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Wisconsin Supreme Court Reinstates Convictions For Shooting of Milwaukee Police Officer


"Justice has now been served in this case," says Attorney General J. B. Van Hollen.  "The Wisconsin Supreme Court has properly recognized that the State should be allowed to introduce relevant evidence when it directly undermines the defendant's self-defense claims and provides an alternative motive for the crime."


MADISON - In an opinion issued earlier today, the Wisconsin Supreme Court reinstated the convictions of a defendant for recklessly injuring and recklessly endangering the safety of a Milwaukee police officer, charges which stemmed from a non-fatal but career-ending shooting of a police officer who was severely injured during the execution of a search warrant at the defendant's home.  The decision in State v. Payano, Case No. 2007AP1042-CR (Wis. Sup. Ct.), reversed a published decision of the Wisconsin Court of Appeals, which in turn had previously reversed the defendant's convictions.


The facts of the case were as follows.  Several Milwaukee police officers, including the victim, Officer Michael Lutz, had intended to execute a search warrant at Payano's home, based on information they had obtained from a confidential informant who had seen Payano the day before packaging a large amount of cocaine with a gun on the table.  The next day, officers approached Payano's residence wearing bullet-proof vests and identification badges around their necks.  When Payano's cousin saw the police on the street, he fled, and officers pursued him, yelling "police," "search warrant," and "hands up," both in English and in Spanish.  When officers got to Payano's door, Payano's cousin had already slammed and locked the door, so officers continued yelling "police" in English and in Spanish, and then began to sledgehammer the door down.  With his weapon drawn, Officer Lutz pushed the door open, yelling "Milwaukee Police," and then saw Payano point a gun at him.  Payano shot Officer Lutz in the arm, and other officers returned fire.  Payano then went to hide in the bathroom, and called 911 from there.


Payano's first jury trial in February of 2006 ended in a hung jury, so Payano was re-tried in June of 2006.  Payano claimed that he had shot Officer Lutz in self-defense; he claimed that he did not know that the people at his door were police officers, instead believing them to be intruders.  The State's theory of the crime, in contrast, was that Payano knew they were police officers, and had shot his weapon in order to "buy time" to hide the drugs at his home.  To prove its theory of the crimeand disprove Payano's self-defense claimsthe State requested in the second trial that it be allowed to introduce the testimony of the confidential informant who had seen Payano the day before with drugs and a gun.  Analyzing the State's request under the three-part test for relevance in State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998), the circuit court agreed with the State that the "other acts" evidence was relevant for two reasons:  first, it provided the jury with the context of why police were at Payano's home in the first place; and second, it undermined or rebutted Payano's self-defense claim, providing the jury with an alternative motive as to why Payano would fire the shot.  The circuit court reasoned that both of these reasons were missing from the first trial, and consequently, the first jury was left with the misleading impression that Payano had no other reason, besides self-defense, to fire the shot.


After the second trial, the jury found Payano guilty of all three charges.  The Wisconsin Court of Appeals, however, reversed Payano's convictions, finding that the circuit court should have excluded the evidence from the confidential informant.  The Wisconsin Court of Appeals held that the evidence was not relevant and was overly prejudicial to Payano, because it improperly suggested to the jury that Payano was a drug dealer, and had no bearing on the issues to be decided in the case.  The State then petitioned the Wisconsin Supreme Court to review the case.


In its decision issued today, the Wisconsin Supreme Court reversed the Wisconsin Court of Appeals' decision, and reinstated Payano's convictions, holding that under the Sullivan three-part analysis for "other acts" evidence, the circuit court had reached a reasonable conclusion to admit the evidence from the confidential informant.  First, the evidence was offered for the proper purposes of providing context, rebutting Payano's self-defense claim, and providing an alternative motive for the shooting.  Second, the evidence was relevant to these purposes, because the confidential informant's testimony made it less likely that Payano did not know the police were at the door, and made it more likely that he did.  Third, the evidence was not unfairly prejudicial to Payano, because Payano himself had put his motives at issue by claiming self-defense, and the evidence was the only way the State could disprove his claims, making the evidence extremely probative to the State's case.  In other words, the evidence was directly linked and necessary to the determination of Payano's guilt.


The Wisconsin Supreme Court held that, because the circuit court had properly analyzed the evidence, the Wisconsin Court of Appeals' decision had wrongly reversed Payano's convictions.  Therefore, the Wisconsin Supreme Court reinstated Payano's convictions, and Payano will now finish serving his sentence of 17 years' imprisonment, which includes 12 years of initial confinement.


Today's decision of the Wisconsin Supreme Court may be found on the court's website:


The Milwaukee County District Attorney's Office litigated the case in the circuit court.  The Wisconsin Attorney General represents the State in all felony appeals in both the Wisconsin Court of Appeals and the Wisconsin Supreme Court.  Assistant Attorney General Sarah K. Larson represented the State in this case in the Wisconsin Supreme Court.