State v. Gen. Grant Wilson

362 Wis.2d 193

864 N.W.2d 52

STATE of Wisconsin, Plaintiff–Respondent–Petitioner^†

v.General Grant WILSON, Defendant–Appellant.

No. 2011AP1803–CR.

Supreme Court of Wisconsin.

Argued Sept. 4, 2014.

Decided May 12, 2015.

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.

Opinion

DAVID T. PROSSER, J.

¶ 1 This is a review of an unpublished decision of the court of appeals, reversing a judgment of conviction for a Milwaukee County homicide as well as a subsequent order denying postconviction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.

¶ 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 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.

¶ 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

¶ 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 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 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 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...