STATE of Wisconsin, Plaintiff-Respondent, v. Marion PENIGAR, Jr., Defendant-Appellant-Petitioner.
No. 85-1382-CR
Supreme Court of Wisconsin
Argued March 4, 1987.—Decided June 24, 1987.
408 N.W.2d 28
For the plaintiff-respondent the cause was argued by David J. Becker, assistant attorney general, with
SHIRLEY S. ABRAHAMSON, J. This is a review of an unpublished decision of the court of appeals filed on February 25, 1986, affirming a judgment of conviction for third degree sexual assault and an order denying a new trial. The judgment and order were entered by the circuit court for Eau Claire county, Thomas H. Barland, Circuit Judge.
This case presents two issues. The first issue is whether the erroneously admitted and false testimony of the complainant that she never had sexual intercourse prior to the disputed assault had such a pervasive effect on the trial that the real controversy has not been fully tried and the judgment of conviction should be reversed under the court‘s discretionary power to reverse a judgment in the interest of justice. The second issue is whether a university counselor‘s testimony describing the complainant‘s behavior (not immediately reporting the disputed assault to the police) and the defendant‘s behavior (remaining in the complainant‘s apartment after the disputed assault) as behavior typical of rape victims and assailants was admissible.
Because we conclude that the erroneously admitted and false testimony of the complainant that she had never had sexual intercourse before the disputed assault so pervasively affected the trial that the issue of consent was not fully tried, we reverse the conviction and grant a new trial in the interest of justice.
I.
We put these two issues in perspective by first describing the complainant‘s and the defendant‘s testimony about the disputed assault and then describing the procedural posture of the case.
The complainant described the assault as follows. On April 18, 1984, she was studying in a bedroom of the two-story apartment she shared with two roommates, both of whom were out for the evening. At approximately 2:00 A.M. she went downstairs in response to a knock at the door. The defendant was at the door. The complainant recognized the defendant as a friend of one of her roommates to whom she had once been introduced. The defendant asked if the roommate was home and stated that the roommate had asked him to wait there for her. The complainant let the defendant into the apartment. They talked for about 15 minutes. The defendant came over to the chair where the complainant was sitting and kissed her. The complainant asked the defendant to stop and then to leave. Instead, the defendant grabbed her hands and pulled her out of the chair and said that if she was not nice to him, he would not be nice to her. The defendant pushed her onto the couch and had intercourse with her. The complainant then went upstairs to her bedroom, as instructed by the defendant. When she left at 8:00 A.M. she saw the defendant asleep on the couch in the living room.
The complainant told her roommates about the assault that evening and told a priest the following day. The complainant did not report it to the police
The defendant‘s testimony differed from the complainant‘s in several details but the major difference was that, according to the defendant, the two of them conversed about sex and then the complainant consented to sexual intercourse and to his spending the night on the couch.
The defendant was initially charged with second-degree sexual assault, that is, sexual intercourse without the consent of the victim by use or threat of force.
The defendant moved for a new trial on several grounds, including newly discovered evidence (that is, that the complainant‘s testimony was false) and the interest of justice. The state conceded that the trial testimony was false but argued that the false testimony was given erroneously, not intentionally. There was testimony that the complainant‘s repression of the incestuous relationships was a mechanism for coping with the trauma of incest. The circuit court denied the motion for a new trial, stating that a probability of a different result upon retrial did not exist. The court of appeals affirmed the conviction and the order denying the new trial.
II.
Although the parties’ briefs and oral arguments before this court framed the issue in various ways,5 the
This court has both inherent power and express statutory authority to reverse a judgment of conviction and remit the case for a new trial in the interest of justice, even where the circuit court has exercised its power to order or deny a new trial in the interest of justice. State v. McConnohie, 113 Wis. 2d 362, 369-71, 334 N.W.2d 903 (1983). A new trial may be in the interest of justice under
Our examination of the record leads us to conclude that the complainant‘s testimony that she had never had sexual intercourse before April 24, 1984, so clouded the only crucial issue in this case, namely, the complainant‘s consent, that it may be fairly said that the real controversy was not fully tried.
We reach this issue even though the defendant did not preserve the issue for review as a matter of right. The defendant could not—and did not—object to the complainant‘s testimony at trial that she had never had sexual intercourse before the disputed assault. This testimony was admissible because when it was given the charge was second degree sexual assault causing a venereal disease.
Nevertheless an appellate court may, in its discretion, reach the merits of a party‘s claimed error which cannot be asserted as a matter of right on appeal. Cf. Hartford Insurance Company v. Wales, 138 Wis. 2d 508, 406 N.W.2d 426 (1987)(the court of appeals may in its discretion review an error even though the party did not preserve the error by presenting a timely postverdict motion).
Since court reorganization in 1978, this court has concluded that it has the power, in the exercise of its discretionary power to review a decision of the court of appeals, to inquire into a claimed error which was not properly preserved in the circuit court. In Interest of C.E.W., 124 Wis. 2d 47, 57, n. 6, 368 N.W.2d 47 (1985). This court has stated that it may in its discretion, irrespective of any objection, elect to review an alleged error whenever the court concludes that the issue warrants the court‘s consideration. State v. Shah, 134 Wis. 2d 246, 254, n. 7, 397 N.W.2d 492 (1986).
Three factors lead us to conclude that we should exercise our discretionary power to review the claimed error:
We agree with the parties that the complainant‘s testimony about her lack of prior sexual activity was erroneously before the jury in this case when the
We turn now to the issue whether the judgment should be reversed. The doctrine of discretionary review of errors is related to but separate from the interest of justice standard for reversal of a judgement. Even if the court exercises its discretion to review whether an error was committed, this court will not reverse a judgment or order a new trial unless the claimed error is found to be an error of significance justifying reversal under one of the standards to which this court adheres. See, e.g.,
The prosecution asserts that the error does not justify reversal because a curative instruction cured the error, the defendant relied to his benefit on the complainant‘s inadmissible testimony that she had no sexual experience before the disputed assault, and a retrial without this false and inadmissible testimony would not in all probability produce a different result.
The circuit court‘s reference to the evidence to be disregarded was generally worded. The only evidence mentioned in the curative instruction was the laboratory test for venereal disease which was insufficient to prove gonorrhea and that evidence was mentioned only in regard to explaining the need for the amendment of the charge and the curative instruction. The instruction did not explicitly direct the jury to disregard the laboratory tests. The curative instruction did
The state next asserts that the complainant‘s testimony about her lack of prior sexual experience was as beneficial to the defense as it was to the prosecution and that the defendant should not now be permitted to complain about the admissibility of this part of the complainant‘s testimony. The defense consisted largely of attacking the credibility of the complainant by developing a theory to explain why the complainant believed she had not consented and by pointing out her prior inconsistent statements. In his opening statement—when the charge was still second degree sexual assault causing venereal disease—defense counsel told the jury of the complainant‘s strict moral upbringing, her virginity, and her feeling that she was missing something by not having a boyfriend and sexual experience. The defense used the cross-examination of the complainant to have her tell the jury about her strict upbringing, her lack of prior sexual experience, and the fact that she did not associate socially with her roommates because they drank alcoholic beverages and she did not approve of drinking. On cross-examination the defendant got the complainant to acknowledge her fear that her mother would learn that she had had sexual intercourse. Defense counsel reemphasized these points in his closing statement. The underlying thesis which the
We agree with the prosecution that the defendant attempted to use the complainant‘s testimony about her lack of sexual experience to his advantage. We do not agree with the prosecution, however, that the defendant‘s use of the complainant‘s testimony about her lack of prior sexual experience should prevent the court from reversing the conviction. Knowing that the complainant could—and would—testify that she had never had sexual intercourse prior to the disputed assault, defense counsel had to plan his defense accordingly. The defense had to be credible and minimize the damage caused by the highly emotional and prejudicial evidence of the complainant‘s virginity that the state had the right to use when the evidence was initially admitted. Had the complainant‘s testimony about her lack of prior sexual experience not been admissible when the trial began the defendant might have used a different kind of defense. Furthermore, at the time of trial, defense counsel was unaware that the testimony about the lack of prior sexual experience was false as well as inadmissible.
Finally the prosecution urges that the defendant was not prejudiced by the false and inadmissible testimony about her lack of prior sexual experience because there is not a reasonable possibility that the outcome would have been different had the testimony not been admitted. This court may exercise its power of discretionary reversal, however, without finding
The prosecution used the complainant‘s testimony about her lack of prior sexual experience to persuade the jury that the victim would not have consented to the intercourse. During opening statement the prosecution described the complainant as having “strong moral values,” and as never having “had sexual intercourse.” During direct questioning and then again in closing statement the prosecution emphasized the following points from which a jury could infer that the complainant did not consent to the sexual intercourse: the complainant had never had sexual intercourse prior to the disputed assault; the complainant was a devout church-goer; she disapproved of premarital sexual intercourse on religious and moral grounds; and she had strict moral values.
In her closing statements, the prosecuting attorney noted that the complainant‘s personal and moral beliefs were not consistent with the defendant‘s claim of consent. The prosecuting attorney reminded the jury that the complainant was religious, that “she didn‘t agree with premarital sex,” that “she didn‘t gallivant the way, possibly her roommates did” and that her moral code “didn‘t include screwing around.”
The line of questioning and the opening and closing statements reinforced the complainant‘s testimony that she had not had sexual intercourse prior to the disputed assault, and the complainant‘s testimony about her lack of prior sexual experience reinforced this line of questioning and counsel‘s statements.
In adopting the rape shield law,
We conclude that the prosecution used the complainant‘s testimony about her lack of prior sexual experience in exactly the manner that caused the courts and the legislature to bar such evidence. The prosecution used the testimony about her lack of prior sexual experience to prove that the victim did not consent. This testimony was not probative of the issue of consent and was highly prejudicial.
III.
The second issue relates to whether the circuit court abused its discretion in admitting the testimony of Dr. Miriam J. Hugo, a state witness. On the basis of her education and experience Dr. Hugo testified that the following behavior of the complainant and of the defendant in this case is not unusual in cases of rape: the victim fails to report the sexual assault promptly to the police; the victim testifies at trial about the assault in an emotionally detached manner; the defendant remains on the victim‘s premises after the
The question presented by Dr. Hugo‘s testimony is part of a larger ongoing problem with which the courts continue to struggle: what role should the expert in human behavior play at trial?10
Several factors persuade us not to rule on the admissibility of Dr. Hugo‘s testimony. First, we have decided to reverse the conviction on other grounds and any decision about Dr. Hugo‘s testimony would be dictum. Second, the dictum may not be useful on retrial of this case when different expert and other testimony may be presented. Third, the defense counsel did not preserve the objection at trial and stated at a post-conviction motion hearing that his failure to object was strategic. Although appellate counsel now argues that trial counsel did not strategically waive the error, we are less apt to exercise our discretionary power to review an error if it appears that there has been a strategic waiver. Fourth, the record is unclear regarding the purpose for which the state offered the testimony.11 Some courts have viewed admissibility as dependent on the purpose of the testimony.
of the victim and the defendant was inconsistent with sexual assault. The defendant argues that there is no showing that the jurors would have made this inference.
In view of these factors we conclude that this is not an opportune case to review the admissibility of testimony relating to the psychological reaction experienced by rape victims.
For the reasons set forth, in the exercise of our discretionary powers under
By the Court.—The decision of the court of appeals is reversed; the judgment of the circuit court is
the evidence at issue would frustrate the proper development of Wisconsin case law on the subject of rape trauma syndrome evidence.... The courts [that have considered the admissibility of rape trauma syndrome evidence for the purposes of proving lack of consent] appear to be pretty evenly split on admissibility of rape trauma syndrome evidence for that purpose.” State‘s Brief, pp. 13-15.
DAY, J. (dissenting). I dissent. Contrary to the conclusion set out by the majority, the “real controversy” in this case was “fully tried” and the decision to grant a new trial is unwarranted. The majority states:
“Upon reading the record we conclude that the case hinged on false and inadmissible testimony about the complainant‘s lack of prior sexual experience. When consent is a determinative issue in a rape trial and the jury‘s decision on consent turns on testimony about the complainant‘s lack of prior sexual experience which is both false and inadmissible under the rape shield law, the jury is rendered unable to evaluate the testimony of the complainant and the defendant—whose credibility were the crucial aspects of the trial—because inadmissible, highly prejudicial and false evidence pervaded the course of the trial.” (Majority opinion, at 586 (footnote omitted).
It is clear that when the charge of second-degree sexual assault under
“Defense counsel could have had the trial court expressly and specifically instruct the jury that it was no longer to consider the virginity evidence on the remaining charges of third-degree sexual assault. Defense counsel never requested such instruction, but rather was content with the
court‘s ambiguous direction to the jury to disregard all evidence ‘which bore on the subject of whether or not the defendant caused a disease of a sexual or reproductive organ.‘”
I agree with the State that defense counsel elected to forego such a request because counsel intended to rely on such evidence. The tack taken by defense counsel was, as the State asserts, to argue that the victim‘s self-image, incorporating proscriptions against premarital sex, “led [her] to believe, though it was not in fact true, that she had not consented to the intercourse, for consensual intercourse would have been alien to her character and standards....” The majority is overreaching when it, on its own initiative, relies on the first branch of
The issues raised as to the victim‘s prior sexual experience were raised by the Defendant before sentencing. The facts as to prior incestuous experience were brought out in an interview by a social worker (an agent from the Bureau of Community Corrections) doing a presentence investigation in this case. When asked by the social worker she volunteered the fact of some type of incestuous relationship. The social worker and the prosecutor were both convinced and so advised the trial court that she did not intentionally lie or conceal what had occurred within her family. Whether she suppressed it or regarded it outside the purview of the questions she was asked at trial it is clear it in no way altered, changed or impugned her testimony as to what went on between her and the Defendant. The trial judge did not feel that her testimony or credibility was impugned. He also made it clear on the record that in view of all the testimony
This reversal by the majority “in the interests of justice” achieves the opposite result. It results in an injustice. This young woman is first victimized by the incestuous activity in her family and now is victimized by the Defendant whose long criminal record was recited by the judge before passing sentence.
In the “interest of justice,” I dissent.
I am authorized to state that JUSTICE LOUIS J. CECI joins this dissenting opinion.
Notes
“940.225 Sexual assault.
“(2) Second degree sexual assault. Whoever does any of the following is guilty of a Class C felony:
“(a) Has sexual contact or sexual intercourse with another person without consent of that person by use or threat of force or violence.”
“940.225 Sexual assault.
“(2) Second degree sexual assault. Whoever does any of the following is guilty of a Class C felony:
“(b) Has sexual contact or sexual intercourse with another person without the consent of that person and causes injury, illness, disease or impairment of a sexual or reproductive organ, or mental anguish requiring psychiatric care for the victim.”
“Q. Directing your attention to before April 18, 1984, to your knowledge had you ever had a sexually transmitted disease?
“A. No.
“Q. Had you ever engaged in sexual intercourse?
“A. No.
“Q. Aside from a doctor or your mother when you were a little baby, has—has another touched your vaginal area?
“A. No.
“Q. Have you ever touched anyone else‘s genitals?
“A. No.
“Q. Skipping over April 18, between April 18 and today, have you ever had sexual intercourse?
“A. No.
“Q. Had you touched or have you been touched in the genital areas?
“A. No.”
“940.225 Sexual assault.
...”
“751.06 Discretionary reversal. In an appeal in the supreme court, 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 the 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.”
“COURT: ... The state of the evidence at the end of the State‘s case was that the lab test which showed, or the lab test of the culture taken of C- B-, if you recall, the lab technician reported that that showed probably yes, possibly no as to the presence of gonorrhea in C- B-. The burden of proof upon the state is beyond a reasonable doubt; and an answer of probably yes, possibly no is not sufficiently high or strong to meet the burden of beyond a reasonable doubt, and it is for that reason that the motion to amend the information is granted, and we are proceeding with this trial now on the charge of third-degree sexual assault and, therefore, you are to disregard the evidence which bore on the subject of whether or not the defendant caused a disease of a sexual or reproductive organ.”
The defendant urges that testimony about rape trauma syndrome “or anything similar to thereto” should be excluded from trials except in very unusual cases.
Citing Scadden v. Wyoming, 732 P.2d 1036 (Wyo. 1987), the state urges that the testimony at issue is not rape trauma syndrome testimony because it concerns the defendant as well as the complainant and because it is not concerned with the complainant‘s psychological stress reactions that are the hallmarks of the rape trauma syndrome. The state urges that while the testimony in this case be held admissible, the court should not hold all rape syndrome testimony admissible. The state‘s brief argues:
“... if this court denominates the evidence at issue as ‘rape trauma syndrome’ evidence, and if it concludes, as the state believes it will regardless of the label it attaches to the evidence, that the evidence at issue was properly admitted, this court‘s decision will mislead the trial courts of this state into believing that this court has approved the admission of ‘rape trauma syndrome’ evidence. In reality, this case will not resolve the issue whether ‘rape trauma syndrome’ evidence is admissible. As already noted, the admission of true ‘rape trauma syndrome’ evidence raises a host of problems not presented by the testimony challenged in this case. After this court‘s decision regarding the admissibility of the evidence at issue is handed down, there will still remain the question whether those problems should result in the exclusion of true ‘rape trauma syndrome’ evidence. Obfuscation of that fact by attaching the label ‘rape trauma syndrome’ to