State v. Burns

• Decision Date: 26 April 2011
• Docket Number: No. 2009AP118–CR.,2009AP118–CR.
• Citation: 2011 WI 22,332 Wis.2d 730,798 N.W.2d 166
• Parties: STATE of Wisconsin, Plaintiff–Respondent,v.Alan Keith BURNS, Defendant–Appellant–Petitioner.
• Court: Wisconsin Supreme Court

332 Wis.2d 730

798 N.W.2d 166

2011 WI 22

STATE of Wisconsin, Plaintiff–Respondent,

v.Alan Keith BURNS, Defendant–Appellant–Petitioner.

No. 2009AP118–CR.

Supreme Court of Wisconsin.

Oral Argument Nov. 3, 2010.Opinion Filed April 26, 2011.

For the defendant-appellant-petitioner, there were briefs and oral argument by David R. Karpe and Karpe Law Office, Madison.For the plaintiff-respondent, there was a brief and oral argument by Daniel J. O'Brien, assistant attorney general, with whom on the brief was J.B. Van Hollen.PATIENCE DRAKE ROGGENSACK, J.

We review an unpublished opinion of the court of appeals ¹ affirming the circuit court's order ² denying Alan Burns' motion for a new trial in the interest of justice. The issue presented in this case is whether the real controversy, that is, whether S.B. lied when she alleged Burns sexually assaulted her, was fully tried. Burns argues S.B.'s truthfulness was not fully tried and he, therefore, is entitled to a new trial in the interest of justice. Specifically, Burns contends that S.B.'s misleading testimony regarding her virginity, the circuit court order that forbid him from cross-examining the expert witness about previous sexual assaults alleged by S.B., and statements made during the prosecutor's closing argument, all prevented the real controversy from being fully tried. After thorough review of the record, we conclude that the real controversy was fully tried. Therefore, a new trial in the interest of justice is not warranted. Accordingly, we affirm the decision of the court of appeals.

I. BACKGROUND

¶ 2 The facts of this case are both unfortunate and disturbing. They involve the repeated sexual assaults of S.B., a minor, by both her maternal grandfather, Keith Burns (the grandfather) and her maternal uncle, Alan Burns (Burns). The facts are drawn from the record, including the trial transcripts of both Burns' and the grandfather's trials. For the most part, they are presented in chronological order. Additional facts are discussed where applicable during our discussion in section II below.

A. Charges against Burns and the Grandfather

¶ 3 In May of 2005, Burns was charged with 12 counts of sexual assault of a child under 16 years of age, due to conduct with his niece, S.B., when she was 14 years old. The incidents were alleged to have occurred in July and December of 2004 when S.B. was visiting her maternal grandparents in Wisconsin. ³ Burns was living with his parents, S.B.'s grandparents, at this time. Most assaults were alleged to have taken place in an upstairs bedroom of S.B.'s grandparent's house while her grandparents were downstairs. Eleven of the counts were based on sexual contact, and one was based on sexual intercourse.

¶ 4 In September of 2005, four months after the complaint was filed against Burns, the State of Wisconsin filed a complaint against the grandfather. The complaint alleged that he had sexually assaulted S.B. numerous times since 1990, when S.B. was approximately four years old, including sexual intercourse starting when S.B. was approximately eight years old.⁴

B. Burns' Pre–Trial Motion

¶ 5 Burns filed a pre-trial motion to admit evidence of S.B.'s allegations against her grandfather. He claimed they were relevant to S.B.'s credibility and provided a motive to fabricate. Burns contended that they were admissible under Wis. Stat. § 906.07 (2007–08) ⁵ and Wis. Stat. § 906.08(2). ⁶ Furthermore, he argued that certain pretrial statements made by S.B., that called her credibility into question, fell under exceptions to Wisconsin's rape shield law, Wis. Stat. § 972.11(2)(b)(2) & (3). ⁷ Specifically, Burns pointed to S.B.'s statements that she was a virgin prior to Burns' assaults, that she was worried about being pregnant as a result of Burns' assaults, that her grandfather had never bothered her, and that she had never had any problems with anyone else in her family. Burns also sought to admit evidence of the victim's healed hymenal tears allegedly caused by the grandfather. Finally, citing State v. Pulizzano, 155 Wis.2d 633, 456 N.W.2d 325 (1990), Burns stressed his right to mount a meaningful defense.⁸ Prohibiting him from bringing up allegations against the grandfather, Burns argued, violated his constitutional right of confrontation and compulsory process.

¶ 6 The State sought to exclude those pretrial statements and evidence of the hymenal tears, arguing that they did not fit within one of the enumerated exceptions to the rape shield law or the exception created by Pulizzano. The State also moved to present evidence that S.B.'s behavior following the alleged assaults by Burns was consistent with the behavior of other sexual assault victims, otherwise known in Wisconsin as “ Jensen evidence.” ⁹

¶ 7 Applying the rape shield law and Pulizzano, the circuit court excluded all evidence relating to S.B.'s virginity.¹⁰ The court also held that evidence of hymenal tears and of S.B.'s allegations against her grandfather was inadmissible unless the State first introduced evidence about the grandfather's conduct.

C. Burns' Jury Trial

¶ 8 In August of 2006, Burns was tried to a jury. Burns argues in this appeal that several aspects of the trial prevented the real controversy from being fully tried. We begin with S.B.'s testimony. Of relevance here, S.B. spoke of her relationship with the grandfather. She said, “I've always been the grandpa's girl” and “[E]verything I did was with my grandfather since my dad was never there.” Shortly thereafter, however, the court allowed the State to interrupt S.B.'s testimony and present the testimony of Michael P. (Michael) and Terri Stoff (Stoff), a social worker involved in the case.¹¹

¶ 9 Michael, a friend of S.B.'s, testified that S.B. had revealed to him that her uncle had done “inappropriate things to her” and “things that he shouldn't have been doing as someone who is related to her.” Pursuant to the pre-trial order excluding all evidence regarding S.B.'s virginity, Michael had been instructed not to testify that S.B. told him she did not think she was a virgin anymore because of the assaults by Burns and the grandfather. However, on redirect, the court allowed the following questioning by District Attorney Sharp (Prosecutor Sharp):

Q: [Michael], without saying exactly what [S.B.] said, did she say anything to you that indicated she believed her uncle had penetrated her?

A: Yes.

¶ 10 Following Michael and Stoff's testimony, S.B. retook the stand. During the direct examination of S.B., the following exchange took place:

Q: So on that day you told [Michael] what was going on with your uncle?

A: Yes.

Q: And do you recall what you told him about what was going on with your uncle?

A: I had told him that I didn't think I was a virgin anymore and that I didn't know what had truthfully happened. I didn't—

Q: Okay, it sounds like you were expressing things with some degree of uncertainty when you were talking to him?

¶ 11 At this point, given the pre-trial order excluding any statements about S.B.'s virginity, Burns moved for a mistrial. In the alternative, Burns moved for permission to introduce evidence regarding the assaults by the grandfather for the purpose of attacking the truthfulness of S.B.'s testimony. If those motions were denied, Burns asked for permission to ask one question on cross-examination along the lines of “your statement that you weren't a virgin anymore, that wasn't true, was it?”

¶ 12 In response to Burns' requests, the court found that S.B.'s testimony was “inadvertent, accidental, not premeditated or calculated in any sense.” The court went on: “I say that based on observing the witness after the statement was made. I'm convinced of that and I so find.” Based on this finding, and the court's belief that it would be a violation of the rape shield law to admit evidence of the assaults by the grandfather, the court denied a mistrial. The court also denied Burns' two alternative requests, concluding “the best course of action is to simply leave it alone and continue with the trial.” Prosecutor Sharp then finished his direct examination of S.B. and Attorney Benavidas had an opportunity to cross-examine her.

¶ 13 Burns also attacks the testimony of Dr. Beth Huebner, expert witness for the State. Dr. Huebner gave extensive Jensen testimony. In particular, she explained common post-assault behaviors exhibited by adolescent sexual assault victims. She underscored certain “red flags” including: unhappiness, preoccupation, withdrawal, both physically and emotionally, loss of self-esteem, and irritability. She noted that there is often a dramatic drop in school grades.

¶ 14 Dr. Huebner testified that based on her review of S.B.'s case, S.B.'s behavior was consistent with that of other adolescent sexual assault victims. She noted that S.B. had become more irritable after the assaults allegedly took place, that her family struggled to figure out what had caused her change in behavior, and that her school grades fell. While Dr. Huebner was seemingly unaware that S.B. had engaged in self-cutting behavior,¹² she testified that self-cutting is very typical of sexual assault victims. Finally, Dr. Heubner testified that adolescents frequently have trouble recounting the facts of their assaults, both omitting facts and putting in facts that didn't actually occur.

¶ 15 On cross-examination, Attorney Benavides challenged Dr. Huebner's conclusions, pointing out that they were generalizations. In response to his questioning, Dr. Huebner testified to the existence of “false reporting” and admitted that, while there are tests available to examine a person's ability to perceive and relate reality, no such tests were performed on S.B. Moreover, she admitted she had never talked with S.B.

¶ 16 Following Dr. Huebner's testimony, the State rested. The first witness for Burns was his girlfriend, and alibi witness, Cynthia Schroeder (Schroeder). Schroeder testified about the grandfather's...