In one line of cases the court appears to be saying that the second prong is automatically triggered upon a sec. 904.04(2) objection to evidence. This line of cases can be read as saying that where the defendant objects to the admission of other crimes evidence and the other crimes evidence is admissible under one of the exceptions, the judge must, before admitting the evidence, weigh the probative value against the undue prejudice, whether or not the defendant expressly requested the court to do the weighing. Thus the defendant’s single objection under sec. 904.04(2) includes a request for the weighing. If the defendant does not object under sec. 904.04(2), he or she has no right to have this error reviewed on appeal. This analysis is based on Whitty v. State, 34 Wis. 2d 278, 295, 149 N.W.2d 557 (1967), cert. denied 390 U.S. 959, one of the court’s landmark cases on this issue, and Kwosek v. State, 60 Wis. 2d 276, 282, 208 N.W.2d 308 (1977), interpreting Whitty and see. 904.04(2). See also State v. Spraggin, 77 Wis. 2d 89, 95, 252 N.W.2d 94 (1977); Hammen v. State, 87 Wis. 2d 791, 798-799, 275 N.W.2d 709 (1979), relying on Whitty and Kwosek. In Pharr, the defendant objected to the other crimes evidence on grounds of prejudice. The Pharr court set forth the two-prong test citing Spraggin and Hammen.

In this case the defendant did not move at the trial court that the evidence be excluded because the probative value was outweighed by the prejudicial effect. The majority squeezes the record hard and finds that the trial court did make such a weighing and reviews the weighing.

In a second line of cases the court appears to be saying that if the defendant does not object to admissibility of other crimes evidence on the grounds that the probative value is outweighed by undue prejudice (sec. 904.03), the trial court need not make the weighing. See McClelland v. State, 84 Wis. 2d 145, 158, 267 N.W.2d 843 (1978), and Barrera v. State, 99 Wis. 2d 269, 281, 298 N.W.2d 820 (1980).

McClelland and Barrera can be read as not establishing a rule that in order to trigger the second prong of the analysis the defendant must object to other crimes evidence on grounds of both secs. 904.04(2) and 904.03. In both cases the defendant made no motion in the trial court to exclude the evidence on the basis of *85sec. 904.04(2). In both cases this court nevertheless reviewed the evidence and held that the other crimes evidence fell within an exception. Nevertheless the court refused to weigh probativeness and prejudice, saying that since trial counsel had not objected on the grounds of undue prejudice neither the trial court nor this court had an obligation to exclude the evidence on grounds of undue prejudice.

I conclude that construing McClelland and Barrera, to require an objection under sec. 904.03 once a 904.04(2) objection is made would be erroneous. Such a construction is contrary to sec. 904.04. As the Judicial Council Committee’s Note to sec. 904.04 explains, the “evidence of other crimes . . . which tend to prove motive, identity ... is not automatically admissible. It should be excluded if . . . under all the circumstances the danger of undue prejudice substantially outweighs the probative value under s. 904.03.” 59 Wis. 2d R79. See also the Federal Advisory Committee’s Note at 59 Wis. 2d R80 and an analysis of the legislative history of Federal Rule 404 showing the drafters’ intent that the trial court must be satisfied that the probative value of the evidence outweighs the danger of prejudice by applying the balancing test of sec. 904.03 before the trial court admits the evidence. See Judicial Council Committee’s Note to sec. 904.04(2), 59 Wis. 2d R79; Federal Advisory Committee’s Note, 59 Wis. 2d R80; Wright and Graham, Federal Practice and Procedure: Evidence see. 5240, p. 471 (1972); 2 Weinstein and Berger, Wein-stein’s Evidence par. 404[18], p. 404-99 (1982); and Note, Buie 404(b), Other Crimes Evidence: The Need for a Two Step Analysis, 71 Nw. U.L. Rev. 635 (1977).

The Montgomery County, Maryland, Department of Police brochure entitled Burglary Prevention: Your Best Home Insurance (1978) advises:

“PLAY IT SAFE — DON’T ADVERTISE YOUR HOME AS A GOOD PLACE TO BURGLARIZE. 4. DON’T TELL A BURGLAR WHEN AND WHERE TO STRIKE. Classified advertising, social event announcements, and obituaries often tell a burglar when and where to strike. Avoid the use of addresses in classified advertising, announce social events after the fact, and leave a house-sitter when attending funerals.” (p. 3)

A brochure for public distribution published in 1981 by the U.S. Department of Justice, Law Enforcement Assistance Administration, entitled Take a Bite Out of Crime, cautions: “Burglars read newspapers, too. Don’t include your address in a classified ad. Announce social events and vacations after they happen — not before. If there’s a death in the family, arrange for a housekeeper on the day of the funeral.” (p. 17) (emphasis added)

Studies show that burglary tends to be a planned crime and that burglary occurs when the burglar believes there is greater likelihood that the burglar will not be confronted by an occupant. Conklin and Bittner, Burglary in a Suburb, 11 Criminology 206 (1973); Scarr, Patterns of Burglary, 12 (National Institute of Law Enforcement and Criminal Justice, U.S. Department of Justice, 1972).