Lhost v. State
| Decision Date | 31 October 1978 |
| Docket Number | No. 76-564-CR,76-564-CR |
| Citation | 85 Wis.2d 620,271 N.W.2d 121 |
| Parties | Roger LHOST, Plaintiff in error, v. STATE of Wisconsin, Defendant in error. |
| Court | Wisconsin Supreme Court |
Two writs of error have been filed in this action. On June 30, 1976 Roger Lhost, the defendant, was found guilty after a jury trial of attempted rape, contrary to sec. 944.01, Stats. (1973) and sec. 939.32(2), Stats. (1973). One writ of error is directed to the judgment of conviction entered in the Brown County Court. A second writ of error is assigned to an order of the court on February 21, 1977 denying the defendant's motion for an order setting aside the verdict and for a new trial, or in the alternative a judgment of acquittal.
On October 3, 1975 at about 9:30 p. m. a fourteen year old girl, employed as a babysitter, answered a telephone call. The male caller explained that he had business to transact with the sitter's employer, and asked and was given directions to the house. A short time later, about 10:00 p. m., the victim heard a car in the driveway and looked out and saw a car, blue in color, resembling that of her employer's. She opened the door, thinking it was the child's mother returning home some 7 1/2 hours after she had begun her sitting duties. She was surprised to see a man at the door and not her female employer. The victim attempted to close the door but the male intruder forced his way into the house. The victim stated she had never seen the man before.
Upon entering the house, the defendant put his arms around her and started to kiss her. He then directed her to sit on the couch with him and began to disrobe her, telling her to take off her slacks to which she replied "never." Next the victim and assailant fell off the couch onto the floor and the defendant proceeded to remove her slacks and underclothing. At this time, she stated she was "scared to death" and "thought he was just there to have some kicks and just kill us (including the baby) or something." The victim recalled she was "too scared to say even anything" or resist his improper advances. As she opened her eyes for the first time, they were on the floor and she noticed that he had his pants down to his knees. At this time she began to struggle with him and push him off as he tried to spread her crossed legs. After a short time she broke loose from the defendant's grasp and began to pound the assailant's back with her fists and grabbed him by the neck. The assailant then stuck his fingers into her private parts and attempted again to spread her legs and told her he would get her "no matter what." She screamed, awakening the baby who then started to cry.
Immediately after the victim screamed, the attacker slapped her in the mouth and began swearing and exited the house with her slacks and underwear. She followed him to his car, demanding the return of her slacks but to no avail. She proceeded to get the defendant's automobile license number, M-97292. After the defendant's departure she called her 17 year old brother on the phone who arrived on the scene in about 2 minutes. After telling him about the attack, she asked him to look for her clothing outside. He found her underpants on the driveway. The victim's brother left in his car to notify the police. The police arrived at the house shortly thereafter and conveyed the victim to the police station for an investigation.
With the car's license number the police ran a Motor Vehicle Department check and ascertained the assailant's name and address. The officers then proceeded to the defendant's house and observed a 1969 Mustang parked in the driveway with the same license identification number as given by the victim. On the front seat of the automobile lay a brass or gold key attached to a long silver and metallic colored chain.
The police officers then placed the defendant under arrest at his house and conveyed him to the police department. The police obtained a search warrant for his automobile. Upon searching the car, a barrette belonging to the victim was found and the key on the long chain which had been removed from the automobile by the defendant's wife was turned over to the police upon request. The key and chain were identified as belonging to the victim and having been in her slacks pocket that evening.
A photograph of the defendant, along with four other photographs, were displayed by the police to the victim and without hesitation she identified the defendant as her attacker. An in-court identification of the defendant was made by the victim.
Before the prosecution rested its case by way of expert testimony, it offered in evidence head and pubic hair found on the rug at the scene of the crime. These pieces of hair were matched with hair samples given by the defendant but this did not eliminate the possibility that the hair found on the rug came from another person with the same hair characteristics.
The defendant denied the assault or of being at the scene of the crime. He pleaded an alibi defense, attempting to prove he was at a party until 9:30 p. m. and had arrived home at 10:05 p. m. The defendant's wife corroborated his arrival time and stated he made a phone call 5 or 10 minutes thereafter. He further testified that no one else but himself used the car on the night of the attack.
Despite a pre-trial motion In limine excluding any polygraph testimony, the defendant offered the testimony of Joseph Wilimovsky, a qualified expert polygrapher. Wilimovsky testified that on or near October 20, 1975 he had subjected the defendant to a lie detector exam and found him to be a proper subject for a polygraph test. On the motion offering the polygraph testimony, the defense counsel stated that Wilimovsky would have testified, if permitted, that the defendant was telling the truth in (1) denying knowing the resident of 827 Schoen Street; (2) denying knowing the victim; (3) denying he was at 827 Schoen Street on Friday night, October 3, 1975; and (4) denying sexual contact of any kind with the victim on October 3, 1975.
The prosecution objected to the proffered testimony on the basis that there had been no stipulation entered into with the prosecution, defense and the court. Defense counsel argued in response that it is a violation of the defendant's right to due process to deny the defendant the opportunity to offer exculpatory evidence based on the prosecutor's refusal to stipulate.
In a pre-trial discovery motion the defense requested a polygraph test of the defendant. The court ruled that a test would not be admissible without the filing of a proper stipulation by the respective parties. No agreement was ever formulated between the defendant and the prosecution before trial.
At the trial the court denied the offer of proof and ruled the results of the earlier test inadmissible based upon the lack of a proper stipulation.
The defendant was found guilty of attempted rape by the jury and the court ordered a pre-sentence sex deviate examination pursuant to sec. 975.01, Stats. Defendant was found not to be a proper subject for treatment under the sex deviate section and was sentenced to an indeterminate term not to exceed five years.
Garrett N. Kavanagh, Asst. State Public Defender (argued), with whom on the brief was Howard B. Eisenberg, State Public Defender, for plaintiff in error.
David J. Becker, Asst. Atty. Gen. (argued), with whom on the brief was Bronson C. La Follette, Atty. Gen., for defendant in error.
There are two issues presented on appeal:
1. Was the evidence sufficient to sustain a verdict of guilty to the crime of attempted rape?
2. Did the trial court err in refusing to admit the results of polygraph test favorable to the defendant because the prosecution refused to stipulate?
The defense has alleged that the evidence is not sufficient to meet the statutory elements of attempted rape. Attempted rape is defined by sec. 944.01, Stats. 1 (1973) and sec. 939.32(2), Stats. (1973). The statutes read as follows:
In Oakley v. State, 22 Wis.2d 298, 125 N.W.2d 657 (1964), this court analyzed the two statutory requirements of intent and overt acts which must occur together in order to have an attempted rape:
"(1) The male must have the intent to act so as to have intercourse with the female by overcoming or preventing her utmost resistance by physical violence, or overcoming her will to resist by the use of threats of imminent physical violence likely to cause great bodily harm; (2) the male must act toward the commission of the rape by overt acts which demonstrate unequivocally, under all the circumstances, that he formed the intent to rape and would have committed the rape except for the intervention of another person or some other extraneous factor." Supra at 306, 125 N.W.2d at 661.
The rule for the sufficiency of the evidence upon appellate review of a criminal action is also well stated:
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