Michael R.B., In Interest of

• Citation: 499 N.W.2d 641,175 Wis.2d 713
• Decision Date: 03 November 1992
• Docket Number: No. 91-1393,91-1393
• Parties: In The Interest of MICHAEL R.B., a person under 18 years of age. MICHAEL R.B., Appellant-Petitioner, v. STATE of Wisconsin, Respondent. d . Oral Argument
• Court: United States State Supreme Court of Wisconsin

Page 641

499 N.W.2d 641

175 Wis.2d 713

In The Interest of MICHAEL R.B., a person under 18 years of age MICHAEL R.B., Appellant-Petitioner, v. STATE of Wisconsin, Respondent. ^d

No. 91-1393.

Supreme Court of Wisconsin.

Oral Argument Nov. 3, 1992.

Decided May 10, 1993.

For the respondent the cause was argued by Sally L. Wellman, Asst. Atty. Gen., with whom on the brief was James E. Doyle, Atty. Gen.

HEFFERNAN, Chief Justice.

This is a review of an unpublished decision of the court of appeals which affirmed a dispositional order of the circuit court for Door County, John D. Koehn, Judge, finding fourteen-year-old Michael B. delinquent for the first-degree sexual assault of eight-year-old Laura R. ¹ Michael was subsequently ordered placed under the supervision of the Door County Department of Social Services for a period of one year, with placement to remain in his home with his mother. Michael was also ordered to participate in counselling, community service, and other conditions of supervision.

Michael appealed the order of the circuit court citing several rulings by the judge in which evidence offered by Michael was deemed irrelevant and therefore inadmissible. Michael argued that by excluding the proffered evidence the court denied him the constitutional right to present a defense and to confront witnesses testifying against him. The court of appeals affirmed the judge's evidentiary rulings on the ground that the excluded evidence was either irrelevant or precluded by sec. 972.11, Stats., Wisconsin's rape shield law. ²

The question before this court is whether the judge erroneously exercised his discretion in excluding the evidence offered by Michael B.--either as a matter of law with respect to sec. 972.11 or with respect to the discretionary powers of the court to rule on evidentiary matters. Evidentiary rulings generally are reviewed with deference to determine whether the circuit court properly exercised discretion in accord with the facts of record and with accepted legal standards. State v. Blair, 164 Wis.2d 64, 473 N.W.2d 566 (Ct.App.1991); State v. Pharr, 115 Wis.2d 334, 342, 340 N.W.2d 498 (1983). Whether the judge's determinations denied Michael the right to present a defense is a question of constitutional proportion, however, and as such involves "constitutional facts" which this court may review de novo. State v. Pulizzano, 155 Wis.2d 633, 648, 456 N.W.2d 325 (1990). Under the facts of this case we concur in the court of appeals' application of sec. 972.11, Stats., but nevertheless conclude that the judge erroneously exercised his discretion in excluding several of the pieces of evidence offered by Michael B. Accordingly, we reverse the decision of the court of appeals and remand this case to the circuit court for further proceedings in accordance with this opinion.

On June 10, 1990, Laura R. told her mother that Michael B. had sexually assaulted her sometime during the week of April 22, 1990. According to the mother's written account of this June 10th conversation, Michael came up to Laura as she was playing in the woods behind the apartment building in which both children lived and told her to take off her clothes or he and some highschoolers would beat up her eleven-year-old brother David. Laura told her mother that Michael then removed his pants and underwear and, despite her attempts to push him off, held Laura down and stuck his "thing" in her.

On June 11, 1990, the day after Laura's disclosure to her mother, Laura was interviewed by police officer Dale Jeanquart and Mary Lange, a child protective services intake worker. During the interview, Laura described the assault and confirmed that Michael had put his "weiner" in her "pee-pee." Laura also stated, contrary to what she had told her mother the day before, that she and Michael were standing during the incident. That same day, Laura's mother took her to be examined by Dr. Kevin O'Brien, a family practitioner.

At trial the jury received the mother's written and oral testimony. The state also introduced the following evidence to support its charge. First, Laura testified with respect to the assault and to her subsequent attempts to avoid Michael by taking alternate routes home from her bus stop after school. Using anatomical dolls, Laura identified the penis on a boy doll as a "wee-wee" and the area between the girl doll's legs as a "pee-pee." Second, Mary Lange corroborated both Laura and the mother's testimony and further testified that Laura's initial reticence in disclosing the assault was typical for child victims of sexual assault. Third, Dr. O'Brien testified as to Laura's physical condition, namely that her hymen was more widely open than would be expected for a girl her age. According to Dr. O'Brien, this unusually wide hymenal opening was consistent with that of a child who had experienced some type of vaginal penetration.

Responding to the state's charges, Michael B. raised two theories of defense: Laura's open hymen and her sexual knowledge could be explained by activities other than sexual intercourse with Michael, or in the alternative, Laura fabricated the claim against Michael. To support these theories, counsel for Michael B. successfully introduced the following evidence to rebut the state's contentions and to provide alternate explanations of Laura's physical condition and her knowledge of sexual practices. First, Officer Jeanquart, the police officer who interviewed Laura on June 11th, testified with respect to inconsistencies in Laura's account of the assault. Second, to rebut Laura's statement that she had altered her route home from the bus stop after school to avoid Michael, the director of school transportation testified that Laura's school bus dropped her off in front of her apartment complex five to ten minutes before Michael's school was dismissed. Third, defense counsel further impeached Laura's trial testimony by introducing evidence of a police officer and child services intake worker's interview with Laura on May 29th during which Laura denied having had any sexual contact or intercourse with anyone prior to that date. Fourth, Michael, his mother and her boyfriend all testified that on April 25th, 1990, Michael was under restriction requiring him to come home immediately after school and remain with his mother or another responsible adult at all times. All three individuals also testified that on the date of the alleged assault they were visiting George and Joan Romdenne, two friends who live out of town.

In addition to the above evidence, Michael tried to introduce five pieces of evidence all of which the judge deemed inadmissible. This evidence included: (1) testimony by a neighbor with respect to possible prior sexual conduct between Laura and her brother; (2) testimony by a friend of Laura's with respect to conversations between the two girls relating to prior sexual experiences; (3) expert testimony by Dr. Roenning with respect to Laura's enlarged hymenal opening; (4) a calendar kept by Michael's mother detailing Michael's whereabouts during April of 1990; and (5) evidence going to support defense counsel's assertions of bias on the part of Laura because of alleged ongoing animosities between her family and Michael's. The substance and facts underlying each of these pieces of evidence will be discussed seriatim later in this opinion.

Admissibility of evidence is determined by the trial judge subject to the limits of relevancy and adequacy of proof. See sec. 901.04, Stats. ³ See also State v. DeSantis, 155 Wis.2d 774, 786 n. 5, 456 N.W.2d 600 (1990) (citing commentaries relating to the federal analogue). Judges exercise broad discretion with respect to the admissibility of evidence as long as the evidence tends to prove a material fact. State v. Denny, 120 Wis.2d 614, 623, 357 N.W.2d 12 (Ct.App.1984) (citing State v. Pharr, 115 Wis.2d 334, 344, 340 N.W.2d 498, 502 (1983)). See also secs. 904.01 and 904.02, Stats. ⁴ Material facts are those that are of consequence to the merits of the litigation. Relevancy, in turn, is a function of whether the evidence tends "to make the existence of [a material fact] more probable or less probable than it would be without the evidence." Denny, 120 Wis.2d at 623, 357 N.W.2d 12. See generally 1974 Judicial Council Committee's Note to sec. 904.01, Stats., 59 Wis.2d R8. The proffered evidence need not prove a fact in a "substantial way," but it must do more than "simply afford[ ] a possible ground of suspicion against another person...." Denny, 120 Wis.2d at 623, 357 N.W.2d 12. ⁵ The evidence must connect that person to the crime, either directly or inferentially--"factual resemblance" alone is not enough. Hicks v. State, 47 Wis.2d 38, 176 N.W.2d 386 (1970); Holmes v. State, 76 Wis.2d 259, 251 N.W.2d 56 (1977). See generally Saltzburg and Martin, Federal Rules of Evidence Manual, Rule 401 at 123 (5th ed. 1990); McCormick on Evidence, Relevancy and its Counterweights: Time, Prejudice, Confusion and Surprise at 433 (2d ed. 1972). Furthermore, evidence that is admissible for some purposes or parties may not be admissible for others. In such an event, the court may admit the evidence but shall instruct the jury as to the proper scope of admission. See Sec. 901.06, Stats. ⁶

Having set forth the legal guidelines with which we review a judge's evidentiary rulings, we turn to the excluded evidence forming the basis for this appeal and address each of Michael's five evidentiary challenges in order. We discuss Michael's Sixth Amendment claim separately in part II of the opinion.

I. EVIDENTIARY EXCLUSIONS: RELEVANCY AND SEC. 972.11

A. TESTIMONY OF THEODORE RUCKMAN

Michael B. sought to admit the testimony of Theodore Ruckman, a neighbor of Laura and Michael's at the time of the assault. Ruckman was to testify that he had seen Laura and her brother David playing together in a tire swing in the early summer of 1990; the children were facing each other in...