On Point: c. Awareness of guilt

Review of an unpublished court of appeals decision; case activity (including briefs); petition for review

Issues (composed by On Point)

(1)  May a prosecutor argue that a defendant’s refusal to submit to a breathalyzer test shows consciousness of guilt?

(2)  When a circuit court denies a postconviction motion based on arguably inapplicable case law, must the defendant ask the circuit court to reconsider its ruling in order to preserve for appeal the claim that the case law doesn’t apply?

State v. Daniel K. Rogers, 2012AP186-CR, District 4, 4/17/14; (1-judge opinion, ineligible for publication); case activity

The defendant, having been charged with sexual assault and released on bond, allegedly choked his victim to make her to lie on his behalf at trial. The circuit court admitted this as § 904.04(2) “other acts” evidence at the sexual assault trial, and the COA affirmed because the evidence showed consciousness of guilt.

State v. Herbert Ambrose Darden, 2011AP883-CR, District 4, 5/3/12

court of appeals decision (not recommended for publication); for Darden: Angela Conrad Kachelski; case activity

Trial counsel correctly construed the holding of State v. Miller, 231 Wis. 2d 447, 460, 605 N.W.2d 567 (Ct. App. 1999):

¶16      This is not the first time that we have been asked to determine whether or not Miller created a bright-line rule that evidence of flight is inadmissible if there is an independent explanation for the flight that cannot be explained to the jury.  

court of appeals decision (3-judge, not recommended for publication); for Oswald: Ellen Henak, SPD, Milwaukee Appellate; BiC; Resp.; Reply

Evidence – Consciousness of Guilt

Testimony from the Oswald’s parole agent, that Oswald missed an appointment shortly after the incident in question and that he seemed nervous when they later met, was relevant as “consciousness of guilt.” Admissibility wasn’t substantially outweighed by danger of unfair prejudice,

State v. Lionel N. Anderson, 2005 WI App 238
For Anderson: Harry R. Hertel; Steven H. Gibbs

Issue/Holding: Evidence of flight is not other-acts evidence but, rather, “an admission by conduct”; thus, evidence that Anderson fled the state after learning that the police had been contacted was admissible, ¶29, citing, State v. Earl L. Miller, 231 Wis.2d 447, 462, 605 N.W.2d 567 (Ct.

State v. William A. Silva, 2003 WI App 191, PFR filed 9/4/03
For Silva: Martin E. Kohler, Brian Kinstler, Donald E. Chewning

Issue/Holding:

¶29 …. Silva’s brother testified that on the day of the assault Silva attended a service that discussed the act of “sinning again.” Silva’s brother stated that Silva sat down during the discussion while everyone else remained standing. This behavior is consistent with the conduct of a person who has recently committed a crime and is admissible as such.

State v. Michael R. Bauer, 2000 WI App 206, 238 Wis. 2d 6887, 617 N.W.2d 902
For Bauer: Thomas Voss

Issue: Whether evidence that the defendant, while awaiting trial, solicited the murders of people who were going to testify against him was admissible.

Holding:

¶2            Bauer argues that the solicitation evidence was other acts evidence which was improperly admitted pursuant to Wis. Stat.

State v. Earl L. Miller, 231 Wis.2d 447, 605 N.W.2d 567 (Ct. App. 1999)
For Miller: Eduardo M. Borda

Issue: Whether evidence of the defendant’s flight from police three days after the crime was admissible.

Holding: “While not part of the original criminal episode, evidence of flight was admissible because it indicated Miller’s consciousness of guilt,” ¶22.