COURT OF
APPEALS DECISION DATED AND
RELEASED July
31, 1996 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 93-1658-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
STEVEN
G. B.,
Defendant-Appellant.
APPEAL
from judgments of the circuit court for Portage County: JAMES EVENSON, Judge. Affirmed.
Before
Eich, C.J., Gartzke, P.J., and Sundby, J.
GARTZKE,
P.J. Steven G. B. appeals from a
judgment convicting him on two counts of first-degree sexual assault of a
child, § 948.02(1), Stats.[1] The counts involve defendant's two children
and incidents occurring between June 1 and August 1, 1991.
The
issues are: (1) whether the trial court
erred by giving the jury a supplemental instruction on agreement, Wis J I--Criminal 520 (1985); (2) whether
the court erred when refusing to exclude the mother of the children from the
courtroom when giving the supplemental instruction to the jury; (3) whether the
court erred when refusing to allow defendant to show a pattern of behavior by
the mother evidencing her bias; (4) whether the pattern instruction on sexual
contact should have been modified; (5) whether sufficient evidence supports the
verdicts; and (6) whether defendant's trial counsel was ineffective in the
following respects: (a) in the voir dire
of jurors; (b) failing to move to exclude or limit evidence of "Child
Sexual Abuse Accommodation Syndrome" (CSAAS); (c) failing to object to a
witness's "ultimate conclusion" testimony; (d) failing to call
defendant's father as a witness; (e) failing to argue burden of proof and
presumption of innocence during closing argument; and (f) failing to offer
polygraph evidence favorable to defendant.
Finding no error requiring reversal, we affirm.
I. EVIDENCE SUBMITTED TO THE JURY
Defendant and, Lauralie,
the mother of the children married on December 5, 1987. At that time the mother had one child,
Paige, born October 3, 1985, during a previous marriage. In 1988, Paige's father agreed to
termination of his parental rights, and defendant adopted her. On October 3, 1988, Kaitlin was born to
defendant and the mother. The family
was living in Stevens Point. Defendant
and the mother separated in January 1990, and in April 1990 he began a divorce
action, seeking sole custody of both children.
The temporary order awarded custody of Paige to Lauralie and custody of
Kaitlin to defendant. The mother
claimed defendant had sexually assaulted Paige, and her allegations led to a
hearing in September 1990, following which temporary custody of Kaitlin was
transferred to the mother and defendant's contact with his daughters was
ordered monitored.
In
March 1991 the family court awarded defendant and the mother joint custody of
both children with primary placement to him.
That decision followed a psychological evaluation and custody
study. Primary placement with defendant
did not go into immediate effect because the court gave the mother permission
to take the girls to Ohio to visit relatives.
The
mother and children left Wisconsin in March 1991 but she failed to return as
ordered, and in April 1991 she was charged with absconding. She and the children returned to Wisconsin
in late May 1991. Upon their return the
mother was released on bond and the charge against her was later
dismissed. The girls were placed temporarily
in the custody of defendant's parents, the mother's visitation was supervised,
and defendant's visitation was allowed only in the presence of his
parents. On July 5, 1991, the family
court reinstated unrestricted primary placement with defendant and unsupervised
visitation for the mother.
Two
weeks later defendant agreed to allow the mother to have the children for a one
week vacation beginning July 19, 1991.
She did not return the children to him.
The children were found to be in need of protection or services and were
placed in a foster home.
On
February 12, 1992, a criminal complaint issued charging defendant with having
sexually assaulted Paige and Kaitlin between June 1 and August 1, 1991, the
period immediately after their return to Wisconsin from Ohio.
Paige
testified at the jury trial that her father had touched her private parts. She denied ever seeing her father touch
Kaitlin between the legs. She denied
that her mother had told her to lie about what her father had done. Kaitlin did not testify.
The
defense presented evidence that Paige had made prior inconsistent
statements. According to defendant's
pastor, before the divorce Paige told him her mother was urging her to tell
others that her father had touched her private parts, her father had not done
so, and her mother was telling her to lie.
At a second meeting with the pastor, Paige again denied touching by
defendant and accused her mother of urging her to lie. When asked whether her father had told her
what to say, Paige denied having been coached.
Dr.
Sue Seitz is a psychologist appointed by the family court. Seitz has had extensive experience in
treating and evaluating child sexual abuse.
She testified that she had sessions with the children before and after
the divorce and had interviewed defendant and the mother. Seitz testified she routinely videotapes
sessions when there are conflicting allegations of sexual abuse. She had seven hours of videotaped interviews
with Paige and had prepared an excerpt tape, portions of which the jury saw. The videotaped excerpts included both pre-divorce
and post-absconding sessions with Paige.
During both periods Paige said her mother told her to say that her
father had touched her. Paige said he
had touched her only when he put medicine on her. She complained to Seitz that her mother did not want to share her
and her sister with defendant and was going to let the mother's boyfriend be
her father. Seitz believes the child
was under pressure to maintain her allegations against defendant for purposes
of establishing a new family for her mother.
The
children's foster-home mother, Ms. Nagorski, testified that in the first weeks
following Kaitlin's foster home placement on July 31, 1991, she was
masturbating eight to ten times per day.
That behavior continued until October 1991, when it began to taper
off. Both girls wet their beds, and
both made statements about their father's touching them. The foster mother testified she saw Paige
masturbate three times.
Dr.
Seitz testified that only the children's mother reported masturbation to her as
a behavioral problem. Their paternal
grandparents, baby sitter, and father did not report masturbation to Seitz.
The
State and defense called social worker witnesses. One testified that during her investigation of abuse allegations
in November 1990, both children denied that anyone had touched their private
parts. A second social worker testified
that both children told her their father was touching them. A third social worker, who supervised visits
by both parents in the fall of 1991, testified she heard Kaitlin say that mommy
"tells me to say that daddy touches my duppie [the child's vagina] but
that he doesn't."
A
social worker assigned to the case in the summer of 1991, testified she
interviewed Paige three times shortly after the mother returned with the
children from Ohio, but Paige did not allege abuse until the third interview on
July 24, 1991. Although the
grandparents or father had brought Paige to the previous interviews, the mother
brought Paige to the third interview.
At that time Paige said her father pins her down on the floor and
touches her private parts and that Kaitlin put Legos where "she goes to
the bathroom." Paige said her
father touched Kaitlin's private parts, and he threatened to lock Paige in a
dark cage if she told anyone. When the
social worker asked Paige whether she was lying about her father's telling
Kaitlin to put Legos in her vagina and that she would be locked in a dark cage,
Paige admitted that those were lies.
The social worker did not ask Paige whether she was lying when she said
that her father touched her private parts and the private parts of her sister.
The
mother's physician, Dr. Bahrke, testified that a child's bed-wetting, being
unusually afraid, excessive masturbation and physical evidence like irritation
of the vagina, could evidence abuse but could also be symptoms of other
problems and do not prove sexual assault.
When he examined Kaitlin in light of the allegations about Legos, he saw
no physical evidence of abuse.
Dr.
Williams, a psychologist, testified he met with Paige sixteen times from June
to November 1990. The mother brought
Paige to the sessions. Paige told him
that her father touched her in the vaginal area. He testified that symptoms of sexual abuse can be symptoms of
other problems, and that masturbation does not prove child abuse.
The
prosecution retained a psychologist, Dr. Emiley, to testify regarding
"child sexual assault accommodation syndrome." An essential feature of the syndrome is that
an abused child will recant accusations of abuse. (Later in this opinion we more fully describe his testimony
regarding the syndrome.) He testified
that although the syndrome was first described in 1983, it is not a recognized
disorder in DSM-3R, the standard psychological reference book listing mental
disorders and symptoms.
The
defense called another psychologist, Dr. Hoorwitz. He testified that the sexual abuse accommodation syndrome is
controversial, and no consensus exists that it is accurate. He identified factors that may indicate
false accusations, including inconsistencies and facts suggesting pressure on a
child to falsify, such as a highly contested custody case. Masturbation could be a reaction to any
number of stressors, including sexual assault, and "for children of this
age, a very likely reason is for self-soothing purposes in the face of a loss
of some kind."
Dr.
Matusiak, a psychologist who assessed the mother and the children in Milwaukee
three days before she surrendered to authorities on May 24, 1991, reviewed Dr.
Seitz's videotapes. He criticized her
methodology and the use of leading questions.
He stated he does not use leading questions. During his interviews Paige volunteered that her father had
touched her private parts. Dr. Matusiak
did not tape his interviews.
The
jury heard evidence that the mother had studied symptomology of child sexual
abuse. In April 1991 during the period
the mother had absconded with the children to Ohio, a police search of her
Stevens Point residence revealed articles and writings on child sexual abuse.
Defendant
denied having sexually abused his daughters.
He denied having seen his children masturbate. In October 1990 he reported to social services that Kaitlin said
that her "duppie" hurt and that her mother had done it.
Dr.
Lopez, the children's pediatrician, testified that he had seen both girls on
many occasions in 1989, 1990 and 1991 for urinary infections and rashes in the
genital area, for which he prescribed antibiotics and creams. When the mother brought Paige in on May 17,
1990, she said she was concerned defendant might have sexually abused
Paige. Dr. Lopez is trained to identify
sexual abuse. While it is possible for
sexual abuse to occur with no physical evidence, he saw no such evidence when he examined Paige. In response to his questions, Paige denied
her father had touched her genital area.
He testified he saw no evidence of sexual abuse of Paige in his
examinations of her. He had never been
suspected of child abuse, "[m]ainly because of the way I felt that they,
both the children, interacted with their father, which was always in a loving
manner and care to both of them."
About
May 15, 1990, the mother and defendant had an altercation which led to his
arrest for sexual assault. Although he
was not prosecuted for that incident, she testified she vowed to "get his
ass," and the next day she made her first report to social services about
her concerns for her daughters. She
testified she was frightened when defendant got primary placement of the
children in the divorce judgment, because Paige had been telling her that he
was touching her private parts. She
took the children to Ohio to "protect them from being molested." She denied ever attempting to manipulate her
children into making false accusations of sexual abuse against defendant. She never saw any of her children being
molested by defendant.
After
the jury found defendant guilty on both counts, the court sentenced him to four
years on the first count, and four years to run consecutively on the second
count, but placed him on probation for eight years to run consecutive to count
one.
II. SUPPLEMENTAL INSTRUCTION TO JURY ON
AGREEMENT
About 4:00 p.m. on the
second day of its deliberations, after some sixteen hours of deliberation, the
jury sent the following note to the trial judge:
We are completely at a standstill and do not see any
conclusion in order for unanimous decision.
The additional information you gave us did not change the feeling of any
of us. We do not know where to go from
here.
The
prosecution requested that the jury be given an "Allen
charge." The defense
objected. The court agreed to give the
charge, and explained its decision as follows:
My basis for doing this, it has been an extended
trial. The jury has obviously worked very
diligently as it is addressing it as thoroughly as they can. But I believe one effort should be made to
ask them once more, or ask them at this point to attempt to resolve their
differences, and if they cannot do so, then, of course, we will address that at
that point of time, but at this point I will give that instruction and instruct
the jury be brought back.
The
judge then instructed the jury, using the pattern Wis J I--Criminal 520 (1985). That is not the instruction used in the case giving rise to the
term "Allen" charge, Allen v. United States,
164 U.S. 492 (1896). But attorneys and
trial courts continue to refer to the instruction as the Allen
charge. It has been approved in Ziegler
v. State, 65 Wis.2d 703, 223 N.W.2d 442 (1974), overruled on other
grounds, State v. Williquette, 190 Wis.2d 677, 694 n.11, 526
N.W.2d 144, 151 (1995); Madison v. State, 61 Wis.2d 333, 212
N.W.2d 150 (1973); and Kelley v. State, 51 Wis.2d 641, 187 N.W.2d
810 (1971).
The
court instructed the jury:
[Y]ou
jurors are as competent to decide the disputed issues of fact in this case as
the next jury that may be called to determine such issues. You are not going to be made to agree, nor
are you going to be kept out until you do agree. It is your duty to make an honest and sincere attempt to arrive
at a verdict. Jurors should not be
obstinate; they should be open minded; they should listen to argument [sic] of
others, and talk matters over freely and fairly, and make an honest effort to
come to a conclusion on all of the issues presented to them.
I do direct that you retire to the jury room at this
point to reconsider the evidence that been submitted to you.
Defendant
does not challenge the language of the instruction itself. He asserts that the trial court erred when deciding
to give the instruction at all. He
rightly asserts, and the State agrees, that giving the instruction is
discretionary with the trial court, and the exercise of discretion requires a
reasoning process by which the facts of record are considered to reach a
conclusion based upon the proper legal standards. McCleary v. State, 49 Wis.2d 263, 277, 182 N.W.2d
512, 519 (1971).
The
paucity of legal standards in this area is shown by defendant's having to rely
primarily upon a 1912 decision, Barlow v. Foster, 149 Wis. 613,
628-30, 136 N.W. 822, 828 (1912). In Barlow,
the controlling issue submitted to the jury was simple, and there was little,
if any excuse, for their not reaching agreement and less for leaving the
controversy for another jury to deal with.
The court said,
There is no set rule for such matters. Under some circumstances, it might not be
fair treatment of a jury to keep them out twenty-four hours, and in another, it
might almost be an abuse of discretion to discharge them till after the lapse
of a much longer time. The judge must
be master of the situation, restrained only by the boundaries of a very broad
discretion.
Id. at 629, 136 N.W. at 828.
This is not a statement of legal standards. Rather, it describes the problem.
The
American Bar Association Standards for
Criminal Justice, does little more than confirm the discretionary nature
of the decision whether to give supplemental instructions to deadlocked
juries. Standard 15-4.4(b) states that
the court may require the jury to continue the deliberations if it has been
unable to agree but "shall not require or threaten to require the jury to
deliberate for an unreasonable length of time or for unreasonable
intervals." The commentary states,
[T]he real question is whether the jury was required to
deliberate an unreasonable length of time or for unreasonable intervals, or was
threatened with the prospect of such unreasonably lengthy deliberations. The general rule is that the length of time
a jury may be kept deliberating is a matter within the discretion of the trial
judge, but abuse of that discretion requires reversal.
Standard 15-4.4(b), cmt. at 15-135.
The
commentary suggests that it is for the trial court to consider that the
"reasonableness of the deliberation period depends on such factors as the
length of the trial, the nature and complexity of the case, the volume and
nature of the evidence, the presence and multiple counts or multiple
defendants, and the jurors' statements to the court concerning the probability
of agreement." Id.
at 15-135. It correctly implies that
the longer the trial, the greater its complexity, the greater the volume of the
evidence, and the presence of multiple counts for multiple defendants, are
facts tending to justify giving the instruction. It adds that the jurors' statements to the court are to be
considered.
The
ABA Standards and its commentary are reasonable. It is reasonable to infer that the more complex the case, for
example, the greater the amount of time the jury may need. It is reasonable that the greater the volume
of the evidence, the greater the amount of time the jury may require. The same is true of multiple counts. Common sense suggests that jurors faced with
a mountain of evidence may be urged to keep at their task even though the
jurors have become discouraged with their progress.
In
the case before us, neither side offered much guidance to the trial court in
making its decision whether to give the charge that the State had
requested. The most the trial court
thought necessary by way of a response to the urging was to refer the extended
nature of the trial. And while the
court did not review on the record the amount of evidence that had been
presented to the jury, we not only may but are required independently to review
the record to determine whether it provides a basis for the trial court's
exercise of discretion. State v.
Pharr, 115 Wis.2d 334, 343, 340 N.W.2d 498, 502 (1983).
The
record supports the trial court's determination. Both sides agree that this was not a simple case. The trial was long. The jury heard much conflicting
testimony. It heard from a number of
doctors and psychologists, and it had testimony by specialists as to their
theories as to how a fact-finder may determine whether allegations of child
sexual abuse are true.
Before
the jury informed the court it was having difficulty reaching an agreement, it
had requested a list of the exhibits and all of the exhibits. The court provided the jury with the list
but not the exhibits themselves. The
jury had requested the notes from Jean Nagorski, the foster mother, and the
reports of Dr. Lopez but neither were provided. The jury had asked for clarification on the second element of the
charge as to determining "such purpose directly or indirectly from all of
the facts and evidence concerning these offenses." The jury was instructed on the question. On the second day of its deliberations, the
jury had asked to review the videotape of Paige and Dr. Seitz, and the
videotape was played for them, at least in part. It requested a review of the testimony of Paige and Nagorski, and
the reporter re-read their testimony.
Thus,
the trial court had before it a complex trial, the jury's requests for
explanations and elaborations on the complexities, and its mild statement of
perplexity and frustration that the additional information given to it had not
changed the feeling "of any of us" and they did not "know where
to go from here." The jury's note
contains no indication that conflicting views of the jurors had hardened to an
irreducible stalemate.
The
trial court's approach was reasonable.
The court advised counsel that it believed "one effort
should be made to ask them once more, or ask them at this point to attempt
to resolve their differences, and if they cannot do so, ...." (Emphasis added.) The court indicated no intent to force a verdict. Some four-and-one-half hours later that
evening, the judge inquired of the jury, asking whether they could reach a
verdict. The response was
encouraging--that the jurors were "making progress ... and requested more
time." Only an hour-and-a-half
later the jury returned verdicts of guilty.
Nothing
indicates that the court subjected the jury to more than an encouragement to
resolve their differences, consistent with the freedom of jurors to
disagree. The tone of these proceedings
shows a jury attempting to work through complexities, receiving encouragement
to continue their attempt and finally reaching a result of their free
will. That is the very type of
deliberation process the instruction is designed to achieve.
We
conclude that the trial court was rightly reluctant to close down the trial at
the first indication from the jury that it was having difficulty. We cannot criticize the court's giving the
supplemental instruction.
III. EXCLUDING MOTHER FROM THE COURTROOM
Defendant asserts that
the mother's presence in the courtroom when the court gave the supplemental
instruction "amplified" its effect.
The court refused to exclude the mother on grounds that it lacked
authority to do so. This is said to be
an error of law. We disagree.
Section
757.14, Stats., provides
The sittings of every court shall be public and every
citizen may freely attend the same, except if otherwise expressly provided by
law on the examination of persons charged with crime; provided, that when in
any court a cause of a scandalous or obscene nature is on trial the presiding
judge or justice may exclude from the room where the court is sitting all
minors not necessarily present as parties or witnesses.
Section
757.14, Stats., is a general
command to trial courts to permit all members of the public to attend any part
of the trial. It is true that even in
the face of § 757.14, a trial court may close a courtroom for
"compelling" circumstances. La
Crosse Tribune v. Circuit Court, 115 Wis.2d 220, 235, 340 N.W.2d 460,
467 (1983). But to do so, "[t]here
must ... be a reasonable likelihood that, unless the courtroom is closed, the
very purpose of the trial will be subverted or other cherished and
legislatively recognized values would be jeopardized." Id. at 236, 340 N.W.2d at
467. That likelihood did not exist in
the case before us.
The
mother's presence during the supplemental instruction undoubtedly reminded the
jury that the effect of their verdict and, in the alternative, a mistrial,
would extend to the children and beyond the children to her. But that was true of defendant as well. The jury must have known that. Nothing suggests that the mother's conduct
in the courtroom when the supplemental instruction was given was out of the
ordinary. Like any other member of the
public, she had a right to attend the trial, and the trial court's decision to
permit her to remain was consistent with its obligation under the statute,
§ 757.14, Stats.
IV. RIGHT TO PRESENT A DEFENSE
Defendant asserts that
the trial court erred when it permitted him to introduce some but not all the
evidence he proposed to submit to show that the mother had engaged in a pattern
of conduct before and after her marriage to defendant, conduct he asserts was
designed to falsify court records and deny her daughters the right to a
father. After an offer of proof, the
trial court excluded evidence of the mother's conduct before the marriage on
grounds of relevance and remoteness.
Defendant asserts on appeal that whether or not the evidentiary ruling
was correct, it denied him his right to present an essential element of his
defense.
Defendant
offered to prove that the mother had been married to Paul Borowicz. On July 12, 1985, before Paige was born,
Borowicz began a divorce action in Arizona against the mother.
The
Arizona dissolution decree recites that no children had resulted from the
marriage even though Paige had been born on October 3, 1985, and even though
the birth certificate states Borowicz was her father. The trial court refused to admit this evidence on grounds that
the relationship between the mother and Borowicz was irrelevant because it
predated her relationship with defendant.
Defendant's
offer continued that in 1986, after the mother and Paige moved to Ohio, she
applied for public assistance and was required to name Paige's father. She named Borowicz, Jim Augustine and John
Huber. She later told authorities that
Augustine was the natural father. The
trial court ruled that this evidence was irrelevant and remote because it
preceded the mother's relationship with defendant.
The
offer continued that in October 1986, the mother asked defendant to take her
from Ohio and to marry her. The trial
court did not expressly rule on this part of the offer, but presumably the
court allowed the evidence, since it was part of the relationship between
defendant and the mother.
The
offer continued that on October 28, 1986, a support enforcement action was
brought in Ohio against Jim Augustine but was later dropped because the mother
failed to prosecute the action. The
trial court ruled that if the mother brought the action, it was relevant but if
the State brought the action, it was not relevant. The documentary evidence shows that the mother was named as the
plaintiff and presumably brought the action.
The
offer continued that on December 8, 1987, defendant and the mother
married. In January 1988 they conceived
Kaitlin. The mother subsequently asked
defendant to adopt Paige, and in June 1988 he did. The mother told the attorney who handled the adoption that
Borowicz's name was on Paige's birth certificate, but there could be a problem
about another man's being the father.
The attorney concluded that no notice was necessary to the other
man. The trial court ruled the evidence
was admissible.
The
offer continued that in September or October 1989 defendant and the mother
separated, and in late 1989 or early 1990 she asked Augustine whether he would
accept Paige as his daughter. Augustine
said he would but only if a blood test showed that he was the father. No test was taken. The trial court ruled that the evidence was admissible, because
it affected defendant's parental rights.
The
offer continued that on January 2, 1990, the mother told a social worker that
defendant had adopted Paige without the consent of Borowicz and there was going
to be a "contest," probably referring to Paige's custody. The trial court ruled that the evidence was
admissible, since it pertained to the defendant's paternal rights and was
relevant to the mother's credibility.
Defendant
points out that in Davis v. Alaska, 415 U.S. 308, 316-17 (1974),
the Supreme Court said the partiality of a witness is subject to exploration at
trial and is "always relevant as discrediting the witness and affecting
the weight of his testimony. We have
recognized that the exposure of a witness' motivation in testifying is a proper
and important function of the constitutionally protected right of
cross-examination." (Citations and
internal quotation omitted.)
The
Supreme Court later said, however,
It does not follow, of course, that the Confrontation
Clause of the Sixth Amendment prevents a trial judge from imposing any limits
on defense counsel's inquiry into the potential bias of a prosecution
witness. On the contrary, trial judges
retain wide latitude insofar as the Confrontation Clause is concerned to impose
reasonable limits on such cross-examination based on concerns about, among
other things, harassment, prejudice, confusion of the issues, the witness'
safety, or interrogation that is repetitive or only marginally relevant.
Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).
The
defendant attacks the credibility of Paige on the theory that her mother put
her up to testifying he had sexually assaulted both her and Kaitlin, all for
the purpose of destroying his relationship with the children. The right to present bias evidence extends
to showing why a witness testified against the defendant. Olden v. Kentucky, 488 U.S.
227, 232 (1988). In Olden,
defendant was accused of having raped a woman.
His defense was that he and she had engaged in consensual sexual acts;
that out of fear of jeopardizing her relationship with another man, she lied
when she told that man that defendant had raped her; and she continued to lie
on the stand. Id. at
232. The Olden court held
that the state court erred when it prevented defendant from inquiring into the
matter on cross-examination, since the woman's testimony was crucial to the
prosecution's case. Id.
at 232-33.
The
trial court erroneously exercised its discretion when it ruled that evidence of
the mother's statements regarding Paige's paternity made before her
relationship with defendant were inadmissible for remoteness. Evidentiary rulings are discretionary. State v. Alsteen, 108 Wis.2d
723, 727, 324 N.W.2d 426, 428 (1982).
Discretion is properly exercised when the court employs a rationale
based on the record and commits no error of law. Hartung v. Hartung, 102 Wis.2d 58, 66, 306 N.W.2d
16, 20 (1981). Remoteness in time may
render evidence inadmissible when the elapsed time is so great as "to
negative all rational or logical connection" between the fact sought to be
proved and the evidence offered in proof.
Simpson v. State, 83 Wis.2d 494, 512, 266 N.W.2d 270, 278
(1978).
Defendant
offered the evidence to show that both before and after their marriage the
mother's conduct exhibited a pattern of preventing Paige from having a
father--any father. The trial court did
not explain why no rational or logical connection existed between the fact sought
to be proved--the mother's intent to prevent Paige from having a father--and
the evidence offered to prove it. We
think the court erroneously exercised its discretion when it ruled that the
evidence was too remote.
The
trial court similarly erroneously exercised its discretion when it ruled that
the evidence of the mother's pre-marriage conduct was irrelevant. Evidence tending to make the existence of a
fact more probable is relevant. Section
904.01, Stats. A trial court has broad discretion when
determining the relevance of offered evidence, State v. Brecht,
143 Wis.2d 297, 320, 421 N.W.2d 96, 105 (1988), but here the trial court
provided no analysis of the evidence in terms of the fact to be proved--the
mother's intent to prevent Paige from having a father.
Improper
denial of an opportunity to impeach a witness for bias can be harmless
error. Crane v. Kentucky,
476 U.S. 683, 691 (1986), and Delaware v. Van Arsdall, 475 U.S.
673, 684 (1986).
We
are not satisfied that the pre-marriage evidence defendant offered in support
of his theory that the mother would do anything to keep the children from
having a father was so critical to his defense as to require us to order a new
trial. Only a part of the evidence in
support of that defense was kept from the jury. Keeping out that part did not prevent defendant from arguing the
substance of his position to the jury.
His counsel was able to argue, and did argue, on the basis of the record
that the mother wanted to keep the children at "any cost."
The
jury heard other evidence regarding the pattern. It heard that Paige had said that her mother told her to say that
her father had improperly touched her; that her parents had had a custody
battle for the children; that the mother had absconded to Ohio with her
children when she was not granted physical custody; that she asked Augustine if
he would accept Paige as his daughter; and that the mother told social workers
that defendant had adopted Paige without her father's consent.
We
conclude the error was harmless.
V. INSTRUCTIONAL ERROR
The trial court gave the
jury the pattern instruction, "First-Degree Sexual Assault of a
Child: Sexual Contact with a Person Who
Has Not Attained the Age of 13 Years," Wis
J I—Criminal 2103 (1989).
Defendant
timely objected to the instruction.
While the instruction describes three elements of the offense, he feared
that the jury could be confused because the first described element--sexual
contact--also describes the offense. He
urged that the instruction be modified to describe two elements rather than
three. Otherwise, he argued, the jury
could find him guilty of sexual assault if they found that he had (as he
admitted) intentionally touched his daughters' vaginal areas without finding he
had touched them for the purpose of becoming sexually aroused or
gratified.
We
show below the relevant part of the instruction given to the jury, with
defendant's proposed deletions and additions indicated by striking and shading,
respectively:
First,
that the defendant had sexual contact with the persons named, Paige [] and
Kaitlin [].
Second,
that the defendant had sexual contact with the persons named, Paige [] and
Kaitlin [], for the purpose of sexually arousing or gratifying the defendant.
Third, Second, that the persons named, Paige [] and Kaitlin
[], had not attained the age of 13 years at the time of the alleged sexual
contact.
The
first element of each charge requires that the defendant had sexual contact
with the persons named in that count.
Sexual
contact is any intentional touching by the defendant of In order to find that sexual contact occurred, you must
find that the defendant intentionally touched the vaginal area of Paige [], and
the vaginal area of Kaitlin []. The
touching may be of the vaginal area directly or it may be through the
clothing. The touching may be done by
any body part or by any object, but it must be an intentional touching.
The
second element of each charge requires In order to find that sexual contact occurred, you must also find that
the defendant intentionally touched had sexual contact with the persons
named in that count for the purpose of becoming sexually aroused or gratified.
The
purpose to become sexually aroused or gratified must be found as a fact before
you may find the defendant guilty of sexual assault. You cannot look into a person's mind to find purpose. You may determine such purpose directly or
indirectly from all the facts in evidence concerning this offense. You may consider any statements or conduct of
the defendant that indicate state of mind.
You may find purpose from such statements or conduct, but you are not
required to do so. You are the sole
judges of the facts, and you must not find the defendant guilty unless you are
satisfied beyond a reasonable doubt that the defendant had sexual contact for
the purpose of becoming sexually aroused or gratified.
The third second element of each charge requires
that the persons named in that count had not attained the age of 13 years at
the time of the alleged sexual contact.
Knowledge of Paige []'s and Kaitlin []'s age by the defendant is not
required and mistake regarding the age is not a defense.
We
do not agree that the jury would understand from the trial court's instructions
that they were to find defendant was guilty of sexual assault if they found he
had intentionally touched his daughters in the vaginal area, without also
finding he had done it for the purpose of becoming sexually aroused or
gratified. The sexual arousal or
gratification element is repeated three times in the instruction, each time in
mandatory terms.[2]
We
reject defendant's contention that the jury showed confusion when it asked two
questions to the court about the second element of the crime described in the
instruction--the purpose of the touching.
The jury sought an interpretation of the language, "You may
determine such purpose directly or indirectly from all of the facts in evidence
concerning these offense." Their
questions reflect no confusion regarding the requirement that the State prove
that sexual arousal or gratification was the purpose of the touching.
VI. THE EVIDENCE SUPPORTS THE VERDICT
Defendant asserts it is
impossible that a jury which fully considered the evidence in this case would
return verdicts of guilty beyond a reasonable doubt. And yet this jury returned the verdicts rendered under
circumstances evidencing careful attention to the jurors' duties as outlined in
the instructions.
The
question is not whether the court of appeals would have found the defendant
guilty. That is not our function. We review the briefs and record to correct
error, if error occurred, and direct a new trial if the error was
prejudicial. We may not substitute our
judgment for that of the jury, unless the evidence, viewed most favorably to the
State and to the conviction, so lacks probative value and force that no jury,
acting reasonably, could have found guilt beyond a reasonable doubt. State v. Poellinger, 153
Wis.2d 493, 507, 451 N.W.2d 752, 757-58 (1990).
This
is no hollow litany of our task. We
have stated the restrictive standard the appellate courts of this state must
enforce when we decide whether the jury could have found guilt. We must apply that standard, whether or not
we agree with the verdict, and whether or not we would have reached the same
verdict on the same evidence. There is
no escaping the conclusion from the following summary of the evidence presented
at the trial that the jury could, acting reasonably, find guilt beyond a
reasonable doubt.
Paige
testified that defendant had touched her in a private part between her legs the
previous summer, which would have been the summer of 1991, when she lived with
him at his house. He is charged with
having had sexual contact with his daughters between June 1 and August 1, 1991. Paige described with her hand what he did to
her and said that it was not done while the defendant was putting medicine on
her. She said he told her to keep bad
secrets.
The
foster-home mother of Paige and Kaitlin assumed her duties on July 31,
1991. She testified that although
Kaitlin was only two years old she was masturbating eight to ten times a
day. Over the years the foster mother
had had more than fifty children in her home but she never had seen
masturbation of that nature. The
masturbation eventually slacked off but there seemed to be a correlation
between that activity and Kaitlin's visits with her father. The foster mother testified that beginning
about the middle of October 1991 Paige and Kaitlin began telling her that the
defendant had been touching her private parts and hurting them. They never said that the mother told them to
say so.
A
social worker for Marathon County had conducted an independent child abuse
investigation of the children. She
testified at the defendant's trial that she interviewed Paige on July 24, 1991. During that interview Paige told the social
worker that defendant had pinned her and Kaitlin on the floor in their room and
had touched their private parts. He
also touched their private parts when she went to the bathroom.
Paige
described with her finger what her father had done to her and Kaitlin, and she
told the social worker this had happened ten times. She told the social worker this had happened since they had
returned from Ohio and it only happened when defendant's parents were not
present. She said she did not like it
and had told her father to stop. During
that interview the social worker summarized to Paige what she had told the
worker and deliberately included things Paige had not said in order to check on
Paige's accuracy. Paige corrected the
errors and did not change her previous responses.
Having
concluded that the evidence supports the verdict, we move to defendant's next
contention, that his trial counsel provided ineffective assistance under the
state and federal constitutions.
VII. INEFFECTIVE ASSISTANCE
After defendant's
brief-in-chief was filed, his substituted appellate counsel moved for remand to
the trial court to pursue an ineffective assistance of counsel claim. We granted the motion. The trial court held an evidentiary hearing
on the claim and rejected it. We affirm
the ruling.
Defendant
asserts his trial counsel's representation was ineffective because the jury
voir dire was inadequate; counsel should have sought to exclude or limit the
CSAAS evidence; should have objected to a physician's conclusion that the
girls' masturbation was evidence of sexual abuse; should have called
defendant's father as a witness; should have argued the burden of proof and
presumption of innocence to the jury; and should have attempted to introduce
favorable polygraph evidence.
Defendant
has a right to the assistance of counsel under art. I § 7 of the Wisconsin
Constitution, and the Sixth and Fourteenth Amendments to the United States
Constitution. The right includes the
right to effective assistance. State
v. Wilson, 179 Wis.2d 660, 680, 508 N.W.2d 44, 52 (Ct. App. 1993). The test for ineffective assistance of
counsel under both constitutions is the same.
State v. Sanchez, 201 Wis.2d 219, 236, 548 N.W.2d 69, 76
(1996).
To
succeed on an ineffective assistance claim, defendant must show that trial
counsel's performance was deficient and that the deficient performance
prejudiced the defense. Strickland
v. Washington, 466 U.S. 668, 687 (1984). The deficient performance and prejudice components of an
ineffectiveness assistance claim raise questions of mixed fact and law. Id. at 698. We will not reverse the trial court's
findings of fact unless they are clearly erroneous. Section 805.17(2), Stats. Whether the facts show that counsel's
performance was deficient and whether the performance prejudiced defendant are
questions of law. We do not defer to
the decision of the trial court on those questions of law. State v. Pitsch, 124 Wis.2d
628, 634, 369 N.W.2d 711, 715 (1985).
A. Voir Dire
Defendant asserts that
trial counsel should have spent more time during voir dire on questions
regarding child sexual abuse, children lying about sexual abuse or
improprieties and fantasizing, and the jurors' knowledge and feelings about such
matters. He asserts that counsel's
failure to strike jurors who might have harbored hidden biases or prejudices
was ineffective assistance. The trial
court ruled that defendant failed to show how the voir dire was insufficient
and how its insufficiency, if any, prejudiced him. The court found that although, as in every case, more questions
could have been asked, defendant did not show or even suggest that any juror
was partial or biased. The court
concluded that defendant had failed to show that trial counsel had provided
ineffective assistance, and in any event, the record failed to show prejudice
to him. We affirm the ruling.
The
voir dire by the trial court, the prosecution and the defense covered the usual
subjects--each juror's knowledge about the attorneys and the witnesses. The jurors were asked whether they had been
involved in divorces and proceedings to determine whether a child is in need of
protection or services. They were asked
about their attitudes toward psychologists and psychiatrists, whether they had
been victims of a crime, their attitudes towards statements and testimony by
children, and whether they would accept a child assault victim's testimony.
After
voir dire along those lines, the trial court divided the twenty-four jurors
into five groups and questioned each group separately in chambers. The court asked the members of each group
whether they had close family members or friends who had been victims of child
sexual abuse; whether any juror had claimed having been sexually abused; and
whether any juror or members of their close family or friends had made claims
of sexual abuse against anyone. When a
juror answered affirmatively, the court asked additional questions and
permitted the State and defense attorneys to do so.
While
defendant criticizes the voir dire for having failed to reveal "any hidden
bias or prejudices," we have not been told how such biases or prejudices
could otherwise be revealed.
We
affirm the trial court's conclusion that defendant has not shown a basis for a
finding of ineffective assistance of counsel as a result of the voir dire.
B. Evidence of Child Sexual
Abuse
Accommodation Syndrome
(CSAAS)
Dr. Emiley testified for
the State that the Child Sexual Abuse Accommodation Syndrome was first described
in an article by Dr. Summit. Dr. Roland
C. Summit, The Child Sexual Abuse Accommodation Syndrome, 7 Child Abuse & Neglect 177
(1983). Summit describes five
characteristics common to sexually abused children: secrecy, helplessness, accommodation, delayed and unconvincing
disclosure and recantation.
Emiley
elaborated on CSAAS as follows: The
syndrome involves "incestual" cases as distinguished from sexual
assaults by strangers. It involves a
member of the family or relative of the victim, usually about eight years
old. The perpetrator may introduce
inappropriate touching, like bathing or tickling or applying medicine. The perpetrator is interested in
establishing an incestuous relationship.
The
syndrome is based on secrecy and the perpetrator's ability to bind the child to
silence by making the child feel responsible for the offense or for family
problems resulting from the consequences of the child's revealing the
activities. The child becomes a
confidant to the father and a rival to the mother. The mother is demoted to the level of the child. She may have suspicions or awareness and
defends herself by denying the existence of the appearances. The perpetrator can effectively bring the
child to silence for an extended period.
Recantation
is the last feature of the syndrome.
Because income may be lost and separation may occur if the assault is
revealed, the child says it never happened.
Recantation by children of tender years in cases is not uncommon.
At
the hearing on defendant's ineffective assistance claim, his two trial counsel
acknowledged that they knew before the trial that the State intended to use
CSAAS as evidence. One of his trial
attorneys had represented him after his divorce proceedings during the custody
battle that preceded the criminal charges.
She testified that her associate had researched the CSAAS issue, and
they concluded that it was "really pretty lame testimony" that the
defense could easily rebut. Defense
counsel believed that introduction of the CSAAS evidence and the battle of
experts would "significantly weaken the State's case." Trial counsel did not move to exclude the
CSAAS evidence and did not object to it at trial. Counsel knew that the Wisconsin Supreme Court had not ruled on
the admissibility of CSAAS evidence, but many states had admitted CSAAS
evidence, and counsel believed it would have been admitted in this case.
The
trial court concluded--and we agree--that defense counsel presented a reasoned
and informed position, and an objection would have been contrary to the defense
strategy developed before the case.
"When counsel has made a strategic choice in determining a course
of action during a trial, we apply an even greater degree of deference to
counsel's exercise of judgment in considering whether the challenged action
constitutes ineffective representation."
State v. Vinson, 183 Wis.2d 297, 307-08, 515 N.W.2d 314,
318-19 (Ct. App. 1994).
While
the trial court did not spell out the strategic choice in detail, counsel
testified that not objecting to the CSAAS evidence was consistent with their
plan to make the trial a contest between experts rather than a credibility
battle by defendant against his daughters.
Counsel testified the defense had, in their view, the better experts,
and by discrediting the evidence through their experts they could discredit the
State's overall position. Counsel
believed their evidence would show that the CSAAS syndrome was "not even
remotely diagnostic, and there are many other explanations of those same kinds
of behavior." We conclude, as did
the court, that trial counsel's performance, insofar as CSAAS evidence was
concerned, was not deficient. See
State v. Hamilton, 892 S.W.2d 774, 784-85 (Mo. Ct. App. 1995)
(strategic choice not to object not ineffective assistance, even though
strategy was unsuccessful).
Moreover,
defendant has failed to show that trial counsel's strategy regarding CSAAS
evidence, even if defective representation, has prejudiced him. See Strickland, 466
U.S. at 687 (trial counsel's representation not shown to be constitutionally
deficient in absence of showing that defendant was prejudiced by trial
counsel's performance). To demonstrate
that the unobjected-to admission of the CSAAS evidence prejudiced him, defendant
must show that the evidence is inadmissible.
Hays v. Alabama, 85 F.3d 1492, 1496 (11th Cir. 1996)
(prejudice not shown from failure to object when evidence not shown to be
inadmissible). Defendant notes that
other jurisdictions have recognized that CSAAS evidence is highly speculative
and should not be admitted without close scrutiny.[3] The State cites cases from a number of
states which admit the evidence.[4]
Defendant
has not demonstrated on appeal that CSAAS evidence must be excluded or accepted
on a limited or restricted basis in Wisconsin.
Nor can he. CSAAS evidence is
introduced through expert testimony.
This state allows expert testimony in the discretion of the trial
court. State v. Friedrich,
135 Wis.2d 1, 15, 398 N.W.2d 763, 769 (1987).
Only once has our state supreme court departed from the general rule
that whether to allow expert testimony is left to the discretion of the trial
court. In State v. Dean,
103 Wis.2d 228, 307 N.W.2d 628 (1981), our supreme court withdrew polygraph
evidence from the discretion of the trial courts by holding that such evidence
is not admissible in criminal proceedings.
All other areas of expert testimony have been left to the discretion of
the trial court. See State
v. Friedrich, 135 Wis.2d at 16-17, 398 N.W.2d at 770 (psychological
profile evidence for sexual offender); State v. Stinson, 134
Wis.2d 224, 235, 397 N.W.2d 136, 140 (Ct. App. 1986) (bite mark evidence); State
v. Shaw, 124 Wis.2d 363, 364-65, 369 N.W.2d 772, 772-73 (Ct. App. 1985)
(fingernail striation comparison evidence); State v. Johnson, 118
Wis.2d 472, 475-76, 348 N.W.2d 196, 198 (Ct. App. 1984) and State v. Hamm,
146 Wis.2d 130, 144, 430 N.W.2d 584, 590 (Ct. App. 1988) (reliability of
eyewitness identification).
That
the trial court might have excluded the CSAAS evidence or might have restricted
its use, had the proper objections or motions been made, does not show
prejudice to defendant. To show
prejudice, defendant must demonstrate that counsel's errors "actually had
an adverse effect on the defense. It is
not enough for the defendant to show that the errors had some conceivable
effect...." Strickland,
466 U.S. at 693. That evidence
"could have" or "might have" been admissible does not prove
prejudice.
We
affirm the trial court's conclusion that defendant has not shown that he was
deprived of his constitutional right to effective assistance by counsel's
handling of the CSAAS evidence.
C. "Ultimate
Conclusion Testimony"
Dr. Bahrke, a physician
in family practice, testified on behalf of the State that through his education
and experience, he is able to identify behaviors or symptoms of children
indicative of sexual abuse. According
to Dr. Bahrke, it is common to see sexually abused children of the ages of
Paige and Kaitlin who are unusually afraid either of a certain individual or
place, or experience abrupt changes in behavior, sleep disorders, insomnia,
nightmares and bed-wetting. He added, "Excessive
masturbation would be a common symptom ...." He understood that the two-and-one-half-year old child, Kaitlin,
had masturbated upwards of fifteen and twenty times a day for a month.
Dr.
Bahrke was then asked, "In your opinion, doctor, to a reasonable degree of
medical certainty, what is that evidence of?" He answered, "I would consider that evidence for sexual
abuse. Particularly in a child like
this, we will see kids masturbate to that frequency in front of people, but
usually not a normal child. It's a
child that's less aware of his surroundings, or some sort of disability of some
kind."
Trial
counsel chose not to object to the last question and answer because the
objection probably would be overruled and an objection or motion to strike the
testimony could direct further attention to it. Defendant argues that failure to object was nevertheless
deficient assistance because "ultimate conclusion testimony is not
admissible as it is tantamount to expert testimony that the victim was telling
the truth," citing State v. Jensen, 147 Wis.2d 240, 432
N.W.2d 913 (1988), and State v. Haseltine, 120 Wis.2d 92, 352
N.W.2d 673 (Ct. App. 1984).
We
reject defendant's argument. Jensen
and Haseltine do not bar Dr. Bahrke's quoted testimony. The Jensen court held that an
expert witness must not be allowed to convey to the jury his or her beliefs as
to the veracity of a complainant with regard to a sexual assault. Jensen, 147 Wis.2d at 256-57,
432 N.W.2d at 920. The Haseltine
court held that it is error to allow a psychiatrist to testify that in his
opinion there "was no doubt whatsoever" that defendant's daughter was
an incest victim. Haseltine,
120 Wis.2d at 95-96, 352 N.W.2d at 675-76.
Dr. Bahrke did not testify that in his opinion Kaitlin was a victim of
sexual abuse. He testified that, in his
opinion, excessive masturbation is "evidence for sexual abuse."[5]
We
conclude that failure of counsel to object to Dr. Bahrke's testimony was not
ineffective performance.
D. Defendant's Father
Defendant contends that
trial counsel was ineffective for failing to call defendant's father as a
witness. He asserts that his father
would have been able to provide a "nearly complete alibi all of June and
provide corroboration of defendant's activities for part of July 1991 and
verify that [the father] had never witnessed any sexual abuse."
The
trial court held that because the father would provide an alibi and corroborate
defendant's recollection of the events for only part of the charging period,
counsel's decision not to call the father was reasonable. The court added that had the father been
called, the jury could infer that he would paint his son in a favorable light,
in any event. We agree.
The
charging period covering the alleged assaults was June 1 to August 1,
1991. The defendant testified that he
had the children for about nine days after July 5, 1991, without his father's
supervision. For that reason, the
father's alibi testimony would have been far from complete. Moreover, as trial counsel testified, the
father's testimony that the girls and defendant were never out of his presence
would be viewed as incredible. And, as
counsel testified, such testimony would be dangerous because it would suggest
to the jury that the father believed he had to be there all the time.
We
affirm the ruling that defendant failed to show counsel's failure to call his
father as a witness was ineffective assistance.
E. Burden of Proof and
Presumption of Evidence
Defendant asserts that
the most egregious of all trial counsel's deficiencies was that counsel did not
once mention the burden of proof or argue the presumption of innocence in the
closing argument. We reject the claim
that counsel's performance was deficient in this regard.
First,
the trial court's instructions to the jury included the admonition that the burden
was on the State to prove guilt beyond a reasonable doubt. Reference to the burden was repeated in
substance five times in the instructions.
The court instructed the jury on the presumption of innocence, as well.
Then,
when the court gave the jury a supplemental instruction, it began by informing
the jury that the law presumes every person charged with the commission of an
offense is innocent, and it again instructed the jury--this time in three
separate parts to the instruction--that they cannot find defendant guilty
except under circumstances showing beyond a reasonable doubt that he committed
the offense. Much of the balance of the
supplemental instruction has to do with explaining the nature of reasonable
doubt.
Consequently,
there is no possibility that the jury failed to understand that defendant
enjoyed a presumption of innocence and that the State had the burden of proving
his guilt beyond a reasonable doubt.
Moreover,
defendant's attorney chose not to discuss the burden of proof, reasonable doubt
and the presumption of innocence, as a matter of strategy. Counsel wanted the jury to believe that
defendant was innocent, not just that the State had failed to meet its burden
of proof. The jury consisted largely of
women, and counsel had a justifiable fear that the jurors would not acquit the
defendant unless they actually believed him to be innocent because they would
not want to return the children to a father who might have sexually abused
them.
We
accept the conclusion of the trial court that trial counsel's closing argument
was not ineffective representation.
F. Polygraph Evidence
Defendant passed a
polygraph test regarding sexual abuse of his children. The State moved in limine to exclude the
polygraph evidence. Believing that State
v. Dean, 103 Wis.2d 228, 307 N.W.2d 628 (1981), barred admission of the
polygraph evidence, defendant's trial counsel did not argue it was
admissible. Defendant asserts that his
counsel's failure to seek admission of the evidence is ineffective
assistance. We disagree. We held that introduction of polygraph
testimony was error and quoted that State v. Ramey, 121 Wis.2d
177, 180-81, 359 N.W.2d 402, 404-05 (Ct. App. 1984), that Dean
stands "for a blanket exclusion of polygraph evidence...."[6]
VIII. CONCLUSION
We
conclude that defendant's conviction must be affirmed.
By
the Court.—Judgments affirmed.
Not recommended for
publication in the official reports.
No.
93-1658-CR(C)
SUNDBY,
J. (concurring). I agree that the defendant
received a fair trial and there was no trial court error. As difficult as it is for me to believe that
there was sufficient evidence to convict the defendant beyond a reasonable
doubt, there is no basis under the law upon which to set aside the jury
verdict. See State v.
Poellinger, 153 Wis.2d 493, 501, 451 N.W.2d 752, 755 (1990). However, I urge the supreme court to accept
review of this decision, if a petition is filed with the court, to re-examine
its per se rule which excludes polygraph evidence without a
stipulation. See State v.
Dean, 103 Wis.2d 228, 307 N.W.2d 628 (1981).
The
defendant alleges his counsel was ineffective for failing to move for admission
of a polygraph examination which supported the defendant's claim of
innocence. In view of Dean,
trial counsel cannot be faulted for attempting to introduce evidence which the
supreme court has ruled is inadmissible.
I believe Dean needs to be re-examined.
Since
1981, commentators and some courts have recognized the increased reliability of
polygraph evidence and have even suggested that to exclude such evidence
violates the defendant's Sixth Amendment right to present evidence in his
defense. Two law review articles
exhaustively review the changing approach of the courts to polygraph
evidence. A 1991 Kentucky Law Journal
Note examines the decision of the Eleventh Federal Circuit Court of Appeals in United
States v. Piccinonna, 885 F.2d 1529 (11th Cir. 1989) (en banc). W. Thomas Halbleib, United States v.
Piccinonna: The Eleventh
Circuit Adds Another Approach to Polygraph Evidence in the Federal System,
80 Ky. L.J. 225 (1991). The Eleventh Circuit vacated defendant's
conviction and remanded the case with instructions to the district court to
consider the admissibility of the result of defendant's polygraph
examination. The court adopted an
impeachment or corroboration approach and imposed three conditions on the
proposed polygraph evidence: (1) the
offering party must provide the opposition with adequate notice of its plans to
offer polygraph evidence; (2) the opposition must be afforded reasonable
opportunity to administer its own test; and (3) the pertinent Federal Rules of
Evidence governing impeachment or corroboration apply. Id. at 1536. However, the court stated that the trial
judge would retain discretion to exclude the evidence entirely. Id.
A
more comprehensive review of the development of polygraph testing and the use
of such testing in judicial proceedings is found in James R. McCall, Misconceptions
and Reevaluation--Polygraph Admissibility After Rock and
Daubert, 1996 U. Ill. L. Rev. 363.
The
introduction to Professor McCall's article states:
American lawyers
generally believe that evidence of polygraph test results is inadmissible in
courts in this country and that polygraph evidence deserves to be treated as an
evidentiary "pariah."
Professor
McCall's article calls both beliefs into question by examining past and present
polygraph admissibility law and the evolution of polygraph theory and technique. Topics addressed in the article
include: the appellate opinions from
1975 to 1989 that authorized admission of polygraph evidence in five state and
federal jurisdictions; the recent U.S. Supreme Court opinions, including Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993), that compel a re-evaluation of polygraph evidence admissibility which
must be more sophisticated and less hostile than past evaluations; and the
current status of this re-evaluation which has led to the admission of
polygraph evidence in a number of federal courts during the last years.
As
Professor McCall notes, the law enforcement use of polygraph testing for crime
investigation has been widespread for decades.
1996 U. Ill. L. Rev. at
379. In private industry, the use of
polygraph testing to detect employee theft and to screen job applications was
common by the late 1970s. Id. The federal government has greatly expanded
its use of polygraph testing for pre-employment screening and other
purposes. Id. The National Security Agency and the Central
Intelligence Agency also use the polygraph for intelligence and
counter-intelligence investigations, including security clearance screening and
espionage detection. Id. Wisconsin district attorneys use polygraph
evidence to make charging decisions.
Polygraph
evidence is not any more or less reliable than other scientific evidence. Professor McCall labels a "false
belief[]" that Frye v. United States, 293 F. 1013 (D.C. Cir.
1923), requires denial of any offer of polygraph results for admission into
evidence. 1996 U. Ill. L. Rev. at 364.
He notes that Rock v. Arkansas, 483 U.S. 44 (1987), has
been read by a federal appellate court to require that a per se denial
of polygraph evidence is unconstitutional when invoked in a criminal
prosecution to prevent a polygraph examiner from giving exculpatory
testimony. 1996 U. Ill. L. Rev. at 365 (citing United States v.
Williams, 39 M.J. 555 (A.C.M.R. 1994), vacated, 43 M.J. 348
(Armed Forces Cir. 1995), cert. denied, 116 S. Ct. 925 (1996)); see discussion
of Williams in the text accompanying notes 312-17 of Professor
McCall's article. Williams
was overruled on a different issue.
Professor
McCall also suggests that Daubert v. Merrell Dow significantly
changes the standard for admitting scientific evidence. Id. at 365. Responding to Daubert, lower
federal courts, very recently, have begun to reconsider and reject the per
se inadmissibility rule. Id.
I
urge the supreme court to modify the Dean per se rule and
permit the admission of polygraph examination results at the discretion of the
trial court.
I
am authorized to state that Judge Gartzke, the author of the lead opinion,
joins in this concurrence.
[1] Section 948.02(1), Stats., provides in pertinent part, "Whoever has sexual
contact ... with a person who has not attained the age of 13 years is guilty of
a Class B felony."
Section 948.01(5), Stats.,
provides in pertinent part, "`Sexual contact' means any intentional
touching by the complainant or defendant, either directly or through clothing
by the use of any body part or object, of the complainant's or defendant's
intimate parts if that intentional touching is for the purpose of ... sexually
arousing or gratifying the defendant."
[3] Not all the cases defendant cites have
withstood the test of time. Lantrip v. Commonwealth, 713 S.W.2d 816, 817 (Ky. 1986)
(no evidence that "sexual abuse accommodation syndrome" has attained
scientific acceptance); State v. York, 564 A.2d 389, 391-2 (Me.
1989) (expert testimony that a victim's behavior was characteristic of a
sexually abused child did not have adequate scientific foundation), but see State
v. Preston, 581 A.2d 404, 407 (Me. 1990) (expert testimony describing
occurrence of delayed or piecemeal reporting by child sexual abuse victims and
used for rebuttal purposes had adequate scientific foundation); Goodson
v. State, 566 So.2d 1142, 1147 (Miss. 1990) ("[T]he prosecution
made no effort to show that behavioral science has developed to the point where
even the most knowledgeable experts in the field may give opinions that sexual
abuse has occurred with the required level of reliability"), but see
Hall v. State, 611 So.2d 915 (Miss. 1992) (trial court did not
abuse discretion allowing expert to testify that behavior of alleged victim was
common with that of a sexually abused child); State v. J.Q., 617
A.2d 1196, 1211 (N.J. 1993) (CSAAS evidence inadmissible to prove guilt or
innocence, but admissible to explain why sexually abused children often delay
reporting abuse, recant or deny abuse occurred); Commonwealth v. Dunkle,
602 A.2d 830, 832 (Pa. 1992) (CSAAS evidence inadmissible because it does not
have general acceptance in the field); State v. Hudnall, 359
S.Ed.2d 59, 61-62 (S.C. 1987) (CSAAS admissible to explain inconsistent
behavior, not reliable to prove abuse occurred), but see State v. West, 438 S.E.2d 256, 259
(S.C. Ct. App. 1993) (overruling Hudnall and clarifying that
expert testimony and behavior evidence are admissible to prove a sexual offense
has occurred where the probative value of such evidence outweighs its prejudicial
effect.)
[4] People v. Gray, 231 Cal. Rptr. 658, 660-61 (Cal. Ct. App. 1986) (CSAAS
admissible as rebuttal evidence to rehabilitate victim's testimony, not to
prove abuse has occurred); Keri v. State, 347 S.E.2d 236, 238
(Ga. Ct. App. 1986) (CSAAS evidence admissible to explain child's recantations
because such conduct beyond ordinary understanding of jury); People v.
Dempsey, 610 N.E.2d 208, 221 (Ill. Ct. App. 1993) (CSAAS admissible as
rebuttal evidence to rehabilitate victim's testimony, not to prove abuse has
occurred); Steward v. State, 652 N.E.2d 490, 499 (Ind. 1995)
(same); State v. Doan,
498 N.W.2d 804, 809 (Neb. Ct. App. 1993) (CSAAS admissible to explain secrecy,
belated disclosure, and recantation by child sex abuse victim, but expert
witness may not give testimony which directly or indirectly expressed an
opinion that child is believable, credible or that witness's account has been
validated); People v. Gallow, 569 N.W.2d 530, 531 (N.Y. App. Div.
1991) (CSAAS evidence admissible to explain child's recantations because such
conduct beyond ordinary understanding of jury).
[5] We note but need not rely on State v.
Duane E. Elm, 201 Wis.2d 452, 549 N.W.2d 471 (Ct. App. 1996). In Elm a physician-witness was
asked whether, based upon the history he took in a case in which defendant was
charged with sexual contact of a child and his examination of the child and his
training and experiences as an emergency room physician, he had an opinion to a
reasonable degree of medical certainty as to the cause of the erythema he had
noted. The physician replied, "My
opinion is that she was molested."
We held the physician's opinion was admissible. We reasoned that he gave his medical
diagnosis of the erythema that he observed, and his opinion was that the cause
of that erythema was molestation. When
Dr. Bahrke testified he considered the extent of the masturbation reported to
him as "evidence for sexual abuse," he did not testify that in his
opinion Kaitlin had been sexually abused.
Indeed, he did not even testify that the cause of Kaitlin's excessive
masturbation was sexual abuse.
[6] In State v. Wofford, Case No.
95-0979-CR (Wis. Ct. App. May 16, 1996), we acknowledged the distinction
"between an inquiry into the taking of a polygraph and an inquiry into the
results of the polygraph examination," citing State v. Hoffman,
106 Wis.2d 185, 217, 316 N.W.2d 143, 160 (Ct. App. 1982) (offer to take
polygraph examination relevant to assessment of the offerer's credibility and
may be admissible for that purpose). Wofford,
slip op. at 7. Defendant does not argue
that he seeks to introduce evidence of his willingness to take the polygraph
examination. He argues only that trial
counsel should have attempted to introduce the polygraph evidence itself.