COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
Case No.: 99-0742-CR |
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Complete Title of Case: |
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State of Wisconsin, Plaintiff-Respondent, v. Miguel Angel Santana-Lopez, Defendant-Appellant. |
Opinion Filed: May 9, 2000 Submitted on Briefs: May 1, 2000 |
JUDGES: Fine, Schudson and Curley, JJ. Concurred: Schudson, J. |
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Appellant ATTORNEYS: On
behalf of the defendant-appellant, the cause was submitted on the briefs of Rex R. Anderegg of Anderegg &
Mutschler, LLP, of Milwaukee.
Respondent ATTORNEYS: On
behalf of the plaintiff-respondent, the cause was submitted on the brief of James
E. Doyle, attorney general, and Sandra L. Tarver, assistant
attorney general. |
COURT OF APPEALS
DECISION
DATED AND FILED
May 9, 2000
Cornelia G. Clark
Clerk, Court of Appeals
of Wisconsin
2000 WI App 122
NOTICE
This opinion is subject to
further editing. If published, the official version will appear in the bound
volume of the Official Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
STATE OF WISCONSIN IN COURT OF APPEALS
State of Wisconsin,
Plaintiff-Respondent,
v.
Miguel Angel Santana-Lopez,
Defendant-Appellant.
APPEAL from a judgment of the circuit court for Milwaukee County: diane s. sykes, Judge. Cause remanded.
Before Fine, Schudson and Curley, JJ.
¶1 FINE, J. Miguel Angel Santana-Lopez appeals from a judgment entered on a jury
verdict convicting him of first-degree sexual assault of a child, see Wis. Stat. § 948.02(1).[1] He claims that the trial court erroneously
exercised its discretion in preventing him from testifying that he offered to
take a DNA test. We agree and remand
for further proceedings.
I.
¶2 Santana-Lopez, now
fifty years old, was charged and convicted of forcibly licking, and penetrating
with his finger, the vaginal area of the six-year-old granddaughter of the
woman with whom he lived. On the second
day of trial, the prosecutor told the trial court that Santana-Lopez told the
police that “he would take a polygraph and DNA tests.” The prosecutor wanted the trial court to
exclude evidence of Santana-Lopez’s offer to take a polygraph examination. The trial court then discussed the matter
with Santana-Lopez’s trial lawyer:
THE COURT: Ms. Ramirez, was it your intention to illicit [sic] such testimony?
MS. RAMIREZ: It wasn’t my intention, Your Honor, but my client has told me that repeatedly. And I don’t know if he will say that he offered to take DNA tests or polygraph tests in his conversation with Detective Hoering.
THE COURT: Well, I assume that you have discussed that with him that that would be inappropriate. An offer to take a polygraph is not admissible and relevant and an offer to submit DNA is not admissible and relevant and it shouldn’t be offered as testimony by the defendant in this case. That would be highly objectionable.
I will enter that order at this time that no such testimony shall be offered. It is inadmissible and irrelevant.
There
was a recess to allow Santana-Lopez’s lawyer and interpreter to confer with
him. When proceedings resumed, the
prosecutor clarified her request for the trial court:
MS.
SKWIERAWSKI: Judge, I’m just concerned because I only want the part about the
polygraph excluded, and I am concerned about the DNA part because it is a legal
test. It is something that speaks
directly I think to
his-- I have essentially confirmed with other attorneys in my office, and I
don’t want to have to do this trial again perhaps because I know that the DNA
is one of their big defenses that it was not done, and I think he has the right
to say he was willing to have a test that is legal. And I can talk about and we have already talked about in
court. And I am just concerned if we
stop him from talking about that in particular there might be issues.
I am willing to say that it’s okay for him just to say he has offered to take a DNA test because I think I have argument out there about why it wasn’t done. But that strikes me that is going to be one of the things that speaks directly to I think his thoughts of his own innocence.
The
trial court disagreed:
THE COURT: There isn’t any evidence in this case about DNA testing when it could or could not have been done in this case. We don’t have any expert witnesses here to explain under what circumstances a specimen can be, evidence specimens can be retrieved from a victim and how those specimens can be tested against known standards taken from swabs. We don’t have any expert testimony about that.
So to get into the whole issues [sic] is going to confuse the jury unless we call in an expert to say those couldn’t be retrieved. We have it in very vague terms as a matter of protocol the police department if it is after 48 hours but we don’t have any expert testimony about how and why that is done, and I mean if that was going to be anticipated as a defense and as something that had to be rebutted by the prosecution we need an expert to come in here and explain that. Either somebody from Sexual Assault Treatment Center who routinely does this stuff and knows how the protocol is or someone from the crime lab who would do the same thing.
After
additional colloquy, Santana-Lopez’s trial lawyer reiterated her position:
MS. RAMIREZ: And it is relevant when that would go as to his state of mind to show that he believed he was innocent so he offered to do anything that they wanted him to do.
THE COURT: No, that’s not relevant. The question here is whether he did or did not assault this child and whether he had a certain state of mind at the time he made the statement to the police officer is not the issue.
II.
¶3 A trial court’s
decision to admit or exclude evidence is a discretionary determination and will
not be upset on appeal if it has “a reasonable basis” and was made “‘in
accordance with accepted legal standards and in accordance with the facts of
record.’” State v. Pharr,
115 Wis. 2d 334, 342, 340 N.W.2d 498, 501 (1983) (citation omitted). As we see below, the trial court misapplied
the law in ruling that Santana-Lopez’s offer to undergo a DNA test was not
relevant.
¶4 As the State concedes
in its appellate brief, both an offer to take a polygraph test and an offer to
undergo a DNA analysis are relevant to the state of mind of the person making
the offer—so long as the person making the offer believes that the test or analysis
is possible, accurate, and admissible.[2] See State v. Hoffman,
106 Wis. 2d 185, 217, 316 N.W.2d 143, 160 (Ct. App. 1982) (“an offer to
take a polygraph examination is relevant to an assessment of the offeror’s
credibility and may be admissible for that purpose,” even though the test
results might not be admissible);[3]
cf. Hemauer v. State, 64 Wis. 2d 62, 74–76, 218 N.W.2d
342, 348 (1974) (offer to take polygraph test not admissible where tests
results would not be admissible—no argument that defendant believed that the
results would have been admissible); United States v. Harris, 9
F.3d 493, 502 (6th Cir. 1993) (failure to agree to the admissibility of
polygraph test results irrespective of outcome rendered willingness to take
test only “marginally relevant”); Milenkovic v. State, 86
Wis. 2d 272, 282–285 272 N.W.2d 320, 325–326 (Ct. App. 1978) (relevance of
motive of alleged rape victim to lie about the sexual assault so as to hide
from boyfriend source of her venereal disease depends on a showing that the
alleged rape victim believed her boyfriend did not know prior to the alleged
assault that she had the disease). Simply put, an offer to undergo DNA testing,
like an offer to take a polygraph examination, may reflect a consciousness of
innocence.
¶5 As with evidence
bearing directly on consciousness of guilt, see, e.g., State v.
Schirmang, 210 Wis. 2d 324, 331–332, 565 N.W.2d 225, 228 (Ct. App.
1997) (refusal to submit to mandatory blood-alcohol testing relevant to
defendant’s consciousness of guilt), evidence bearing directly on consciousness
of innocence is also relevant, see Hoffman, 106 Wis. 2d at
217, 316 N.W.2d at 160; United States v. Biaggi, 909 F.2d 662,
690–691 (2d Cir. 1990) (rejected offer of immunity from prosecution: “a jury is
entitled to believe that most people would jump at the chance to obtain an
assurance of immunity from prosecution and to infer from rejection of the offer
that the accused lacks knowledge of wrongdoing”), cert. denied, 499 U.S.
904. Santana-Lopez’s offer to undergo DNA testing reflects a consciousness of
innocence, however, only if he believed that such testing would indicate
whether he assaulted the child; his offer to undergo such testing would have
been a mere hollow gesture if he knew that such testing would reveal nothing
where oral and digital sexual assault is alleged.
¶6 The trial court did
not permit Santana-Lopez to establish the necessary evidentiary foundation
relating to the relevance of his offer to undergo DNA testing, despite the
prosecutor’s concession that his offer, in her words, “speaks directly to I
think his thoughts of his own innocence.”
Rather, the trial court ruled flatly that the evidence was “not
relevant” because, as the trial court phrased it, “whether he had a certain
state of mind at the time he made the statement to the police officer is not
the issue.” The trial court erred in
ruling that Santana-Lopez’s state of mind was not relevant and thus erroneously
exercised its discretion.[4]
¶7 We remand this case to
the trial court for a finding under Wis.
Stat. Rule 901.04(1) of
whether Santana-Lopez believed DNA could detect the sexual assaults of which he
was charged. See State v.
Cardenas-Hernandez, 219 Wis. 2d 516, 534, 579 N.W.2d 678, 686 (1998)
(“admission of contested evidence is dependent upon the presentation of a sufficient
foundation establishing the relevancy of the evidence under Wis. Stat. §
901.04(1)”). If the trial court
determines that, based on what Santana-Lopez knew at the time he made the offer
to undergo DNA testing, evidence of his offer is relevant, the trial court
should then exercise its discretion under Wis.
Stat. Rule 904.03 and
decide whether the relevance of that evidence is “substantially outweighed” by
the factors set forth in that rule.[5] If the trial court determines that
Santana-Lopez’s offer to undergo DNA testing should have been received into
evidence, it should decide whether Santana-Lopez is thus entitled to a new
trial or whether the error in excluding the evidence was harmless beyond a
reasonable doubt. See State
v. Harris, 199 Wis. 2d 227, 252–256, 544 N.W.2d 545, 555–557 (1996).[6]
By the Court.—Cause remanded.
No. 99-0742-CR(C) |
¶8 SCHUDSON, J. (concurring). I agree with the majority opinion, with one small exception. The majority indicates that “[w]e do not consider an argument mentioned only in a footnote to be adequately raised or preserved for appellate review.” See Majority at ¶6 n.4 (quoted sources omitted). In my estimation, that is not quite correct and could be read to preclude consideration of important, footnoted arguments.
¶9 For various reasons, appellate briefs sometimes relegate arguments to footnotes. On some of those occasions, however, the footnote adequately develops the argument and, in some appeals, the opposing party responds. It has always been my impression that when issues have been adequately developed, we may address them, regardless of whether the parties’ discussions appear in the footnotes or main texts of their briefs.
¶10 We should not preclude appellate review of an argument merely because the argument is “mentioned only in a footnote,” unless its mere mention means that the argument has not been adequately developed. Our inquiry should focus on the argument’s merits, not its location in the briefs. And, interestingly enough, in this appeal, while the majority indicates that “[w]e do not consider an argument mentioned only in a footnote,” it goes on to do so, deciding the issue in the very next sentence. See Majority at ¶6 n.4.
¶11 Accordingly, I respectfully concur.
[1] The notice of appeal states that it is from a “Judgment and Order entered on May 15, 1998.” The judgment of conviction was entered on May 18, 1998. There is no trial court order entered on May 15, 1998, or on any day close to that date, other than the order to the sheriff to “execute this sentence,” which is printed on the face of the judgment. We construe the notice of appeal as an appeal from the May 18 judgment. See Wis. Stat. Rule 805.18(1) (“The court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party.”), incorporated into appellate practice by Wis. Stat. Rule 809.84.
[2] The State’s brief before us notes:
The admissibility of a defendant’s offer to take a DNA test is similar to the admissibility of a defendant’s offer to take a polygraph exam. An offer to take a polygraph examination may be relevant and admissible to bolster the offeror’s credibility. See State v. Hoffman, 106 Wis. 2d 185, 217, 316 N.W.2d 143 (Ct. App. 1982) (citing Lhost v. State, 85 Wis. 2d 620, 634 n.4, 271 N.W.2d 121 (1978)).
(Footnote omitted.) The results of lie-detector tests are not admissible in Wisconsin. See State v. Dean, 103 Wis. 2d 228, 307 N.W.2d 628 (1981). The results of DNA tests are admissible. See State v. Peters, 192 Wis. 2d 674, 685–693, 534 N.W.2d 867, 871–874 (Ct. App. 1995).
[3] Santana-Lopez does not argue on appeal that the trial court erred in excluding evidence that he offered to take a polygraph examination. Accordingly, that issue is waived, see Reiman Assocs., Inc. v. R/A Advertising, Inc., 102 Wis. 2d 305, 306 n.1, 306 N.W.2d 292, 294 n.1 (Ct. App. 1981).
[4] In an argument set out only in a footnote, the State contends that Santana-Lopez’s offer to undergo DNA testing was inadmissible hearsay, and that we should affirm the trial court on that ground. See State v. Holt, 128 Wis. 2d 110, 124–125, 382 N.W.2d 679, 687 (Ct. App. 1985) (an appellate court may affirm a trial court’s correct ruling irrespective of the trial court’s rationale). We reject the State’s contention for two reasons. As in the Second Circuit, “‘We do not consider an argument mentioned only in a footnote to be adequately raised or preserved for appellate review.’” Badger III Ltd. Partnership v. Howard, Needles, Tammen & Bergendoff, 196 Wis. 2d 891, 899 n.1, 539 N.W.2d 904, 908 n.1 (Ct. App. 1995) (quoting United States v. Restrepo, 986 F.2d 1462, 1463 (2d Cir. 1993)). Moreover, Santana-Lopez’s statement is, if as represented, admissible under the state-of-mind exception to the rule against hearsay, Wis. Stat. Rule 908.03(3). See United States v. Terry, 702 F.2d 299, 314 (2d Cir. 1983) (applying Rule 803(3) of the Federal Rules of Evidence, which is identical to Rule 908.03(3)), cert. denied, 461 U.S. 931.
[5] Wis. Stat. Rule 904.03 provides:
Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time. 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.
[6] Although the State argues on appeal that if the trial court erred in excluding evidence of Santana-Lopez’s offer to undergo DNA testing, the error was harmless, in our view a reasoned assessment of that issue may depend on the nature of Santana-Lopez’s offer.