State v. Ahmed Farah Hirsi

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
March 17, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2018AP1696-CR Cir. Ct. No. 2014CF23

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

AHMED FARAH HIRSI,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
St. Croix County: JAMES M. PETERSON, Judge. Reversed and cause remanded
for further proceedings.

Before Stark, P.J., Hruz and Seidl, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2018AP1696-CR

¶1 PER CURIAM. Ahmed Hirsi appeals a judgment, entered upon a
jury’s verdict, convicting him of three counts of attempted first-degree intentional
homicide, three counts of first-degree reckless injury, three counts of first-degree
recklessly endangering safety, and one count of possession of a firearm by a
felon.1 He also appeals an order denying him postconviction relief. Hirsi
contends that: (1) his due process rights were violated, for a number of reasons,
by the circumstances surrounding the testimony of his co-defendant; (2) the circuit
court improperly admitted certain other-acts evidence concerning a shooting in
St. Paul, Minnesota, two days prior to the shooting for which Hirsi was tried in
this case; (3) the court improperly admitted lay opinion testimony identifying Hirsi
as the shooter in the St. Paul case; (4) the court’s admission of expert testimony
concerning the tendency of Somali individuals to distrust law enforcement and to
fabricate events in order to avoid retribution within their community constituted
plain error;2 and (5) a new trial is warranted in the interest of justice because the
real controversy was not fully tried.

¶2 We agree with Hirsi that certain portions the expert testimony
concerning Somali culture violated State v. Haseltine, 120 Wis. 2d 92, 352
N.W.2d 673 (Ct. App. 1984), and its progeny. Further, we conclude that because
the error in admitting the testimony was obvious, substantial and fundamental, a

1
These convictions, with the exception of the possession of a firearm by a felon count,
were as a party to the crime. We note that the jury also returned guilty verdicts on three
additional counts of first-degree recklessly endangering safety as a party to the crime. The State
conceded Hirsi’s postconviction argument that those convictions constituted lesser-included
offenses of the three attempted first-degree intentional homicide convictions, and the circuit court
therefore vacated and dismissed them.
2
It is undisputed that Hirsi, his co-defendant, and the six victims in this case are Somali.

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new trial must be granted. Consequently, we reverse and remand for further
proceedings consistent with this opinion.3

BACKGROUND

¶3 The charges against Hirsi arose from a shooting that occurred at
approximately 9:22 a.m. on January 19, 2014, in a Hudson, Wisconsin, liquor
store parking lot. Witnesses to the shooting informed responding officers that an
individual in the passenger seat of a tan Cadillac—which had since fled the
scene—fired multiple gunshots into a Kia sport utility vehicle. Bullets struck
three of the Kia’s six occupants (Aaden, Magan, and Faduma) while the other
three (Maxamed, Sahra, and Faarax) were unharmed.4

¶4 Later that morning, a law enforcement officer in Eagan, Minnesota,
located a vehicle that matched the description of the Cadillac involved in the
Hudson shooting. The two occupants of that vehicle were subsequently arrested
and identified as Hirsi and his co-defendant, Guled Abdi.

¶5 Hirsi represented himself at trial with the aid of standby counsel.
The State’s theory of the case was that Hirsi and Abdi were talking to the

3
Because we reverse on the grounds that the admission of the expert testimony
concerning Somali culture constituted plain error, it is not strictly necessary for us to address the
remaining arguments Hirsi raises on appeal. See Turner v. Taylor, 2003 WI App 256, ¶1 n.1,
268 Wis. 2d 628, 673 N.W.2d 716 (when one issue is dispositive, we need not reach the other
issues raised). Nonetheless, we choose to address Hirsi’s arguments related to the St. Paul
shooting, as they are likely to arise again in future proceedings. We decline to address Hirsi’s
remaining arguments.
4
Pursuant to the policy underlying WIS. STAT. RULE 809.86 (2017-18), we use
pseudonyms to identify the victims.

All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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No. 2018AP1696-CR

occupants of the Kia when Hirsi (seated in the Cadillac’s passenger seat)
recognized Faduma and called her a “nyah”—which is a derogatory term in the
Somali language. Faduma responded in kind, after which Hirsi began to shoot
indiscriminately into the Kia.

¶6 Hirsi’s defense strategy was to deny any involvement in the Hudson
shooting. To that end, he told the jury that “the State will not be able to beyond a
reasonable doubt prove that I was the person in any way who in fact was in the
city of—in the city of Hudson” on the day of the shooting. He continued pursuing
this theory of defense throughout trial, and he argued in closing that there were
“two people in [the] Cadillac, and neither one was I.”

¶7 Abdi provided the sole testimony identifying Hirsi as the shooter.5
Specifically, he testified that Hirsi was sitting in the passenger seat of Abdi’s car
when, after exchanging insults with Faduma, Hirsi “stiff-armed me in my face,
like football players do, reach[ed] over me, pulled out a handgun out of nowhere
and started shooting.” After the shooting, Abdi stated that Hirsi “put the gun up to
my head and said, ‘Drive, mother fucker, or you’re next.’”

¶8 Faduma testified that she was in the Kia prior to the shooting and
that she recalled a car with two individuals pulling alongside the Kia and talking to
the occupants of the Kia. She denied knowing either of the two individuals in the

5
Abdi was originally charged in St. Croix County case No. 2014CF22 with the same
crimes with which Hirsi was charged in this case. It is undisputed that the State and Abdi
subsequently reached a plea agreement, under which Abdi agreed to plead guilty to two felony
charges and to provide truthful testimony at Hirsi’s trial. In exchange, the State agreed to
recommend that Abdi be sentenced to two years’ incarceration. As indicated, we will not discuss
the arguments Hirsi raises related to this agreement and Abdi’s testimony, given our resolution of
this appeal on other grounds.

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No. 2018AP1696-CR

car, and she further denied that anyone directed the derogatory term “nyah” at
her—although she acknowledged that someone in the other car called “the other
female” in the Kia (i.e., Sahra) that term. Faduma stated that “maybe an hour”
after this name-calling occurred, the shooting took place.

¶9 Aaden, the driver of the Kia, testified that he saw the shooter and
that it was not Hirsi. Moreover, when Hirsi directly asked Aaden whether he saw
Hirsi at “the time of the shooting at Hudson,” Aaden replied, “Nope.” Aaden also
testified that, prior to trial, he told law enforcement that “they had the wrong man
in custody and that the man that shot me is out there and free.”

¶10 The remaining four occupants of the Kia did not testify at trial. Still,
testimony was introduced regarding three of those individuals’ involvement in the
course of law enforcement’s investigation of the shooting. Namely, Peter Schultz,
a detective sergeant with the Hudson Police Department, testified that he
interviewed Sahra on the day of the shooting and that she could not identify the
shooter. Geoff Willems, also a detective sergeant with the Hudson Police
Department, testified that he attempted to interview Magan on the day of the
shooting but that Magan “declined to make a statement.” Finally, St. Croix
County Sheriff’s Department patrol sergeant Jeff Kennett testified that he
attempted to interview Maxamed on the day of the shooting but that Maxamed
was uncooperative.6

6
Although no testimony was introduced regarding Faarax’s involvement with the police
investigation, a police report attached to the criminal complaint related that Faarax told police on
the day of the shooting that he “did not know who did the shooting.”

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No. 2018AP1696-CR

¶11 The State called detective Tracy Henry, a St. Paul, Minnesota, police
officer, “as an expert to testify to certain aspects involving the Somalian culture
and criminal justice system.” Prior to her testimony, the circuit court confirmed
with Hirsi that he had received notice of the general topics which Henry’s
proposed testimony would address, and that Hirsi did not object to her giving such
testimony. Henry then provided the following relevant testimony:

Q. And based upon your training and experience, how
receptive are American Somalians or Somalian immigrants
in America towards police officers, law enforcements and
the courts?

A. There is quite a bit of distrust in the community.

….

Q. And would it be consistent with your training and
experience that victims of Somalian-on-Somalian crime
would not want to involve law enforcement of the United
States?

A. Yes, that would be my experience.

Q. And why is that?

A. Oftentimes they—they don’t trust the police or the
courts to resolve things. And they would rather have it
handled amongst themselves. …

Q. And is there an aspect of it based upon your training
and experience that victims are afraid of potential
retaliation if they go to American law enforcement?

A. Yes. Oftentimes there is retaliation from people within
their clan for causing a dispute with another clan; or the
other clan may cause—or, you know, retaliate against the
victim also. There’s been several instances where victims
are afraid to come forward because they’ve been
threatened. And oftentimes family members will just send
them to other parts of the country or back to Somalia.

Q. And do you have any statistics of—according to your
knowledge that would support that claim?

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No. 2018AP1696-CR

A. Yes. In the Twin Cities there was over 20 homicides
since about 2007, 2008. And only about—or less than five
of them have been successfully prosecuted.

Q. Would these be—if you know, these 20 or so
homicides, are these cases involving Somalian-on-
Somalian crime?

A. Yes. I should have clarified. All 20 of them—or over
20 of them would be Somali on Somali.

Q. And based upon your training and experience, would it
be an accurate statement that victims or witnesses of
Somalian-on-Somalian crime could have a tendency to
fabricate certain events so as to avoid retribution within
their community?

A. Yes.

….

Q. And throughout your training and experience and the
contact that you’ve had with respect to individuals of the
Somalian community, are you able to give an opinion as to
whether or not Somalians may be nervous or afraid to
testify in a court proceeding such as this?

A. Yes. I believe they would be nervous to testify in this
manner.

(Emphasis added.)

¶12 In its closing argument, the State told the jury that “this case really
comes down to” a credibility determination. That is, did the jury believe Abdi’s
testimony that Hirsi was the shooter or the testimony from the Kia’s occupants
that either failed to identify Hirsi as the shooter or affirmatively stated he was not
the shooter.

¶13 To support its argument that the jury should believe Abdi, the State
specifically invoked Henry’s testimony, stating

[Y]ou know that [Aaden] is not telling—telling the truth.
And you heard from Tracy Henry why that might be with
the Somalian community. And another thing, we have six

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No. 2018AP1696-CR

people shot at here, six persons. The good news is none
actually died. Two of them made any kind of statements to
the police, two out of six. That’s a reflection of Tracy
Henry’s summary to you about the Somalian culture and
their lack of cooperation with law enforcement.

(Emphasis added.) The State continued this line of argument later in its closing,
again telling the jury that “[Aaden’s] making it up, ladies and gentlemen. He’s
making it up to protect the Defendant. Why? I don’t know why the cultural bias
is that. But you heard the testimony of Tracy Henry about that.”

¶14 The jury ultimately returned guilty verdicts on the counts referenced
above. The circuit court imposed sentences totaling fifty years’ initial
confinement and thirty-five years’ extended supervision.

¶15 Hirsi moved for postconviction relief, raising the same arguments he
now makes on appeal. Following briefing and two hearings, the circuit court
denied Hirsi’s motion. Hirsi now appeals.

DISCUSSION

¶16 We begin with Hirsi’s argument that the admission of detective
Henry’s testimony concerning Somali culture constituted plain error. The plain
error doctrine is codified in WIS. STAT. § 901.03(4). See State v. Jorgensen, 2008
WI 60, ¶21, 310 Wis. 2d 138, 754 N.W.2d 77. The doctrine allows appellate
courts to review errors that were otherwise waived by a party’s failure to object.
Id. A plain error is an error that is so fundamental that a new trial or other relief
must be granted despite the lack of an objection. Id. To warrant relief, the error
must be obvious and substantial, and courts should use the plain error doctrine
sparingly. Id. If the defendant shows that the unobjected-to error is fundamental,

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No. 2018AP1696-CR

obvious and substantial, the burden then shifts to the State to show the error was
harmless. Id., ¶23.

¶17 Hirsi’s argument that the admission of Henry’s testimony constituted
plain error rests on his assertion that the testimony violated the Haseltine rule.
That rule prohibits one witness from testifying about the truthfulness of another
witness’s testimony. State v. Patterson, 2010 WI 130, ¶58, 329 Wis. 2d 599, 790
N.W.2d 909. This prohibition exists because it is uniquely within the role of the
factfinder—here, the jury—to act as “the lie detector in the courtroom.”
Haseltine, 120 Wis. 2d at 96.

¶18 Here, Hirsi asserts that Henry’s testimony infringed upon the jury’s
role as the courtroom’s “lie detector” because it provided a “general commentary
about Somalian people being uncooperative with police, more likely to settle
matters themselves, and having a ‘tendency to fabricate’ events.” Moreover, he
asserts that the testimony was “especially prejudicial” because it was based on
race or ethnicity. Finally, he asserts that the “improper” testimony was
“exemplified” by the State’s reliance on it during closing argument to discredit the
“witnesses favorable to Hirsi.”

¶19 We generally agree with Hirsi’s assertions. In particular, we agree
with Hirsi that the State’s elicitation of testimony that Somalis have a tendency to
fabricate events constituted a Haseltine violation, and that the objectionable
testimony was exacerbated by the State specifically invoking it in its closing
argument. To explain, it is plain that Henry’s testimony was elicited to impugn
the credibility of the witnesses who either stated they could not identify Hirsi as
the shooter or affirmatively stated he was not the shooter. Indeed, that is the exact
purpose for which the State referenced Henry’s testimony in its closing argument,

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No. 2018AP1696-CR

telling the jury that it should not believe Aaden’s testimony that Hirsi was not the
shooter because he was “making it up to protect the Defendant. Why? I don’t
know why the cultural bias is that. But you heard the testimony of Tracy Henry
about that.” Moreover, the State’s framing of the issue shows that witness
credibility was no small matter—in fact, the State told the jury that its credibility
determination was what “this case really comes down to.”

¶20 We also generally agree with Hirsi’s argument that the racial and
ethnic aspect of Henry’s testimony raises heightened prejudice concerns, as such a
notion is firmly supported by our case law. For example, in State v. Burton, 2007
WI App 237, ¶16, 306 Wis. 2d 403, 743 N.W.2d 152, we reversed a defendant’s
conviction based upon expert testimony the State introduced “to put a context on
who some of [the trial witnesses] are we’re dealing with … why this culture wants
to cooperate with [law enforcement], why they don’t, why their stories are
different on the street than when they hit a courtroom.” Id., ¶4 (emphases added).
In doing so, we explained that such testimony is “unfairly prejudicial” and stated
that we “see little, if any probative value in this sort of testimony.” Id., ¶17.
Further, in explaining our “view of the low worth of such evidence,” we noted:

The possibilities of such testimony are almost endless—
involving the characteristics and motivations of various
racial, ethnic, professional, and religious groups, as well as
organizations as different as the Boy Scouts and the
Compton Crips. The law has wisely looked askance at
evidence of group tendencies and motives to lie—or tell the
truth—when making credibility judgments about individual
members of those groups. The relevance of such group
tendencies in predicting a witness’s credibility on a given
occasion is extraordinarily weak. Meantime the potential
prejudice—in favor of certain groups and organizations and
against others—is extraordinarily powerful.

Id., ¶17 (emphases added).

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No. 2018AP1696-CR

¶21 Critically, the State wholly fails to defend the propriety of Henry’s
testimony on appeal. Instead, its two-page argument concerning her testimony
about Somali culture notes that Hirsi failed to object to the testimony at issue and
makes a cursory assertion that “[t]his is not the rare case triggering plain-error
review.” In support of that latter assertion, the State simply states that even
though Hirsi represented himself at trial, he must still be held to the same
standards as a reasonably competent attorney. See Waushara Cty. v. Graf, 166
Wis. 2d 442, 451, 480 N.W.2d 16 (1992).

¶22 The State’s reliance on Graf is misplaced. Whether Hirsi was
represented by counsel at trial has no bearing on our analysis of a claim of plain
error. By definition, a plain error claim will always arise out of a party’s failure to
object to an error, whether represented by counsel or not. As such, our case law
directs us to focus on the nature of the error itself, rather than the performance of
counsel or a self-represented party, to determine if the error was fundamental,
obvious and substantial. See Jorgenson, 310 Wis. 2d 138, ¶21.

¶23 Because the State completely fails to dispute the merits of Hirsi’s
assertion that the admission of Henry’s testimony concerning Somali culture
constituted plain error, we deem that point conceded. See Charolais Breeding
Ranches, Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App.
1979). Further, because the State fails to address Hirsi’s argument that the racial
and ethnic aspects of the testimony raise heightened concerns of prejudice that
counsel in favor of granting a new trial—and in conjunction with the support in
our case law for such a notion—we likewise deem that aspect of Hirsi’s argument
conceded. See id.

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No. 2018AP1696-CR

¶24 The State’s effective concession that plain error occurred in this case
does not necessarily end our inquiry, as plain error does not necessitate relief if the
State can meet its burden to show that the error was harmless. See Jorgenson, 310
Wis. 2d 138, ¶21. Here, however, the State does not even attempt to develop a
harmless error argument concerning Henry’s testimony about Somali culture.
This omission is especially troubling given that the first portion of our plain error
analysis required a determination that the error was fundamental, obvious and
substantial—which, again, we find to be the case. We need not address
undeveloped arguments. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d
633 (Ct. App. 1992). In addition, we will not abandon our neutrality to develop
arguments for a party. See Industrial Risk Insurers v. American Eng’g Testing,
Inc., 2009 WI App 62, ¶25, 318 Wis. 2d 148, 769 N.W.2d 83. We therefore
conclude that plain error occurred and that the error was not harmless, and we
reverse for a new trial.

II. Additional arguments

¶25 Hirsi also argues that the circuit court erroneously exercised its
discretion by allowing the State to introduce certain other-acts evidence at trial.
The decision to admit or exclude evidence, including other-acts evidence, is within
a circuit court’s discretion. State v. Hurley, 2015 WI 35, ¶28, 361 Wis. 2d 529,
861 N.W.2d 174. We will uphold a court’s admission of such evidence if the
court examined the relevant facts, applied the proper standard of law, and used a
demonstrated rational process to reach a conclusion that a reasonable judge could
reach. Id.

¶26 The other-acts evidence that Hirsi faults the circuit court for
admitting related to a shooting in St. Paul, Minnesota, that occurred two days prior

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No. 2018AP1696-CR

to the Hudson shooting. Specifically, the State introduced evidence that: (1) a
shooting occurred at an apartment in St. Paul on January 17, 2014; (2) surveillance
photos depicted Hirsi at that apartment holding a gun; and (3) a bullet recovered
from the St. Paul apartment shooting was fired from the same gun that fired the
bullets in the Hudson shooting.

¶27 Hirsi first argues that the circuit court applied an improper standard
of law when it concluded that the State offered evidence of the St. Paul shooting
for a permissible purpose under WIS. STAT. § 904.04(2)(a).7 That statute prohibits
the admission of evidence of a defendant’s bad acts to show that the defendant has
a propensity to commit crimes. Id. At the same time, however, the statute
recognizes that when other acts are “offered for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident,” the evidence may be admissible. Id.; see also Hurley, 361
Wis. 2d 529, ¶¶55-56.

¶28 Here, the circuit court concluded that evidence of the St. Paul
shooting was offered to establish Hirsi’s identity as the Hudson shooter. In
arguing that this conclusion failed to apply the proper standard of law, Hirsi
contends that “identity was never truly at issue” because multiple witnesses
“placed Hirsi at the Hudson scene.” Put differently, Hirsi argues that the jury
knew that Hirsi and Abdi were in the Cadillac, and the only issue the jury needed
to resolve was whether Abdi or Hirsi was the shooter. Based on this framing of

7
We note that when considering the admissibility of other-acts evidence, courts are
guided by the three-step “analytical framework” set forth in State v. Sullivan, 216 Wis.2d 768,
576 N.W.2d 30 (1998). See State v. Payano, 2009 WI 86, ¶¶58-60, 320 Wis. 2d 348, 768
N.W.2d 832. Here, because we limit our discussion of the other-acts evidence to issues that are
likely to arise again in future proceedings, we do not perform a comprehensive Sullivan analysis.

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No. 2018AP1696-CR

the case, Hirsi argues that evidence of the St. Paul shooting should have been
excluded pursuant to our supreme court’s holding in State v. Balistreri, 106
Wis. 2d 741, 317 N.W.2d 493 (1982).

¶29 We are not persuaded that the circuit court erred in concluding that
evidence of the St. Paul shooting was offered by the State for the proper purpose
of proving Hirsi’s identity as the Hudson shooter for two reasons. First, the record
belies Hirsi’s assertion that his defense strategy was to argue that he was in the car
with Abdi, but not the shooter. Rather, in his opening statement, Hirsi told the
jury that “the State will not be able to beyond a reasonable doubt prove that I was
the person in any way who in fact was in the city of—in the city of Hudson” on
the day of the shooting. Hirsi then pursued this theory of defense throughout the
trial, including by eliciting Aaden’s testimony that he did not see Hirsi at the scene
of the shooting. Hirsi subsequently relied on Aaden’s testimony in his closing
argument when he told the jury that there were “two people in [the] Cadillac, and
neither one was I.”

¶30 Even assuming that Hirsi’s theory of defense at trial was that he was
in the Cadillac, but was not the shooter, we reject his “identity” argument because
the case he relies on to support it, Balistreri, is distinguishable. In that case,
Balistreri was tried for the shooting death of Michael Trapp. Id. at 744.
Balistreri’s defense at trial was that a third party, Robert Roe (who was in an
automobile with Balistreri at the time of the shooting), fired the fatal shot, not
Balistreri. Id. at 755.

¶31 To support his defense, Balistreri sought to cross-examine Roe on
the details of a shooting that Roe had committed—using the same .357 revolver
that was later used to shoot Trapp—the day before Trapp was killed. Id. Our

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No. 2018AP1696-CR

supreme court upheld the circuit court’s decision to prohibit Balistreri from doing
so. Id. at 755-56. The court explained that

[i]dentity was not an issue at defendant’s trial. All parties
in the car at the time of the shooting were consistently
identified by all witnesses. The identity of the person who
shot the revolver at the scene of this crime was testified to
by all living parties present and that testimony was in
conflict.

Id. at 756.

¶32 Hirsi argues that because the “circumstances here are nearly
identical” to Balistreri, the circuit court erred, as a matter of law, by concluding
that the other acts the State introduced were relevant to proving Hirsi’s identity as
the shooter. But Hirsi ignores a critical fact that contributed to the court’s decision
in Balistreri—“[t]he defendant was able to present to the jury the facts that Roe
had access to the .357 magnum revolver and that he routinely carried it with him
about once a week.” Id. at 755. As a result, the jury knew that the gun used in the
shooting belonged to Roe, and admitting the details of the other shooting would
have served no purpose beyond “merely [showing] that [Roe] acted in conformity
with a general criminal disposition to violence.” Id. at 757.

¶33 In this case, however, the State sought to introduce evidence of the
St. Paul shooting to establish that Hirsi had previously possessed the very gun
used in the Hudson shooting—which was a disputed issue at trial—not to show
that Hirsi had a propensity to commit acts of violence. The probative value this
evidence had toward establishing that Hirsi was the shooter was elevated by the
fact that there was no evidence linking Abdi to the St. Paul shooting.
Consequently, as the circuit court aptly noted in its decision to admit the other-acts
evidence, “if a jury is satisfied that the bullets were the same and you’re the same

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No. 2018AP1696-CR

person that fired the gun, that would tend to make it more likely, more probable
that you were the shooter in the Hudson case.” In other words, the evidence was
properly offered to establish Hirsi’s identity as the shooter in the instant case.

¶34 Hirsi next contends that the circuit court erred by admitting the
other-acts evidence regarding the St. Paul shooting, but then refusing to admit the
fact that Hirsi was acquitted at trial of the charges that arose from that incident.8
He reasons that, although evidence of conduct for which a defendant has
subsequently been acquitted may be deemed admissible other-acts evidence, “the
dictates of both Dowling[9] and Landrum[10]” require that when a court admits
such evidence it must also read to the jury a limiting instruction informing them
about the acquittal.11

¶35 The problem with Hirsi’s argument is that neither Dowling nor
Landrum dictate that a court must read to a jury the type of limiting instruction
Hirsi faults the circuit court for failing to read in this case. To be sure, in Dowling
v. United States, 493 U.S. 342 (1990), the Supreme Court recognized that the

8
The circuit court’s rationale for this decision was that any reference to Hirsi being
charged with a crime in connection with the St. Paul shooting would be “too confusing to the jury
so they’re not going to hear that you were convicted of something in Minnesota; and they’re not
going to hear that you weren’t.” The court further explained that “there’s too many different—
too many issues there. We’re not going to retry the Minnesota case. The evidence is limited to
[identity].”
9
Referring to Dowling v. United States, 493 U.S. 342 (1990).
10
Referring to State v. Landrum, 191 Wis. 2d 107, 528 N.W.2d 36 (Ct. App. 1995).
11
We note that Hirsi did not request any limiting instruction be read to the jury regarding
his acquittal; rather, he sought to introduce evidence of his acquittal during the evidentiary phase
of the trial. We do not address the State’s argument that Hirsi’s failure to request the instruction
constituted a forfeiture of the issue, however, as we address the lack of a limiting instruction
being read to the jury solely to provide guidance on an issue that is likely to arise in future
proceedings.

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No. 2018AP1696-CR

admission of evidence of other acts for which a defendant has been acquitted of
has the potential to unfairly prejudice a defendant. See id. at 352-54. The Court
also recognized that a limiting instruction informing the jury of the acquittal may
minimize or eliminate the potential for such prejudice. Id. Nonetheless, the
Dowling Court did not establish a bright-line rule mandating that such an
instruction be read to a jury. See United States v. Tirrell, 120 F.3d 670, 677 (7th
Cir. 1997) (“The Supreme Court’s holding in Dowling, however, does not require
that the jury be told of an acquittal.”).

¶36 The same is true of the second case cited by Hirsi, State v.
Landrum, 191 Wis. 2d 107, 528 N.W.2d 36 (Ct. App. 1995). In that case, we
acknowledged that there is a “potential” for prejudice when evidence of other acts
for which a defendant has been acquitted is admitted at a subsequent trial for a
permissible purpose under WIS. STAT. § 904.04(2). Id. at 119-22. We then stated
that “[t]the delivery of a limiting instruction serves to eliminate or minimize the
risk of unfair prejudice.” Id. at 122. Nowhere in our decision, however, did we
require that such an instruction be read. Id.

¶37 Taken together, Dowling and Landrum establish that a circuit court
may, in the exercise of its discretion, read a limiting instruction to the jury to
minimize any prejudice created by introducing evidence of other acts for which a
defendant has been acquitted. Those cases do not, however, require such an
instruction. Accordingly, on remand, if the State again introduces other-acts
evidence regarding the St. Paul shooting and Hirsi requests a limiting instruction,
the court must exercise its discretion to determine whether to give such an
instruction.

17
No. 2018AP1696-CR

¶38 Finally, Hirsi argues that the circuit court improperly admitted lay
opinion testimony identifying Hirsi as the individual in the surveillance
photographs taken at the scene of the St. Paul shooting. In particular, he faults the
court for allowing detective Henry and detective sergeant Willems to tell the jury
that they believed Hirsi was the individual depicted in the photographs.

¶39 The admission of lay opinion testimony, pursuant to WIS. STAT.
§ 907.01, lies within the sound discretion of the circuit court. See State v.
Dishman, 104 Wis. 2d 169, 173, 311 N.W.2d 217 (Ct. App. 1981). Section
907.01 allows a lay witness to give his or her opinion as long as the opinion
is: (1) rationally based on his or her perception; (2) helpful to a clear
understanding of the witness’s testimony or the determination of a fact in
issue; and (3) not based on scientific, technical or other specialized knowledge
within the scope of an expert witness. State v. Small, 2013 WI App 117, ¶14, 351
Wis. 2d 46, 839 N.W.2d 160.

¶40 Hirsi challenges Willems’ lay opinion testimony on grounds that
Willems “lacked foundation to identify Hirsi.” More specifically, he asserts that
when a witness has not had “sustained contact”12 with a person prior to trial, “there
is an arguable lack of foundation to provide such an opinion on identity.”

¶41 We reject Hirsi’s argument because it is inconsistent with our case
law. To explain, in Small we noted that an officer’s testimony that he had viewed
a “video more than ‘100 times’ and closely studied some ‘800 photographs’ of
incidents recorded by the video, even though he was not at the events recorded or

12
Hirsi contends that a lack of “sustained contact” was proven when Willems testified
that he had never met Hirsi prior to the Hudson shooting.

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No. 2018AP1696-CR

photographed” was sufficient foundation to allow the admission of the officer’s
lay testimony about the contents of the video. See Small, 351 Wis. 2d 46, ¶15.

¶42 Similarly, here, Willems testified that he had spent “hundreds” of
hours investigating the Hudson shooting, and that his familiarity with the case
allowed him to identify Hirsi in the photographs. We therefore cannot conclude
that the circuit court erroneously exercised its discretion by allowing Willems’
challenged testimony.

¶43 As to Hirsi’s challenge to Henry’s testimony identifying him in the
surveillance photographs, he asserts that “her testimony suffered from a different
problem—it violated Hirsi’s confrontation rights because Hirsi wasn’t permitted to
fully confront or cross-examine her about possible bias.”13 Hirsi’s argument that
he was not “permitted to fully confront” Henry, however, rests on only an
assumption that the circuit court would have restricted his ability to cross-examine
Henry regarding any bias toward him.

¶44 Although Hirsi casts it as a foregone conclusion that the circuit court
would have restricted any such cross-examination—based on the court’s pretrial
decision to exclude references to the trial in the St. Paul shooting—his failure to
even attempt to do so deprived the court of an opportunity to address the issue in
this particular context. We therefore have no basis on which to evaluate the
court’s exercise of discretion regarding the admission of Henry’s lay opinion
testimony, because no such exercise occurred in the first instance.

13
Hirsi’s assertion that Henry bore a “possible bias” toward him is based on his
speculative statement that “she likely felt Hirsi escaped justice” in the case related to the St. Paul
shooting.

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No. 2018AP1696-CR

CONCLUSION

¶45 In sum, we conclude that the admission of expert testimony
informing the jury that Somalis have a tendency to fabricate events constituted
plain error. We therefore reverse and remand for further proceedings consistent
with this opinion.

By the Court.—Judgment and order reversed and cause remanded
for further proceedings.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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