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State v. Falk6/29/2000
less error is whether there is a reasonable possibility that the error contributed to the conviction). Richard acknowledged in opening and closing argument and in the presentation of his case that the injuries were brutal; his defense was he did not inflict them. We are satisfied the photographs did not contribute to the jury's decision that Richard was the person who inflicted the injuries.
Trial Court's Exclusion of Evidence Related to Shannon
. The State's motion in limine asked the court to preclude evidence showing Shannon committed the crime, including evidence of Shannon's prior bad acts unless they were shown to be admissible under Wis. Stat. § 904.04(2). Richard made an offer of proof that one witness would testify she saw Shannon throw Cody into a crib and into a car seat, and another witness would testify she saw Shannon throw Laura into a car seat. He argued these other acts would be offered to show opportunity, motive in terms of the way Shannon treated her children, intent and absence of mistake.
. As we interpret the record of the motion hearing, the trial court did not make a specific ruling on the State's motion or on Richard's offer of proof. Instead the court instructed the parties with general comments that character evidence would not be allowed to create a "mere suspicion" Shannon might have caused the injuries, and, likewise, the court would not allow other acts evidence unless Richard could show, through voir dire, a "logical and rational connection." The court did state that, " n this context, [evidence that Shannon threw Cody into the crib] ... does not qualify as an exception"; but also stated it would allow voir dire "to show to the court that there is a logical and rational connection." During the trial the parties again discussed the potential testimony of a witness who saw Shannon throw Cody into a crib from two to three feet away, but the trial court ruled the evidence was not admissible because the doctors' testimony had not established a "reasonable nexus ... as to the possibility that such force would cause such injury."
. Richard argues the trial court's ruling erroneously precluded him from introducing evidence at trial which would have supported his theory that Shannon, rather than Richard, caused the injuries, and therefore denied him his right to present a defense under the Sixth and Fourteenth Amendments to the United States Constitution and Art. I, § 7 of the Wisconsin Constitution. The State responds that evidence of a third party who may have committed the crime must meet the "legitimate tendency" test of State v. Denny, 120 Wis. 2d 614, 357 N.W.2d 12 (Ct. App. 1984), the proffered evidence does not meet the test and exclusion for this reason does not violate Richard's constitutional right to present a defense. We conclude the legitimate tendency test of Denny is not applicable to this case, but we also conclude the exclusion of this evidence does not violate Richard's Sixth Amendment right to present a defense because it is not relevant under the proper standard.
. The constitutional right to present evidence is grounded in the confrontation and compulsory process clauses of Art. I, § 7 of the Wisconsin Constitution and the Sixth Amendment of the United States Constitution. See Scheidell, 227 Wis. 2d at 293-94. An accused's right to cross-examine witnesses and to present witnesses in his or her own defense has long been recognized as fundamental and essential to a fair trial. See id. The right to present evidence is not absolute, however. An accused must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence and has
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