IN thе INTEREST OF MICHAEL R. B., a person under 18 years of age: MICHAEL R. B., Appellant-Petitioner, v. STATE of Wisconsin, Respondent.
No. 91-1393
Supreme Court of Wisconsin
May 10, 1993
Motion for reconsideration denied June 22, 1993.
499 N.W.2d 641
HEFFERNAN, CHIEF JUSTICE
Oral argument November 3, 1992.
For the respondent the cause was argued by Sally L. Wellman, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
HEFFERNAN, CHIEF JUSTICE. This is a review of an unpublished decision of the court of appeals which affirmed a dispositional order of the circuit court for Door County, John D. Koehn, Judge, finding fourteen-year-old Michael B. delinquent for the first-degree sexual assault of eight-year-old Laura R.1 Michael was
Michael appealed the order of the circuit court citing several rulings by the judge in which evidence offered by Michael was deemed irrelevant and therefore inadmissible. Michael argued that by excluding the proffered evidence the court denied him the constitutional right to present a defense and to confront witnesses testifying against him. The court of appeals affirmed the judge‘s evidentiary rulings on the ground that the excluded evidence was either irrelevant or precluded by
The question before this court is whether the judge erroneously exercised his discretion in excluding the evidence offered by Michael B.—either аs a matter of law with respect to
On June 10, 1990, Laura R. told her mother that Michael B. had sexually assaulted her sometime during the week of April 22, 1990. According to the mother‘s written account of this June 10th conversation, Michael came up to Laura as she was playing in the woods behind the apartment building in which both children lived and
On June 11, 1990, the day after Laura‘s disclosure to her mother, Laura was interviewed by police officer Dale Jeanquart and Mary Lange, a child protective services intake worker. During the interview, Laura described the assault and confirmed that Michael had put his “weiner” in her “pee-pee.” Laura also stated, contrary to what she had told her mother the day before, that she and Michael were standing during the incident. That same day, Laura‘s mother took her to be examined by Dr. Kevin O‘Brien, a family practitioner.
At trial the jury reсeived the mother‘s written and oral testimony. The state also introduced the following evidence to support its charge. First, Laura testified with respect to the assault and to her subsequent attempts to avoid Michael by taking alternate routes home from her bus stop after school. Using anatomical dolls, Laura identified the penis on a boy doll as a “wee-wee” and the area between the girl doll‘s legs as a “pee-pee.” Second, Mary Lange corroborated both Laura and the mother‘s testimony and further testified that Laura‘s initial reticence in disclosing the assault was typical for child victims of sexual assault. Third, Dr. O‘Brien testified as to Laura‘s physical condition, namely that hеr hymen was more widely open than would be expected for a girl her age. According to Dr. O‘Brien, this unusually wide hymenal opening was consistent with that of a child who had experienced some type of vaginal penetration.
Responding to the state‘s charges, Michael B. raised two theories of defense: Laura‘s open hymen and her
In addition to the above evidence, Michael tried to introduce five pieces of evidence all of which the judge deemed inadmissible. This evidence included: (1) testimony by a neighbor with respect to possible prior sexual conduct between Laura and her brother; (2) testimony by a friend of Laura‘s with respect to conversations between the two girls relating to prior sexual exper-
Admissibility of evidenсe is determined by the trial judge subject to the limits of relevancy and adequacy of proof. See
The evidence must connect that person to the crime, either directly or inferentially—“factual resemblance” alone is not enough. Hicks v. State, 47 Wis. 2d 38, 176 N.W.2d 386 (1970); Holmes v. State, 76 Wis. 2d 259, 251 N.W.2d 56 (1977). See generally Saltzburg and Martin, Federal Rules of Evidence Manual, Rule 401 at 123 (5th ed. 1990); McCormick on Evidence, Relevancy and its Counterweights: Time, Prejudice, Confusion and Surprise at 433 (2d ed. 1972). Furthermore, evidence that is admissible for some purposes or parties may not be admissible for others. In such an event, the court may admit the evidence but shall instruct the jury as to the proper scope of admission. See
Having set forth the legal guidelines with which we review a judge‘s evidentiary rulings, we turn to the excluded evidence forming the basis for this appeal and address each of Michael‘s five evidentiary challenges in order. We discuss Michael‘s Sixth Amendment claim separately in part II of the opinion.
A. TESTIMONY OF THEODORE RUCKMAN
Michael B. sought to admit the testimony of Theodore Ruckman, a neighbor of Laura and Michael‘s at the time of the assault. Ruckman was to testify that he had seen Laura and her brother David playing together in a tire swing in the early summer of 1990; the children were facing each other in the swing, David‘s pants were undone, and the children spent two or three minutes “touching each other‘s private parts.” The judge ruled the testimony irrelevant and therefore inadmissible. The court of appeals affirmed on the ground that the evidence was excluded under the Wisconsin rape shield law. We agree with both conclusions and therefore affirm this evidentiary ruling.
Insofar as Ruckman‘s testimony was to suggest that “someone else,” i.e., David, sexually assaulted Laura, the evidence is irrelevant to the charges filed against Michael B. To win Michael‘s conviction, the state need only prove that he had sexual contact or intercourse with Laura R. Evidence going to prove one sexual encounter does not assist the trier of fact in determining whether a separate sexual encounter also occurred—the two events are not mutually exclusive. Accordingly, evidence that David might have sexually assaulted Laura on a previous occasion does not make the existence of a material fact, namely Michael‘s physical contact with Laura during the week of April 22, “more probable or less probable than it would be without the evidence.” Denny, 120 Wis. 2d at 623.
More troublesome is Michael‘s contention that Ruckman‘s testimony would provide an alternate expla-
We do not doubt the soundness of Michael‘s claim that information tending to prove an alternate source of Laura‘s physical condition and sexual knowledge would be relevant to his defense. Nonetheless, we agree with the reasoning of the court of appeals and conclude that
In addition, Wisconsin‘s rape shield law silenced widely held but outmoded beliefs that a woman‘s sexual past would shed light on the veracity of her complaint and the likelihood she had consented to the conduct. See State v. Herndon, 145 Wis. 2d 91, 104-05, 426 N.W.2d 347 (Ct. App. 1988); State v. Gavigan, 111 Wis. 2d 150, 156, 330 N.W.2d 571 (1983).
The child victim of sexual assault may best be likened to that of an adult victim whom the prosecution asserts was a virgin prior to the alleged assault. In State v. Clark, this court ruled that evidence relating to a victim‘s alleged virginity prior to the assault in question was inadmissible under Wisconsin‘s rape shield law. State v. Clark, 87 Wis. 2d 804, 817, 275 N.W.2d 715 (1979).7
Michael nevertheless maintains that a dilated hymen should be considered a “disease” within the meaning of
It strains linguistic credibility to define “disease” as including the condition of a child‘s hymen.9 Black‘s Law Dictionary defines “disease” as the “[d]eviation from the healthy or normal condition of any of the functions or tissues of the body....” See Black‘s Law Dictionary
Since the legislature‘s adoption of
Notwithstanding
s. 901.06 , the limitation on the admission of evidence of or reference to the prior sexual conduct of the complaining witness in par. (b) applies regardless of the purpose of thе admission or reference unless the admission is expressly permitted under par. (b) 1, 2, or 3. (Emphasis added.)
In State v. Mitchell, we rejected evidence of the claimant‘s virginity for the purpose of identifying the defendant as the person from whom the claimant had contracted gonorrhea on the ground that
B. TESTIMONY OF LAURA‘S FRIEND JAMIE
In his offer of proof in respect to Jamie‘s testimony, Michael B. indicated that the young girl would testify regarding the nature of her relationship with Laura and the substаnce of the confidences made to each other. According to the offer of proof the two girls “were very close companions and played with one another... [t]hey confided in one another... [t]hey talked to one another, and they shared a lot of information between them about statements they made to others, statements they made to police officers.” Consistent with our discussion of the
Information may prove relevant in numerous ways; evidence that is admissible for one purpose may prove inadmissible for another. See
C. TESTIMONY OF MEDICAL EXPERT
Michael argues that the judge erroneously exercised his discretion in denying him the opportunity to present expert medical testimony to rebut the inference from the state‘s medical witness, Dr. O‘Brien, that the condition of Laura‘s hymen was likely the result of some type of vaginal penetration. We agree and therefore reverse this evidentiary ruling.
At trial, Dr. O‘Brien testified that his examination of Laura indicated a “more widely opened” hymen “than we would possibly expect for a girl of this age.” Moreover, he stated that he was unable to do a speculum exam because “at that time it was too painful for her....” Agreeing with the Assistant District Attorney‘s characterization of Laura‘s physical condition as being “consistent with that of a child who had had some type of vaginal penetration prior to the date of [the] exam,” Doctor O‘Brien ultimately concluded that “the hymen had been more widely opened than it should have been for a child of her age.”
On cross-examination, the Doctor testified that while normal activity might account for “a slight opening in the hymen,” it would not account “for the amount that this was open.” Moreover, Dr. O‘Brien conceded that although he was not a gynecologic expert witness on this type of issue—but had “a lot of experience in this regard—that normal physical activity would not account for the hymen to be opened as hers was.”
We agree with the court of appeals that
The state maintains that Michael was able to elicit similar testimony from Dr. O‘Brien on cross-examination and that further testimony would be merely cumulative. We disagree. Having read Dr. O‘Brien‘s testimony, we find no support for the proposition that Laura‘s physical condition was the result of normal physical activity. In fact, Dr. O‘Brien dismissed that very hypothesis and concluded that normal activity “would not account for such an opening as hers.” Having offered one doctor‘s conclusion regarding the cause of Laura‘s condition, the state opened the door for Michael to introduce counter testimony.
We agree that it would have been inappropriate to allow Dr. Roenning to testify as to Laura‘s individual condition. He had neither examined Laura nor studied Dr. O‘Brien‘s report. Nevertheless, given the unique nature of child sexual assault and the role that physical evidence plays in such cases, general information relating to causes of wide hymenal openings would be highly relevant. Accordingly, we conclude that the judge erroneously exercised his discretion in denying Dr. Roenning the opportunity to testify with respect to existing medical evidence regarding the normal dilation of an eight-year-old‘s hymen.11
D. MOTHER‘S CALENDAR
Michael asserts that the judge erroneously exercised his discretion in refusing to admit into evidence his mother‘s calendar, intrоduced as corroborating evidence of Michael‘s whereabouts during the week in which he allegedly assaulted Laura. In so ruling, however, the judge reasoned that the information contained in the calendar had already been introduced verbally during direct and cross-examination of Michael‘s mother.
We are further persuaded of the appropriateness of the judge‘s ruling in that Michael tried to have the calendar admitted only after all the evidence was closed and the court was preparing jury instructions. We agree with the assessment of the court of appeals that the refusal to admit the calendar into evidence was legally justified and within the judge‘s discretion.
E. EVIDENCE OF BIAS
Michael asserts that the judge erroneously exercised his discretion in precluding witnesses from testifying as to personal animosities and biases existing between Laura and Michael‘s families. In particular, Michael contends that he should have been permitted to ask Laura‘s mother if there were hard feelings between her son [David] and Michael. Michael also claims that the judge erroneously exercised his discretion in sustaining the state‘s objection to his questioning Laura‘s mother as to her own relationship with Michael‘s family. Michael challenges the court‘s rulings on these, and
We agree with Michael‘s assertion that evidence pertaining to a party‘s bias generally is relevant to the question before the court. Nevertheless, we reject the claim that Michael‘s vague and unsubstantiated assertions of animosity meet the necessary standards for admissibility. As stated supra, evidence is relevant if it tends to make the existence of a material fact more or less probable. In this case, Michael sought information with respect to relationships beyond the scope of the witnesses’ personal knowledge; he also sought information unrelated to the parties involved in the dispute. Insofar as circuit court judges exercise “considerable discretion in deciding the extent of an inquiry with respect to bias” we conclude that the judge did not erroneously exercise his discretion in precluding this line of questioning. See State v. Sarinske, 91 Wis. 2d 14, 43, 280 N.W.2d 725 (1979).
II. SIXTH AMENDMENT CLAIM
Michael B. argues that State v. Pulizzano permits the admission of evidence showing prior sexual experience on the part of the victim if needed to ensure a defendant‘s Sixth Amendment right to confront witnesses. See
In Pulizzano, this court reasoned that the strict application of Wisconsin‘s rape shield law must at times yield to a defendant‘s constitutiоnal right to cross-examine witnesses and to present a defense. Pulizzano, 155 Wis. 2d at 647-48. Before being allowed to introduce relevant but otherwise excluded evidence, the defendant must make an offer of proof establishing that (1) the prior act clearly occurred; (2) the act closely resembles those at issue in the instant case; (3) the act is relevant to a material issue; (4) the evidence is necessary to his case; and (5) the probative value of the evidence outweighs its prejudicial effect. State v. Pulizzano, 155 Wis. 2d at 656. Keeping in mind the fact that an “offer of proof need not be stated in complete precision or with unnecessary detail,” we nevertheless conclude that Michael‘s offеrs of proof failed to meet the standard set forth in Pulizzano. See Milenkovic, 86 Wis. 2d at 284.
Ruckman was to testify that Laura and her brother were seen “touching one another‘s private parts” while sitting, facing each other in a tire swing. We first note that Michael‘s offer of proof is insufficient to support an inference that the alleged incident which occurred early in the summer of 1990 in fact took place prior to Laura‘s June 11th physical examination. Even assuming the proper sequence of events, however, we find it an insupportable leap of reasoning to conclude that two or three minutes of undefined sexual touching while sitting in a tire swing so closely resembles sexual intercourse as to satisfy the Pulizzano test. In his offer of proof Michael failed to link the conduct in which Laura and David were allegedly engaged to an act of vaginal penetration suffi-
As for certain questions asked of witnesses about the police investigation into allegations of sexual misconduct by David, we again find no Sixth Amendment violation. First, we have already notеd that David‘s sexual conduct is without relevance to the charges filed against Michael. Moreover, we agree with the state‘s assertion that the offer of proof in support of the excluded information in respect to David failed adequately to form a basis from which the court could even surmise that Laura was aware that the police investigation involved her brother. See Milenkovic, 86 Wis. 2d at 282-84. Second, introducing evidence of David‘s past sexual conduct to prove that Laura fabricated the April 22 sexual assault to protect her brother would so prejudice the jury that its limited probative value is strongly outweighed by prejudicial effect. See
Because we conclude that the judge erroneously exercised his discretion in not permitting Michael to introduce Jamie‘s and Dr. Roenning‘s testimony, and such error was clearly prejudicial, we need not discuss his Sixth Amendment allegations in respect to these earlier excluded pieces of evidence.
By the Court.—Decision of the court of appeals is reversed and the case is remanded for further proceedings in accordance with this opinion.
LOUIS J. CECI, J. (concurring in part and dissenting in part). I join section I.C. of the majority opinion. I agree with the majority‘s conclusion that the judge erroneously exercised his discretion by denying Michael R. B. the opportunity to present the testimony of Dr. Roenning. Such testimony was highly relevant and admissible in order to rebut Dr. O‘Brien‘s testimony regarding the normal condition of an eight-year-old‘s hymen. I also agree with the majority that this error was prejudicial.
I disagree with, however, and reject the remainder of the majority opinion.
Notes
See Sec. 948.02:
Sexual assault of a child. (1) FIRST DEGREE SEXUAL ASSAULT. Whoever has sexual contact or sexual intercourse with a person who has not attained the age of 13 years is guilty of a Class B felony.
The petition filed against Michael B. contained a second count of sexual assault in violation of
Wisconsin‘s rape shield law,
(2) (a) In this subsection, “sexual conduct” means any conduct or behavior relating to sexual activities of the complaining witness, including but not limited to prior experience of sexual intercourse or sexual contact, use of contraceptives, living arrangement and lifestyle.
(b) If the defendant is accused of a crime under
1. Evidence of the complaining witness‘s past conduct with the defendant.
2. Evidence of specific instances of sexual conduct showing the source or origin of semen, pregnancy or disease, for use in determining the degree of sexual assault or the extent of injury suffered.
3. Evidence of prior untruthful allegations of sexual assault made by the complaining witness.
(c) Notwithstanding
Section 901.04, Stats., provides in part:
(1) QUESTIONS OF ADMISSIBILITY GENERALLY. Preliminary questions concerning... the admissibility of evidence shall be determined by the judge, subject to sub. (2) and
(2) RELEVANCY CONDITIONED ON FACT. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the judge shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
...
(5) WEIGHT AND CREDIBILITY. This section does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.
Section 904.01, Stats., provides:
“Relevant evidenсe” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Section 904.02, Stats., provides:
All relevant evidence is admissible, except as otherwise provided by the constitutions of the United States and the state of Wisconsin, by statute, by these rules, or by other rules adopted by the supreme court. Evidence which is not relevant is not admissible.
To assist the circuit judge in determining whether evidence is relevant, a litigant may provide the court with an offer of proof indicating the nature and purpose of the evidence being admitted. This court, in Milenkovic v. State, 86 Wis. 2d 272, 285 n.10, 272 N.W.2d 320 (1978), concluded that although it might be a more time consuming method of making an offer of proof, a question and answer format is preferable to statements because “it enable[s] the trial court and reviewing court to approach the evidentiary problem with some confidence that the evidentiary problem really exists.” Milenkovic, 86 Wis. 2d 272.
This court‘s preference for offers of proof made in question and answer format is well illustrated by the instant case. Michael maintains that much of the court of appeals’ criticism of his
Section 901.06, Stats., provides:
When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the judge, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.
The sixth amendment provides in relevant part:
“In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor....”