Lange v. Young, 87-3037

• Decision Date: 15 February 1989
• Docket Number: No. 87-3037,87-3037
• Citation: 869 F.2d 1008
• Parties: Roger LANGE, Petitioner-Appellant, v. Warren YOUNG, Superintendent, Waupun Correctional Institution, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1008

869 F.2d 1008

Roger LANGE, Petitioner-Appellant, v. Warren YOUNG, Superintendent, Waupun Correctional Institution, Respondent-Appellee.

No. 87-3037.

United States Court of Appeals Seventh Circuit.

Argued Dec. 2, 1988.

Decided Feb. 15, 1989.

Charles Bennett Vetzner, Wis. Public Defender, Madison, Wis., for petitioner-appellant.

Sally L. Wellman, Asst. Atty. Gen., Wis. Dept. of Justice, Madison, Wis., for respondent-appellee.

Before BAUER, Chief Judge, and CUMMINGS and EASTERBROOK, Circuit Judges.

BAUER, Chief Judge.

This case is on appeal from the district court's order denying petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. For the following reasons, we affirm.

I.

The petitioner, Roger Lange, was convicted of two counts of attempted enticement pursuant to Wis.Stat. Sec. 944.12 (1982), and one count each of murder, kidnapping, first-degree sexual assault, and enticement of Paula McCormick, pursuant to Wis.Stat. Secs. 940.01, 940.31(1)(b), 940.225(1)(d), and 944.12 (1982), respectively.

Two days after she disappeared, the body of Paula McCormick, who was not yet twelve years old, was found in a storage locker rented by Roger Lange. The police discovered Paula McCormick's body in a Zenith television box inside two plastic bags. Both of her hands were tied behind her back and her knees were tied up underneath her chin. Her blue jeans and underwear were pulled down. Two cords were tied around her neck and a washcloth was stuffed down her throat.

At trial, the government presented overwhelming evidence connecting the disappearance and death of the young girl to Lange. On the day she died, Paula told friends that she was going to make a dollar by babysitting after school for five minutes. In the weeks previous to Paula's death, Lange had made similar offers to two other young girls. After being questioned by the police, Lange admitted that Paula had been in his apartment the afternoon she died. He also brought the police to the storage locker and indicated that they would find Paula's body in the locker inside a Zenith box.

A two-tiered trial was held to determine Lange's guilt. After the first trial, the jury found him guilty of the crimes charged. Because he had pleaded not guilty by reason of mental disease or defect, a second trial was held to determine Lange's sanity. The jury found that Lange did not have a mental disease when he killed Paula McCormick. Lange was then sentenced to life imprisonment. The Wisconsin Court of Appeals affirmed his conviction and the Wisconsin Supreme Court denied his subsequent petition for review.

Lange then brought this petition for habeas corpus review. He contends that his convictions for sexual assault and kidnapping violated his due process rights because there was insufficient evidence to support those convictions. Second, he argues that his constitutional right to present critical opinion evidence was violated by the trial court's evidentiary rulings. Third, Lange claims that his constitutional right to counsel was violated because the prosecution called as its witness a psychiatrist that defense counsel had originally retained. The district court rejected each of petitioner's arguments and denied his petition. Lange then brought this appeal.

II.

A.

Lange's first contention on appeal is that the government failed to present sufficient evidence to support his convictions for sexual assault and kidnapping. When the asserted entitlement to habeas corpus relief is based upon a claim of insufficient evidence, the proper inquiry for this court is to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979). Based upon this standard of review, we find that there was sufficient evidence to support Lange's convictions.

To support a conviction for sexual assault, the state must prove Lange touched an intimate part of Paula McCormick while she was alive. The physical evidence showed that Lange had anal intercourse with Paula after she died. Because there is no physical evidence of injury or penetration before she died, Lange contends that his conviction should be reversed. However, neither injury nor penetration is a required element of sexual assault. Contact with an intimate part is the only element required by law. Further, this contact need not be proven through direct physical evidence; circumstantial evidence is sufficient. See Rowan v. Owens, 752 F.2d 1186 (7th Cir.1984), cert. denied, 476 U.S. 1140, 106 S.Ct. 2245, 90 L.Ed.2d 691 (1986) (direct physical evidence of penetration not necessary to prove penetration); see also Jackson, 443 U.S. at 324-25, 99 S.Ct. at 2791-92 (circumstantial evidence sufficient to prove elements of a crime beyond a reasonable doubt).

Considering all the circumstances, we find that a reasonable jury could have found that Lange assaulted Paula McCormick before she died. First, the jury found beyond a reasonable doubt that Lange lured Paula into his apartment with the intent to commit sexual assault. (Lange was convicted of enticement and does not challenge this conviction. In order to sustain an enticement conviction, the state must prove intent to commit sexual assault.) In order to prove intent, the state demonstrated that Lange had a history of sexually assaulting young girls. Second, given the timeline presented at trial, Lange also had time to assault Paula before killing her. In addition, Paula scratched Lange's chest and hands, indicating that a struggle occurred. The fact that Lange's chest was scratched also indicates that Lange had at least partially disrobed before Paula died, negating Lange's contention that he only assaulted her after she died.

To support a conviction for kidnapping, the state must prove beyond a reasonable doubt that the defendant confined Paula by force. Under Wisconsin law, the confinement need not exist for any particular length of time and it may be related or incidental to the commission of other criminal acts. See, Harris v. State, 78 Wis.2d 357, 365-67, 254 N.W.2d 291, 296 (1977) (conviction for both abduction and sexual perversion held proper even though the former was incidental to the latter). Given the fact that Paula was bound and gagged, and that Lange had been scratched in an apparent struggle, we find that a reasonable jury could have convicted Lange of kidnapping on the basis of the evidence presented at trial.

B.

Lange's second contention on appeal is that two exclusionary rulings by the trial court deprived him of a fair trial. During the first trial to determine petitioner's guilt, the trial court excluded certain testimony of Dr. Bauman, a pathologist, which Lange claims negated his intent to kill Paula McCormick. During the second trial to determine petitioner's sanity, the trial court excluded certain testimony of Dr. Closs, a psychologist, which Lange claims was offered to prove that he was a paranoid schizophrenic at the time he killed Paula.

The right of a criminal defendant to present a defense is a right well established by the Constitution and includes the right to offer testimony of witnesses. Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). To determine whether a constitutional violation has occurred, this court must examine whether the proffered evidence was relevant, material, and vital to the defense, and whether the exclusion of that evidence was arbitrary. United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (1982); see also Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973) (defendant must comply with state rules of evidence and procedure but state evidentiary rules "may not be applied mechanistically to defeat the ends of justice"). In this case, however, we need not decide whether the exclusion of the above-mentioned evidence was constitutional error because any error was harmless. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (conviction should not be reversed if constitutional error was harmless beyond a reasonable doubt); see also United States ex rel. Thomas v. O'Leary, 856 F.2d 1011 (7th Cir.1988) (court delineates circumstances in which harmless error analysis is available).

Lange's first argument is that the trial court should have admitted the testimony of Dr. Bauman. Lange sought to have Dr. Bauman testify that the sexual practices in which Lange regularly engaged with his girlfriend, Tina Johnson, unintentionally could have caused the death of Paula McCormick. Lange testified that about once a month he and Johnson would "get wild." Lange would bind Johnson with ropes, stuff a rag down her throat so that she passed out, and then have anal intercourse with her. Johnson corroborated that "getting wild" was in fact part of their regular sexual fare. Because Paula was bound in a similar manner, Lange argued that he did not intend to kill her but simply intended to "get wild" with her. To this end, he sought to have Dr. Bauman testify that the conduct which caused Johnson to pass out could have caused Paula's death.

The trial court did not permit Dr. Bauman to make this statement because the testimony did not involve medical expertise and because the opinion was in response to a hypothetical which did not correspond to the evidence. The court, however, did admit all of the evidence which could lead the jury to conclude that Lange did not intend Paula's death. Bauman testified that Paula died of manual strangulation caused by someone who applied enough force to compress the young girl's larynx. He also testified that a child's larynx could be more easily compressed than an adult's larynx. Further, Dr. Bauman testified that if a person wanted to render Paula unconscious (similar to the manner in which Lange rendered Johnson...