State v. Pulizzano, 88-0010-CR

• Citation: 434 N.W.2d 807,148 Wis.2d 190
• Decision Date: 07 December 1988
• Docket Number: No. 88-0010-CR,88-0010-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, d v. Angela PULIZZANO, Defendant-Appellant.
• Court: Court of Appeals of Wisconsin

Page 807

434 N.W.2d 807

148 Wis.2d 190

STATE of Wisconsin, Plaintiff-Respondent, ^d v. Angela PULIZZANO, Defendant-Appellant.

No. 88-0010-CR.

Court of Appeals of Wisconsin.

Argued Nov. 8, 1988.

Opinion Released Dec. 7, 1988.

Opinion Filed Dec. 7, 1988.

Matthew H. Huppertz of Carlson & Huppertz, Waukesha, for defendant-appellant.

Sharon Ruhly, Asst. Atty. Gen. (argued), for plaintiff-respondent; Donald J. Hanaway, Atty. Gen., on brief.

Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.

SCOTT, Chief Judge.

Angela Pulizzano appeals her conviction on four counts of first-degree sexual assault contrary to sec. 940.225(1)(d), Stats. The victims included Pulizzano's two children and her two nephews. Pulizzano's appeal challenges her conviction on three grounds: (1) the denial of permission to cross-examine M.D. as to a prior sexual assault; (2) the exclusion of evidence of M.D.'s untruthfulness; and (3) the propriety of the prosecution's closing arguments.

M.D., Pulizanno's nephew, testified that on a Saturday afternoon, Pulizzano requested that the four children pull down their pants. M.D. testified that Pulizzano "sucked on my peeter or penis and touched it." He further testified that she did the same to the other two boys, and then "stuck something up D.P.'s butt and stuck her finger up D.P.'s vagina." None of the other three victims testified. Further facts will be stated as necessary.

Pulizzano contends that she was denied her sixth amendment right to confront the witnesses against her. She bases this on the trial court's refusal to allow her to question M.D. with respect to a prior sexual assault for which he was receiving therapy. Pulizzano sought this testimony "for the purpose of explaining to the jury how [M.D.] ha[d] such explicit knowledge of sexual matters."

The trial court found that this evidence was being offered solely to circumvent the rape shield law, sec. 972.11, Stats. Further, the trial court found that any relevance associated with M.D.'s terminology was outweighed by considerations of unfair prejudice, confusion of the issues, and misleading the jury. See sec. 904.03, Stats.

Generally, the admissibility of evidence is a question left to the discretion of the trial court. State v. Winston, 120 Wis.2d 500, 505, 355 N.W.2d 553, 556 (Ct.App.1984) . However, Pulizzano argues that the exclusion of this testimony was not only erroneous, but also violated her constitutional rights. Application of constitutional principles to the facts presents a question of constitutional fact which we review without deference to the trial court. See State v. Turner, 136 Wis.2d 333, 344, 401 N.W.2d 827, 832 (1987).

Pulizzano relies on State v. Padilla, 110 Wis.2d 414, 329 N.W.2d 263 (Ct.App.1982), for the proposition that she should have been allowed to present an alternative source for M.D.'s detailed knowledge of sexual matters. In Padilla, the court refused to determine if the defendant should have been allowed to cross-examine the victim on the prior sexual assault because a proper offer of proof was lacking. Id. at 429-31, 329 N.W.2d at 271-72. It is on this point that the state chooses to respond in this case, arguing that Pulizzano's offer of proof is insufficient to provide a basis for review. The offer of proof consisted of a report and accompanying handwritten notes by Dr. B. William Freund.

Dr. Freund's report stated that M.D. had been having dreams in which a particular woman, C., and two other people suck his penis. It further stated that Dr. Freund "elicited" that M.D. had been the victim of sexual abuse by three older people in 1983 or 1984. In Dr. Freund's words, "the trauma consisted of fondling and perhaps sodomy of his penis but he does state that he was 'hurt.' Therefore, I think that he may have had anal penetration." The report also stated that M.D. inappropriately uses adult phrases and is abnormally interested in sexual material.

The state argues that this offer of proof was insufficient for two reasons. First, there was no in camera hearing, making it impossible to determine if M.D. would testify consistently with Dr. Freund's report. Second, the state argues that there was an inadequate showing of similarity between the two experiences.

An offer of proof need not be stated with complete precision or in unnecessary detail, but it should state an evidentiary hypothesis, underpinned by a sufficient statement of facts, to warrant the conclusion or inference that the trier of fact is urged to adopt. Padilla, 110 Wis.2d at 430, 329 N.W.2d at 271. An offer of proof can be by statement of counsel or in question and answer form. Id. at 429, 329 N.W.2d at 271; sec. 901.03(2), Stats.

Here, Pulizzano's offer of proof was made by counsel and incorporated a written report. We see nothing patently inadequate about this method.

Regarding the concern that M.D.'s testimony might be inconsistent with the report, such is often the case with cross-examination. Dr. Freund's report provides Pulizzano with a good-faith factual basis for cross-examination. Assuming the testimony is otherwise admissible, Pulizzano would be entitled to cross-examine M.D., and if the answers were inconsistent with Dr. Freund's report, she could use Dr. Freund to contradict M.D. See sec. 906.13, Stats.

The state questions the similarity of the two events, relying on Padilla. There, the court noted that if the prior sexual experience were identical to the present assault, it could be inferred that the explicit knowledge was not necessarily gleaned from the present assault. Padilla, 110 Wis.2d at 428, 329 N.W.2d at 271. We do not read this as requiring identical experiences. Rather, Padilla suggests that there is a continuum from identical experiences to completely dissimilar experiences. The former is relevant; the latter is not.

The acts of which Pulizzano was accused included fellatio, anal penetration with an object, and digital penetration of the vagina. The acts referred to in Dr. Freund's report are fondling and sodomy of the penis (sodomy includes fellatio, see Webster's Third New International Dictionary 2165 (1976)) and possible anal penetration with an object. At least one of the abusers, C., was an adult woman. We conclude that sufficient similarity between the acts was shown to allow an inference that M.D.'s explicit sexual information was not necessarily gleaned from the alleged assault by Pulizzano. ¹ See Padilla, 110 Wis.2d at 428-29, 329 N.W.2d at 271.

Having concluded that the offer of proof is sufficient for us to review the issue, we must examine whether the trial court correctly excluded this proffered testimony as being prohibited by sec. 972.11, Stats. Section 972.11 provides in part:

(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 life-style.

(b) If the defendant is accused of a crime under s. 940.225, any evidence concerning the complaining witness's prior sexual conduct or opinions of the witness's prior sexual conduct and reputation as to prior sexual conduct shall not be admitted into evidence during the course of the hearing or trial, nor shall any reference to such conduct be made in the presence of the jury, except the following, subject to s. 971.31(11):

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 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 the admission or reference unless the admission is expressly permitted under par. (b) 1, 2 or 3.

Pulizzano correctly points out that not all sexual expressions are subject to the rape shield statute. See State v. Vonesh, 135 Wis.2d 477, 488-90, 401 N.W.2d 170, 176 (Ct.App.1986). On this basis, she argues that we should hold that the proffered evidence falls under Vonesh. While perhaps M.D.'s dreams and verbalizations are not covered by the statute, we note that Pulizzano's offer of proof only referred to "questions concerning the prior sexual assault." We will therefore confine our opinion accordingly.

The first question to be answered is whether a prior sexual assault falls within the definition of sexual conduct in sec. 972 11(2)(a), Stats. This presents a question of statutory construction which we review without deference to the trial court. State v. Mason, 132 Wis.2d 427, 431, 393 N.W.2d 102, 104 (Ct.App.1986).

Two considerations lead us to conclude that evidence of a prior sexual assault is protected by sec. 972.11(2), Stats. First, subsec. (2)(a) is drafted broadly, referring to "conduct," "behavior," "activities," and "prior experience" of the complaining witness. If subsec. (2)(a) were to be limited to consensual activities, the legislature could have easily expressed this limitation.

Second, subsec. (2)(b)3 of sec. 972.11, Stats., excludes from operation of the statute "prior untruthful allegations." Prior truthful allegations are not excluded, and we conclude that sec. 972.11(2) affords protection therefor, provided that the prior sexual assault directly involved the complaining witness. See sec. 972.11(2)(a).

Pulizzano argues that the application of sec. 972.11(2), Stats., to the facts of this case violates her sixth amendment right to confront her accuser. This issue was recently addressed in State v. Herndon, 145 Wis.2d 91, 426 N.W.2d 347 (Ct.App.1988). ²

The court of appeals in Herndon declared sec. 972.11(2)(c), Stats.,...