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COURT OF
APPEALS DECISION DATED AND
RELEASED February
22, 1996 |
NOTICE |
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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. 95-1331-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
CARL
G. BROSINSKI,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Vernon County: MICHAEL J. ROSBOROUGH, Judge. Reversed.
SUNDBY,
J. Defendant-Appellant Carl G. Brosinski appeals from a
judgment entered on a jury verdict convicting him of two counts of misdemeanor
battery.[1] The jury acquitted him of an additional
count of misdemeanor battery, one count of felony battery, and one count of
threatening injury. The charges arose
out of events of June 14, 1994, when Brosinksi and his girlfriend, Janet
Haugen, argued at a bar and returning home, he struck her. Their versions of what happened differ. According to Brosinski, he accidentally hit
Haugen when he tried to stop her from jumping from his moving car. Haugen claims that Brosinski attacked her
without provocation.
Because
the evidence against Brosinski was circumstantial, his guilt or innocence
depended on who the jury believed. The
jury's disposition of the charges shows that the jury did not believe all of
Haugen's version. Brosinski argues that
therefore the trial court should have allowed him to introduce evidence that
Haugen was an inveterate liar. In view
of the relations between the parties, the risk that Haugen sought to retaliate
against Brosinski made Haugen's history of lying admissible to show that she
was not credible.
In
August 1993, Haugen culminated her five-year affair with Brosinski by leaving
her family to live with him. When she
realized that he did not intend to divorce his wife and marry her, their
relationship deteriorated. On the
evening in question, Haugen left when they arrived home but returned
later. She told Brosinski that she was
going to fix it so that he would never hit her again, and left. When she tried to call him, he would not
apeak to her. Four days later, Haugen
accused Brosinski of the assaults with which he was charged.
Defendant
sought to show through his witnesses and cross-examination that: (1) on March 25, 1994, the state department
of agriculture terminated Haugen's employment for falsifying records; (2) in
1993, Haugen falsely accused her father of sexually assaulting her over a long
period of time; (3) in 1993, she requested a leave of absence because she had
been raped; and (4) in August 1993, the arresting officer in this case filed a
Statement of Emergency Detention of Haugen under ch. 51, Stats., based on information provided
by Haugen's mother and sister that she had falsely accused her sister of
stabbing her with a pitchfork and falsely claimed that she had been a victim of
child abuse.
At
the hearing on October 10, 1994, on defendant's motion in limine, Haugen
admitted that she had filed false reports with her employer and had been
discharged for that reason; admitted that her sister had not stabbed her with a
pitchfork; admitted that she falsely accused her father of sexually abusing
her; admitted that she had arranged for a blood test to determine whether her
father was the father of her child; and admitted that she had falsely
represented to her employer that she had been raped.
The
trial court denied defendant's motion because it concluded that this evidence
that Haugen had been untruthful in other matters was not relevant to the
question of her truthfulness as to the alleged assault by the defendant.
Brosinski
argues that this evidence was admissible under § 904.04(1)(b), Stats., which provides:
Except as provided
in s. 921.11(2), evidence of a pertinent trait of character of the victim of
the crime offered by an accused, or by the prosecution to rebut the same, or
evidence of a character trait of peacefulness of the victim offered by the
prosecution in a homicide case to rebut evidence that the victim was the first
aggressor ....
Defendant
claims that the evidence he seeks to introduce would show a pertinent character
trait of Haugen--untruthfulness.
Brosinski
also argues that evidence as to Haugen's persistent untruthfulness was
admissible under § 906.08(2), Stats.,
which provides:
Specific instances
of the conduct of a witness, for the purpose of attacking or supporting the
witness's credibility, other than conviction of crimes as provided in s.
906.09, may not be provided by extrinsic evidence. They may, however, subject to s. 972.11(2), if probative of
truthfulness or untruthfulness and not remote in time, be inquired into on
cross-examination of the witness or on cross-examination of a witness who
testifies to his or her character for truthfulness or untruthfulness.
We
need not consider whether defendant's evidence was admissible under
§ 906.08(2), Stats., because
we conclude it was admissible under § 904.04(1), Stats. Haugen's
persistent untruthfulness rose to the level of a trait of character. The trial court found that, even if
relevant, the probative value of such evidence was outweighed by its
prejudicial effect. Plainly, evidence
that Haugen was a habitual and bizarre liar was prejudicial but the test is
whether it is unfairly prejudicial.
Two facts lead us to conclude that evidence as to Haugen's
untruthfulness is not unfairly prejudicial.
First, Haugen was the only witness to the incident. Second, defendant's evidence was not
"other acts" evidence but showed a pervasive and persistent pattern
of lying to retaliate against the object of her lies or to obtain some
advantage from her lies. Her failed
affair with defendant followed closely by her charges against Brosinski made
those charges suspect. Had the jury
heard the substantial evidence that Haugen would like to retaliate, the jury
may well have reached a different verdict on all charges.
In
view of our decision as to the statutory basis for admission of defendant's
evidence, we need not reach defendant's constitutional contention.
By
the Court.—Judgment reversed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.