In Interest of Julian M., No. 2006AP1406 (Wis. App. 12/27/2006)
| Decision Date | 27 December 2006 |
| Docket Number | No. 2006AP1406.,2006AP1406. |
| Parties | In the Interest of Julian M., A Person under the age of 17: State of Wisconsin, Petitioner-Appellant, v. Julian M., Respondent-Respondent. In the Interest of Phaheem S.B., A Person under the age of 17: State of Wisconsin, Petitioner-Appellant, v. Phaheem S. B., Respondent-Respondent. |
| Court | Wisconsin Court of Appeals |
APPEAL from orders of the circuit court for Racine County: JOHN S. JUDE, Judge. Affirmed in part; reversed in part and cause remanded.
The State of Wisconsin brings this interlocutory appeal challenging several evidentiary rulings in a sexual assault case in which the alleged victim, Janel J., and the defendants-respondents, Julian M. and Phaheem S.B., are all juveniles. The trial court ruled that the report of an earlier sexual assault made by Janel could be admitted into evidence as a prior untruthful allegation under the rape shield law, WIS. STAT. § 972.11(2). The court also ruled that various pre- and post-Miranda2 statements made by Julian and Phaheem should be suppressed.
¶2 We reverse the trial court's rape shield law ruling because, even if Janel's report of the prior alleged assault might not have supported a successful prosecution, Julian and Phaheem have failed to demonstrate that Janel's report was "untruthful." As to the challenged statements made by Julian and Phaheem, we affirm the trial court's rulings in part and reverse them in part. Three discrete sets of statements are challenged: (1) statements made by Julian and Phaheem during their separate bookings at the police station; (2) later statements made by Phaheem after he was given incomplete Miranda warnings; and (3) still later statements made by Julian and Phaheem as they rode together in the police van and in the lobby of the sheriff's department. We affirm the trial court's suppression of the pre-Miranda booking statements because the police interaction with Julian and Phaheem crossed the line into interrogation. We also affirm the suppression of Phaheem's immediate post-Miranda statements because even if Phaheem understood his right to counsel, the abbreviated caution failed to inform him that his statements could be used against him. However, we reverse the ruling suppressing the information gleaned from the unprompted conversations between Julian and Phaheem while in the police van and in the sheriff's lobby before detention because there is no suggestion of any police overstepping that would render inadmissible the gratuitous statements made within earshot of the officers.
¶3 On October 14, 2005, the City of Racine Police Department was called to investigate the alleged sexual assault of sixteen-year-old Janel. The responding officer found Janel hysterical, sobbing and shaking violently. She reported that Julian and Phaheem had raped her, and provided the following details. She, Phaheem, whom she knew from school, and Phaheem's cousin, Julian, went to Phaheem's house and the trio walked around the neighborhood for some time, then returned to Phaheem's house. When Janel indicated her intent to leave, Phaheem grabbed her from behind with his arms around her head and neck. Both boys dragged her into a nearby garage and attempted to pull down her pants while she verbally and physically resisted. Julian forced her to engage in sexual intercourse and Phaheem forced her to perform fellatio on him. The boys released her after about an hour, and threatened to beat her if she reported the incident.
¶4 In juvenile court, the State charged Phaheem, age sixteen, with second-degree sexual assault by use of force, and Julian, age fifteen, with second-degree sexual assault, as party to the crime. Both also were charged with kidnapping and intimidating a victim. The State petitioned to waive both juveniles into adult court. The trial court denied the petition regarding Phaheem, and the State withdrew its petition regarding Julian. Pretrial, both juveniles filed motions seeking to introduce at trial evidence that Janel had made a prior untruthful allegation of sexual assault. The motions also sought to suppress various custodial statements both juveniles had provided to the police or made to each other while in such custody.
¶5 On February 20, 2006 and again on May 8 and 9, the trial court took testimony on the pretrial motions, and later granted the motions in an oral decision. The court then stayed further proceedings while the State pursued this interlocutory appeal. We granted the State's petition for leave to appeal the court's non-final order. State v. Julian M., No. 2006AP1406, order (WI App June 28, 2006). We will recite additional facts as we discuss the issues.
¶6 The facts regarding Janel's report of a prior sexual assault were presented via the testimony of the officer who investigated the incident and David J., whom Janel accused. In 2004, while in gym class at her middle school, Janel alleged that David, a fellow student, had "swiped his hand across her breast" and touched her legs, saying, "Ooh, baby." Janel also reported that David had slightly pulled down the waistband of his pants and said, "Suck it." The principal called David to the office and a police officer spoke to David about the incident. David denied touching Janel's legs, pulling down his waistband or saying, "Ooh, baby." However, he acknowledged to the police and also in his testimony at the motion hearing that a touching of Janel's breast area and a reference to oral sex—"What's up with the head?"—did occur. However, David characterized the touching as accidental, and the comment as a joking reference to an offer to perform fellatio he says Janel made to him on the telephone the night before. The police officer testified that when he interviewed Janel she was "smiling and kind of acting like it was somewhat funny."
¶7 Julian and Phaheem moved to introduce the report of this incident into evidence, and the trial court granted the motion. WIS. STAT. § 972.11(2), the rape shield law, precludes the admission of evidence regarding a complainant's prior sexual conduct or behavior unless a statutory or judicially created exception applies. The exception Phaheem and Julian relied on is § 972.11(2)(b)3., concerning "prior untruthful allegations of sexual assault made by the complaining witness." Before admitting evidence of prior untruthful allegations, the circuit court must determine whether the proffered evidence: (1) fits within § 972.11(2)(b)3.; (2) is material to a fact at issue in the case; and (3) is of sufficient probative value to outweigh its inflammatory and prejudicial nature. State v. DeSantis, 155 Wis. 2d 774, 785, 456 N.W.2d 600 (1990). We consider the second and third prongs only if the first is met. See State v. Moats, 156 Wis. 2d 74, 110, 457 N.W.2d 299 (1990).
¶8 The first consideration is whether the proffered evidence fits within WIS. STAT. § 972.11(2)(b)3. DeSantis, 155 Wis. 2d at 785. The admission of evidence is left to the discretion of the circuit court. State v. Dunlap, 2002 WI 19, ¶ 31, 250 Wis. 2d 466, 640 N.W.2d 112. We will not find an erroneous exercise of that discretion unless the circuit court has improperly applied the facts of record to the accepted legal standards. See id. The burden is on the defense to produce evidence sufficient to support a reasonable person's finding that the complainant made prior untruthful allegations. Moats, 156 Wis. 2d at110.
¶9 The trial court found that since Janel alleged that David touched both her breast and her leg, David's clear denial that he touched Janel's leg rendered the allegation untruthful, and so could be inquired into at trial. David denied touching or rubbing Janel's legs and saying, "Ooh, baby," but acknowledged that while "messing around" he "slapped across" her breast and made a comment to her about oral sex. Janel and David are at odds in their interpretation of the episode, but it remains that an incident between the two occurred, and that it included, at a minimum, David touching Janel's breast. We deem the term "untruthful" to connote a concocted event without any factual or historical support. That cannot be said as to Janel's accusation against David. Whether or not the touching was intentional does not alter the fact that it happened. Sexual contact is the intentional touching of an intimate body part, which includes the breast. Wis. Stat. §§ 940.225(5)(b), 939.22(19). School and police authorities investigated the matter. That they evidently considered the incident nonprosecutable is not the same as it being untruthful, however.
¶10 Nor does Janel's smiling demeanor when reporting the incident change our view. David testified that Janel was teased at school because she was "slow," and the investigating officer acknowledged that the "thousands" of alleged victims he had interviewed responded in a variety of ways. Because Julian and Phaheem did not meet their burden of demonstrating untruthfulness, we must conclude that the evidence is inadmissible under the statute and our analysis ends. See Moats, 156 Wis. 2d at 110.
¶11 The trial court suppressed all of Phaheem's and Julian's pre- and post-Miranda statements. They consist of Phaheem's and Julian's statements to Investigator Jody Spiegelhoff at the police station during their separate bookings ("booking statements"); Phaheem's later statement to Investigator Steve Diener at the police station after an incomplete Miranda advisory ("Diener/Phaheem interview"); still later conversations between Julian and Phaheem overheard by the police van driver during a transport ("police van statements"); and statements between the two in the sheriff's department lobby which Investigator Spiegelhoff overheard and inadvertently recorded ("lobby statements"). We address each separately.
¶12 Spiegelhoff and another police...
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