COURT OF APPEALS

DECISION

DATED AND FILED

 

July 24, 2012

 

Diane M. Fremgen

Clerk of Court of Appeals

 

 

 

NOTICE

 

 

This opinion is subject to further editing.  If published, the official version will appear in the bound volume of the Official Reports. 

 

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.  See Wis. Stat. § 808.10 and Rule 809.62. 

 

 

 

 

Appeal No. 

2011AP2265-CR

Cir. Ct. No.  2010CF1228

STATE OF WISCONSIN 

IN COURT OF APPEALS

 

DISTRICT I

 

 

 

 

State of Wisconsin,

 

                        Plaintiff-Respondent,

 

            v.

 

Jeffrey A. Williams,

 

                        Defendant-Appellant.

 

 

 

            APPEAL from a judgment of the circuit court for Milwaukee County:  kevin e. martens, Judge.  Affirmed. 

            Before Curley, P.J., Fine and Brennan, JJ.

1        PER CURIAM.    Jeffrey A. Williams appeals from an amended judgment, entered upon a jury’s verdict, convicting him of second-degree sexual assault of an intoxicated person.  He contends that the circuit court erroneously permitted his niece to testify that her family members expressed animosity towards her because she was a witness for the State.  He seeks a new trial.  Because we conclude that the testimony was probative of the witness’s credibility, and because the testimony did not prejudice Williams, we reject his contentions and affirm.

BACKGROUND

2        We take the facts from the evidence presented at trial.  Williams and his niece, Telisha Williams, went to a party hosted by Martine B.[1]  Ms. Williams testified that Martine B. became very intoxicated, was unable to walk upright, slurred her speech, vomited, and fell “dead [a]sleep.”  According to Ms. Williams, she left the party for a few minutes, and when she returned she heard someone say:  “why would you do this to me?  I’m drunk.  Why would you do this to me?”  Upon hearing these words, Ms. Williams walked into Martine B.’s bedroom and found Williams there.  Ms. Williams also discovered Martine B. in a fetal position behind the door with her pants and underwear partly removed.  Ms. Williams asked her uncle:  “what did you do?”  Williams replied that he “didn’t do anything that [Martine B.] didn’t want to happen.”  Ms. Williams called the police and drove Martine B. to a sexual assault treatment center.

3        The State asked Ms. Williams how the incident had affected her relationship with Williams.  She responded that she loved her uncle.  The examination continued, eliciting the testimony disputed on appeal:  

Q:  And has [this] affected your relationship with other family members?

 

A:  Yeah.  I think –

 

Defense Counsel:  Objection.  Relevance.

 

The Court:  Overruled.  

 

Q:  You can answer. 

 

A:  I think my uncles hate me.  I think they hate me. 

 

Q:  You’ve noticed you’ve had family encounters and things like that? 

 

A:  Yeah.  

 

Defense Counsel:  Objection.  

 

The Court:  Overruled. 

 

A:  I mean my other uncle is here, and he didn’t say anything to me. 

 

Q:  Miss Williams, despite all that you are willing to come here and tell what you observed ... despite problems with your family now? 

 

A:  Yeah.  

In proceedings held outside the jury’s presence, the circuit court ruled that this testimony was relevant to assessing Ms. Williams’s credibility.

4        Williams testified on his own behalf.  He told the jury that he had consensual sexual intercourse with Martine B. during the night of the party and that his niece interrupted the sexual encounter.  The jury rejected the consent defense and found Williams guilty of second-degree sexual assault of an intoxicated person.  This appeal followed. 


 

DISCUSSION

5        The admissibility of evidence lies in the circuit court’s sound discretion.  State v. Adams, 221 Wis. 2d 1, 15, 584 N.W.2d 695 (Ct. App. 1998).  We will not reverse the circuit court’s decision to admit or exclude evidence absent a clear showing that the circuit court erroneously exercised its discretion.  See State v. Doss, 2008 WI 93, ¶19, 312 Wis. 2d 570, 754 N.W.2d 150.

6        Williams asserts that the evidence of family animosity directed at his niece was irrelevant and served only to bolster Ms. Williams’s credibility unnecessarily when he had not challenged it.  We reject his contentions. 

7        Relevant evidence is evidence that tends “to make the existence of any fact that is of consequence to the determination of the action more probable or less probable.”  Wis. Stat. § 904.01.  ‘“A witness’s credibility is always ‘consequential’ within the meaning of Wis. Stat. § 904.01.’”  State v. Marinez, 2011 WI 12, ¶34, 331 Wis. 2d 568, 797 N.W.2d 399 (citation to treatise omitted).  Accordingly, the State may elicit “a disclosure of facts affecting [a witness’s] credibility.”  See State v. Kaster, 148 Wis. 2d 789, 800, 436 N.W.2d 891 (Ct. App. 1989).

8        In Kaster, we approved a circuit court decision allowing the State to question a witness about the witness’s pretrial agreement with the State.  See id. at 799-800.  The questions elicited information regarding “what the prosecution said would happen if [the witness] lied on the stand, whether [the witness] had told the truth on the stand, and what would happen if [the witness] told the truth.”  See id. at 799.  We explained that this testimony was a proper disclosure of facts affecting credibility.  Id. at 800.  We observed:  “[i]f that disclosure is ‘bolstering,’ then there is nothing wrong with it.”  Id.

9        Disclosure that a third party pressured a witness in regard to his or her testimony similarly assists the jury in assessing the witness’s credibility.  See Adams, 221 Wis. 2d at 15.  In Adams, we affirmed the circuit court’s decision to permit a witness to testify that she received telephonic threats from an unidentified person who ordered her “to get her story straight, to defend the right person and [who] stat[ed], ‘[w]e know where you work and when you leave.’”  Id.  We explained that “evidence of threats was relevant to the issue of [the witness’s] credibility.”  Id.  

10      The State also directs our attention to People v. Olguin, 37 Cal. Rptr. 2d 596 (Cal. Ct. App. 1994).  There, the California court of appeals determined that a witness properly testified about threats from third parties and the witness’s resulting fear of cooperating with law enforcement.  See id. at 600.  The Olguin court reasoned that a witness’s trepidation about the consequences of testifying is relevant to the witness’s credibility, explaining:  “[a] witness who testifies despite fear of recrimination of any kind by anyone is more credible because of his or her personal stake in the testimony.”  Id. at 601 (emphasis in original).[2]  

11      The foregoing authorities are persuasive in the instant case.  We therefore conclude that the circuit court properly exercised its discretion in determining that the evidence of family animosity directed at Ms. Williams was relevant to assessing her credibility. 

12      Relevant evidence may be excluded, of course, “if its probative value is substantially outweighed by the danger of unfair prejudice.”  See Wis. Stat. § 904.03.  Here, however, Williams’s testimony that her family members treated her with hostility was not unduly prejudicial.  As we similarly observed in Adams, the contested evidence was not linked to the defendant.  See Adams, 221 Wis. 2d at 15.  Although Williams hypothesizes that the jury may have concluded that he influenced his relatives, nothing in the record supports this speculative theory.  Thus, Williams does not show that the testimony “reflect[ed] badly on his character or prejudiced his case.”  See id. at 16.  Accordingly, he fails to demonstrate any unfair prejudice arising from admission of the evidence.

13      In sum, the evidence of family animosity directed at Ms. Williams was relevant to the consequential issue of her credibility as a witness, and the evidence did not unfairly prejudice Williams.  We affirm. 

            By the Court.—Judgment affirmed.

            This opinion will not be published.  See Wis. Stat. Rule 809.23(1)(b)5.


 


[1]  We note with concern that the State’s brief identifies the victim in this case by her full name.  We expect counsel to make every reasonable effort to conceal the identity of sexual assault victims.  We caution the State that its briefs should in the future refer to victims of sensitive crimes by a first name and last initial to shield identity.  Cf. Wis. Stat. Rule 809.19(1)(g) (2009-10).  All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.

[2]  We note that well over a thousand courts and other authorities have cited People v. Olguin, 37 Cal. Rptr. 2d 596 (Cal. Ct. App. 1994).  A few of these citations appear in unpublished opinions that include the notation that Olguin was partially overruled by People v. Cromer, 15 P.3d 243, 250 n.3 (Cal. 2001).  Most citing sources, however, do not include this notation.  See, e.g., People v. Mendoza, 263 P.3d 1, 24 (Cal. 2011).  Our review of Cromer discloses that its footnote number three lists twelve cases with language disapproved by the opinion and that Olguin is not among them.  See Cromer, 15 P.3d at 250 n.3.  Further, neither of the recognized citator services used by this court assess Olguin as overruled on any ground.  Nonetheless, we question why the State, in referring us to Olguin, did not call our attention to and address potential questions about the weight of this authority.