COURT OF APPEALS DECISION DATED AND RELEASED July
25, 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. 94-2322-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
MARTIN
T. HOLTET,
Defendant-Appellant.
APPEAL
from a judgment and an order of the circuit court for La Crosse
County: JOHN J. PERLICH, Judge.
Affirmed.
Before
Dykman, Sundby, and Vergeront, JJ.
DYKMAN,
J. Martin T. Holtet appeals from a
judgment convicting him of four counts of first-degree sexual assault of a
child as a repeater, one count of intimidating a victim as a repeater, and one
count of violating a child abuse injunction as a repeater. He also appeals from an order denying his
postconviction motion for relief.
Holtet argues that he is entitled to a new trial because the State
relied upon perjured and inherently incredible testimony in his prosecution and
that the real controversy was not fully tried.
We conclude that because the trial court instructed the jury to accept
certain testimony as true, no reasonable possibility exists that the jury
relied on the false testimony to convict him, and therefore Holtet was not
prejudiced by it. Accordingly, we
affirm.
BACKGROUND
In
1993, Martin T. Holtet was charged with four counts of sexual abuse of a child
as a repeater, contrary to §§ 948.02(1) and 939.62(1)(c), Stats., one count of violating a child
abuse injunction as a repeater, contrary to §§ 813.122(11) and
939.62(1)(a), Stats., and one
count of intimidating a victim as a repeater, contrary to §§ 940.44(3) and
939.62(1)(a), Stats. The charges stemmed from allegations that
Holtet sexually abused Adam, his girlfriend Rita's twelve-year-old son, during
the fall and winter of 1992-93.
At
trial, Adam testified that Holtet was his mother's boyfriend and that he began
living with the family in 1992. Adam
admitted feeling very close to Holtet and referred to him as
"dad." Adam described how
Holtet delivered newspapers on several routes and that he occasionally
accompanied him on the trips. During
one such time, Holtet stopped the car and masturbated while staring at
Adam. Holtet did not touch Adam but
Adam stated that the incident made him feel sick.
Adam
also recounted the sexual assaults that Holtet perpetrated upon him. Adam claimed that on every Friday night and
early Saturday morning when his mother and brother, Jason, were out delivering
newspapers, Holtet would sexually assault him by rubbing his penis against
Adam's leg and ejaculating. Adam stated
that the assaults made him feel ashamed and dirty. He also testified that the assaults only occurred during those
Friday nights when his mother was delivering newspapers on the Tomah
route. Adam also testified that on two
occasions, Holtet bit his buttocks.
Additionally, after Holtet moved out of the home and after Adam had
reported the sexual assaults to the police, Adam claimed Holtet followed him to
school one morning.
Jason
and Rita corroborated some of Adam's testimony. They testified that they were not at home on Friday nights in the
fall of 1992 because they were delivering newspapers on the Tomah route. According to Rita, she and Jason left home
between 1:00 a.m. and 2:00 a.m. to pick up the St. Paul Pioneer Press in La Crescent even though the
newspapers did not arrive in La Crescent until around 3:00 a.m. Jason also described how the two of them
picked up the newspapers in La Crescent at about 2:30 a.m. and delivered
them to several stores and businesses.
Rita explained that it took about five hours to deliver the newspapers
on the Tomah route, resulting in their returning to home at about 8:00 a.m.
Saturday mornings. Jason also testified
that he saw the bite marks on Adam's buttocks allegedly caused by Holtet.
Several
defense witnesses testified that the St.
Paul Pioneer Press was not delivered on Friday nights on the Tomah route
during the fall of 1992 as claimed by Rita, Jason and Adam. Faced with this testimony, the prosecutor
agreed to a stipulation. The trial
court instructed the jury as follows:
There
is a stipulation between the parties that the Saint Paul Pioneer Press was not
delivered on Friday night or Saturday morning during October, November, and
December of 1992 and January of [19]93 to the Kwik Trip Stores in Tomah and
Sparta, and the Holiday Gas Station, the Lark Inn, Steele Drugstore, and the
Holiday Inn.
Based on that
stipulation, you can accept those facts as I have recited them as having been
proven.
During
rebuttal, the prosecutor recalled Rita and asked her, in light of this
information, where she might have been during those nights when Adam was
assaulted. Rita, however, maintained
that she was delivering the newspapers on the Tomah route on Friday evenings
with Jason. Indeed, during cross-examination,
Rita emphasized that she was positive that she delivered newspapers on the
Tomah route in October and the beginning of November.
The
jury found Holtet guilty of all six charges and the trial court sentenced him
to a five-year prison term and imposed three concurrent fifteen-year
probationary terms and two concurrent three-year probationary terms. Holtet moved the trial court for
postconviction relief arguing that the prosecution's reliance on perjured
testimony[1]
was prejudicial and that he is entitled to a new trial.
After
a hearing on the matter in which the St.
Paul Pioneer Press's district manager testified that the newspapers were
not delivered to Tomah on Friday nights and Saturday mornings and that Holtet
worked every Friday night and Saturday morning delivering papers on a different
route, the trial court denied the motion.
In so doing, the court found that Rita "got on the witness stand
and committed perjury."[2] Holtet appeals.
DUE PROCESS
VIOLATION
Holtet contends that his
right to due process was violated because perjured or inherently incredible
testimony was used to convict him. He
points to the fact that the prosecutor, although stipulating that the newspapers
were not delivered to several businesses on the Tomah route, did not correct
the false testimony that Rita and Jason picked up the newspapers in La Crescent
or that they travelled that particular route.
He also argues that the prosecutor improperly elicited testimony from Rita
during rebuttal in which she maintained that she was delivering newspapers on
the Tomah route, contrary to the stipulation.
A
prosecutor's knowing use of false or incredible evidence to obtain a conviction
violates a defendant's right to due process guaranteed by the Fourteenth
Amendment to the United States Constitution.
State v. Nerison, 136 Wis.2d 37, 54, 401 N.W.2d 1, 8
(1987). When false evidence appears,
the prosecutor is responsible for correcting it. Giglio v. United States, 405 U.S. 150, 153 (1972); Napue
v. Illinois, 360 U.S. 264, 269 (1959).
A new trial is warranted if the prosecutor used false testimony which,
in any reasonable likelihood, could have affected the judgment of the
jury. Nerison, 136 Wis.2d
at 54, 401 N.W.2d at 8. In order to
show a due process violation, Holtet must demonstrate that the false testimony
in question was "used" or "relied on" by the prosecutor to
deliberately deceive the jury. State
v. Whiting, 136 Wis.2d 400, 418, 402 N.W.2d 723, 731 (Ct. App. 1987).
Holtet
attempts to create a dichotomy in the stipulation where none exists by limiting
the scope of the stipulation, thus leaving a portion of the false testimony
standing uncorrected. But the
stipulation is not as limited in scope as Holtet suggests. Rita testified that the newspapers she
picked up in La Crescent were delivered to locations on the Tomah route,
which the prosecutor later stipulated did not receive them. The stipulation made it clear that Rita and
Jason, if out on Friday nights, were not delivering newspapers on the Tomah
route and had not picked them up in La Crescent. The prosecutor also permitted defense witnesses to testify that
no newspapers were delivered on the Tomah route and did not cross-examine them
on that issue. The stipulation
fulfilled the prosecutor's obligation not to let false testimony go uncorrected
and addressed the discrepancies amongst Rita's, Jason's and Adam's testimony
and the evidence showing that the newspapers could not have been delivered on
those Friday nights on the Tomah route.
Holtet
also argues that the prosecutor improperly attempted to elicit an explanation
from Rita as to her earlier false testimony, thereby casting doubt on the
stipulation and violating her duty to correct false testimony. He points to United States v. Wallach,
935 F.2d 445 (2d Cir. 1991), in support of his argument.
In
Wallach, the court determined that the prosecution used false
testimony when it consciously ignored evidence that its chief witness was lying
and attempted to rehabilitate the witness by eliciting a dubious explanation of
the events in question. Id.
at 457. In the instant case, however,
the false evidence was clearly brought to the attention of the jury and was
never challenged by the prosecutor.
Instead, during rebuttal, the prosecutor reiterated that Rita could not
have been delivering the newspapers in Tomah on the nights in question and
asked Rita if that information "caused [her] to reflect on what [she]
might have been doing during those times[.]" Rita replied that she delivered newspapers on Friday nights and
Saturday mornings with Jason as well as on Sunday and that there may have been
other days when she was delivering the newspapers. She explained that she did not have any records of the nights
that she worked and that Holtet had taken her monthly report forms when he
moved out of her home. Through
rebuttal, the prosecutor gave Rita the opportunity to change her testimony as
to where she was on those Friday nights.
The prosecutor did not attempt to provide Rita with an opportunity to
rebut the stipulation. That Rita, when
confronted with the falsity of her testimony, stuck to her earlier story only
made her appear less credible in the eyes of the jury.
The
prosecutor stipulated that certain evidence was false. When a jury is instructed that certain facts
must be accepted as true thereby rendering certain contradictory testimony
false, we presume that the jury disregarded the false testimony in coming to
its decision. See In re D.S.P.,
157 Wis.2d 106, 117, 458 N.W.2d 823, 828 (Ct. App. 1990), aff'd, 166
Wis.2d 464, 480 N.W.2d 234 (1992) (a trial court's ameliorative instruction
cures the prejudicial effect flowing from improper testimony). Holtet's conviction demonstrates only that
the jury believed the testimony of Adam that he was assaulted on several
occasions when he was either home alone with Holtet or in a room alone with
Holtet. That Adam incorrectly
identified when the assaults occurred does not mean, as the dissent
concludes, that the assaults did not happen.
We permit a jury to believe some of a witness's testimony and disbelieve
other parts. Nabbefeld v. State,
83 Wis.2d 515, 529, 266 N.W.2d 292, 299 (1978). It is merely second guessing a jury to conclude that it was
required to disbelieve all of Adam's testimony. Id. That
Rita and Jason were not delivering newspapers on the Tomah route does not mean
that the acts complained of by Adam did not occur. We conclude, under the facts of this case, that the prosecutor
did not use false testimony which, in any reasonable likelihood, affected the
judgment of the jury. Thus, Holtet's
right to due process was not violated.
NEW TRIAL IN THE
INTEREST OF JUSTICE
Holtet
seeks a new trial in the interest of justice under § 752.35, Stats., which provides,
In an appeal to
the court of appeals, if it appears from the record that the real controversy
has not been fully tried, or that it is probable that justice has for any
reason miscarried, the court may reverse the judgment or order appealed from,
regardless of whether the proper motion or objection appears in the record and
may direct the entry of the proper judgment or remit the case to the trial
court for entry of the proper judgment or for a new trial, and direct the
making of such amendments in the pleadings and the adoption of such procedure
in that court, not inconsistent with statutes or rules, as are necessary to
accomplish the ends of justice.
Holtet
argues that the prosecutor's reliance on false testimony prevented the real
controversy from being fully and fairly tried.
In State v. Penigar, 139 Wis.2d 569, 586, 408 N.W.2d 28,
36 (1987), the court granted a new trial in the interest of justice because the
conviction "hinged" on false testimony which a broadly worded
admonitory instruction did not cure.
Based upon our review of the record, we conclude that the real
controversy was fully tried and that a new trial is not warranted. Adam testified that Holtet sexually
assaulted him on several occasions while his mother and Jason were out
delivering newspapers on the Tomah route.
Despite subsequent evidence demonstrating that his testimony was
inaccurate regarding where his mother and Jason were on the nights he was
assaulted, the jury apparently found part of his testimony credible. Without a showing that the false testimony
was not corrected or that the prosecutor relied upon it to prosecute Holtet, we
see no reason to exercise our discretionary reversal power.
On
April 2, 1996, we ordered supplemental briefing as to whether trial counsel was
ineffective by failing to advise Holtet of his right to individual polling of
the jury and by failing to request an individual jury poll. Subsequently, we decided State v. Yang,
No. 95-0583-CR (Wis. Ct. App. Apr. 18, 1996, ordered published May 28, 1996),
which we conclude disposes of this issue adversely to Holtet. Accordingly, we conclude that Holtet's
counsel was not ineffective by failing to advise Holtet of his right to
individual polling of the jury and by failing to request an individual jury
poll.
By
the Court.—Judgment and order
affirmed.
Not
recommended for publication in the official reports.
No.
94-2322-CR(D)
SUNDBY,
J. (dissenting). It is undisputed that a
critical witness against the defendant perjured herself on a material issue of
fact. We propose to hold that despite
the State's concession that defendant's trial was permeated with the perjury of
the State's principal corroborating witness, the defendant received a fair
trial because the trial court conferred with the jury ex parte after the
verdict was entered and satisfied itself that the jury didn't believe the
witness and therefore her perjury was harmless. The implications of this astounding decision are appalling.
Jury
deliberations take place in the jury room in secret. A juror may express an opinion in the privacy of the jury room he
or she would not express when faced with the daunting presence and questioning
of a trial judge convinced of defendant's guilt who wishes to see that the
defendant gets his just desserts.
Jurors respect judges; a judge committed to defendant's guilt may convey
to jurors by his or her demeanor how the judge wishes the jurors to
decide. I can think of no practice more
pernicious to our jury system than to allow the trial judge to consult with the
jury, out of the presence of the defendant and his or her counsel, as to which
witnesses they believed and which they did not believe. I therefore dissent.
The
trial court denied Holtet's motion for a new trial because the court concluded
that the perjured testimony was not crucial to his conviction. The trial court described how it arrived at
that conclusion:
The
reality is she [the alleged victim's mother] lied.
I will relay something to counsel, `cause I
think it's illustrative of what occurred.
At the end of the first day of trial, I went home, and my wife asked me
how the trial was going. And I
indicated to her that I thought the young man had been sexually assaulted by
the defendant, I thought the mother of the young man found out about it, I
think there was some bad blood between the mother and Mr. Holtet, I think she
realized there might be some weaknesses in the child's testimony, and that she
made up a lie to cover those weaknesses.
And I told my wife, "I wonder if the jury is going to realize that
and see through that?"
After the verdict I informed the jury that if
they had any questions or comments, or anything they wanted to discuss with me,
they were certainly free to do so. And
if they'd just wait in the jury room, I'd be happy to talk to them. Many times they do wait. This was one of those cases.
And I talked to the jury, and guess what they
said? They said, "We know darn
well she's lying through her teeth, but we're satisfied that this defendant
sexually assaulted that little boy."
Sometimes jurors can be pretty perceptive.
There is no doubt in my mind that [the mother]
lied....
The only issue before this Court is whether or
not Mr. Holtet is entitled to a new trial.
The issue in this case boiled down to whether
or not ... [Adam] was telling the truth ....
The jury felt that he was telling the truth,
they believed him as to that issue, and they found the defendant guilty. It's a verdict with which I agree.
Was that issue fairly tried? Yes, it was. Did Mr. Holtet get a fair trial as to that issue? Yes, he did. Do I have faith in this verdict as to that issue? Yes, I do.
... [T]his jury was instructed that if any
witness had lied, they were, at their discretion, allowed to totally disregard
that testimony. Based on my
conversations with them, they certainly did.
They didn't believe [the mother] any more than I did. But they did believe [Adam] when he said
this defendant sexually assaulted him.
Now, the question,
the only question before this Court as I see it, is whether or not the
testimony, the perjured testimony, was so crucial to the conviction that the
conviction cannot stand on its own without that. I don't believe, as a matter of law, that it is so crucial.
(Emphasis added.)
The
trial court's inquiry of the jury as to its deliberations was highly
improper. The prosecutor should have
joined the defendant in moving for a new trial. The prosecutor momentarily forgot that she "ha[d] a
responsibility of a minister of justice and not simply that of an
advocate." Supreme Court Rule
20:3.8 Special Responsibilities of a Prosecutor, Comment.
On
the first day of trial, Adam's mother testified that she drove Holtet's paper
route every Friday night and Saturday morning.
Adam testified that it was on these occasions that Holtet had sexual
contact with him. Adam's mother further
testified: "Every single time I
would take Jason, my oldest son, and some of the time I would take Amber with
me also." She testified that
"[t]here was never a Friday we missed." She said that the route included West Salem, Tomah, Fort McCoy
and Sparta. She would leave home about
2:00 a.m. and pick up the papers in La Crescent, Minnesota at about 3:00
a.m. She testified as to the various
stops she made to deliver the papers.
On
the morning of the second day of trial, the prosecutor informed the court that
defense counsel had presented her with documentary evidence from intended
witnesses that in fact the mother had never made deliveries at any of those
locations. She then agreed that the
trial court would present the following statement to the jury:
There
is a stipulation between the parties that the Saint Paul Pioneer Press was not
delivered on Friday night or Saturday morning during October, November, and December
of 1992 and January of '93 to the Kwik Trip Stores in Tomah and Sparta, and the
Holiday Gas Station, the Lark Inn, Steele Drugstore, and the Holiday Inn.
Based on that
stipulation, you can accept those facts as I have recited them as having been
proven.
The
State argues that by agreeing to inform the jury that the facts testified to by
the alleged victim's mother were untrue, the prosecutor "unquestionably
complied with her obligation not to let false testimony go uncorrected." However, the prosecutor called the mother in
rebuttal and attempted to rehabilitate her testimony by showing that she may
have been doing other things on the route such as collecting from the
machines. On cross-examination, the mother
refused to admit that she did not do the Tomah route as she had testified. She testified that "[upon]
reflect[ion]" she did question November and December, "[b]ut
positively we did it in October and the beginning of November, yes we did. We did it all the way through the year." (Emphasis added.)
The
trial court found that the mother "got on the witness stand and committed
perjury." The State abandons any
attempt to establish that the mother was merely confused in her testimony. In fact, the State argues vigorously that
the mother testified falsely. The State
concentrates on establishing that Holtet got a fair trial because the
prosecutor did everything she needed to do to inform the jury that the mother's
testimony was false.
The
problem with the prosecutor's concession is that it makes Adam's testimony and
his brother's testimony false as well.
Adam testified that "it all started" when his mother, brother
and sister "would all go on the route together." He further testified that defendant's sexual
contacts with him happened "[e]very Friday and Saturday when my mom would
be on the route." He further
testified that these contacts would "only happen on those
nights." On cross-examination, defense
counsel carefully pinned down that the alleged victim was sure that the first
incident happened on a Friday night, Saturday morning between 12:00 a.m. and
2:00 a.m. when his mother, brother and sister were on the Tomah paper
route. He identified the date as
"around five weeks after school started in September." Count one of the information charged Holtet
with sexual contact with the alleged victim in late September or early October,
1992. The alleged victim also testified
that the same thing happened every Friday from five weeks after school started
until Christmas and the only time it happened was on these occasions when he
was alone with defendant. He testified
that his mother, brother and sister were always out doing the paper route in
Tomah.
This
testimony must be false if the mother's testimony was false. If the jury believed Adam, it necessarily
had to find that the sexual contact took place sometime other than on late
Friday evenings and early Saturday mornings.
Yet, Adam was very positive as to the dates of the alleged sexual
contacts. He was thirteen years of age
at the time of trial and demonstrated a great deal of sophistication as to
sexual terms.
Adam's
brother, Jason, was sixteen years of age at the time of trial. He testified that "my mom and I would
only do Friday nights, that's Saturday papers and ... there is a big Kwik Trip
in Tomah ... with a restaurant in it and we would take the papers
inside." He testified that they
did this every Friday night. If Adam's
mother's testimony as to the paper route trips was false, so was Jason's
testimony.
Neither
the prosecutor nor the trial court instructed the jury to disregard this
testimony of the alleged victim and his brother. If that testimony was stricken, there was nothing left of the
State's case. I therefore conclude that
defendant did not receive a fair trial.
The judgment must be reversed and a new trial ordered.
There
is more involved here than Holtet's guilt or innocence. The jury system itself is compromised if the
trial judge invades the jury room and persuades the jury by his or her
questions and demeanor what testimony they should have believed. Our review is also compromised if we extend
our consideration to ex parte after-trial meetings of the judge with the
jury which are not transcribed and are not of record.
[1] Holtet and the dissent refer to the testimony
as "perjured." It may have
been that indeed. However, § 946.31(1),
Stats., requires that a perjurer
make a false statement under oath which he or she does not believe to be
true. Without further inquiry, it is
difficult to conclude that Rita, Jason and Adam knew that what they testified
to was not true.
[2] As the dissent correctly points out, the
trial court reached this conclusion after it had met with the jury and
determined that the jury had not relied upon the improper testimony when
rendering its decision. However, how
or why the trial court came to its decision is irrelevant. We review the issues raised by this appeal de
novo. See State v.
Penigar, 139 Wis.2d 569, 586, 408 N.W.2d 28, 36 (1987). We have had no conversations with the
jury. We have reviewed the evidence
presented at trial de novo. We
have independently concluded that the false testimony did not prejudice
Holtet. Given our de novo
review, Holtet's rights to a public trial, to be heard with counsel or pro
se, and to be present at an evidentiary hearing are not implicated in this
appeal. The dissent's assertion that our
holding is dependent upon the trial court's ex parte communication with
the jury is therefore incorrect. There
can be no such relationship because we have concluded de novo that the
false testimony did not prejudice Holtet.