COURT OF
APPEALS DECISION DATED AND
RELEASED AUGUST
28, 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. |
Nos. 94-0741-CR
95-0830-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
JESSIE
L. REDMOND,
Defendant-Appellant.
APPEALS
from a judgment and orders of the circuit court for Racine County: DENNIS J. FLYNN, Judge. Affirmed.
Before
Anderson, P.J., Nettesheim and Snyder, JJ.
ANDERSON,
P.J. Jessie
L. Redmond appeals from a judgment of conviction for two counts of
second-degree sexual assault of a child as a repeater, contrary to §§ 948.02(2)
and 939.62, Stats., and
distributing cocaine to a minor as a repeater, contrary to §§ 161.46(3)
and 939.62, Stats., and orders
denying his postconviction motions for a new trial.[1] On appeal, Redmond makes various claims
including ineffective assistance of trial counsel, violation of the preliminary
hearing time limits under § 970.03(2), Stats.,
and numerous evidentiary errors by the trial court. We conclude that any alleged defects by trial counsel were not
prejudicial to Redmond's case and therefore fail to meet the threshold
requirements for ineffective assistance of counsel. We further conclude that State v. Webb, 160 Wis.2d
622, 467 N.W.2d 108, cert. denied, 502 U.S. 889 (1991), precludes
Redmond's preliminary hearing argument.
We find no errors in the evidentiary rulings made by the trial
court. Accordingly, we affirm the
judgment and the orders of the trial court.
Factual Background
Redmond
worked as a counselor at the Burlington Group Home (Group Home) from
approximately September 1992 until his termination on November 4, 1992.[2] The juvenile victim in this case, Heather
T., was a resident of the Group Home.
The Group Home is an alcohol and drug abuse treatment facility for
juveniles who are on their way to or from corrections.
Redmond's
convictions stem from events occurring on October 31, 1992. Redmond was to escort several residents,
including Heather, Michelle E. and Jason W., to an Alcoholics Anonymous dance
at the Grove Club in Racine. Heather
testified that earlier that day, Redmond offered to obtain some cocaine for her
if Michelle agreed to have sex with him.
Michelle rejected his proposal, but Redmond said he would still buy
Heather some cocaine if she paid him back.
Redmond also suggested that Heather use Michelle's urine to evade the
Group Home's mandatory urinalysis.
Michelle corroborated Heather's testimony.[3]
On
the way to the Grove Club, the group stopped at a gas station where, according
to Michelle's testimony, she bought Redmond two condoms. Next they stopped by a blue house in Mount
Pleasant, Redmond's brother's or cousin's house, where both Heather and
Michelle believed he was purchasing the cocaine. Then the group stopped at a restaurant where Redmond gave Heather
“some rocks [of cocaine] and a pipe.”
Heather smoked some of it in the bathroom and showed the remainder to
Michelle.
The
group also stopped at the lakefront.
Heather stated that when the other juveniles went to get a soda, Redmond
unzipped his pants and exposed his penis and she began to “suck him off.” She stopped when the others returned.
At
the Grove Club, Heather testified that Redmond approached her in the dance and
told her it was time to go outside. She
went outside to smoke some more crack and to meet Redmond. They discussed the value of the crack, about
one hundred dollars, and Redmond said he wanted Heather in exchange. They had sexual intercourse in the van. In the bathroom, Heather told Michelle of
the incident in the parking lot.
The
next day, Heather showed the remaining crack cocaine to Chris Liebenthal, a
counselor at the Group Home, but Heather flushed it down the toilet before he
could confiscate it. Greta Sorenson,
another counselor, took Heather to the hospital for a urinalysis, which turned
up positive for cocaine.
At
the hospital, Heather told Sorenson that someone at her recovery meeting at
Charter Hospital provided the cocaine for her because she “didn't want to get
[Redmond] in trouble.” Once Heather
returned to the Group Home, she found out that Michelle had told the staff what
had happened. Heather confirmed that
what Michelle had said was true.
In
subsequent interviews, Heather disclosed details of the incident at the Grove
Club, and eventually she discussed the incident at the lakefront as well. She was hesitant to provide details of the
lakefront incident because “she felt she was ashamed, that it was her fault,
that she was not forced to do any of this, that she just went and performed
fellatio on the defendant.”
Despite
Redmond's denial of the allegations during the investigation, he was arrested
and charged with two counts of second-degree sexual assault of a child,
contrary to §§ 948.02(2) and 939.62, Stats.,
and distributing cocaine to a minor, contrary to §§ 161.46(3) and 939.62, Stats.
A jury convicted him on all three counts on April 5, 1993. Redmond appeals the judgment of conviction
and the trial court's orders dated February 24, 1994, and April 13, 1995, denying
postconviction relief. Other facts
shall be incorporated into the opinion as necessary.
Discussion
Redmond
makes the following claims: (1) his trial counsel was ineffective on twelve
separate bases; (2) the preliminary hearing was not held in accordance with
§ 970.03(2), Stats.; (3) the
trial court should have excluded evidence regarding Redmond's employment
application; (4) the trial court should have excluded testimony of the State's
expert; (5) the trial court should have allowed Redmond to present evidence
regarding an alleged prior untruthful allegation of sexual assault made by
Heather; and (6) the trial court should have permitted evidence regarding the
probationary status of the State's juvenile witnesses. We will address each issue separately.
Ineffective
Assistance of Counsel
Redmond's
first argument is that numerous omissions by his trial counsel deprived him of
his constitutional right to effective counsel as guaranteed by the Sixth
Amendment to the United States Constitution and art. I, § 7 of the
Wisconsin Constitution. Redmond raises
twelve separate incidents which he claims constituted ineffective assistance of
trial counsel.[4] Redmond argues that “[t]aken individually or
collectively, there is no doubt the errors of trial counsel deprived [him] of a
fair trial.”
A
defendant, when establishing ineffective assistance of counsel, must show that
counsel's performance was deficient and that such performance prejudiced his or
her defense. Strickland v.
Washington, 466 U.S. 668, 687 (1984).
Questions of whether counsel's performance was deficient and whether it
prejudiced the defendant's defense are questions of law that we review de
novo. State v. Johnson,
153 Wis.2d 121, 128, 449 N.W.2d 845, 848 (1990).
We
may avoid the deficient performance analysis altogether if the defendant has
failed to show prejudice. State v. Wirts, 176 Wis.2d 174, 180,
500 N.W.2d 317, 318 (Ct. App.), cert. denied, 114 S. Ct. 257
(1993). A showing of prejudice requires
more than speculation, id. at 187, 500 N.W.2d at 321; rather, the
defendant must affirmatively prove prejudice, State v. Pitsch,
124 Wis.2d 628, 641, 369 N.W.2d 711, 718 (1985). To prove prejudice under Strickland, the defendant
must show that there is a reasonable probability that but for counsel's unprofessional
errors, the result of the proceeding would have been different. Strickland, 466 U.S. at
694. A reasonable probability is a
probability sufficient to undermine confidence in the outcome. Id. Our review focuses on whether the errors cause us to believe that
the outcome has been rendered unreliable.
In determining this issue, we look at the totality of the circumstances
and assume that the judge or jury acted in accordance with the law. See id. at 694-95.
Redmond
alleges the following omissions: (1)
failure to review Redmond's personnel file; (2) failure to devise a more
succinct method for introducing Redmond's prior convictions; (3) failure to
call an expert on recovery of dried semen; (4) failure to pursue prosecutorial
misconduct; and (5) failure to investigate.
These claims of deficient performance are weak. Redmond knew of the information in his
personnel file and had a responsibility to tell his attorney; Redmond does not
have the right to control how the State puts in evidence, nor can defense
counsel be expected to predict the State's method; the proposed expert
testimony on the recovery of dried semen from the van's fabric was unrelated to
the investigator's testimony regarding the usefulness of a medical exam in
conjunction with a sexual assault charge; there was no prosecutorial misconduct
as the ongoing contempt proceedings against the victim in juvenile court were
unrelated to this action; and there is no evidence that a different investigation
would have turned up relevant evidence.
Furthermore,
Redmond has not affirmatively proven prejudice. Even if these omissions constituted deficient performance, there
is no reasonable probability of a different outcome had trial counsel proceeded
as Redmond now argues. The evidence is
overwhelming that Redmond had sexual contact with Heather and that he provided
her with cocaine.
Heather
consistently testified that she was responsible for both the incidents of
sexual activity and her drug use. This
likely had a powerful affect on the jury.
In addition, many details of Heather's testimony were corroborated by
Michelle's version of the facts. In
fact, Michelle's testimony not only substantiated Heather's frankness, but also
provided additional information regarding Redmond's willingness to “do favors”
for both she and Heather. Redmond's testimony was simply not convincing enough
to overcome the consistency of both Heather's and Michelle's testimony.
The
positive urinalysis at the hospital provided uncontroverted evidence that
Heather had obtained cocaine. Both
girls indicated that it was Redmond who suggested switching their urine in
order to avoid detection at the Group Home.
A logical inference is that Redmond provided Heather with the cocaine,
as alleged. We must keep in mind that
it is not within the province of this court to choose not to accept an
inference drawn by a fact finder when the inference is a reasonable one. State v. Friday, 147 Wis.2d
359, 370-71, 434 N.W.2d 85, 89 (1989).
We cannot say that trial counsel's alleged omissions invalidate any
inferences drawn by the jury.
Based
upon the evidence and the reasonable inferences drawn from that evidence, the
jury concluded that Redmond in fact had two incidents of sexual contact with
Heather and that he provided her with cocaine.
Even if the alleged omissions by trial counsel constituted deficient
performance, we conclude that there is no reasonable probability of a different
outcome had he proceeded as Redmond now argues. Without prejudice, trial counsel's errors are not grounds for
reversal. See Pitsch,
124 Wis.2d at 633, 369 N.W.2d at 714.
Thus, we affirm the trial court's denials of Redmond's postconviction
motions based upon ineffective assistance of counsel.
Preliminary
Hearing
Redmond's
second contention on appeal is that his convictions should be reversed because
the preliminary hearing was held eleven days after his initial appearance, in
violation of § 970.03(2), Stats. Redmond further asserts that he pled not
guilty at the arraignment, thereby reserving any jurisdictional arguments.
Procedural
defects at the preliminary hearing do not affect the circuit court's
jurisdiction to proceed to trial. Webb, 160 Wis.2d at 635, 467
N.W.2d at 113. A defendant who claims
errors occurred at the preliminary hearing may only obtain relief prior to
trial. Id. at 636, 467
N.W.2d at 114.
At
no time prior to trial did Redmond or his counsel challenge the bindover. As stated in Webb, procedural
defects at the preliminary hearing do not affect the circuit court's
jurisdiction to proceed to trial. Id.
at 635, 467 N.W.2d at 113. Moreover, to
vacate the judgment of conviction and require the State to begin anew would run
“counter to a policy of conservation of [judicial] time and resources.” Id. at 629, 467 N.W.2d at
111. This is particularly compelling
where, as here, the procedural defect—a continuance of the preliminary hearing
beyond the ten-day time limit—was at the behest of Redmond's attorneys. Accordingly, Redmond's argument must fail.
Employment
Application
Redmond's
third contention on appeal is that the trial court erred when it admitted
evidence of the false information he provided on his employment application
with the Group Home. At trial, Daniel
Farrell, supervisor of the Group Home staff, testified that on Redmond's
employment application form he failed to indicate his previous convictions for
delivery of cocaine. Redmond contends
that there was no connection between the omitted information on his employment
application and the charges of sexual assault and delivery of cocaine to a
minor.
The
decision to admit evidence under § 904.04(2), Stats., is within the trial court's discretion. State v. Wagner, 191 Wis.2d
322, 330, 528 N.W.2d 85, 88 (Ct. App. 1995).
The admissibility of evidence of prior bad acts is determined by a
two-pronged test. See State
v. Peters, 192 Wis.2d 674, 695, 534 N.W.2d 867, 875 (Ct. App.
1995). The trial court must determine
whether the evidence fits within one of the exceptions contained in
§ 904.04(2). Peters,
192 Wis.2d at 695, 534 N.W.2d at 875.
The grounds for admission of “other acts” evidence are not exclusive,
but illustrative. Id. If
the trial court finds the evidence satisfies one of the grounds for admission,
then it must determine whether the probative value of the evidence is
substantially outweighed by the prejudicial value of the evidence. Id.; see also
§ 904.03, Stats. We will uphold the trial court's admission
of “other acts” evidence as long as the record discloses a reasonable basis for
the court's decision. Peters,
192 Wis.2d at 695, 534 N.W.2d at 875.
We do so here.
In
this case, the trial court concluded that the false data on the employment
application was relevant to plan and to issues of motive. The court determined that the employment
information would have greater probative value and would not have unfair
prejudicial value because “[i]t focuses on the established proposition of the
case insofar as plan and motive are at issue.”
The court also read Wis J
I—Criminal 275 to the jury so that the jury would not misuse the
evidence.
The
trial court properly admitted the employment application information. The testimony regarding Redmond's
falsification of his employment application was evidence of plan and
motive. In addition, this evidence
furnished part of the context of the crime and was necessary for a “full
presentation” of the case. See State
v. Shillcutt, 116 Wis.2d 227, 236, 341 N.W.2d 716, 720 (Ct. App. 1983)
(citation omitted); see also State v. Bettinger, 100
Wis.2d 691, 697, 303 N.W.2d 585, 588 (1981) (we have recognized that “other
crimes” evidence is admissible to complete the story of the crime by proving
its immediate context of happenings near in time and place). Given the nature of the charges against
Redmond, as well as Heather's and Michelle's testimony regarding Redmond's
desire to “do favors” for the girls, the “other crimes” evidence established an
overall scheme, plan, motive and context to have access to vulnerable juveniles
to facilitate the sale and delivery of drugs.
The falsification on the employment form was part of the panorama of
evidence to show that Redmond was seeking easy access for drug sales, and we
affirm the trial court's determination on these grounds.
Moreover,
the court provided the jury with a limiting instruction. We have recognized that possible prejudice
is presumptively erased from the jury's collective mind when admonitory
instructions have been properly given by the court. Vogel v. Grant-Lafayette Elec. Co-op., 195 Wis.2d
198, 217, 536 N.W.2d 140, 147 (Ct. App. 1995) (quoted source omitted). We assume that a properly given admonitory
instruction will be followed. Id. We conclude that any potential for prejudice
was erased by the court reading Wis J
I—Criminal 275 to the jury.
Report of State's Expert
Redmond's
fourth argument on appeal is that the trial court erred by permitting the
State's expert to testify about the addictive nature of cocaine. Redmond claims lack of notice and surprise
because the State waited until one or two days before trial to decide on an
expert. Redmond further argues that
allowing the defense to speak with the expert before taking the witness stand
still denied Redmond sufficient time to find his own expert and the only fair
remedy was exclusion. This argument is
without merit.
An
evidentiary objection is addressed to the trial court's discretion. State v. Kuntz, 160 Wis.2d
722, 745, 467 N.W.2d 531, 540 (1991). A
discretionary decision must be the product of a rational mental process by
which the facts of record and law relied upon are stated and are considered
together for the purpose of achieving a reasoned and reasonable
determination. State v. Pittman,
174 Wis.2d 255, 268, 496 N.W.2d 74, 79-80, cert. denied, 114 S. Ct. 137
(1993). If there is a reasonable basis
for the trial court's determination, this court will uphold its ruling. Kuntz, 160 Wis.2d at 745-46,
467 N.W.2d at 540.
At
the motion in limine, the trial court determined that the proper evidentiary
foundation was laid and the evidence was admissible.[5] The trial court also decided “in the
interests of basic fairness,” that prior to the witness taking the stand, the
defense would be allowed to interview the witness. At trial, Redmond's counsel interviewed the witness, Joseph
Vignieri, prior to his taking the stand, conducted voir dire before the jury
and stipulated to his qualifications as an expert on the drug cocaine, its
dependent and addictive qualities and its pharmacology.
We
conclude that the proper evidentiary foundation was laid and the trial court's
decision to allow Vignieri's testimony was a reasonable application of the
facts of record to the law. Redmond
stipulated to Vignieri's qualifications as an expert, and Vignieri provided
significant background information on what cocaine is, on the neurological
effects of cocaine, its addictive potency and the effects of withdrawal for the
jury. The information was beyond the
realm of the average layman and was based upon documented evidence rather than
upon conjecture.
Contrary
to Redmond's argument, the trial court's remedy was more than fair. Redmond was permitted to interview the
witness to determine the scope of his testimony. During cross-examination, Redmond's counsel elicited testimony
that was favorable to the defense. Most
importantly, the trial court offered Redmond the option of a continuance, if
necessary, to allow the defense the opportunity “to present information
countering [Vignieri's testimony] if it chooses to.” We conclude that the trial court properly exercised its
discretion in allowing the State's expert testimony.
Prior
Untruthful Allegations
Redmond's
fifth contention on appeal is that the trial court erred by excluding evidence
of an alleged prior untruthful allegation by the victim, under
§ 972.11(2)(b)3, Stats. Redmond filed a motion in limine and an
offer of proof seeking admission of this evidence. The offer of proof consisted of the incident report and
subsequent investigation conducted by the Racine County Sheriff's Department.
The
facts relating to the incident report are as follows. On November 12, 1991, the department received a report of a
sexual assault by Pamela T., Heather's mother.
According to Pamela, Heather, who was fourteen at the time, returned home
hysterical with her sweater ripped and said, “Mom, it happened again.”[6] Pamela understood this to mean that Heather
was sexually assaulted.
At
the initial contact, Heather stated that a Hispanic man with a full beard and
mustache forced her into his car and struck her in the face and stomach. Heather would not disclose what occurred in
the vehicle. She was taken to the
hospital and the investigation was turned over to the sheriff's department.
Heather
told the registered nurse, Ann Petkovich, who interviewed her at the hospital,
that she was approached by a Mexican man with a mustache. The man forced her into his car. They had sexual intercourse which lasted
about a minute and a half and about fifteen minutes of sexual fondling. Heather indicated that the man had oral sex
with her, that he pinched her breasts and that she was unsure whether he
ejaculated or not. Heather also noticed
a twelve-pack of beer in the back seat and a photo ID from a dog kennel or dog
track.
When
interviewed by the officer, Heather's version of the facts changed
slightly. She indicated that the man
grabbed her and pushed her into the back seat of the car. Then he pulled her into the front seat by
her arms, grabbed her hair and struck her in the stomach. After parking the car, he got on top of her
and used something to cut her sweater and her shirt. He “went inside [her]” for a couple of minutes, he fingered her
vagina and played with her breasts for about fifteen minutes. After the assault, he took her back to Eagle
Lake Manor.
The
investigators later confronted Heather with several inconsistencies in her
story: location of the beer, her purse,
oral sex, location of the sexual intercourse and pinching of her breasts. Heather then told the investigators that she
willingly got in the car with the man and eventually had consensual sex with
him. She did not know his name, but he
told her he worked at the dog track.
She admitted that she cut her own clothing, and she confessed that she
made the story up to get her mother's attention. The department treated the incident as a crime and continued the
investigation until all leads were exhausted.
At
the motion in limine, Redmond argued that the victim went to great lengths to
indicate that she had been forcibly sexually assaulted, but then admitted that
she made up this “rather intricate and detailed story about what
happened.” Redmond claimed that the
allegations and the manner in which the November 1991 incident arose were very
similar to the October 1992 charges.
Because this case had become a “credibility contest” between Redmond and
Heather, Redmond urged the court to admit the allegations under either
§§ 972.11(2)(b)3 or 904.04(2), Stats.
The
State contended that because consent was not an issue under §§ 972.11(2)(b)3 or
904.04(2), Stats., Heather's allegations
were in fact legitimate—only details regarding those allegations were
recanted. The State further argued that
this evidence “may so prejudice and poison [the jury's] mind set as to this
victim [] that they could not find this defendant guilty even if they thought
he had in fact done everything that she said he did.” The court agreed with the State and denied the motion.
On
appeal, Redmond contends that the trial court erred in its holding that a prior
allegation of sexual assault by the victim did not fall under
§ 972.11(2)(b)3, Stats., an
exception to the rape shield law.
Redmond argues that the trial court incorrectly focused on consent when
the real issue was Heather's proclivity to lie about her sexual activity.
The
State responds that the trial court's determination was correct. The State argues that the prior allegation
was in fact truthful. It is clear from
the State's brief and from oral arguments that the State would like this court
to establish a bright-line rule that if the victim is untruthful about a detail
which is not an element of the crime charged, then there was not an untruthful
allegation as a matter of law. We
decline this invitation. We can only
interpret the law, not rewrite it. See
Georgina G. v. Terry M., 184 Wis.2d 492, 520, 516 N.W.2d 678, 687
(1994) (Geske J., concurring).
In
Wisconsin, the rape shield law prohibits the admission of evidence of a
complainant's prior sexual conduct with three exceptions.[7] See State v. DeSantis,
155 Wis.2d 774, 784, 456 N.W.2d 600, 605 (1990). Here, we are concerned with evidence of an alleged prior
untruthful allegation of sexual assault.
Our supreme court has outlined three determinations under
§§ 972.11(2)(b)3 and 971.31(11), Stats.,
which the trial court must make before admitting evidence of prior untruthful
allegations:
(1)
whether the proffered evidence fits within sec. 972.11(2)(b)3; (2) whether the
evidence is material to a fact at issue in the case; and (3) whether the
evidence is of sufficient probative value to outweigh its inflammatory and
prejudicial nature.
DeSantis, 155 Wis.2d at 785, 456 N.W.2d at 605. Section 971.31(11) provides:
(11) In actions under s. 940.225, 948.02 or
948.025, evidence which is admissible under s. 972.11(2) must be determined by
the court upon pretrial motion to be material to a fact at issue in the case
and of sufficient probative value to outweigh its inflammatory and prejudicial
nature before it may be introduced at trial.
See also DeSantis, 155 Wis.2d at 785, 456 N.W.2d at 605.
The
first determination the trial court must make is whether the evidence falls
within the exception under
§ 972.11(2)(b)3, Stats. DeSantis, 155 Wis.2d at 786,
456 N.W.2d at 605-06. Based upon an
offer of proof from the defendant, the court must be able to conclude that “a
reasonable person could reasonably infer that the complainant made prior
untruthful allegations of sexual assault.”
Id. at 788, 456 N.W.2d at 607. If the evidence does not meet this threshold, the court must
conclude that the evidence does not fall within the exception. Id.
Here,
the trial court found that nothing in the initial statement or subsequent
investigation would, in any way, allow it to conclude under
§ 972.11(2)(b)3, Stats.,
that the child made a prior untruthful allegation of sexual assault.[8] The court failed to address the remaining
two issues, but addressed the confrontation issue under § 904.04(2), Stats. See DeSantis, 155 Wis.2d at 793, 456 N.W.2d
at 609. Under a § 904.04(2)
analysis, the court found:
even
if the first test is met of 904.01 relevance to the eight factors in 904.04(2),
that the unfair prejudicial value far outweighs the probative value, and as
such, the evidence should not be admitted.
The court denied the motion under both “other acts”
evidence and as a prior untruthful allegation.
Whether
the facts in a particular case fulfill a particular legal standard is a
question of law which we review independently.
State v. Trudeau, 139 Wis.2d 91, 103, 408 N.W.2d 337, 342
(1987), cert. denied, 484 U.S. 1007 (1988). When the trial court reaches the correct result based on
erroneous reasoning, we will nevertheless affirm. See Bence v. Spinato, 196 Wis.2d 398, 417,
538 N.W.2d 614, 620 (Ct. App. 1995). We
do so here.
Following
DeSantis, we first consider whether the prior allegation fits
within § 972.11(2)(b)3, Stats. We find that it does. Nowhere does § 972.11(2)(b)3
differentiate between juveniles and adults; rather, it must be uniformly
applied. Thus, we conclude that simply
because the untruthful detail here, consent, was not an element of the prior
sexual assault does not make the allegation truthful. Although we find it deeply troubling that a child of fourteen
years has been the subject of several sexual assaults, it does not follow that
this same child has the legal sophistication to know the difference
between consensual and nonconsensual sexual intercourse with a child. Section 972.11(2)(b)3 does not require us to
make this finding and the trial court's ruling that Heather did not make a prior
untruthful allegation of sexual assault was erroneous.
Although
the trial court never specifically addressed the remaining two elements under DeSantis,
we conclude that it nevertheless addressed them under the guise of its
confrontation analysis. The court
concluded that the evidence should not be admitted because:
the
evidence ... had de minimis relevance under 904.01, that that de minimis
relevance is far outweighed by the potential for unfair prejudice that would
occur by having the jury focus on something other than the established proposition
of the case. The evidence itself would
be prejudicial and inflammatory in nature, and at most would have minimal
probative value ....
[T]he motion is denied ... as other acts evidence or as
a prior untruthful allegation evidence.
The
second determination under DeSantis is whether the evidence is
material to a fact in issue, here, Heather's credibility. See DeSantis, 155
Wis.2d at 789-90, 456 N.W.2d at 608. In
determining this issue, the DeSantis court considered the
ambiguity of the recantation, the similarity between the two incidents and the
remoteness in time. Id.
at 790-91, 456 N.W.2d at 608.
We
conclude that Heather's prior untruthful allegation is material to her
credibility. Here, there is no
ambiguity in either the initial allegation or the recantation. Heather initially alleged that she had been
raped. However, once confronted with
the discrepancies in her story, she admitted that the sexual intercourse was
consensual.
In
addition, the circumstances of the conduct alleged in both instances are the
same—nonconsensual sexual intercourse—and the two allegations are less than one
year apart. The second prong has been
satisfied.
The
third determination under DeSantis is whether the evidence of the
untruthful allegation is of “sufficient probative value to outweigh its
inflammatory and prejudicial nature.” Id.
at 791, 456 N.W.2d at 608. Evidence is
unduly prejudicial when it threatens the fundamental goals of accuracy and
fairness by misleading the jury or by influencing the jury to decide the case
upon an improper basis. Id.
at 791-92, 456 N.W.2d at 608. Evidence
should be excluded if it is sketchy, vague, remote, disputed, cumulative,
confuses the issues, causes undue delay, or is a waste of time. Id. at 791 n.8, 456 N.W.2d at
608.
Although
the trial court did not discuss these factors, the record supports the court's
conclusion that the evidence was not of sufficient probative value to outweigh
its prejudicial nature. See id.
at 792, 456 N.W.2d at 608. The evidence
was not sketchy, vague or disputed.
Once Heather decided to tell the truth, she was candid and
cooperative. Also, the prior allegation
was not disputed—it involved a substantiated assault.
Nevertheless,
the evidence of the untruthful allegation was also cumulative of other evidence
which went to Heather's credibility.
The most significant evidence came from Heather's testimony. She described her history of drug use which
began at age twelve, she admitted to stealing and occasionally dancing to
obtain money to buy cocaine, she ran away from the Group Home, she skipped
school, and she acknowledged numerous times that she had lied in the past. The jury had sufficient evidence from which
to judge Heather's credibility without the evidence of the prior untruthful
allegation.
Moreover,
the evidence of the untruthful allegation may have confused the issue. The initial recantation involved consent
which was not an element of the current charges. Also, the jury may have been misled into focusing on Heather's
willingness to have sexual intercourse with a complete stranger, instead of on
the charges against Redmond. We
conclude that the evidence of Heather's prior untruthful allegation was not of
sufficient probative value to outweigh its prejudicial nature. We conclude that the trial court reached the
correct result even though its decision was based on erroneous reasoning. We therefore affirm under DeSantis.
State's
Juvenile Witnesses
Redmond's
sixth argument on appeal is that Davis v. Alaska, 415 U.S. 308
(1974), compelled the admission of the probationary status of the State's
juvenile witnesses. Redmond makes this
argument notwithstanding the provisions of § 906.09(4), Stats.; see also Banas v.
State, 34 Wis.2d 468, 472-73, 149 N.W.2d 571, 574, cert. denied,
389 U.S. 962 (1967).
An
evidentiary objection is addressed to the trial court's discretion. Kuntz, 160 Wis.2d at 745, 467
N.W.2d at 540. If there is a reasonable basis for the trial
court's determination, this court will uphold its ruling. Id. at 745-46, 467 N.W.2d at
540.
The
trial court determined that the evidence of the juvenile witnesses'
probationary status was not admissible.
The court concluded that:
It's not allowed in the case law of this
State. It's not allowed in our evidence
code at 906.09, and specifically is not allowed under the juvenile code—or at
least the insight and thrust we get from the juvenile code in terms of other
legitimate interests in terms of the Chambers v. Mississippi,
[410 U.S. 284, 295 (1973),] ruling that there are other legitimate interests,
and here the protection of children is one of them, and that that augurs for
not having such information disclosed.
The court also found that under § 904.03, Stats., this information would be
“collateral data” with “de minimis probative value, and there would be
tremendous potential for unfair prejudice attaching to that data as well.”
Even
though § 906.09(4), Stats.,
is dispositive of this issue, we conclude that the trial court's findings were
well reasoned and clear. In weighing
the probative and prejudicial value of the evidence, we cannot say that the
trial court misused its discretion in refusing to allow the introduction of the
juvenile witnesses' prior adjudications.
We therefore affirm the trial court.
By
the Court.—Judgment and orders affirmed.
Not
recommended for publication in the official reports.
Nos. 94-0741-CR(D)
95-0830-CR(D)
NETTESHEIM,
J. (dissenting). I contend that the
evidence of Heather's prior untruthful allegation of nonconsensual sexual
assault should have been admitted at Redmond's trial. I would reverse Redmond's conviction and remand for a new trial.
This
case boiled down to a classic credibility contest between Redmond and
Heather. Heather's prior untruthful
allegation that she had been sexually assaulted without her consent was very
relevant to the credibility issue in this case. The legislature has specifically recognized an exception to the
rape shield law which takes in this type of situation. Section 972.11(2)(b)3, Stats.
The
majority correctly sets out the three-step analysis which a court must apply in
this setting. See State v.
DeSantis, 155 Wis.2d 774, 456 N.W.2d 600 (1990). First, the court must determine whether the
proffered evidence fits within one of the recognized exceptions to the rape
shield law. See id.
at 785, 456 N.W.2d at 605. I agree with
the majority's conclusion that this prong of the analysis is satisfied. Heather untruthfully alleged that the prior
sexual assault was without her consent.
That the law makes consent irrelevant when a minor is the victim does
not change the hard fact that Heather's report about this important detail of
the sexual assault was false.
The
second inquiry under DeSantis is whether the evidence is material
to a fact at issue in the case. Again I
agree with the majority that this prong of the analysis was satisfied. As noted above, this case presented a
classic credibility confrontation between Heather and Redmond. Both testified and gave conflicting versions
of the events. Heather's prior
untruthful allegation was material to the credibility issue in this case.
The
third inquiry under DeSantis is whether the evidence is of
sufficient probative value to outweigh its inflammatory and prejudicial
nature. Id. It is here that I part ways with the
majority and the trial court. Evidence
is unduly prejudicial when it threatens the fundamental goals of accuracy and
fairness of the trial by misleading the jury or by influencing the jury to
decide the case upon an improper basis.
Id. at 791-92, 456 N.W.2d at 608.
We
must bear in mind that the test is not whether the disputed evidence is prejudicial. Generally, all admissible evidence is
prejudicial to one side or the other, and, as the probative value of the
evidence increases, so does its prejudice.
See State v. Mordica, 168 Wis.2d 593, 605, 484
N.W.2d 352, 357 (Ct. App. 1992). That
condition, however, argues for admission of the evidence, not against it.
Prejudice
does not exist simply because the evidence will involve a jury in a collateral
matter. Many times juries are required
to address collateral events which bear upon the credibility of competing
witnesses. State v. Johnson,
184 Wis.2d 324, 340, 516 N.W.2d 463, 468 (Ct. App. 1994). That was already true in this case. Redmond's employment application was a
collateral matter which the trial court properly saw as relevant evidence
bearing on Redmond's credibility.
Heather's history of drug use and other historical behavior were
collateral matters which the court also admitted. Yet, on this most crucial matter, the majority affirms the trial
court's ruling that the proffered evidence would improperly take the jury into
a collateral matter.
The
proper standard for unfair prejudice is whether the evidence tends to influence
the outcome of the case by improper means.
Id. Stated
differently, but to the same effect, the test is whether the evidence will
interfere with the truth-seeking function of the trial. This proffered evidence, more so than the
other collateral evidence already admitted, was highly relevant to Heather's
credibility. In my judgment, the
exclusion frustrated the truth-seeking process in this case.
As
the majority concedes, the evidence concerning the prior sexual assault was not
“sketchy, vague, remote, disputed, [or] cumulative.” Majority op. at 24; see also DeSantis, 155
Wis.2d at 792, 456 N.W.2d at 608. Nor
did it concern a minor aspect of the event.
Although legally irrelevant, the fact of nonconsent in a sexual assault
against a minor is a very aggravating fact in an already aggravated situation.
Given
the critical and central issue of credibility in this case, I contend that the
probative value of Heather's prior untruthful allegation outweighed its
prejudicial effect. I fail to see how
the admission of this evidence could have interfered with the accuracy or
fairness of the trial when it traveled directly to the critical issue which the
jury was required to resolve.
I
respectfully dissent.
[1] Appeal nos.
94-0741-CR and 95-0830-CR have been consolidated for purposes of briefing and
disposition. Appeal no. 94-0741-CR is
Redmond's appeal from the judgment of conviction and his first postconviction
order. Appeal no. 95-0830-CR is
Redmond's appeal from the trial court's April 13, 1995, order denying Redmond's
third postconviction claim of ineffective assistance of counsel.
Redmond has
also appealed, pro se, his second postconviction motion, appeal no. 94-1544-CR,
which has not been consolidated with these two appeals. The disposition of appeal no. 94‑1544‑CR
does not affect the disposition of these consolidated appeals. State v. Redmond, No.
94-1544-CR (Wis. Ct. App. June 12, 1996, ordered published July 29, 1996).
[2] According to
Redmond, he was employed at the Group Home from August 30, 1992, until November
1, 1992.
[3] Michelle also
described several conversations she had had with Redmond. Before this incident, Redmond approached her
in the garage and said he was divorced and was lonely. Then on October 31,
1992, Redmond and Michelle discussed Andrew L., whom Michelle liked. Redmond told her that “what [she] needs
right now wasn't a long term relationship, more or less a quickie.” He also
mentioned that “he does favors for Heather and Heather does favors for him
sometimes and he hoped sometime in the future he could do favors for
[Michelle].” Upon returning to the
Group Home on October 31, 1992, Redmond told Michelle that he could not “afford
any slip-ups and that he was in prison before, he's not going to afford to go
back.”
[4] We conclude that
Redmond has failed to cite to any legal authority in support of seven of his
constitutional claims. We may decline
to review issues inadequately briefed or arguments unsupported by references to
legal authority. State v. Pettit,
171 Wis.2d 627, 646, 492 N.W.2d 633, 642 (Ct. App. 1992). Accordingly, under Redmond's ineffective
assistance of counsel argument, we decline to address the following alleged
omissions: (1) failure to move to dismiss because the preliminary hearing was untimely;
(2) failure to take a series of actions in relationship to the testimony of
Investigator David Boldus; (3) failure to show a relationship between Heather
and Detective Thomas Kelter; (4) failure to object to the amendment of the
information; (5) failure to argue that the victim had made a previous false
sexual assault charge; (6) discovery errors; and (7) counsel's conflict of
interest.
[6] Pamela also told
the officers that when Heather was eight years old, she was fondled by an
elderly man in the neighborhood. Also,
when Heather was thirteen years old, she was sexually assaulted by an uncle.
[7] Section
972.11(2)(b), Stats., provides in
relevant part:
[A]ny
evidence concerning the complaining witness's prior sexual conduct ¼ shall not be admitted into evidence during the course of
the ¼ trial, nor shall any reference to such conduct be made
in the presence of the jury, except the following ¼:
¼.
3. Evidence of prior untruthful allegations of
sexual assault made by the complaining witness.