State v. Clifton
| Decision Date | 30 May 1991 |
| Docket Number | No. 90-1115-CR,90-1115-CR |
| Citation | 163 Wis.2d 524,472 N.W.2d 247 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. Craig L. CLIFTON, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Appeal from a judgment of the circuit court for Rock county: Edwin C. Dahlberg, Judge.
Circuit Court, Rock County.
AFFIRMED.
Before EICH, C.J., GARTZKE, P.J., and SUNDBY, J.
Craig Clifton appeals from a judgment convicting him of first-degree sexual assault and aggravated battery. The issues are: (1) whether Clifton was denied his constitutional right to confrontation and compulsory process when the trial court excluded evidence of the victim's prior sexual conduct; and (2) whether the court abused its discretion in excluding evidence intended to impeach the complainant. We conclude that the evidence was properly excluded and affirm the judgment.
N.R. was repeatedly sexually assaulted and her husband R.R. severely beaten on November 10, 1988, by a group of young men. The assaults began outside a Beloit tavern known as "Mr. D's" and continued in other nearby locations. Clifton, among others, was charged with the crimes. His primary defense was based on his claim that N.R. had consented to the sex acts.
Prior to trial, Clifton sought an order allowing him to present evidence of N.R.'s prior sexual conduct. He submitted six affidavits outlining the evidence he planned to present. The trial court denied the motion, and Clifton was tried and found guilty by a jury on both counts. He was sentenced (as a repeat offender) to consecutive twenty- and ten-year prison terms on the two charges.
On appeal, Clifton argues first that his constitutional rights to confrontation and compulsory process were violated when the trial court excluded evidence of N.R.'s prior sexual conduct.
A defendant's constitutional right to present evidence is grounded in the confrontation and compulsory process clauses of the Wisconsin and United States Constitutions. "The former grants defendants the right to effective cross-examination" of adverse witnesses "while the latter grants defendants the right to admit favorable testimony." State v. Pulizzano, 155 Wis.2d 633, 645-46, 456 N.W.2d 325, 330 (1990) (citations omitted). Both rights are fundamental and essential to the constitutional objective of a fair trial. Id. at 645, 456 N.W.2d at 330.
The right to present evidence, however, is not absolute. Chambers v. Mississippi, 410 U.S. 284, 295 (1973). "Confrontation and compulsory process only grant defendants the constitutional right to present relevant evidence [that is] not substantially outweighted by its prejudicial effect." Pulizzano, 155 Wis.2d at 646, 456 N.W.2d at 330 (emphasis added). Section 972.11, Stats., the rape shield law, embodies the legislature's determination that most evidence of a complainant's prior sexual conduct is inadmissible. 1 State v. Herndon, 145 Wis.2d 91, 105, 426 N.W.2d 347, 352 (Ct.App.1988).
In certain circumstances, however, such evidence "may be so relevant and probative that the defendant's right to present it is constitutionally protected." Pulizzano, 155 Wis.2d at 647, 456 N.W.2d at 331. In such cases the defendant's confrontation and compulsory process rights require that evidence of the victim's prior sexual conduct "be admitted, notwithstanding the fact that the evidence would otherwise be excluded by the rape shield law." Id. at 648, 456 N.W.2d at 331.
Herndon establishes a six-part test designed to determine whether evidence is sufficiently probative to overcome the presumption of nonadmissibility embraced in the rape shield law. To gain admission of evidence regarding a complainant's prior sexual conduct, the defendant must establish:
that the prior acts clearly occurred; that the acts closely resembled those of the present case; that the prior act is clearly relevant to a material issue; that the evidence is necessary to the defendant's case; that the probative value of the evidence outweighs its prejudicial effect; and that there was a related pattern of behavior. Pulizzano, 155 Wis.2d at 651, 456 N.W.2d at 333 ( Herndon, 145 Wis.2d at 122-123, 426 N.W.2d at 360).
The trial court reviewed each affidavit in light of the Herndon/Pulizzano factors, assuming that if the six affiants were to appear at trial, they would all testify in accordance with their respective affidavits.
The court found that the events alleged in the first affidavit, which pertain to a magazine advertisement delivered to N.R.'s house more than ten years prior to the incident in question, bore no relationship to the facts of this case and were too remote to be probative of consent. 2 The court excluded the evidence, concluding that the affidavit had no relevance to any material issue in the case.
The court excluded two other affidavits discussing N.R.'s participation in an extramarital affair, noting that the incident referred to was factually dissimilar and, again, occurred more than ten years earlier, thus making "[a]ny relevancy on the issues of whether or not the incidents in the present case were consen[s]ual ... minimal." The court concluded that "any probative value [the affidavits might have] is outweighed by the probability that [their] admission would create undue prejudice, confusion of the issues and constitute an unwarranted invasion of [N.R.'s] privacy...."
A fourth affidavit contained the statement of a bartender that she may have seen N.R. and R.R. in the tavern (not Mr. D's) at which she worked on one or more previous occasions. The court excluded the proffered testimony, stating that the matters testified to "bear no resemblance to those of the present case." The court noted, as it did with the other affidavits, that "any possible relevance is outweighed by the probability that the admission ... would create undue prejudice, confuse ... the issues ... [and] constitute an unwarranted invasion upon [N.R.'s] privacy...."
Similarly, the court excluded a fifth affidavit describing a long-past sexual encounter involving N.R. and another man, noting again that it was "based upon events that allegedly occurred ten years ago" and that "[t]he circumstances ... do not resemble those of the present case."
Admission or exclusion of evidence is committed to the sound discretion of the trial court. State v. Alsteen, 108 Wis.2d 723, 727, 324 N.W.2d 426, 428 (1982). A discretionary determination must be the product of a rational mental process by which the facts of record and law relied upon are stated and considered Hartung v. Hartung, 102 Wis.2d 58, 66, 306 N.W.2d 16, 20-21 (1981).
We believe the court's explanation of its reasons for excluding each affidavit shows that it exercised its discretion and reached a result a reasonable judge could reach. Generally, that is all that is required to sustain a discretionary determination. Prahl v. Brosamle, 142 Wis.2d 658, 667, 420 N.W.2d 372, 376 (Ct.App.1987).
Clifton was charged with forcible rape, yet all of the conduct discussed in the various affidavits was consensual; most of it occurred more than a decade earlier and bore little or no resemblance to the circumstances of this case. Any minimal relevance the evidence may have had did not survive the probative value/possible prejudice balancing test the trial court quite properly undertook and resolved. The trial court did not abuse its discretion in rejecting the evidence.
We turn, finally, to the last affidavit--the one the minority opinion discusses in detail and upon which it bases its conclusion that Clifton's conviction should be reversed. The affidavit consists of a ten-page transcript of an interview with A.Q., a twenty-two year-old woman who claims to have encountered N.R. and R.R. at Mr. D's a few months before the assault. A.Q. asserts that, at that time, R.R. asked her whether she could locate a black man who would be willing to have sexual intercourse with N.R. while he watched. She states that approximately one week later she again met with N.R. and R.R. at Mr. D's, where she introduced them to a black man. According to A.Q., the couple left the tavern with the man shortly thereafter and he returned two or three hours later and showed A.Q. some money.
We conclude that the trial court properly excluded this evidence because it fails to meet the Herndon/Pulizzano criteria.
Assuming, as the trial court did, that the prior incident described in A.Q.'s affidavit actually occurred, our first inquiry is whether that incident "closely resembles" the encounter between Clifton and his friends and N.R. and R.R. on the night in question. We conclude that it does not. The sexual encounter suggested by the affidavit was a carefully scripted, contracted-for event planned in advance by N.R. and R.R. which was conducted quietly in a private place. It involved a consensual, nonviolent, nonforcible encounter between N.R. and a single, preselected partner. In contrast, the November 10, 1988, incident involved many teenagers engaging in multiple acts of vaginal and oral intercourse with N.R., in various public and semipublic locations. She, of course, testified that the acts were imposed on her by force and against her will. And R.R., rather than assisting in arranging the encounter and peacefully observing it, was severely beaten by the youths, suffering serious and permanent injuries, when he attempted to intervene in N.R.'s defense.
Thus, the only similarities between the earlier preplanned private sexual encounter and the November 10 assault are that N.R. and R.R. were at the same tavern on both nights and that the man she had intercourse with on the former occasion and Clifton and the other young men charged with raping her on the night in question were black. We conclude that there is no close resemblance...
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