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State v. Griffin

Court of Appeals of Wisconsin, District II

August 21, 2019

State of Wisconsin, Plaintiff-Respondent,
v.
Daniel A. Griffin, Defendant-Appellant.

          APPEAL from a judgment of the circuit court for Fond du Lac County No. 2015CF411: DALE L. ENGLISH, Judge. Affirmed.

          Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.

          REILLY, P.J.

         ¶1 Daniel A. Griffin appeals from a judgment convicting him of first-degree reckless homicide and two counts of child abuse intentionally causing great bodily harm in the death of fourteen-month-old MHP and the injuries suffered by his twin brother, MDP. Griffin argues that the court erroneously excluded evidence that the twins' mother caused MHP's death and the injuries to MDP. Griffin also argues that the court erroneously admitted videos of Griffin interacting with the twins as other-acts evidence. We reject all of Griffin's arguments and affirm.

         BACKGROUND

         ¶2 On July 7, 2015, emergency personnel responded to a residence in Fond du Lac, Wisconsin, where MHP was unresponsive at the scene and subsequently pronounced dead.[1] An autopsy revealed that MHP died from a lacerated liver and that he also had broken ribs, bruising and bleeding on his penis, additional internal and external injuries, and a blood alcohol concentration (BAC) of .08. A doctor described the circumstances under which MHP died as a punch or kick to the area of the liver or stepping on or slowly pressing a foot down on a child's abdominal area. MDP was also brought to the hospital that same day with similar injuries, including a lacerated liver, broken ribs, additional internal injuries, and a BAC of .02.

         ¶3 Before trial, the State moved to prohibit Griffin from introducing evidence that the mother or another adult roommate were responsible for the twins' injuries. Griffin, in turn, sought to admit such evidence, citing a forensic interview of C.J. where he reported that the mother gave one of the twins "a whooping with a belt," that she kicked the twins, and "cracked" one of the twin's hands. Griffin also cited several incriminating statements the mother allegedly made during police interviews, including that she stepped on the children "in a 'playful' manner." The circuit court considered whether it should admit the evidence under State v. Denny, 120 Wis.2d 614, 357 N.W.2d 12');">357 N.W.2d 12 (Ct. App. 1984), ultimately concluding that the mother lacked a direct connection to the crime.

         ¶4 The State also moved to admit other-acts evidence under Wis.Stat. § 904.04(2) (2017-18), [2] which included three cell phone videos showing Griffin interacting with the twins in an abusive manner. Griffin objected, arguing that the videos did not fall within any permissible purpose under § 904.04(2). The State claimed that the videos were admissible to demonstrate Griffin's "motive, intent, and plan, to be verbally abusive and physically discipline … MHP and MDP" as well as place the actions of Griffin in the "proper context and complete the story of the defendant's criminal behavior." The court found the evidence probative and that its value substantially outweighed the danger of unfair prejudice.

         ¶5 After a five-day jury trial, Griffin was found guilty of all charges. Griffin appeals, arguing that the circuit court erred in denying the Denny evidence and allowing the cell phone videos to be admitted. For the reasons that follow, we conclude that the circuit court did not err.

         DISCUSSION

         ¶6 This case involves the circuit court's decision to both admit and refuse to admit evidence, which we review for an erroneous exercise of discretion. State v. Wilson, 2015 WI 48, ¶47, 362 Wis.2d 193, 864 N.W.2d 52');">864 N.W.2d 52. "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," but that evidence must be relevant. Id., ¶48. Where evidence is denied admission and it implicates a defendant's constitutional right to present a defense, that is a question of constitutional fact and we review the circuit court's decision de novo. Id., ¶47.

         Denny Evidence

         ¶7 Our supreme court affirmed that the Denny "legitimate tendency" test "is the correct and constitutionally proper test for circuit courts to apply when determining the admissibility of [known] third-party perpetrator evidence." Wilson, 362 Wis.2d 193, ¶52. Denny "created a bright line standard requiring that three factors be present" for admissibility of evidence that an alleged third-party perpetrator committed the crime. Wilson, 362 Wis.2d 193, ¶51 (citing Denny, 120 Wis.2d at 623-25). "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." Wilson, 362 Wis.2d 193, ¶3 (citation omitted).

         ¶8 Under the motive prong, the court must question whether "the alleged third-party perpetrator [had] a plausible reason to commit the crime?" Id., ¶57. The second prong of the Denny test-the opportunity prong-asks: "[C]ould 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?" Wilson, 362 Wis.2d 193, ¶58. The third, and final, prong asks whether there is "evidence that the alleged third-party perpetrator actually committed the crime, directly or indirectly?" Id., ¶59. "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). "[C]ircuit 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." Wilson, 362 Wis.2d 193, ¶71. Courts must "look for some direct connection between the third party and the perpetration of the crime." Id.

         ¶9 Here, the circuit court determined that Griffin had met the motive and opportunity prongs of the Denny legitimate tendency test, and the parties agree on appeal that this case turns only on the direct connection prong. Proof of motive and opportunity alone are not enough to introduce the evidence of the mother's conduct. See Wilson, 362 Wis.2d 193, ¶64 ("[T]he Denny test is a three-prong test; it never becomes a one- or two-prong test."). Considering whether the mother has a direct connection to the crimes of first-degree reckless homicide and child abuse intentionally causing great bodily harm, we conclude that the circuit court properly denied Griffin's Denny motion.

         ¶10 Griffin admits that the circuit court "did assess all three [Denny] prongs in great detail" at the hearings. Griffin argues, however, that the circuit court erred as Griffin established that the mother had a direct connection to the commission of the crime. First and foremost, Griffin claims that the mother's own admission that she had stepped on the twins in the past "in a playful manner" established a strong direct connection as the medical examiner testified that the injuries to the twins could have been caused by an adult standing on the child or stepping on the child's abdomen. We disagree. We note that while a party's self-incriminating statement can be used to demonstrate a direct connection, see Wilson, 362 Wis.2d 193, ¶64, the record in this case does not support such a finding.

         ¶11 In his brief-in-chief, Griffin states that "[i]n one of her interviews with law enforcement officers, [the mother] admitted to stepping on the twins 'in a playful manner' on past occasions." In support of that statement in his appellate brief, Griffin cites to his own response to the State's Memorandum to Preclude Third Party Liability Evidence, which fails to cite any support for the mother's alleged statement except to reference "one of these [law enforcement] interviews," as well as the transcript from the hearing where the court ...


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