Milenkovic v. State

• Decision Date: 18 October 1978
• Docket Number: No. 77-727-CR,77-727-CR
• Citation: 86 Wis.2d 272,272 N.W.2d 320
• Parties: Rodoljub MILENKOVIC, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. *
• Court: Wisconsin Court of Appeals

Page 320

272 N.W.2d 320

86 Wis.2d 272

Rodoljub MILENKOVIC, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. ^*

No. 77-727-CR.

Court of Appeals of Wisconsin.

Argued Sept. 13, 1978.

Opinion Released Oct. 18, 1978.

Opinion Filed Oct. 18, 1978.

Mel S. Johnson, Asst. State Public Defender (argued) for plaintiff; Howard B. Eisenberg, State Public Defender, on brief.

Betty R. Brown, Asst. Atty. Gen. (argued) for defendant; Bronson C. La Follette, Atty. Gen., on brief.

Rudoljub Milenkovic was convicted of rape, contrary to sec. 944.01, Stats., (1973), and false imprisonment of the rape victim, party to a crime, contrary to secs. 940.30 and 939.05, Stats. He was sentenced to concurrent terms of up to seven years for rape and up to two years for false imprisonment.

The defendant's motion for a new trial was denied and writs of error were issued to review the judgment and order.

Before DECKER, C. J., CANNON, P. J., and R. W. HANSEN, Reserve Judge.

DECKER, Chief Judge.

The incidents from which the defendant's criminal conviction resulted occurred in the early morning hours of July 11, 1973. At approximately 11 p. m. on the evening of July 10, the prosecutrix left her apartment and proceeded to a bar and restaurant where she encountered the defendant and his companion, Bozdar Spajic. She had met the defendant on one previous occasion.

At approximately midnight, unaccompanied, she left to go to another bar and restaurant, where she knew the piano player. She proceeded to a third bar and restaurant at approximately 1:30 a. m. to visit her boyfriend, a bartender at that establishment. She often accompanied him to breakfast when he left work at approximately 2 a. m.

The defendant and Spajic entered the bar and seated themselves next to the prosecutrix. They offered to buy her a drink but she refused. At 2 a. m. the manager announced the bar was closed and she proceeded outside to wait in her car for her boyfriend to emerge. The prosecutrix claims that as she was walking to the car, Spajic grabbed her and began to hug and kiss her. She struck Spajic and attempted to get away, at which time, according to her testimony, the defendant called to Spajic and told him not to let her get away. She was forced into an automobile with the defendant and Spajic. The defendant started the car and drove out of the parking lot of the restaurant at which time Spajic again began to kiss and hug her. She testified that she bit Spajic on the lip, and that she was forced into the rear seat of the car where Spajic removed her clothing and forced her to have sexual intercourse with him. The defendant then switched places with Spajic, attempted to apologize to her, but when she refused his request to go out with him, he, too, forced her to have sexual intercourse with him.

After this incident the prosecutrix was dropped off in the parking lot of the restaurant where she picked up her car and drove to her apartment. She called her boyfriend who came to her apartment and found her to be hysterical. Although she was hesitant to report this incident to the police, later that day she went to the police department and reported the occurrence.

The police accompanied the prosecutrix to Milwaukee County General Hospital where an examination of a vaginal smear taken from the prosecutrix revealed the presence of spermatozoa. Tests on the "body shirt" which was worn on the night of the incident also revealed the presence of spermatozoa in the crotch area and minute spots of blood of a type different from the prosecutrix around the neckband. The medical examination also revealed that the prosecutrix had gonorrhea.

Prior to any testimony being presented at trial, the state moved the court for an order to preclude the defense from cross-examining the prosecutrix or presenting any direct evidence regarding her prior sexual conduct with third persons or the presence of gonorrhea. The motion was granted with the limited exception that the defense was allowed to ask the prosecutrix whether she had ever engaged in consensual premarital intercourse prior to this incident. ¹ The prosecutrix answered affirmatively and, by the terms of the court's order, the defense was precluded from introducing any evidence of specific sexual activity.

It is that order which constitutes the entire basis for the defendant's appeal. Defendant contends that the ruling was error because:

1. Such evidence was relevant under the provisions of the Wisconsin Rules of Evidence, and

2. The order denied the right of confrontation and the due process right to present a defense.

We disagree and affirm the judgment and order.

I. RELEVANCE

The defendant contends that evidence of the prosecutrix' prior sexual conduct and her venereal disease was relevant under any one or all of the following theories:

1. Her prior sexual conduct would give rise to an inference of consent to this act of nonmarital sexual intercourse.

2. Her knowledge that she had been infected with gonorrhea prior to this incident prompted her to seek out a justification satisfactory to her boyfriend. According to the defense theory, this was the motive for falsely accusing the defendant of rape.

3. Because the state had no medical record of the defendant being treated for gonorrhea, and gonorrhea is a "highly contagious" disease, the defense maintains that introducing evidence that the prosecutrix had contracted the disease prior to this incident would give rise to an inference that the defendant had not engaged in an act of sexual intercourse with her.

We deal with the relevance of the evidence pertinent to each defense theory separately.

A) Admissibility of Evidence of Prior Episodes of Sexual Intercourse to Establish Likelihood of Consent.

The state's motion In limine successfully sought exclusion of evidence of prior acts of sexual intercourse by the prosecutrix. Defense counsel not only objected to the exclusion but offered to prove that the prosecutrix, a few days before the alleged rape, had an act of consensual intercourse with another man in an automobile located in the parking lot of one of the bars in which she was present on the night of the alleged rape.

Character evidence is of slight probative value and may be very prejudicial. It tends to distract the trier of fact from the main question of what actually happened on the particular occasion. It subtly permits the trier of the fact to reward the good . . . and to punish the bad . . . because of their respective characters despite what the evidence in the case shows actually happened. ²

American law has long recognized the weakness of an inference that a person necessarily acts in accordance with his character upon a particular occasion. That inference has been rejected in the general rule that character evidence is irrelevant and inadmissible to prove conduct upon a particular occasion. Sec. 904.04(1), Stats. However, when the character of the victim or an accused is a consequential material proposition, or character evidence is utilized for impeachment purposes, the ban on the circumstantial use of character evidence is inapplicable. ³

Section 904.04(1)(b), Stats., permits an accused to introduce evidence of the relevant character of a victim. In a rape case, nonconsent of a victim is an element of the crime. ⁴ Historically, evidence of the victim's reputation for chastity was held admissible upon the theory that the evidence was relevant to an inference of the likelihood of her consent. ⁵ The decisions are in conflict whether evidence of specific instances of sexual activity could be introduced other than as impeachment of the victim. ⁶

First we must determine whether prior episodes of sexual intercourse by the victim with persons other than the defendant are admissible in evidence in a rape case by authority of sec. 904.04(1)(b). We hold such evidence is not admissible and rely upon State v. Stanislawski, 62 Wis.2d 730, 216 N.W.2d 8 (1974) As to acts of this complainant or any other removed in time and place from the occasion of the alleged rape, we would not require a trial court to put a complainant on trial as to sexual episodes in her past life. It is the defendant in a rape case, not the complainant, who is to be placed on trial. P. 749, 216 N.W.2d p. 17.

We believe that Stanislawski does not prohibit the introduction of evidence of consensual sexual relations between the accused and the victim not remote to the alleged rape.

Before Stanislawski, "(T)he law recognize(d) that a woman of previous unchaste character is more likely to consent to an act of sexual intercourse than is a woman who is strictly virtuous." Kaczmarzyk v. State, 228 Wis. 247, 280 N.W. 362 (1938); State v. Muhammad, 41 Wis.2d 12, 162 N.W.2d 567 (1968); State v. Waters, 28 Wis.2d 148, 135 N.W.2d 768 (1965). We are unaware of the demonstration of the logic of such an arrogant statement. Nor are we aware of the development of what would appear to be a logical corollary of such a rule: A man of "previously unchaste character" is more likely to rape a woman.

When the court in Stanislawski stated "we would not require a trial court to put a complainant on trial as to sexual episodes in her life," the supreme court made two implicit decisions. First, chastity reputation of the victim is not A pertinent trait of character of a rape victim. Second, specific instances of the victim's sexual activity may not be introduced into evidence pursuant to secs. 904.05(2) (proof of pertinent trait of character of a person by evidence of specific instances of conduct) and 906.08(2) (attacking credibility by inquiry into specific instances of conduct on cross-examination), Stats. Any other interpretation would reduce the pertinent quotation from Stanislawski to a pious statement of the state's burden of proof. It would also subvert the course of the supreme court's expressed view by applying a tired, insensitive and archaic platitude of yesteryear.

Ordinarily we...