State v. Burroughs, 82-1238-CR

• Decision Date: 28 February 1984
• Docket Number: No. 82-1238-CR,82-1238-CR
• Citation: 117 Wis.2d 293,344 N.W.2d 149
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Charles J. BURROUGHS, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 149

344 N.W.2d 149

117 Wis.2d 293

STATE of Wisconsin, Plaintiff-Respondent, v. Charles J. BURROUGHS, Defendant-Appellant.

No. 82-1238-CR.

Supreme Court of Wisconsin.

Argued Jan. 4, 1984.

Decided Feb. 28, 1984.

Alfred F. Decker, Kenosha (argued), for defendant-appellant; Alfred F. Decker, Kenosha, on brief.

Jerome S. Schmidt, Asst. Atty. Gen. (argued), for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., on brief.

STEINMETZ, Judge.

The first issue in this case is whether defendant's trial counsel ineffectively represented the defendant by failing to file a notice of alibi pursuant to sec. 971.23(8), Stats. ¹ The second issue is whether a criminally charged defendant, failing to file a notice of alibi pursuant to statute, has the constitutional right under the United States or Wisconsin Constitutions nevertheless to testify as to where he was at the time of the crime if he claims he was not at the scene of its commission.

The trial court did not allow the defendant to call any witnesses nor allow him to testify as to his whereabouts, since he failed to file the notice of alibi. The defendant was convicted after a jury trial of violating sec. 940.225(2)(a), Stats., second-degree sexual assault, and was sentenced to an indeterminate term of not more than eight years. The defendant filed a motion for vacation of judgment. The public defender's office appointed new counsel who filed a motion for a new trial which was denied. The defendant then filed a notice of appeal from the judgment of conviction and from the order denying postconviction motions.

The defendant had been represented by a public defender's staff attorney at the trial, and since one claim of the defendant was that he received ineffective trial counsel representation, the appellate attorney, not a member of that staff, was appointed by that office for the postconviction motions and appeal. The court of appeals certified the case to this court, which we accepted.

The victim alleges and testified that the defendant had nonconsensual sexual intercourse with her during the morning of June 30, 1981. The defendant stated at trial that he did have sexual intercourse with the victim during that morning but it was consensual, and after that act but the same morning, he was not even in Kenosha.

In the complaint, the time of the alleged assault was placed at approximately 8:30 a.m. on June 30, 1981. At the preliminary examination, in answer to the district attorney's question, the victim testified the assault took place on that date at approximately 8:30 a.m. But later during cross-examination, she testified that the defendant arrived at her living quarters on that date between 7:00 and 7:30 a.m. and she claimed that during the investigation she had never told the district attorney the 8:30 a.m. time for the assault. She additionally testified that the defendant was with her for 45 minutes to one hour.

The defendant testified he had consensual intercourse with the victim on June 30, 1981. His attorney stated to the court that the defendant claimed the act occurred at 5:30 a.m. and the defendant was out of town later that morning. At the trial, the defendant testified he arrived at the victim's house around 6:15 or 6:20 a.m. and that he left her 20 to 30 minutes later, therefore, at about 6:50 a.m. When comparing the estimated times in the testimony of the victim and the defendant, the time differences are not substantial. The victim said the act was approximately between 7:00 and 8:00 a.m., which was when she arrived at her cousin's house and was the first time she looked at a clock. The defendant testified the act was approximately between 6:15 and 6:50 a.m. This computation ignores the times as stated by the district attorney and defense counsel, since those are not evidence.

Detective Serpe, a Kenosha police officer, testified that at the time of the defendant's arrest, the defendant told him that he had been in Chicago the night of June 29, 1981, and had not returned to Kenosha until it was light out on June 30, the day of the offense. The state had several witnesses testify as to their joint activities with the defendant and victim during the night and early hours of June 29 and 30, concluding their activities as a group at 5:30 a.m. on June 30. All these activities before 5:30 a.m. with the defendant, victim and witnesses took place in Kenosha. At the trial, the defendant said he told the officer he had been in Zion (Illinois) earlier on June 30 with no more specificity.

At the beginning of the second day of trial after the prosecution rested, the defense counsel advised the prosecutor of the defendant's defense, which would be that the defendant would testify he had consensual sexual relations with the victim on June 30 and then left Kenosha to go to Zion, Illinois, and was not in the Kenosha area at 7:00 to 7:30 a.m. when the victim testified on trial that the act occurred. It must be noted, however, that by the defendant's estimate of time as testified, he could have left her house as late as 6:50 a.m.

Defendant's trial counsel then advised the judge he had not filed a notice of alibi since the defendant's offered evidence was not alibi evidence "because [the defendant is] admitting to the main facts in the complaint, that he did have sexual intercourse with [her]" and that "[o]ur defense is lack of consent. That's where the alibi statute fails in this instance. Not relying on alibi as a defense.... Alibi is not the defense. Consent is the defense." It is difficult for this court to understand how a claim of being someplace other than at the scene of a crime can be anything other than a defense; however, in this case, due to the testimony of the time of the act by the victim and defendant, there is not a sufficient discrepancy in time to allow the defendant to realistically show he was elsewhere when the act occurred.

The trial court then received an offer of proof in regard to the potential testimony of an "alibi" witness, Jerry Hall. The defendant's attorney stated:

"He would testify that he met the Defendant and a person named 'Henry McNet' (phonetically) in Zion, Illinois on the morning of June 30th, 1981, at approximately--between seven and 7:30 a.m., that they set out in a motor vehicle for approximately one hour on that date and at that time talking and drinking and that after that time, Charlie Burroughs left, said he was going back to Kenosha."

The defendant's counsel informed the court that the defendant wished to testify that he had sexual intercourse with the victim sometime after 5:30 a.m. and that he was in Zion, Illinois, sometime between 7:00 and 7:30 a.m. and stayed for about one hour before returning to Kenosha. This statement of counsel was not consistent with the defendant's later testimony that he left the victim's house at approximately 6:50 a.m. and that he was in her house only 20 to 30 minutes arriving there between 6:15 and 6:20 a.m.

Certainly, the victim's testimony as to the time of the act came as no surprise to defendant or his attorney since from her preliminary examination testimony, they knew the victim placed defendant's arrival at a time about 10 minutes different than the defendant's estimate of his departure from her house. If defendant wanted to testify where he was after 6:15 a.m., he had opportunity to file the notice of alibi. This would conflict with his testimony that placed him in her house until 6:50 a.m. The defense counsel stated that the defendant would testify that the act occurred at 5:30 a.m. There is no inconsistency for the defendant to admit to a consensual act of sexual intercourse with the victim from 5:30 to 6:00 a.m. and then to claim to be elsewhere other than her apartment after 6:00 a.m.; but that was his attorney's statement of timing, not the defendant's. The attorney's statement is inconsistent with the defendant's testimony at trial that the act occurred between 6:15 and 6:50 a.m.

Defendant's attorney chose deliberately not to file the notice of alibi, but rather rely on the claim of the act being a consensual act and the record shows he had arguable reasons. Defendant's counsel stated several times to the court that an alibi was not the defendant's defense; the only issue was consent. He told the court his argument to the jury was going to be that the defendant and victim had consensual sexual intercourse.

Over the state's objection, the defendant called Thomas Wahl, a microserologist with the Wisconsin State Department of Justice Regional Crime Lab, New Berlin, Wisconsin, to testify. He testified the defendant is a type B secretor and the victim is a type B non-secretor. He testified that he examined dry saliva specimens from the victim and the defendant and was able to determine that the victim was a nonsecretor and the defendant was a secretor. Secretors are persons who secrete in their body fluids, such as saliva, vaginal secretion, and semen, their blood group type in very high amounts. Nonsecretors do not secrete blood group type in their body secretions. A semen stain on the sheet retrieved from the victim's bedroom originated from a type B secretor consistent with the defendant's type. The semen stain on the victim's underpants originated from a nonsecretor not consistent with the defendant's type. Evidence of two types of semen were present on an elongated stain on the victim's blue jeans. The defendant's attorney stated it was offered so, "The jury can take whatever inference it wants out of that testimony," of the different type of semen from the defendant's. However, the victim testified to an act of consensual intercourse with her boyfriend, Frazer [spelling not certain in the record] Burroughs, the defendant's brother, approximately a week before June 30, who had since left for Germany in military service, with the implication that he was the source of the other stains on the examined evidence. In final argument, defendant's cou...