State v. General Grant Wilson , 362 Wis. 2d 193 ( 2015 )

2015 WI 48
SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP1803-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
General Grant Wilson,
Defendant-Appellant.
REVIEW OF A DECISION OF THE COURT OF APPEALS
(No cite)
(Ct. App. 2013 – Unpublished)
OPINION FILED: May 12, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 4, 2014
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Victor Manian
JUSTICES:
CONCURRED: ZIEGLER, J., ROGGENSACK, C.J., concur(Opinion
Filed.)
DISSENTED: ABRAHAMSON, BRADLEY, JJ., dissent (Opinion
Filed.)
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-respondent-petitioner, the cause was
argued by Maguerite Moeller, assistant attorney general, with
whom on the briefs was J.B. Van Hollen, attorney general.
For the defendant-appellant, the cause was argued by Anne
Berleman Kearney, with whom on the brief was Joseph D. Kearney
and Appellate Consulting Group, Milwaukee.
An amicus curiae brief was filed by Carrie Sperling, John
A. Pray, and the Frank J. Remington Center, on behalf of the
University of Wisconsin Law School.
2015 WI 48
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2011AP1803-CR
(L.C. No. 1993CF931541)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent-Petitioner,
FILED
v.
MAY 12, 2015
General Grant Wilson,
Diane M. Fremgen
Defendant-Appellant. Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 DAVID T. PROSSER, J. This is a review of an
unpublished decision of the court of appeals, reversing a
judgment of conviction for a Milwaukee County homicide as well
as a subsequent order denying postconviction relief.
¶2 The case requires us to determine whether, in 1993,
the Milwaukee County Circuit Court, Victor Manian, Judge, erred
by excluding evidence proffered by the defendant, General Grant
Wilson (Wilson), that a third party committed the homicide for
which Wilson was being tried.
No. 2011AP1803-CR
¶3 The law is well established that a defendant has due
process rights under the United States and Wisconsin
Constitutions to present a theory of defense to the jury.
However, a defendant's ability to present specific evidence to
support a defense at trial may be subject to conditions or
limitations. When a defendant seeks to present evidence that a
third party committed the crime for which the defendant is being
tried, the defendant must show "a legitimate tendency" that the
third party committed the crime; in other words, that the third
party had motive, opportunity, and a direct connection to the
crime. State v. Denny, 120 Wis. 2d 614, 357 N.W.2d 12 (Ct. App.
1984).
¶4 In this case, the State accused Wilson of killing
Evania (Eva) Maric (Maric) in the early-morning hours of April
21, 1993. Before the shooting, Maric had been sitting in her
car with Willie Friend (Friend), a man with whom she was
romantically involved. They were parked outside an illegal
after-hours club operated by Friend's brother.
¶5 According to Friend, General Grant Wilson pulled up in
his gold Lincoln Continental, got out, approached Maric's car,
and began firing a large-caliber handgun. Friend fled, narrowly
avoiding bullets fired in his direction. An eyewitness, Carol
Kidd-Edwards, saw Friend flee and saw a shooter fire an
additional five to seven shots into the driver's side of Maric's
car with a smaller-caliber handgun. Kidd-Edwards watched the
shooter walk toward the passenger side of the gold Lincoln
2
No. 2011AP1803-CR
before leaving her line of sight. She then heard a car door
close and saw the car speed away.
¶6 At trial, Wilson blamed Friend for Maric's murder.
Wilson theorized that Friend had lured Maric to her car and kept
her talking until an unknown assassin or assassins could kill
her and frame Wilson for the crime.
¶7 To support this theory, Wilson attempted to introduce
the testimony of two witnesses: Mary Lee Larson and Barbara
Lange. Both Larson and Lange indicated they would testify that
Friend had slapped and threatened Maric about two weeks before
her murder. The circuit court ruled that the testimony was
inadmissible because the issue was not who killed Maric, but
rather, whether Wilson killed Maric. After a seven-day trial,
the jury found Wilson guilty of first-degree intentional
homicide (Maric) and attempted first-degree intentional homicide
(Friend). On October 4, 1993, the court sentenced Wilson to
life imprisonment for the homicide plus 20 years of imprisonment
for the attempted homicide.
¶8 In June of 1996, Wilson filed a postconviction motion
seeking a new trial based on the court's decision to exclude
Wilson's proffered testimony from Larson and Lange. The court
denied the motion, and Wilson's attorney failed to file an
appeal. In September of 2010, the court of appeals reinstated
Wilson's direct appeal due to his counsel's error. In January
of 2011, Wilson filed another motion with the circuit court
seeking a new trial. The circuit court denied the motion, and
Wilson appealed.
3
No. 2011AP1803-CR
¶9 The court of appeals summarily reversed Wilson's
conviction and the circuit court's order denying postconviction
relief. The court determined that Friend had the opportunity to
kill Maric and that the State failed to show that the circuit
court's alleged error in not admitting Wilson's proffered
evidence was harmless. State v. Wilson, No. 2011AP1803-CR,
unpublished order (Wis. Ct. App. Oct. 22, 2013). The court
reasoned that Friend's involvement could have been direct (i.e.,
Friend could have been the shooter himself) or indirect (i.e.,
Friend could have engaged a gunman or gunmen to kill Maric); and
given the conflicting evidence, the State could not meet its
burden of showing that there was no reasonable possibility that
the circuit court's error contributed to the guilty verdict.
The State appealed, and we granted review.
¶10 We reaffirm the Denny test as the appropriate test for
circuit courts to use to determine the admissibility of third-
party perpetrator evidence. However, we conclude that, for a
defendant to show that a third party had the "opportunity" to
commit a crime by employing a gunman or gunmen to kill the
victim, the defendant must provide some evidence that the third
party had the realistic ability to engineer such a scenario.
Here, Wilson has failed to show that Friend had the opportunity
to kill Maric, directly or indirectly; consequently, it was not
error for the circuit court to exclude Wilson's proffered
evidence. Accordingly, we reverse.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
4
No. 2011AP1803-CR
¶11 Maric was shot to death in the 3200 block of North 9th
Street in Milwaukee at about 5:00 a.m. on April 21, 1993. Two
weapons were used in the shooting: a .44 caliber gun and a .25
caliber gun. Maric was shot seven times in total: once in the
chest and once in the back with the .44, and five times in the
left front and side of her torso with the .25. Willie Friend
was present at the shooting and was the principal witness
against Wilson.
¶12 When police conducted an investigation at the crime
scene, they recovered several bullets and bullet fragments: one
.44 caliber jacketed bullet was found in the grassy area between
the curb and sidewalk, a .44 caliber lead bullet was found
nearby in the ground, another .44 caliber lead bullet was found
in the front yard of an adjacent house on North 9th Street; four
.25 caliber brass casings were found in Maric's car, one in the
front seat area and three in the back.
¶13 The police investigation quickly focused on Wilson
based on Friend's statement, shortly after the shooting, that
Wilson was the shooter. Later that morning, Lieutenant Michael
LaPointe of the Milwaukee Police Department, along with two
detectives and other officers, went to Wilson's place of
employment. LaPointe informed Wilson that they were
investigating a shooting, that he was a suspect, and that he was
under arrest. Wilson gave the officers permission to search his
two lockers at work as well as his car. The officers recovered
pictures of the victim from one of the lockers and a .38 caliber
revolver from the trunk of his car. Later, LaPointe and other
5
No. 2011AP1803-CR
officers searched Wilson's house and recovered a .357 caliber
revolver from Wilson's bed. LaPointe also recovered two boxes
that formerly contained .25 caliber handguns. Additionally,
LaPointe recovered two .25 caliber cartridges from Wilson's
home.
¶14 Detective Michael Young interviewed Wilson on April
22. Detective Young asked Wilson if he owned any .25 caliber
handguns, and Wilson answered that he owned three .25 caliber
Raven1 semiautomatic pistols: police had custody of one, his
mother had the second, and his brother had the third. None of
the five weapons cited above was one of the murder weapons.
¶15 Detective Young also asked Wilson if he owned a .44
magnum revolver; Wilson answered that he did not. When
Detective Young subsequently asked Wilson if he had ever owned a
.44 magnum revolver, Wilson replied that he had not.
¶16 After Wilson denied owning a .44, police questioned
Terry Jean Bethly, a friend of Wilson. Bethly informed the
police that on April 3, 1993, she and Wilson went to a shooting
range and Wilson brought a .44 with him. Bethly stated that she
bought ammunition for Wilson's .44 that day. Bethly also said
1
Transcripts in the record describe this gun as a "Ravin,"
which is probably a misspelling by the court reporter. Raven
Arms was a weapons manufacturer founded in 1970 that specialized
in low-cost handguns. See Nicholas Freudenberg, Lethal but
Legal: Corporations, Consumption, and Protecting Public Health
48 (2014). The Raven Arms MP25 was one of the guns most used in
crimes in the 1990s. Peter Harry Brown and Daniel G. Abel,
Outgunned: Up Against the NRA 157 (2010).
6
No. 2011AP1803-CR
that she had seen Wilson with the .44 on another occasion.
Police also questioned Wilson's brother, who confirmed Wilson's
possession of a .44. After learning this, Detective Michael
Dubis questioned Wilson again regarding his ownership of a .44,
but Wilson continued to deny ever owning or possessing one.
¶17 On April 26, the State charged Wilson with First-
Degree Intentional Homicide While Possessing a Dangerous Weapon
and Attempted First-Degree Intentional Homicide While Possessing
a Dangerous Weapon.2 He was bound over for trial after a
preliminary examination. The State filed an information with
the same charges on May 5, to which Wilson pled not guilty.
Trial was scheduled for June 28, 1993. After pretrial motions,
jury selection, and opening statements, testimony began on June
30. Below are highlights of the trial testimony.
A. Willie Friend's Testimony
¶18 At trial, Willie Friend testified that he entered into
an intimate relationship with Maric in 1992, after having known
her for about 12 years. On April 20, 1993, Friend asked Maric
to pick him up at the Milwaukee County Courthouse after a child
support hearing.3 The time was around 4:00 or 5:00 p.m. The two
drove to Maric's home in South Milwaukee after picking up some
medication for Maric's mother. Friend left after Maric lent him
2
Contrary to Wis. Stat. §§ 940.01(1), 939.32, and
939.63(1)(a)2. All subsequent references to the Wisconsin
Statutes are to the 1991-92 version unless otherwise indicated.
3
Friend testified that he had four children, three of whom
were under the age of 18.
7
No. 2011AP1803-CR
her car and he returned about 11:00 p.m. They briefly drove
around the area, then headed to the north side of Milwaukee,
stopping at a tavern "on 3rd and Center between Center and
Hadley, I believe." They remained at the tavern, for "a few
drinks," for "an hour or two."
¶19 Upon leaving the tavern, they drove west on Center
Street and observed a gold Lincoln parked near another tavern.
Friend said that Maric remarked that "there go General's car."
Friend said he noted that the gold Lincoln had a license plate
with "G-Ball" on it. When the prosecutor showed Friend a
picture of Wilson's car, Friend identified Wilson's car as the
car he had seen that night.4
¶20 Friend and Maric kept driving on Center Street to
17th, where they turned right to stop "at this chicken place" to
get something to eat. They then drove to Friend's mother's
house located at 3859 North 9th Street. They parked in front of
the house to eat their chicken.
¶21 Soon Wilson pulled up in the same gold Lincoln that
Friend had seen earlier. It had "the inside dash lights on."
Wilson was driving with an unknown person in the front seat.
Friend said he saw Wilson and identified him, although he had
never seen him before except in a "picture photo" that Maric had
shown him. After eyeing Maric's car, Wilson drove away. Three
4
Wilson's sister, Sandra Wilson, later testified that she
located five other Lincolns in the community to discount the
uniqueness of Wilson's car.
8
No. 2011AP1803-CR
or four minutes later Wilson drove by again, which caused Maric
to have, as Friend described it, a "hyper-reaction."
¶22 Friend testified that he and Maric remained at his
mother's house for an hour or so before Maric left in her car to
return home. It was around 2:00 a.m. He testified that while
they were at his mother's house, Maric expressed concerns about
Wilson, with whom she was trying to end a relationship.
¶23 Afterwards, Friend walked south to the house of his
brother, Larnell "Jabo" Friend, located at 3288 North 9th
Street. Friend admitted under pressure that Jabo's house could
be characterized as an "after hours place." About the time that
Friend reached the house, Maric arrived and told Friend that
Wilson had tried to run her off the road. She explained that
Wilson walked up to her car holding a revolver and told her that
if he saw her with Friend again, he would kill them both.
¶24 Maric and Friend stayed at Jabo's house for a while.
Then, about 4:30 a.m., Friend walked Maric to her car. Maric's
car was parked on the corner of 9th and Concordia, facing north,
on the same side of the street as Jabo's house. After some time
sitting in the car, Friend saw Wilson's car approach from the
north and pull up directly across from Maric's car. Friend
testified that he knew the car was Wilson's and was the same car
he had seen earlier that night because of the color and fresh
paint job, and because the car was "clean." Friend got out of
Maric's car as Wilson's car approached, believing that Wilson
wanted to talk to him about the situation. Friend testified
9
No. 2011AP1803-CR
that the only person he saw in the car was Wilson but that he
could not say whether someone else was in the car.
¶25 Instead of talking, Wilson got out of the driver's
side of the Lincoln and approached the driver's side of Maric's
car with a "blue steel large revolver" in his left hand. Wilson
started shooting, and Friend ducked down beside Maric's car,
with the passenger door open between him and Wilson, then began
running. A bullet went through the door, and bullets hit the
concrete around Friend, causing dirt to fly up and hit him as he
ran to a passageway between two houses.5 Friend ran through the
passageway and around a house, and heard about three or four
gunshots in rapid succession from a smaller gun before hearing a
car door slam and the fast acceleration of an engine.
¶26 When Friend returned to the street Wilson's car was
gone. He found Maric lying across the seat sideways, facing the
passenger side. After raising her up, Friend saw a large,
bloody wound on Maric's chest. He then went to Jabo's house to
tell him that Maric had been shot. A neighbor called for
medical assistance, which arrived shortly thereafter.
¶27 Friend identified Wilson as the shooter at the crime
scene. Later, at the police station, he identified Wilson in a
photo lineup as the person who shot at him when he was next to
5
Detective Dennis Kuchenreuther later corroborated the
existence of bullets and scattered dirt in this area when he
testified to the location of bullets in the ground, the presence
of abrasions on the sidewalk, a gouge in the dirt, and scattered
dirt on the sidewalk.
10
No. 2011AP1803-CR
Maric's car. Friend also told the police that Wilson was stocky
and was wearing gold-rimmed glasses.
B. Carol Kidd-Edwards' Testimony
¶28 On the morning of April 21, 1993, Carol Kidd-Edwards,
who lived at 3291 North 9th Street, was awake in her bedroom,
putting on her shoes to take her husband to work. At about 5:00
a.m. she heard about five very loud, consecutive gun shots.
When the shots began, she dove to the floor. When they stopped,
she ran to the window to see what was happening. She saw a man
with a brown leather jacket, whom she later identified as
Friend, running away from a car, which she later identified as
Maric's car, parked on the corner across the street from her
house. She then saw Friend "take[] refuge on the side between
two houses, of a house directly across the street from [hers]."
Kidd-Edwards testified that she did not see any objects in
Friend's hand.
¶29 Kidd-Edwards' house was the third from the corner on
the west side of 9th Street. She said she could see everything
to the corner across the street but had an obstructed view of
the street and sidewalk on her side of the street. She
testified that she saw a "gold toned Continental, a mark version
of the Continental" near the corner on her side of the street.
When shown a picture of Wilson's car, Kidd-Edwards stated that
his car appeared to be like the car she saw. In giving her
description, she demonstrated considerable knowledge of Lincoln
automobiles.
11
No. 2011AP1803-CR
¶30 Kidd-Edwards testified that as Friend was running from
Maric's car, she saw a man walking from the passenger side of
the Lincoln, which was in a blind spot from her bedroom window.
Kidd-Edwards described the man as "a brown toned color black
man," "roughly six feet," with a "top fade" hairstyle. Kidd-
Edwards stated that she did not remember whether the man was
wearing glasses. She was unable to get a good view of the man's
face.
¶31 As the man was walking towards Maric's car, Kidd-
Edwards saw him "top load[] a gun" and pull back the top of the
gun. The man approached the driver's side of Maric's car and
fired five to seven shots into the car. They were not as loud
as the previous shots, suggesting a smaller gun. Afterwards,
the man walked back towards the Lincoln into her blind spot.
Although she did not see the man get into the car, she heard the
door shut and saw the car quickly pull off and drive south, past
her house. Kidd-Edwards testified that she could not see
whether the man got into the passenger side of Wilson's car, but
she could see the driver's side and did not see anyone get into
that side of the car.
¶32 Kidd-Edwards stated that she did not see anyone other
than the man firing the shots and Friend. After the Continental
drove away, Kidd-Edwards heard Friend pound on her door and
called 911 after Friend yelled repeatedly, "call 911, call 911."
Kidd-Edwards stated that upon seeing the victim up close, she
12
No. 2011AP1803-CR
appeared to be pregnant. She later asked Friend whether the
victim was pregnant, and he told her that she was.6
C. General Grant Wilson's Testimony
¶33 Wilson testified that he met Maric on June 18, 1988
and had maintained some sort of relationship with her until the
time of her death. When asked whether he had ever been near
Jabo's house on 9th Street, Wilson testified that Maric had
driven by when he was in the car, pointed out the house to him,
and said that if "something ever happened to her
that . . . would be the place."
¶34 One of Wilson's defenses was that he was at home when
the shootings occurred. Wilson relied on an alibi witness,
Rosanne Potrikus, to support his story that he did not shoot
Maric. Wilson testified that on the night of the murder, he
went to see Potrikus at a bar where she worked. He called the
bar Throttle Twisters.7 After Potrikus closed the bar, she and
Wilson went to another bar in his car. After learning that that
bar was closed, Wilson and Potrikus drove to a Kentucky Fried
Chicken on Capitol Drive. Afterwards, Wilson testified that the
6
Dr. Jeffrey Jentzen, the forensic pathologist assigned to
the case, performed a complete autopsy on Maric and testified
that she was not pregnant.
7
In 1993 the Twisters bar was located at 508 West Center
Street, Milwaukee.
13
No. 2011AP1803-CR
two drove around Capitol Drive and then around 8th and 9th
Streets.8
¶35 After Wilson dropped Potrikus off at her car, they
drove west on Center Street toward the freeway. Wilson exited
the freeway on Silver Spring Drive and drove to his home on 74th
and Carmen, arriving sometime between 3:30 a.m. and 4:00 a.m.9
He parked his car in the front of his house. Wilson stated that
his roommate, Pedro Smith, was not home at that time. Wilson
went to sleep on the couch and woke up around 5:15 a.m., and
eventually got ready for work, which started at 7:00 a.m.10
¶36 Finally, when Wilson was questioned about whether the
.44 he brought to the shooting range with Terry Bethly was his,
he admitted to owning a .44 at that time. He said it was a
Smith and Wesson Magnum, not a Sturm Ruger (which apparently was
the type of .44 used in the shooting). Wilson stated that he
did not tell the truth to the police when they questioned him
8
This testimony corroborated earlier testimony by Potrikus
about her activities with Wilson that evening.
9
Wilson's testimony about his movements coincides with
Friend's testimony about where he and Maric saw Wilson's car
that evening. Wilson, of course, did not admit that he drove by
Jabo's house on North 9th Street at approximately 5:00 a.m.
10
Detective Brian O'Keefe testified that Wilson told him he
arrived at his home at 3:00 a.m. Pedro Smith testified that he
woke up around 3:35 a.m. on April 21, 1993 to go to work but did
not see or hear Wilson anywhere in the house, including on the
couch, and still did not see Wilson when he left for work at
about 3:55 a.m. Smith also testified that he did not see
Wilson's car in front of the house when he left for work.
14
No. 2011AP1803-CR
about ever owning a .44 because he did not have it in his
possession at that time. Wilson testified that he brought the
gun with him on his recent vacation to Florida, and on his way
back to Wisconsin he stopped in Alabama and exchanged it for
certain "illicit pleasures" from "drug dealers and pimps."11
D. Attempts to Introduce Third-Party Perpetrator Evidence
¶37 Mary Lee Larson testified that she knew Maric, Wilson,
and Friend. When asked whether she noticed Maric act in any way
that indicated she was afraid of Wilson, Larson stated, "No.
Not recently." When Wilson's defense counsel, Peter Kovac,
attempted to ask Larson whether Maric was afraid of Friend, the
State objected and the court sustained the objection. The court
allowed Attorney Kovac to make an offer of proof, during which
Kovac asked Larson whether she heard Friend threaten Maric at
any time during the two weeks leading up to her death. Larson
responded, stating that one time, when Friend and Maric were at
her house in her kitchen, Friend told Larson that "he had to
keep Eva in check," and further, that "if she wouldn't be in
check, he'd kill her, and she knew it." Then, Maric responded
that "yes, he would." Additionally, when Attorney Kovac asked
Larson whether she ever observed any physical contact between
Maric and Friend, Larson stated that she saw Friend slap Maric
at a motel room.
11
Neither of the weapons used in the murder was ever
located.
15
No. 2011AP1803-CR
¶38 At the end of his offer of proof, Kovac stated that
"Our theory is that it's Willie who did it." In response, the
court stated, "The issue is really not who did it. The issue is
whether the defendant did it." The court added, "The statement
by this witness [Larson] about what happened sometime previous
is, I believe, hearsay." The court reasoned that allowing
Larson to testify would "cause the jury to speculate."
Accordingly, the court sustained the State's objection to
Larson's testimony. The court similarly excluded Barbara
Lange's proffered testimony about Friend and Maric's
relationship and the threat Friend made to Maric in Larson's
kitchen.
¶39 In closing arguments, Kovac stated that "Willie Friend
should be a suspect." Kovac continued:
Now, I'll tell you, right from the
beginning . . . Willie did not fire the shots. There
were two people who came by in that car, at least two
people. There was somebody in the driver's area seat.
There was somebody in the passenger seat. Those two
people shot and killed Eva. I don't know who those
people are . . . . But I think when you look at
what's going on here, it's reasonable to me that
Willie was involved. Willie had her there at this
location knowing that these guys were going to come
by.
To support his theory, Kovac suggested that Friend thought Maric
was pregnant with his child and that he wanted to avoid another
child support case. Kovac also suggested that the shots fired
at Friend were for show, to make it look as though he was in
harm's way when he was not.
E. Jury Verdict and Postconviction Proceedings
16
No. 2011AP1803-CR
¶40 On July 8, 1993, the jury found Wilson guilty of both
counts. At the sentencing hearing on October 4, 1993, the court
sentenced Wilson to life in prison with parole eligibility after
thirty years for the first count, and to a maximum of twenty
years, consecutive to his first sentence, for the second count.
¶41 On June 3, 1996——almost three years later——Wilson
filed a postconviction motion requesting a new trial. Wilson
alleged that the trial was fundamentally unfair and denied him
his right to present a complete defense. He also claimed newly
discovered evidence not available at the time of trial
substantiated his theory of defense and undermined the theory of
the prosecution. The court denied this motion without a
hearing. The court concluded that the reasons set forth on the
record sufficed for not allowing Wilson to introduce the
proffered evidence to support his theory that Friend was
involved in Maric's murder. The court further determined that
Wilson did not provide any evidence to support his claim of new
evidence.
¶42 Wilson did not file an appeal of the circuit court's
ruling on his postconviction motion. However, in a 2010
petition for a writ of habeas corpus, Wilson alleged that his
counsel performed deficiently and abandoned Wilson by failing to
pursue appellate review of the court's denial of Wilson's
motion.12 On September 14, 2010, the Court of Appeals granted
12
The Office of Lawyer Regulation publicly reprimanded
Attorney Kovac in 2008 for violating multiple rules of
professional conduct while representing Wilson.
17
No. 2011AP1803-CR
Wilson's petition and reinstated his postconviction and
appellate rights, concluding that Attorney Kovac provided
ineffective assistance of counsel to Wilson.
¶43 On January 24, 2011, Wilson filed another motion for
postconviction relief, requesting a new trial. In this motion,
Wilson alleged that his constitutional rights were violated
through ineffective assistance of counsel and judicial error.
Wilson argued that, under the standard adopted in Denny,
"Willie . . . had the opportunity——in time and place——to have
participated in Eva's killing" and that Willie had a motive to
kill her. Wilson grounded one of his ineffective assistance of
counsel claims on counsel's alleged failure to make a
comprehensive offer of proof before trial and to show the court
why available evidence satisfied the Denny standard so as to
make Mary Lee Larson's and Barbara Lange's testimony regarding
Friend's relationship with Maric admissible.
¶44 Once again, the court denied Wilson's motion for
postconviction relief.13 The court determined that Wilson's
trial counsel was not ineffective for failing to proffer certain
evidence that third parties might have committed the offense and
for failing to explain why that evidence was admissible. The
court concluded that it was not reasonably probable that the
trial judge would have admitted the proffered evidence, as it
would have been deemed either insufficient to satisfy Denny or
inadmissible hearsay.
13
Milwaukee County Circuit Judge Jeffrey Conen presided.
18
No. 2011AP1803-CR
¶45 Wilson appealed, arguing that he was denied a
meaningful opportunity to present a complete defense during his
criminal trial because the court would not allow him to
introduce third party perpetrator evidence. The court of
appeals recognized the importance of Denny, stating,
Evidence that a person other than the defendant
committed the charged crime is relevant to the issues
being tried, and thus admissible, "as long as motive
and opportunity have been shown and as long as there
is also some evidence to directly connect a third
person to the crime charged which is not remote in
time, place or circumstances."
State v. Wilson, No. 2011AP1803-CR, unpublished order, at 3
(Wis. Ct. App. Oct. 22, 2013) (quoting Denny, 120 Wis. 2d at
624).
¶46 The court of appeals then noted that the State
conceded that Wilson's offer of proof was arguably sufficient to
establish that Friend had a motive to kill Maric and that
Friend's presence at the scene of the crime established that
Friend had a direct connection to the crime. Id. at 6.
However, the court rejected the State's position that Friend did
not have the opportunity to commit this crime. Id. at 7. The
court concluded that a "review of the evidence shows that Friend
had the opportunity to commit this crime, either directly by
firing the first weapon or in conjunction with others by luring
Maric to the place where she was killed." Id. The court stated
that "[u]nder Denny, Wilson should have been allowed to
introduce evidence that Friend was involved in Maric's murder."
Id. The court ultimately reversed Wilson's conviction and the
19
No. 2011AP1803-CR
circuit court's order denying postconviction relief, and
remanded the case for further proceedings. Id. at 11. The
State sought review, and this court granted review on November
5, 2013.
II. STANDARD OF REVIEW
¶47 This court reviews a circuit court's decision to admit
or refuse to admit evidence for an erroneous exercise of
discretion. Weborg v. Jenny, 2012 WI 67, ¶41, 341 Wis. 2d 668,
816 N.W.2d 191. When the circuit court's denial of admission of
the proffered evidence implicates a defendant's constitutional
right to present a defense, however, the decision not to admit
the evidence is a question of constitutional fact that this
court reviews de novo. State v. Knapp, 2003 WI 121, ¶173, 265
Wis. 2d 278, 666 N.W.2d 881, vacated and remanded, 542 U.S. 952
(2004), reinstated in material part, 2005 WI 127, ¶2 n.3, 285
Wis. 2d 86, 700 N.W.2d 899.
III. DISCUSSION
¶48 Although a circuit court generally has the discretion
to deny the admission of evidence, that discretion is subject to
constitutional limitations; a circuit court may not refuse to
admit evidence if doing so would deny the defendant's right to a
fair trial. Crane v. Kentucky, 476 U.S. 683, 689-90 (1986).
Nevertheless, evidence offered by a defendant in his own defense
must be relevant. Milenkovic v. State, 86 Wis. 2d 272, 286-87,
272 N.W.2d 320 (Ct. App. 1978). It is this tension between the
defendant's rights and the relevancy requirement that the court
of appeals addressed in Denny.
20
No. 2011AP1803-CR
¶49 Denny involved the conviction of Kent A. Denny for the
murder of Christopher Mohr. Denny, 120 Wis. 2d at 617. Denny
and his brother were accused of stabbing Mohr 57 times. Id. At
trial, Denny attempted to introduce evidence that he had no
motive to kill Mohr, but others did. Id. at 621. The circuit
court refused to allow Denny to present the evidence, ruling it
was irrelevant. Id. Denny appealed, claiming that the court's
refusal to allow him to introduce the evidence was a violation
of his constitutional right to present a defense. Id. at 621-
22.
¶50 The court of appeals stated that it was a "general
rule . . . that evidence of motive of one other than the
defendant to commit the crime can be excluded when there is no
other proof directly connecting that person with the offense
charged." Id. at 622. The court looked to the California case
of People v. Green, 609 P.2d 468 (Cal. 1980), to support its
position. It agreed with the California Supreme Court that the
purpose of limitations on the admission of evidence as to the
possible motive of a third party is to "place reasonable limits
on the trial of collateral issues . . . and to avoid undue
prejudice to the People from unsupported jury speculation as to
the guilt of other suspects . . . ." Denny, 120 Wis. 2d at 622
(quoting Green, 609 P.2d at 480) (alterations in original). The
Denny court disagreed, however, with California's requirement
that evidence connecting a third party to the crime be
21
No. 2011AP1803-CR
"substantial," holding that standard to be unfair to
defendants.14 Id. at 623.
¶51 The court of appeals instead turned to Alexander v.
United States, 138 U.S. 353, 356 (1891), and the "legitimate
tendency" test created in that case. To support the
introduction of third-party perpetrator evidence under
Alexander, the court of appeals explained, "there must be a
'legitimate tendency' that the third person could have committed
the crime." Denny, 120 Wis. 2d at 623 (citing Alexander, 138
U.S. at 356-57). The court noted that the defendant need not
establish the guilt of the third party to the level that would
be necessary to sustain a conviction. Id. However, "evidence
that simply affords a possible ground of suspicion against
another person should not be admissible." Id. The Denny court
thus created a "bright line standard requiring that three
factors be present, i.e., motive, opportunity, and direct
connection" for a defendant to introduce third-party perpetrator
evidence. Id. at 625.
¶52 We ratified the Denny test in Knapp, 265 Wis. 2d 278,
¶¶175-183, noting the constitutional underpinnings of the
14
Two years after State v. Denny, 120 Wis. 2d 614, 357
N.W.2d 12 (Ct. App. 1984), the California Supreme Court
backtracked on the substantiality requirement: "To be
admissible, the third party evidence need not show 'substantial
proof of a probability' that the third person committed the act;
it need only be capable of raising a reasonable doubt of
defendant's guilt." People v. Hall, 718 P.2d 99, 104 (Cal.
1986) (en banc).
22
No. 2011AP1803-CR
standard in United States Supreme Court precedent. Id., ¶178
(citing Alexander, 138 U.S. 353). Indeed, since Knapp, the
Supreme Court has gone on to cite the Denny case with approval.
See Holmes v. South Carolina, 547 U.S. 319, 327-28 n.* (2006).
We now reaffirm that the Denny test is the correct and
constitutionally proper test for circuit courts to apply when
determining the admissibility of third-party perpetrator
evidence.
¶53 We pause to note that each piece of a defendant's
proffered evidence need not individually satisfy all three
prongs of the Denny test. Some evidence provides the foundation
for other evidence. "[F]acts give meaning to other facts," and
certain pieces of evidence become significant only in the
aggregate, upon the proffer of other evidence. State v.
Vollbrecht, 2012 WI App 90, ¶26, 344 Wis. 2d 69, 820 N.W.2d 443.
"This is precisely why Denny requires that all three be shown
before evidence of a third-party perpetrator is admitted at
trial." Id.
¶54 Although the Denny case is sound in principle, it does
not provide complete clarity as to the meaning and contours of
two of its prongs. This ambiguity is understandable in light of
the multitude of fact situations in which the Denny test may be
employed. Denny is firm, however, that three factors be
present, implying that "opportunity" and "direct connection"
have distinct meaning. Thus, the fact that a person with a
motive to commit the crime is present at the crime scene is not
enough to satisfy both "opportunity" and "direct connection."
23
No. 2011AP1803-CR
¶55 In theory, many people may qualify as having the
opportunity to commit a crime by virtue of their presence at the
crime scene or their presence (at the time of the crime) in the
vicinity of the crime scene. But presence does not necessarily
create either motive or direct connection; and presence does not
necessarily move the defendant's theory beyond speculation, even
when other evidence does not eliminate a third-party as having
the opportunity to commit the crime.
¶56 Essentially, the Denny legitimate tendency test
requires a court to answer three questions.
¶57 First, did the alleged third-party perpetrator have a
plausible reason to commit the crime? This is the motive prong.
¶58 Second, could the alleged third-party perpetrator have
committed the crime, directly or indirectly? In other words,
does the evidence create a practical possibility that the third
party committed the crime? This is the opportunity prong.
¶59 Third, is there evidence that the alleged third-party
perpetrator actually committed the crime, directly or
indirectly? This is the direct connection prong. Logically,
direct connection evidence should firm up the defendant's theory
of the crime and take it beyond mere speculation. It is the
defendant's responsibility to show a legitimate tendency that
the alleged third-party perpetrator committed the crime.
¶60 A person's presence at the crime scene may be analyzed
under "opportunity" but the opportunity prong may be eliminated
during this analysis because of additional information. A
person's presence at the crime scene also may be analyzed under
24
No. 2011AP1803-CR
the third prong, direct connection. What must be stressed is
that "presence" alone will normally not satisfy both of these
distinct prongs.
¶61 To provide additional guidance, we will discuss the
three prongs one by one, keeping in mind that it is
unconstitutional to refuse to allow a defendant to present a
defense simply because the evidence against him is overwhelming.
A. Motive
¶62 Circuit courts often encounter the question of motive
in homicide cases. A defendant's motive to commit a homicide is
widely considered to be relevant. See D.E. Buckner, Necessity
That Trial Court Charge Upon Motive in Homicide Case, 71
A.L.R. 2d 1025 (1960). "'Motive' refers to a person's reason for
doing something . . . . Evidence of motive does not by itself
establish guilt." Wis JI——Criminal 175. Motive is not an
element of any crime; rather, motive "may be shown as a
circumstance to aid in establishing" a particular person's
guilt. Id.
¶63 The admissibility of evidence of a third party's
motive to commit the crime charged against the defendant is
similar to what it would be if that third party were on trial
himself. Because motive is not an element of any crime, the
State never needs to prove motive; relevant evidence of motive
is generally admissible regardless of weight. See State v.
Berby, 81 Wis. 2d 677, 686, 260 N.W.2d 798 (1977). The same
applies to evidence of a third party's motive——the defendant is
not required to establish motive with substantial certainty.
25
No. 2011AP1803-CR
Evidence of motive that would be admissible against a third
party were that third party the defendant is therefore
admissible when offered by a defendant in conjunction with
evidence of that third party's opportunity and direct
connection.
¶64 It may be that the strength and proof of a third
party's motive to commit the crime is so strong that it will
affect the evaluation of the other prongs. Nonetheless, the
Denny test is a three-prong test; it never becomes a one- or
two-prong test.
B. Opportunity
¶65 The second prong of the "legitimate tendency" test
asks whether the alleged third-party perpetrator could have
committed the crime in question. This often, but not always,
amounts to a showing that the defendant was at the crime scene
or known to be in the vicinity when the crime was committed.
¶66 As a legal concept, "opportunity" appears in the
Wisconsin Statutes in the context of "other acts" evidence. See
Wis. Stat. § 904.04(2):
(2) OTHER CRIMES, WRONGS, OR
ACTS. . . . [E]vidence of other crimes, wrongs, or
acts is not admissible to prove the character of a
person in order to show that the person 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.
(Emphasis added.)
26
No. 2011AP1803-CR
¶67 The analysis of other acts evidence to demonstrate
opportunity applies to third-party perpetrator evidence:
The case law as well as § 904.04(2) permits the
introduction of other act evidence to show a person's
(whether a party or third person) "opportunity" to
engage in certain conduct. "Opportunity" is a broad
term . . . ; proof of opportunity may be relevant to
place the person at the scene of the offense (time and
proximity) or to prove whether one had the requisite
skills, capacity, or ability to carry out an
act. . . . It is incumbent on the proponent, however,
to show the relevance of the "opportunity" evidence.
7 Wis. Prac., Wis. Evidence § 404.7 (3d ed.) (footnotes
omitted).
¶68 The defense theory of a third party's involvement will
guide the relevance analysis of opportunity evidence in a Denny
case. If the third party is to be implicated personally as the
shooter, then opportunity might be shown by the party's presence
at the crime scene. See People v. Primo, 753 N.E.2d 164, 168–69
(N.Y. 2001) (evidence that the third party was at crime scene
admissible in conjunction with ballistics linking third party to
the weapon used). If the defense theory is that a third party
framed the defendant, then the defense might show opportunity by
demonstrating the third party's access to the items supposedly
used in the frame-up. Cf. Krider v. Conover, 497 Fed. Appx.
818, 821 (10th Cir. 2012) (third party's access to defendant's
blood and hair samples only speculative evidence of opportunity
without connecting third party to crime). In all but the rarest
of cases, however, a defendant will need to show more than an
unaccounted-for period of time to implicate a third party. Cf.
27
No. 2011AP1803-CR
Vollbrecht, 344 Wis. 2d 69 (a third party's unaccounted-for
period of time enough to show opportunity in murder with
extremely distinctive characteristics that also were present in
a case in which the third party was convicted).
¶69 Overwhelming evidence against the defendant may not
serve as the basis for excluding evidence of a third party's
opportunity (or direct connection to the crime): "by evaluating
the strength of only one party's evidence, no logical conclusion
can be reached regarding the strength of contrary evidence
offered by the other side to rebut or cast doubt." Holmes, 547
U.S. at 331. However, this holding does not govern situations
in which overwhelming evidence demonstrates that the proposed
third party could not have committed the crime. Courts are not
evaluating the strength of only one party's evidence in such
cases; they are in fact weighing the strength of the defendant's
evidence (that a third party committed the crime) directly
against the strength of the State's evidence (that the third
party did not commit the crime).
¶70 Courts may permissibly find——as a matter of law——that
no reasonable jury could determine that the third party
perpetrated the crime in light of overwhelming evidence that he
or she did not. Cf. People v. Pouncey, 471 N.W.2d 346, 350
(Mich. 1991) ("When, as a matter of law, no reasonable jury
could find that the provocation was adequate [to form the basis
of a defense to the charge], the judge may exclude evidence of
the provocation."). In sum:
28
No. 2011AP1803-CR
While the Constitution . . . prohibits the
exclusion of defense evidence under rules that serve
no legitimate purpose or that are disproportionate to
the ends that they are asserted to promote, well-
established rules of evidence permit trial judges to
exclude evidence if its probative value is outweighed
by certain other factors such as unfair prejudice,
confusion of the issues, or potential to mislead the
jury.
Holmes, 547 U.S. at 326.
C. Direct Connection
¶71 "The 'legitimate tendency' test asks whether the
proffered evidence is so remote in time, place or circumstances
that a direct connection cannot be made between the third person
and the crime." Denny, 120 Wis. 2d at 624 (citation omitted).
No bright lines can be drawn as to what constitutes a third
party's direct connection to a crime. Rather, circuit courts
must assess the proffered evidence in conjunction with all other
evidence to determine whether, under the totality of the
circumstances, the evidence suggests that a third-party
perpetrator actually committed the crime. See, e.g., Shields v.
State, 166 S.W.3d 28 (Ark. 2004); State v. Oliver, 821 P.2d 250,
252 (Az. Ct. App. 1991) ("The defendant must show that the
evidence has an inherent tendency to connect the other person
with the actual commission of the crime.") (citation omitted);
People v. Hall, 718 P.2d 99 (Cal. 1986). In sum, courts are not
to look merely for a connection between the third party and the
crime, they are to look for some direct connection between the
third party and the perpetration of the crime.
29
No. 2011AP1803-CR
¶72 As with opportunity, there are myriad possibilities
how a defendant might demonstrate a third party's direct
connection to the commission of a crime. For example, a third
party's self-incriminating statement may be used to establish
direct connection. See Erwin v. State, 729 S.W.2d 709, 714-17
(Tex. Crim. App. 1987). Exclusive control of the weapon used
may also establish a direct connection. Primo, 753 N.E.2d at
168–69. Mere presence at the crime scene or acquaintance with
the victim, however, is not normally enough to establish
direction connection. See, e.g., State v. Eagles, 812 A.2d 124
(Conn. App. 2002).
D. Whether Wilson Satisfied the Denny Standard
¶73 The State conceded in its briefing to this court that
Wilson satisfied the motive and direct connection prongs of the
Denny test. We regret the State's concession of direct
connection inasmuch as it has necessitated discussion of factors
under the heading of opportunity that arguably belong under
direct connection——and vice versa.
¶74 Friend's supposed motive was his belief that Maric was
pregnant, that he was responsible for her pregnancy, and that he
wanted to avoid future child support. The alleged direct
connection was his relationship to Maric and his presence at the
crime scene (in front of his brother's house) at the time of her
death. Friend's presence at the crime scene might better have
been analyzed under opportunity, raising the possibility that he
could have committed the crime as a conspirator and leaving his
tenuous connection to the perpetration of the crime to be
30
No. 2011AP1803-CR
analyzed under direct connection. Because Friend's presence at
the crime scene is not in dispute and because it has been
consistently analyzed in this case as the direct connection, we
assume without deciding that these two prongs have been
satisfied.
¶75 This brings us to opportunity, which here must mean
more than presence. If the opportunity prong has not been met,
it was not error for the circuit court to refuse to admit the
proffered evidence and we need go no further. See Denny, 120
Wis. 2d 614.
¶76 The State contends that "Wilson failed to show that
Willie Friend had the opportunity to kill [Maric], either as the
direct shooter or in conjunction with unknown persons he knew
were planning to murder her."
¶77 The State argues first that Friend himself could not
have been the shooter. It contends that the ballistics evidence
on where the .44 bullets hit and were found, combined with the
consistent testimonial evidence of Kidd-Edwards and Friend about
the timing of the shots fired, shows it was "impossible" that
Friend could have shot Maric with the .44, then have that gun
shot at him by another, as he was running away. Both witnesses
testified that the louder shots from the .44 were fired first
and in rapid succession——"one right behind the other." Friend's
hands were swabbed at the crime scene for gun shot residue, and
the tests were negative. Shells were found in the area of
Friend's observed flight.
31
No. 2011AP1803-CR
¶78 Wilson counters that Friend could have been a
"shooter" himself. He contends that ballistics evidence can be
misinterpreted, that Friend and Maric were in the car for a long
time before the shooting such that his position in the car at
the time of the shooting was unknown, and that Kidd-Edwards did
not see the first shots fired. Wilson therefore concludes that
any question as to whether the State's evidence showed Friend
not to be the shooter goes to the weight of Wilson's evidence,
not the admissibility of it.
¶79 We note that Wilson's theory throughout the trial was
that Friend's involvement was indirect——that Friend hired
Maric's killer or killers as a result of his motive to kill
Maric to avoid child support or some other concern. Wilson did
not suggest that Friend pulled the trigger himself. "Willie did
not fire the shots," his counsel told the jury. The proffered
evidence that the circuit court refused to admit did not support
a direct shooter theory, in part, because it was logically
inconsistent with Wilson's favored theory that Friend hired
someone else to be the shooter. We see no reason to belabor the
point.
¶80 The State also argues that Wilson has failed to show
"how Friend had the opportunity to arrange for two unnamed
gunmen . . . to murder Eva [Maric]." The State relies on two
points to support this argument. First, the "assailants" were
driving the same type of car as Wilson. Second, the ballistics
evidence and eyewitness testimony demonstrated that Friend was
in real danger during the shooting; there was enough of a risk
32
No. 2011AP1803-CR
of harm to Friend that it is implausible that he hired someone
to make him look like a victim in that manner.
¶81 Wilson counters that nothing in the evidence excluded
the possibility that Friend hired one or more hit men to kill
Maric, make Friend look like a victim, and frame Wilson for the
murder. In support of this theory, Wilson points to the
substantial period of time——allegedly one to two hours——that
Friend and Maric were in the car together prior to the shooting.
Wilson claims this is evidence that Friend kept her there as a
target for the shooters. Wilson also notes that Friend had time
in his brother's house to arrange a hit on Maric. Here, Wilson
relies on Vollbrecht, suggesting that Friend had a "limited but
sufficient opportunity" under the Denny test to arrange for the
murder.
¶82 Wilson argues that, for purposes of his defense,
opportunity and direct connection are virtually the same thing;
Friend's direct connection to the crime——his presence at the
crime scene——also was his opportunity to commit the crime. As
support, Wilson relies on Vollbrecht, where the court of appeals
explained that "facts give meaning to other facts and . . . the
significance of [the third party's] opportunity to commit the
crime depends on his alleged motive and direct connection."
Vollbrecht, 344 Wis. 2d 69, ¶26.
¶83 We are unpersuaded that Wilson has demonstrated a
"legitimate tendency" that Friend committed the crime for which
Wilson was convicted by hiring one or more persons to kill
Maric. Denny's "legitimate tendency" test requires more than
33
No. 2011AP1803-CR
mere possibility. Denny, 120 Wis. 2d at 623 ("evidence that
simply affords a possible ground of suspicion against another
person should not be admissible"). Wilson in 1993 and Wilson
now have failed to proffer any evidence that would elevate the
theory of Friend's involvement in an assassination conspiracy
from a mere possibility to a legitimate tendency.
¶84 Friend and Wilson testified at trial. Their accounts
are reported in some detail in this opinion. Wilson was able to
challenge Friend's credibility as a witness based on Friend's
eight prior criminal convictions, his inconsistent testimony
about the nature of his brother's business, and an overheard
statement before the preliminary hearing in which he said to his
mother that he "had to get his story together." Wilson
challenged the accuracy of Friend's testimony about the shooter
being left-handed and wearing gold-rimmed glasses.
Nevertheless, the jury must have believed Friend. Wilson did
not have much success in poking serious holes in Friend's
account of the series of events on the evening of April 20 and
early morning of April 21. In fact, Wilson's testimony
confirmed Friend's testimony at several points——Friend's
observation of Wilson's car at Throttle Twisters and Friend's
testimony that Wilson drove by Maric's vehicle twice as it was
parked in front of 3859 North 9th Street about 2:00 a.m. on
April 21. Friend changed his story about the length of time
that he and Maric sat in Maric's car before the shooting, from
several hours to the period from about 4:30 a.m. until the
shooting, after Friend reluctantly admitted that he and Maric
34
No. 2011AP1803-CR
spent most of that time in Jabo's house——the illegal after-hours
club operated by his brother.
¶85 Against this background, Wilson has proffered no
evidence demonstrating that Friend had the opportunity to
arrange a hit on Maric during the relatively short time they
were in Maric's car——no evidence that Friend had the contacts,
influence, and finances to quickly hire or engage a shooter or
shooters to gun down a woman on a public street. He has not
shown that Friend or his alleged unnamed associates had access
to a gold Lincoln Continental similar to Wilson's. He has not
proffered any telephone records from Friend or Friend's
brother's house that could have set up the time and place of the
hit on short notice. He has not proffered any evidence of the
ownership by Friend or his family of .44 and .25 caliber
weapons. He has not identified any individuals as being the
shooter or shooters possibly employed by Friend. In short, he
has not offered any evidence whatsoever indicating that Friend
had the means or access or ability to hire assassins to kill
Maric at a particular place within a relatively short time
frame.
¶86 Wilson's reliance on Vollbrecht is misplaced.
Vollbrecht involved two separate murders that shared extremely
distinctive characteristics, reducing the need for a showing of
opportunity to more than the third party's unaccounted-for time.
Wilson has failed to show any similarity to a previous crime
committed by Friend, his brother, or any associate of Friend's,
distinguishing this case from Vollbrecht. Wilson was not
35
No. 2011AP1803-CR
excused from making an offer of proof as to opportunity beyond
an unaccounted-for block of Friend's time. Because Wilson
failed to make an adequate offer of proof as to Friend's
opportunity, it was not error for the circuit court to refuse to
admit Wilson's proffered evidence to avoid speculation that
might confuse the jury.15
¶87 Because we determine there was no error in the circuit
court's decision, we need not reach the question of whether any
error was harmless.
IV. CONCLUSION
15
At the court of appeals, Wilson also contended that the
circuit court should have permitted him to introduce evidence
implicating Larnell "Jabo" Friend in Maric's murder. The court
of appeals did not reach this issue, basing its ruling instead
on the proffered evidence about Willie Friend. State v. Wilson,
No. 2011AP1803-CR, unpublished order, at 7 n.4 (Wis. Ct. App.
Oct. 22, 2013). In cases where this court reverses the court of
appeals and the court of appeals did not reach an issue, we will
often remand the case for consideration of the issue not
reached. See, e.g., State v. Sarfraz, 2014 WI 78, 356
Wis. 2d 460, 851 N.W.2d 235. However, "[o]nce [a] case is
before us, it is within our discretion to review any substantial
and compelling issue which the case presents." Univest Corp. v.
General Split Corp., 148 Wis. 2d 29, 32, 435 N.W.2d 234 (1989).
Because the issue involving Jabo is so similar to the issue
involving Willie (i.e., whether third-party perpetrator evidence
should have been admitted), we see no need to remand to the
court of appeals. At trial, Wilson's offer of proof regarding
Jabo was that Maric "had been working as a prostitute, that her
pimp was Jabo, [and] that she was trying to get out." Although
this offer of proof suggested a possible motive, it described no
opportunity or direct connection for Jabo to have perpetrated
the crime. In short, Wilson's proffered evidence about Jabo
offered little more than "a possible ground of suspicion";
accordingly, we hold that it was not error for the circuit court
to exclude it. See Denny, 120 Wis. 2d at 623.
36
No. 2011AP1803-CR
¶88 On trial for murder, General Grant Wilson developed a
theory that someone else fired the shots that killed Evania
Maric on April 21, 1993. The details of this theory fit within
the contours of the known facts of the case in a way that could
not be readily disproved. However, even though the law does not
require Wilson to prove that someone else committed the crime
for which he was on trial, it does require more than a theory
"that simply affords a possible ground of suspicion . . . ."
Denny, 120 Wis. 2d at 623.
¶89 The "legitimate tendency" test ensures that proffered
evidence meets the necessary evidentiary threshold before it is
admitted while, at the same time, guarding the constitutional
rights of defendants. The test requires a showing of the third
party's motive, opportunity, and direct connection to the crime.
Although proffered evidence should be understood in the context
of other evidence, the three prongs of the "legitimate tendency"
test are distinct from one another. Only in rare cases will the
context dictate that a showing on one or two prongs is strong
enough to lower the threshold for the showing on the third
prong. This is not one of those cases.
¶90 We reaffirm that the Denny test is the appropriate
test for circuit courts to use to determine the admissibility of
third-party perpetrator evidence. However, we conclude that,
for a defendant to show that a third party had the "opportunity"
to commit a crime by employing a gunman or gunmen to kill the
victim, the defendant must provide some evidence that the third
party had the realistic ability to engineer such a scenario.
37
No. 2011AP1803-CR
Here, Wilson has failed to show that Friend had the opportunity
to kill Maric, directly or indirectly; consequently, it was not
error for the circuit court to exclude Wilson's proffered
evidence. Accordingly, we reverse.
By the Court.—The decision of the court of appeals is
reversed.
38
No. 2011AP1803-CR.akz
¶91 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I join
the majority opinion because it "reaffirm[s] the Denny test as
the appropriate test for circuit courts to use to determine the
admissibility of third-party perpetrator evidence." Majority
op., ¶10. The majority opinion reaffirms that "the Denny test is
a three-prong test; it never becomes a one- or two-prong test."
Majority op., ¶64. I would not join the majority opinion if it
were interpreted as doing anything other than reaffirming the
longstanding application of the test from State v. Denny, 120
Wis. 2d 614, 357 N.W.2d 12 (Ct. App. 1984).
¶92 I write separately to clarify that the majority
opinion is intended to reaffirm the Denny test and that certain
passages in the majority opinion should not be misconstrued. In
particular, the majority opinion should not be read as
suggesting that a defendant may sometimes introduce Denny
evidence without satisfying all three prongs of the Denny test.
Further, it should not be read as suggesting that a third
party's presence at a crime scene can alone satisfy multiple
prongs of this test, or that a third party's unknown whereabouts
during a crime can alone establish that the third party had an
opportunity to commit the crime.
¶93 I also write separately to explain the Denny test's
requirements, purposes, and constitutional basis. A criminal
defendant is constitutionally endowed with the right to present
a defense. The Denny test attempts to balance a meaningful
opportunity to present a complete defense, namely that a third
1
No. 2011AP1803-CR.akz
party perpetrated the crime, with the requirement that such
evidence meet established standards for admissibility. Simply
stated, the Denny test requires that proffered evidence create a
legitimate tendency that someone other than the defendant
committed the crime charged. Evidence is deemed inadmissible
under Denny if it merely raises possible grounds for suspicion.
The Denny test, like the test for all admissible evidence,
requires that in order for third-party perpetrator evidence to
be admitted, it must have the requisite indicia of reliability,
be relevant, and not be unfairly prejudicial. The Denny test
requires a defendant to demonstrate that the third-party
perpetrator had: (1) the motive to commit the crime; (2) the
opportunity to commit the crime; and (3) a direct connection to
the crime.
¶94 Finally, I write separately to explain that evidence
of an unknown third-party perpetrator is generally deemed
inadmissible when the defendant cannot meet the Denny test.
Most typically, if such evidence is admissible, it is because
the evidence is deemed admissible as other acts evidence. In
the present case, General Grant Wilson did not proceed under the
theory that his proffered evidence was other acts evidence.
Instead, Wilson sought to introduce evidence that Willie Friend
hired someone to shoot Evania Maric. Wilson's defense was that,
although it was not Friend who shot Maric, Friend hired someone
unknown to Wilson to shoot Maric. Wilson's proffer was that, in
the past, Friend, who was romantically involved with Maric, had
exhibited violent behavior toward her and that she was pregnant.
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The defense theory was that Friend wanted Maric dead because he
did not want to be responsible for the baby. Wilson sought to
introduce witnesses who would testify that Friend slapped Maric
at least once and threatened to kill her. Wilson wished to
argue, based on this proffered evidence, that Friend hired
someone to murder Maric. However, Wilson's proffer failed to
demonstrate that these alleged assassins were anything but
purely hypothetical people. While Friend's motive possibly
could have been demonstrated, opportunity and direct connection
were missing. Wilson's proffered evidence was speculative, at
best, and the circuit court did not err in excluding it. Simply
stated, the proffered third-party perpetrator evidence was not
admissible because it did not meet the long-standing Denny test.
I. THE MAJORITY OPINION REAFFIRMS THE DENNY TEST
¶95 While a majority of the court intends that this case
reiterate the Denny test, I write separately because the
majority opinion may need some clarification. For example, it
states that "[o]nly in rare cases will the context dictate that
a showing on one or two prongs is strong enough to lower the
threshold for the showing on the third prong." Majority op.,
¶89. That statement should not be read as eliminating a
defendant's need to prevail on all three prongs of the Denny
test under any circumstances. To introduce evidence that a
third party may have committed the crime charged, a defendant
always must satisfy all three prongs of the Denny test: motive,
opportunity, and direct connection to the commission of the
crime. Denny, 120 Wis. 2d at 625; see also State v. Avery, 2011
3
No. 2011AP1803-CR.akz
WI App 124, ¶43, 337 Wis. 2d 351, 804 N.W.2d 216. The majority
opinion correctly recognizes that "the Denny test is a three-
prong test; it never becomes a one- or two-prong test." Majority
op., ¶64. To be admissible, a defendant's evidence of a third-
party perpetrator must establish a "legitimate tendency" that
the third party committed the crime charged. Denny, 120
Wis. 2d at 623-24. A "mere possibility" that a third party
committed the crime charged is insufficient. See id. at 623
(holding that "evidence that simply affords a possible ground of
suspicion against another person should not be admissible").
Evidence of a mere possibility that a third party may have
committed the crime charged is deemed inadmissible because it
calls for speculation, creates a trial within a trial, and lacks
the sufficient indicia of reliability or probative value so to
qualify as admissible evidence.
¶96 The majority opinion also states: "What must be
stressed is that 'presence' alone will normally not satisfy both
of these distinct prongs [opportunity and direct connection]."
Majority op., ¶60. That sentence should not be read as
suggesting that a third party's presence at a crime scene will
automatically satisfy any one prong of the Denny test, let alone
more than one prong. The majority opinion correctly recognizes
that "the fact that a person with a motive to commit the crime
is present at the crime scene is not enough to satisfy both
'opportunity' and 'direct connection.'" Majority op., ¶54. The
majority opinion also correctly notes that presence at a crime
scene does "not normally . . . establish" a third party's direct
4
No. 2011AP1803-CR.akz
connection to the commission of the crime. Majority op., ¶72
(citing State v. Eagles, 812 A.2d 124 (Conn. App. Ct. 2002)).
Similarly, a third party's presence at a crime scene does not
necessarily establish that he or she had an opportunity or a
motive to commit the crime. See Wiley v. State, 74 S.W.3d 399,
406 (Tex. Crim. App. 2002) (holding that an alleged third-party
perpetrator had no opportunity to commit an arson because,
although present at the crime scene, he lacked the mental
competence to commit the crime). Accordingly, a third party's
presence at a crime scene, by itself, will not automatically
satisfy any one of the three prongs of the Denny test, and it
will not satisfy all three prongs.
¶97 I also wish to clarify the majority opinion's
statement that "[i]n all but the rarest of cases, . . . a
defendant will need to show more than an unaccounted-for period
of time to implicate a third party." Majority op., ¶68 (citing
State v. Vollbrecht, 2012 WI App 90, 344 Wis. 2d 69, 820
N.W.2d 443). A third party's unaccounted-for period of time
will never, in and of itself, satisfy the Denny test or even a
single prong of this test. The majority opinion was
interpreting Vollbrecht as holding that the defendant in that
case satisfied the opportunity prong of the Denny test by
showing that (1) a third party's whereabouts during a murder was
unaccounted for; and (2) the third party was convicted of
committing a very similar murder in the same area around the
same time. See majority op., ¶¶68, 86. The majority opinion
should have clarified its discussion of Vollbrecht and how
5
No. 2011AP1803-CR.akz
opportunity fit within the legal theories forwarded in that
case. As explained earlier, the majority opinion correctly
recognizes that the Denny test is always a three-prong test and
that a third party's whereabouts will not satisfy multiple
prongs of this test.
¶98 In sum, the majority opinion should not be read as
changing the Denny test. A defendant always is required to
prevail on all three prongs of the Denny test in order to
introduce evidence of an alleged third-party perpetrator. The
defendant's proffer must demonstrate a legitimate tendency that
the third party committed the crime charged, not merely a
speculative ground of suspicion in that regard. A third party's
presence at a crime scene, by itself, will not necessarily
satisfy any prong of the Denny test and will not satisfy
multiple prongs. Similarly, a third party's unaccounted-for
whereabouts during the commission of a crime will not alone
satisfy any prong of the Denny test.
II. THE DENNY TEST
¶99 I turn now to the Denny test requirements, purposes,
and constitutional basis. The court of appeals in Denny created
"a bright line standard requiring that three factors be present,
i.e., motive, opportunity and direct connection," before a
defendant may introduce evidence that a third party committed
the crime charged. Denny, 120 Wis. 2d at 625. Specifically,
[t]hird-party defense evidence may be admissible under
the legitimate tendency [e.g., Denny] test if the
defendant can show that the third party had (1) the
motive and (2) the opportunity to commit the charged
crime, and (3) can provide some evidence to directly
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No. 2011AP1803-CR.akz
connect the third person to the crime charged which is
not remote in time, place or circumstance.
State v. Scheidell, 227 Wis. 2d 285, 296, 595 N.W.2d 661 (1999)
(citing Denny, 120 Wis. 2d at 623-24). The trial court remains
the gatekeeper in determining what evidence is admissible and
why.
¶100 Under the Denny test, "there must be a 'legitimate
tendency' that the third person could have committed the crime."
Denny, 120 Wis. 2d at 623 (quoting Alexander v. United States,
138 U.S. 353, 356-57 (1891)). Thus, "evidence that simply
affords a possible ground of suspicion against another person
should not be admissible. Otherwise, a defendant could
conceivably produce evidence tending to show that hundreds of
other persons had some motive or animus against the deceased——
degenerating the proceedings into a trial of collateral issues."
Denny, 120 Wis. 2d at 623-24.
¶101 States use a wide variety of terminology for their
Denny-type tests, such as "directly links," "substantially
connects," or "points directly." See 22 Charles Alan Wright &
Kenneth W. Graham, Jr., Federal Practice and Procedure § 5180.2
(2d ed. 2012). However, despite that variation in language,
many states ultimately require a defendant to establish motive,
opportunity, and direct connection. See 41 C.J.S. Homicide
§ 328. A few jurisdictions eschew the language of a Denny-type
test in favor of conventional evidentiary principles, such as
relevancy and balancing probative value against prejudice. See
David McCord, "But Perry Mason Made It Look So Easy!": The
Admissibility of Evidence Offered by a Criminal Defendant to
7
No. 2011AP1803-CR.akz
Suggest That Someone Else Is Guilty, 63 Tenn. L. Rev. 917, 937-
38 (1996); People v. Primo, 753 N.E.2d 164, 167-69 (N.Y. 2001).
¶102 The purpose of the Denny test is to allow a defendant
to exercise his or her constitutional right to present a defense
but also to ensure that third-party perpetrator evidence meets
certain criteria for admissibility.1 See Denny, 120 Wis. 2d at
622-23; Avery, 337 Wis. 2d 351, ¶50 (The Denny test is "a
mechanism of balancing the accused's right to present a defense
against the State's interest in excluding evidence that . . . is
no more than marginally relevant, of extremely limited probative
value, and likely to confuse the jury and waste the jury's
time.") (internal quotation marks omitted); Primo, 753 N.E.2d at
168 (noting that a Denny-type test is "shorthand for weighing
probative value against prejudice in the context of third-party
culpability evidence"); John H. Blume et al., Every Juror Wants
A Story: Narrative Relevance, Third Party Guilt and the Right to
Present A Defense, 44 Am. Crim. L. Rev. 1069, 1080-85 (2007)
(same); see also Ellen Yankiver Suni, Who Stole the Cookie from
the Cookie Jar?: The Law and Ethics of Shifting Blame in
1
The court of appeals in Denny seemed to view this test as
a means of excluding evidence that is either irrelevant or, if
relevant, unfairly prejudicial. See State v. Denny, 120
Wis. 2d 614, 622, 623-24, 357 N.W.2d 12 (Ct. App. 1984). See
also Wis. Stat. § 904.02 (rendering irrelevant evidence
inadmissible); Wis. Stat. § 904.03 ("Although relevant, evidence
may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative
evidence.").
8
No. 2011AP1803-CR.akz
Criminal Cases, 68 Fordham L. Rev. 1643, 1680-81 (2000) (noting
that, although some courts view a Denny-type test as a means of
excluding irrelevant evidence, most courts view it as a
balancing of probative value against prejudicial effect).
¶103 The United States Supreme Court placed its imprimatur
on what Wisconsin calls the Denny test. See Holmes v. S.
Carolina, 547 U.S. 319, 327 & n.* (2006). The Supreme Court
concluded that "well-established rules of evidence permit trial
judges to exclude evidence if its probative value is outweighed
by certain other factors such as unfair prejudice, confusion of
the issues, or potential to mislead the jury." Id. at 326
(citations omitted). By excluding unfairly prejudicial
evidence, the Denny test prevents "unsupported jury speculation
as to the guilt of other suspects . . . ." Denny, 120
Wis. 2d at 622 (quoting People v. Green, 609 P.2d 468, 480 (Cal.
1980)). Hence, evidence that raises only a speculative doubt
will fail the Denny test. See People v. Hall, 718 P.2d 99, 104
(Cal. 1986). A defendant has no constitutional right to present
speculative, unreliable evidence in an effort to create doubt.
See Scheidell, 227 Wis. 2d at 303-04; Denny, 120 Wis. 2d at 622.
¶104 In Denny the defendant appealed his judgment of
conviction for murder, arguing that the circuit court erred by
excluding evidence that a third party committed the murder.
Denny, 120 Wis. 2d at 617. The court of appeals held that the
circuit court did not err in excluding that evidence. Id. at
625. Denny sought to introduce testimony that the victim "'may
have gotten into trouble with . . . a big drug dealer.'" Id.
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No. 2011AP1803-CR.akz
That testimony failed to show that the drug dealer had a motive
or an opportunity to commit the crime or a direct connection to
the crime. Id. Denny also sought to introduce testimony that
the victim owed money to another man. Id. Assuming that the
man had a motive to commit the murder, the court of appeals held
that Denny failed to show the man's opportunity or direct
connection. Id. Finally, Denny sought to introduce testimony
that the victim angered another man by purchasing a shotgun from
him and later selling it. Id. The court of appeals held that
this testimony established motive but failed to establish
opportunity or direct connection. Id.
¶105 Courts have subsequently upheld the exclusion of
third-party perpetrator evidence under Denny. For example, in
State v. Jackson, the defendant was convicted of robbing a
liquor store at gunpoint. State v. Jackson, 188 Wis. 2d 187,
194, 525 N.W.2d 739 (Ct. App. 1994). At trial, a liquor store
employee testified that "he was 'probably about 80 percent
sure'" that Jackson was the perpetrator. Id. at 191. "At the
conclusion of the employee's testimony and outside of the jury's
presence, Jackson requested that because of the employee's
uncertainty, the employee view a photo of another man that
Jackson allegedly had learned was the gunman." Id. at 192. The
employee viewed photographs of six people, one of whom was the
alleged third-party perpetrator, who went by the alias "Rat."
Id. The employee was certain that five of the people were not
the perpetrator, but he said that "Rat" could have been the
perpetrator. Id. at 192-93. Based on Denny, the circuit court
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No. 2011AP1803-CR.akz
denied Jackson's request to recall the employee to testify that
"Rat" could have been the perpetrator. Id. at 193. The court
of appeals held that the circuit court did not err in excluding
that evidence because it "provided nothing more than grounds for
suspicion . . . ." Id. at 196. The court of appeals noted that
the circuit court allowed Jackson to identify "Rat" as the
perpetrator and to publish the photograph of "Rat" to the jury.
Id. "Thus, the trial court did not impermissibly interfere with
Jackson's constitutional right to present a defense." Id.
III. EVIDENCE OF AN UNKNOWN THIRD-PARTY PERPETRATOR
IS GENERALLY DEEMED INADMISSIBLE
¶106 Evidence of an unknown third party, who is alleged to
have committed the crime charged, is most often deemed too
speculative to be admissible. In the present case, the
proffered evidence, as it relates to unknown, alleged hit men,
is inadmissible under Denny.2 General Grant Wilson's defense
theory may be viewed in one of two ways. It may be viewed as an
unknown third-party perpetrator theory because the alleged
actual shooter is unknown. On the other hand, the defense
theory could be viewed as a known third-party perpetrator theory
because Willie Friend allegedly hired the shooter. Either way,
the circuit court was correct to exclude the evidence because it
was speculative at best and did not meet the Denny criteria.
A. Unknown Third-Party Perpetrators
2
Because this section discusses unknown third-party
perpetrators, I do not discuss General Grant Wilson's proffered
evidence as it relates to his theory that Willie Friend was the
shooter.
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¶107 In some, but not all, cases in which a defendant seeks
to introduce evidence of an unknown third-party perpetrator, the
defendant relies on other acts evidence. The present case does
not involve any other acts evidence. "[O]ften times the defense
must rely on other act evidence to raise a circumstantial
inference that the third party carried out the crime." 7
Daniel D. Blinka, Wisconsin Practice Series: Wisconsin Evidence
§ 404.7, at 215 (3d ed. 2008). However, evidence of an unknown
third-party perpetrator is often inadmissible even when it
relies on other acts evidence.
¶108 In Scheidell we held that the Denny test does not
apply to other acts evidence of a similar crime committed by an
unknown third party who, according to the defendant, committed
the crime charged. Scheidell, 227 Wis. 2d at 297. We reasoned
that, "[i]n a situation where the perpetrator of the allegedly
similar crime is unknown, it would be virtually impossible for
the defendant to satisfy the motive or the opportunity prongs of
the legitimate tendency test of Denny." Scheidell, 227
Wis. 2d at 296. Instead, evidence of a similar crime committed
by an unknown third party is governed by the test for
12
No. 2011AP1803-CR.akz
determining the admissibility of other acts evidence.3 Id. at
287-88.
¶109 The defendant in Scheidell appealed his judgment of
conviction for armed burglary and attempted first-degree sexual
assault. Id. at 287. He entered a woman's apartment during the
night, while armed with a knife and wearing a mask, and
attempted to sexually assault her. Id. at 288-90. At trial, he
sought to introduce evidence that, five weeks after that
burglary, an unknown assailant burglarized a woman's home at
night and sexually assaulted her. Id. at 290-91. Scheidell was
in jail during the second burglary, which occurred four blocks
away from the previous burglary. Id. Scheidell wanted to argue
that this unknown assailant committed the burglary for which he
was charged. Id. We held that the circuit court "properly
excluded" this other acts evidence because it was not relevant.
Id. at 310. Specifically, due to several factual distinctions
3
To determine whether other acts evidence is admissible, a
court uses "a three-step analysis." State v. Jackson, 2014 WI
4, ¶55, 352 Wis. 2d 249, 841 N.W.2d 791. First, the evidence
must be offered for an acceptable purpose under Wis. Stat.
§ 904.04(2), including "'motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident.'" Id. (quoting State v. Sullivan, 216 Wis. 2d 768,
772, 576 N.W.2d 30 (1998)). Second, the evidence must be
relevant, which means that it must tend to make a fact of
consequence more or less probable than it would be without the
evidence. Id. (quoting Sullivan, 216 Wis. 2d at 772). Third
and finally, the probative value of the evidence must not be
"'substantially outweighed by the danger of unfair prejudice,
confusion of the issues or misleading the jury, or by
considerations of undue delay, waste of time or needless
presentation of cumulative evidence.'" Id. (quoting Sullivan,
216 Wis. 2d at 772-73).
13
No. 2011AP1803-CR.akz
between the two burglaries, this other acts evidence was not
probative of Scheidell's identity as the assailant in the first
burglary. Id. at 309-10. In subsequent cases, Wisconsin courts
have rarely held that other acts evidence of an unknown third-
party perpetrator is admissible.4
4
In State v. Wright the court of appeals upheld the
exclusion of other acts evidence of an unknown third-party
perpetrator under Scheidell. State v. Wright, 2003 WI App 252,
¶45, 268 Wis. 2d 694, 673 N.W.2d 386. Wright was convicted of
eight counts of armed robbery and one count of attempted armed
robbery. Id., ¶1. On appeal, he argued that the circuit court
erred by excluding testimony of a man who identified Wright at a
lineup as the perpetrator of a different robbery, but who was
unable to identify Wright at a preliminary hearing. Id., ¶3.
Wright argued that this proffered testimony was admissible other
acts evidence because it suggested that whoever committed that
other robbery could have committed all of the robberies for
which Wright was tried and convicted. Id. The court of appeals
held that, under Scheidell, the circuit court did not err in
excluding that evidence. Id., ¶45. The court of appeals held
"that the mere inability of a victim to identify the defendant
as the perpetrator of a similar uncharged crime perforce takes
the jury into the realm of conjecture or speculation." Id. The
court of appeals noted that the proffered evidence was even more
speculative than the inadmissible evidence proffered in
Scheidell. See id. In Scheidell the defendant proffered
evidence of a similar crime that he could not have committed
because he was incarcerated at the time. Id. By contrast,
Wright's "proffered testimony does not demonstrate that Wright
was incapable of committing the similar crime." Id. "At the
most, [the] proffered testimony merely shows that [the witness]
could not identify Wright as the robber; it does not demonstrate
that Wright could not have committed the offense." Id.
(continued)
14
 No. 2011AP1803-CR.akz
¶110 In other jurisdictions, evidence of an unknown third-
party perpetrator is most often deemed too speculative to be
admissible. See, e.g., Wheeler v. United States, 977 A.2d 973
(D.C. 2009); Gethers v. United States, 684 A.2d 1266 (D.C.
1996); Neal v. State, 436 S.E.2d 574 (Ga. Ct. App. 1993); People
v. Armstrong, 704 P.2d 877 (Colo. App. 1985); State v. Eagles,
812 A.2d 124 (Conn. App. Ct. 2002). These cases involved
traditional Denny evidence, not other acts evidence of a third-
party perpetrator.
¶111 In Wheeler the defendant appealed his judgment of
conviction for murder, arguing that the trial court erred by
excluding his evidence that someone else committed the crime.
Wheeler, 977 A.2d at 976-77. The defendant sought to introduce
In contrast, other acts evidence of an unknown third-party
perpetrator was erroneously excluded in State v. Davis. In that
case, the defendant was charged with five counts of burglary and
one count of armed robbery. State v. Davis, 2006 WI App 23,
¶¶2-7, 289 Wis. 2d 398, 710 N.W.2d 514. One count of burglary
was dismissed when the State discovered that Davis was
incarcerated when that burglary occurred. Id., ¶8. The victim
of that burglary had twice misidentified Davis as the burglar.
Id., ¶¶3, 8-9. The circuit court denied Davis' motion to call
that victim to testify that he had misidentified Davis as the
burglar. Id., ¶9. Davis believed that this other acts evidence
would establish that someone who looked like him committed that
burglary and thus could have committed all of the burglaries for
which he was on trial. Id., ¶10. The court of appeals held
that this other acts evidence was erroneously excluded. Id.,
¶30. The court of appeals reasoned that "[t]his is not a
situation where someone accused of a crime makes a general claim
that someone else must have done it." Id., ¶28. "Rather, here
we have a burglary victim who twice misidentified Davis as the
person he saw in his apartment." Id. "This fact provided Davis
with the opportunity to attempt to prove that someone else,
someone who looks a great deal like Davis, was burglarizing and
robbing homes within the same general time frame." Id.
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No. 2011AP1803-CR.akz
evidence that the murder victim had cocaine in his system at the
time of death and, therefore, "had a 'dangerous lifestyle' and
was at a 'high risk of violent death' from '[r]ival drug
dealers, dissatisfied customers, or frustrated robbers.'" Id.
at 990. The District of Columbia Court of Appeals held that the
trial court properly excluded that evidence because it "fail[ed]
to provide anything more than 'a hypothetical, unidentified
person who may have had a motive' to commit the murder." Id.
(quoting Gethers, 684 A.2d at 1271).
¶112 In Gethers two defendants appealed from their
convictions for burglarizing an apartment together and shooting
a man who lived in the apartment. Gethers, 684 A.2d at 1268.
On appeal, they argued that the trial court erred by excluding
evidence that someone besides them committed the burglary and
shooting. Id. The proffered evidence was that the victim was a
drug dealer and thus might have been shot by a disgruntled
customer. Id. at 1270, 1272. The District of Columbia Court of
Appeals held that the trial court did not err in excluding that
evidence. Id. at 1272. The proffer of that evidence "made no
showing" that a disgruntled customer, "if he or she actually
existed, was connected in any way to the shooting." Id.
Defense "counsel was merely trying to 'throw something out there
for the jury to speculate about.'" Id.
¶113 In Neal the defendant appealed his judgment of
conviction for aggravated child molestation, arguing that the
trial court erred by excluding evidence that someone else
committed the crime. Neal, 436 S.E.2d at 575. The evidence in
16
No. 2011AP1803-CR.akz
question was that "the mother of the victim was a cocaine addict
and had casual relationships with numerous men in the family
home. This testimony was offered in support of Neal's
contention that one of these unidentified men . . . may have
molested the victim." Id. The Georgia Court of Appeals held
that the trial court did not err by excluding that evidence.
Id. Evidence of a third-party perpetrator is inadmissible
"where no specific individual is accused and the defendant
merely speculates that a person or persons unknown may have had
the opportunity to commit the crime." Id. at 576 (citation
omitted). The defendant "has not presented anything other than
his own speculation that unknown alleged drug users frequenting
[the victim's] residence may have had the opportunity to molest
the victim." Id. Because the defendant failed to show a direct
connection between one of those unknown men and the crime, his
proffered evidence was inadmissible. Id.
¶114 In Armstrong the defendant appealed his judgment of
conviction for robbing a cafeteria with another African-American
male. Armstrong, 704 P.2d at 878. The defendant argued that
the trial court erred by excluding evidence that, 50 minutes
prior to the robbery, a cafeteria employee saw "two unidentified
black men" in the cafeteria parking lot. Id. at 879. The
defendant wanted to argue during trial that those unidentified
men committed the robbery. Id. The Colorado Court of Appeals
held that the trial court did not err by excluding that
evidence, because that evidence failed to establish a "direct
connection" between the unidentified men and the robbery. Id.
17
No. 2011AP1803-CR.akz
¶115 In Eagles the defendant appealed a judgment of
conviction for robbing and shooting a man. Eagles, 812 A.2d at
125-26. On appeal the defendant argued that the trial court
erred in excluding his proffered evidence that someone else
committed the robbery and shooting. Id. at 126. The proffered
evidence was testimony from two witnesses who saw three
unidentified men, none of whom was the defendant, running from
the vicinity of the crime shortly after the gunshots. Id. at
127. The Connecticut Appellate Court held that the trial court
did not err in excluding the evidence. Id. at 128. The
appellate court reasoned that the defendant failed to present a
"direct connection" between any of the three men and the crime.
Id. Further, the defendant offered "no evidence of motive on
the part of any of the three men to commit the crime." Id.
¶116 Consistent with the foregoing cases, General Grant
Wilson's proffered evidence was inadmissible under Denny. See
Scheidell, 227 Wis. 2d at 296. Further, Wilson did not attempt
to introduce any other acts evidence, so his proffered evidence
was inadmissible under Scheidell. Wilson attempted to introduce
testimony that Willie Friend had slapped and threatened an
allegedly pregnant Evania Maric, in order to argue that Friend
hired assassins to kill Maric. This evidence was not other acts
evidence and it fell far short of satisfying the Denny three-
prong test. Wilson did not identify any possible assassins or
introduce any evidence indicating that Friend arranged for Maric
to be killed. In fact, Wilson "has not presented anything other
than his own speculation that unknown alleged" hit men murdered
18
No. 2011AP1803-CR.akz
Maric. See Neal, 436 S.E.2d at 576. He "fail[ed] to provide
anything more than 'a hypothetical, unidentified'" hit man or
hit men. See Wheeler, 977 A.2d at 990 (quoting Gethers, 684
A.2d at 1271). Moreover, Wilson "made no showing" that the
alleged hit men, if they "actually existed, [were] connected in
any way to the shooting." See Gethers, 684 A.2d at 1272. It
would require a great deal of speculation to conclude that
Friend hired assassins to kill the allegedly pregnant Maric
based on testimony that he slapped and threatened her once or
twice. Thus, Wilson "was merely trying to 'throw something out
there for the jury to speculate about.'" See Gethers, 684 A.2d
at 1272. This kind of speculative evidence about unknown,
alleged perpetrators is not admissible.
¶117 In sum, if Wilson's defense theory is viewed as an
unknown third-party perpetrator theory because the alleged
shooters are unknown, his proffered evidence is inadmissible
under Denny, Scheidell, and many non-Wisconsin cases.
B. Evidence that a Known Third Party Allegedly
Hired Unknown Persons to Commit the Crime Charged
¶118 Few third-party perpetrator cases involve an
allegation that a known third party arranged for unknown persons
to commit the crime at issue. One such case is Freeland v.
United States, 631 A.2d 1186 (D.C. 1993). In that case Larry
Freeland was charged with the murder of his wife. Freeland, 631
A.2d at 1187. The trial court excluded his proffered evidence
that a man named William Hawthorne hired people to commit the
murder. Id. Prior to the murder of Freeland's wife, Freeland
and Hawthorne were fellow prison inmates. Id. at 1188.
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No. 2011AP1803-CR.akz
Freeland witnessed Hawthorne stab another inmate to death. Id.
Freeland testified against Hawthorne in his grand jury trial
regarding the stabbing death. Id.
¶119 The District of Columbia Court of Appeals held that
the proffered evidence should have been admitted as Denny-type
evidence. Id. at 1190. Hawthorne had a motive to hire
assassins to kill Freeland's wife in order to retaliate against
Freeland for his grand jury testimony and to intimidate him into
not testifying against Hawthorne at trial. See id. at 1189-90.
Freeland's evidence demonstrated that Hawthorne had a "clear[]
link" to the murder and a "present ability to carry out the
threats through others." Id. at 1189-90. Specifically,
Hawthorne's associates confronted Freeland on the street several
times and "repeatedly made threats to [Freeland] and his family
in order to intimidate [Freeland] and to retaliate for his grand
jury testimony . . . ." Id. In addition, Freeland introduced
evidence showing that Hawthorne was being prosecuted for
threatening other witnesses. Id.
¶120 Freeland stands in stark contrast to the present case.
In Freeland the defendant introduced a substantial amount of
other acts evidence showing that the alleged third-party
perpetrator, William Hawthorne, was capable of having his
associates carry out the murder with which the defendant was
charged. Hawthorne's associates confronted Freeland in person
several times and "repeatedly" intimidated and threatened
Freeland and his family because Freeland was an eyewitness in
Hawthorne's murder trial. By contrast, Wilson has not
20
No. 2011AP1803-CR.akz
introduced any evidence indicating that Willie Friend or his
associates had previously murdered anyone. In fact, Wilson
introduced no evidence showing that Friend had ever used his
associates to commit any crime on his behalf. In Freeland
Hawthorne's associates were real people whom Freeland saw and
spoke to several times. By contrast, Wilson did not even
introduce evidence indicating that Friend had associates who
were willing and able to murder Maric. Wilson's proffered
evidence is pure speculation about unidentified, hypothetical
hit men. In Freeland the defendant also introduced evidence
showing that Hawthorne was being prosecuted for threatening
other witnesses. By contrast, Wilson proffered no other acts
evidence at all. "[O]ften times the defense must rely on other
act evidence to raise a circumstantial inference that the third
party carried out the crime." Blinka, supra, at 215.
¶121 In Freeland the defendant's "hit man" theory of
defense could be reasonably inferred from his proffered
evidence. Simply stated, a jury need not speculate in order to
conclude that, because Hawthorne's associates "repeatedly"
threatened Freeland's family, those associates might have killed
Freeland's wife. In the present case, Wilson's "hit man" theory
of defense had no foundation in his proffered evidence. A jury
would necessarily have to speculate in order to conclude that,
because Friend slapped and threatened Maric once or twice, he
hired assassins to kill her. Unlike Freeland's proffered
evidence, Wilson's proffered evidence had nothing whatsoever to
do with possible hit men. Falling far short of the proffer made
21
No. 2011AP1803-CR.akz
in Freeland, Wilson's proffered evidence was pure speculation.
This kind of evidence is inadmissible.
¶122 In sum, Wilson's proffer was entirely speculative and
fell short of establishing a legitimate tendency that Friend
arranged for hit men to kill Maric. The circuit court did not
err in excluding that proffered evidence.
¶123 For the foregoing reasons, I respectfully concur.
¶124 I am authorized to state that Chief Justice PATIENCE
DRAKE ROGGENSACK joins this concurrence.
22
No. 2011AP1803-CR.ssa
¶125 SHIRLEY S. ABRAHAMSON, J. (dissenting). I agree
with the court of appeals that the defendant's third-party
perpetrator evidence should have been admitted as a matter of
constitutional law.1 Like the court of appeals, I would grant
the defendant a new trial.
¶126 The instant case revolves around the circuit court's
exclusion of evidence at the defendant's trial nearly 20 years
ago.
¶127 The defendant sought to introduce evidence at trial to
support his contention that a third party committed the crimes
alleged in the State's complaint. Such evidence is sometimes
referred to as "third-party perpetrator evidence." The circuit
court excluded the defendant's third-party perpetrator evidence
and the defendant was convicted.
¶128 By excluding the defendant's third-party perpetrator
evidence, the circuit court denied the defendant his
constitutional right to present a complete defense.2 Thus, the
1
State v. Wilson, No. 2011AP1803-CR, unpublished slip op.,
at 7 (Wis. Ct. App. Oct. 22, 2013).
2
Majority op., ¶¶61, 70; Holmes v. South Carolina, 547 U.S.
319, 324 (2006) ("[T]he Constitution guarantees criminal
defendants 'a meaningful opportunity to present a complete
defense'" (quoted source omitted).).
(continued)
1
No. 2011AP1803-CR.ssa
instant case presents a question of constitutional law this
court decides independently but benefiting from the analyses of
the circuit court and the court of appeals.3
¶129 I begin with a brief review of the relevant facts.
¶130 Evania Maric, the victim in the present case, was shot
to death while seated in a parked car with Willie Friend, whom
she was dating. Willie Friend fled and was not injured. Willie
Friend thereafter reported to the police that the defendant was
the shooter, which the defendant adamantly denied. The
defendant was eventually charged with first-degree intentional
homicide for killing the victim and attempted first-degree
intentional homicide for shooting at Willie Friend.
¶131 At trial, the defendant's attorney attempted to
persuade the jury that the defendant was innocent and that
Willie Friend was not. To establish this defense, the
See also State v. Anthony, 2015 WI 20, ¶¶119, 125, ___
Wis. 2d ___, ___ N.W.2d ___ (Abrahamson, C.J., dissenting)
(linking the rights to testify and to present a complete defense
by arguing that the circuit court unconstitutionally deprived
the defendant of his right to testify to relevant testimony
regarding self-defense and thereby prevented the defendant from
presenting any defense at all); State v. Nelson, 2014 WI 70,
¶68, 355 Wis. 2d 722, 849 N.W.2d 317 (Abrahamson, C.J.,
dissenting) (explaining that the defendant's constitutional
right to testify is embedded in the constitutional right to
present a defense).
3
The majority opinion acknowledges that the instant case
presents a constitutional issue. Majority op. ¶¶47, 61. See
also Anthony, 2015 WI 20, ¶43 (stating that "[w]hether an
individual is denied a constitutional right is a question of
constitutional fact that this court reviews independently as a
question of law" (quoted source & internal quotation marks
omitted)).
2
No. 2011AP1803-CR.ssa
defendant's attorney sought to present testimony from two of the
victim's friends, Mary Lee Larson and Barbara Lange, to
implicate Willie Friend in the murder.
¶132 In an offer of proof, Larson stated that she had heard
Willie Friend threaten to kill Maric and had observed Willie
Friend slapping Maric. The defendant's attorney informed the
circuit court that Lange would provide similar testimony. The
testimony of Larson and Lange comprised the defendant's third-
party perpetrator evidence. The circuit court ruled both
witnesses' testimony inadmissible.
¶133 This was not an easy case for the jury. During
deliberations, the jury informed the circuit court that it had
reached an impasse. Later the next day, the jury found the
defendant guilty of both charges.
¶134 The issue presented is whether the circuit court erred
as a matter of law in excluding the defendant's third-party
perpetrator evidence.
¶135 The circuit court cannot bar the defendant's third-
party perpetrator evidence "simply because the evidence against
the [defendant] is overwhelming."4 Rather, third-party
perpetrator evidence is admissible so long as the defendant
shows "a 'legitimate tendency' that the third person could have
committed the crime."5
4
Majority op., ¶¶61, 70.
5
State v. Denny, 120 Wis. 2d 614, 623, 357 N.W.2d 12 (Ct.
App. 1984).
3
No. 2011AP1803-CR.ssa
¶136 State v. Denny, 120 Wis. 2d 614, 624, 357 N.W.2d 12
(Ct. App. 1984), established that a defendant fulfills the
legitimate tendency test "as long as motive and opportunity have
been shown and as long as there is also some evidence to
directly connect [the] third person to the crime charged which
is not remote in time, place or circumstances . . . ." In other
words, the defendant in the instant case was required to fulfill
the three-prong test set forth in Denny (1) by showing that
Willie Friend had a motive to commit the crime; (2) by showing
that Willie Friend had an opportunity to commit the crime; and
(3) by presenting evidence of a direct connection between Willie
Friend and the crime.6
¶137 The majority opinion struggles to clarify the Denny
test and in doing so changes the test. Under any reasonable
interpretation of Denny, the defendant in the instant case
prevails.
¶138 The State concedes that the defendant has fulfilled
the motive and direct connection prongs. The majority opinion
assumes without deciding that the defendant has fulfilled the
motive and direct connection prongs. Both the State and the
majority opinion conclude that the defendant has not fulfilled
the opportunity prong.
¶139 I review the three prongs of the Denny test in turn.
¶140 First, the defendant presented evidence that Willie
Friend's "motive was his belief that Maric [the victim] was
6
Majority op., ¶3.
4
No. 2011AP1803-CR.ssa
pregnant, that [Willie Friend] was responsible for her
pregnancy, and that he wanted to avoid future child support."7
Because the defendant provided a "plausible reason" for Willie
Friend to commit the crime, I conclude that the defendant has
fulfilled the motive prong.8
¶141 Second, the defendant argued that Willie Friend's
undisputed "presence at the crime scene" constituted evidence of
a direct connection between Willie Friend and the crime. Based
on the totality of the evidence presented (including evidence of
Willie Friend's relationship with the victim, evidence that
Willie Friend had previously hit and threatened to kill the
victim, evidence that Willie Friend brought the victim to the
location where she was murdered, and the undisputed fact that
Willie Friend was present when the victim was shot), I conclude
that the defendant has fulfilled the direct connection prong.
¶142 Third, the defendant argued that Willie Friend had the
opportunity to hire the victim's killer(s) and set up the
victim's murder.9 In assessing this argument, the court of
appeals explained that evidence presented at trial "places
[Willie] Friend at the scene when the first round of shots was
fired, and is consistent with [the defendant's] contention that
7
Id., ¶74.
8
See id., ¶57.
9
Id., ¶81.
5
 No. 2011AP1803-CR.ssa
[Willie] Friend was involved in the murder by luring [the
victim] to a place where she would be ambushed."10
¶143 The court of appeals concluded that Willie Friend "had
the opportunity to commit this crime, either directly by firing
the first weapon or in conjunction with others by luring [the
victim] to the place where she was killed."11
¶144 I agree with the court of appeals. I conclude, along
with the court of appeals, that the defendant has met all three
prongs of the Denny test for the admissibility of third-party
perpetrator evidence. The defendant was therefore entitled to
introduce the testimony of Larson and Lange to implicate Willie
Friend in the victim's murder.
¶145 In my opinion, the circuit court's exclusion of the
defendant's third-party perpetrator evidence constituted an
error of law that denied the defendant his constitutional right
to present a complete defense.
¶146 The court of appeals applied harmless error review to
this error of law and concluded that the error was not
harmless.12 Willie Friend was the State's primary witness. With
the admission of the defendant's third-party perpetrator
evidence, the jury may not have considered Willie Friend a
credible witness. The jury may instead have believed the
defendant. Accordingly, I agree with the court of appeals that
10
Wilson, No. 2011AP1803-CR, unpublished slip op., at 7.
11
Id.
12
Id. at 10.
6
No. 2011AP1803-CR.ssa
if harmless error review applies to the circuit court's
exclusion of the defendant's third-party perpetrator evidence
(and I do not think it does),13 the error was not harmless.
¶147 For the reasons set forth, I dissent. I, like the
court of appeals, would reverse the circuit court's judgment of
conviction and order denying postconviction relief and would
remand the cause for further proceedings.
¶148 I am authorized to state that Justice ANN WALSH
BRADLEY joins this opinion.
13
The court determined that harmless error review applies
to the denial of a defendant's constitutional right to testify
in Anthony, 2015 WI 20, ¶¶11, 96, 101, and Nelson, 355
Wis. 2d 722, ¶43. I dissented in both cases, concluding that
harmless error review does not apply when a defendant is
unconstitutionally deprived of the fundamental right to testify.
See Anthony, 2015 WI 20, ¶140 (Abrahamson, C.J., dissenting);
Nelson, 355 Wis. 2d 722, ¶79 (Abrahamson, C.J., dissenting).
The constitutional right to testify is embedded in the
constitutional right to present a defense. See Nelson, 355
Wis. 2d 722, ¶68 (Abrahamson, C.J., dissenting). Accordingly, I
conclude that an unconstitutional deprivation of the defendant's
right to present a defense is not amenable to harmless error
review.
7
No. 2011AP1803-CR.ssa
1