State v. DeSantis, No. 88-1744-CR

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtSHIRLEY S. ABRAHAMSON
Citation456 N.W.2d 600,155 Wis.2d 774
PartiesSTATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. John DeSANTIS, Defendant-Appellant.
Docket NumberNo. 88-1744-CR
Decision Date25 June 1990

Page 600

456 N.W.2d 600
155 Wis.2d 774
STATE of Wisconsin, Plaintiff-Respondent-Petitioner,
v.
John DeSANTIS, Defendant-Appellant.
No. 88-1744-CR.
Supreme Court of Wisconsin.
Argued March 7, 1990.
Decided June 25, 1990.

Page 602

[155 Wis.2d 776] Marguerite M. Moeller, Asst. Atty. Gen., argued, with whom on the briefs was Donald J. Hanaway, Atty. Gen., for plaintiff-respondent-petitioner.

Michael J. Devanie (argued), and Phelps, Thompson & Koby, Ltd., LaCrosse, for defendant-appellant.

SHIRLEY S. ABRAHAMSON, Justice.

This is a review of a published decision of the court of appeals, State v. DeSantis, 151 Wis.2d 504, 445 N.W.2d 331 (1989), reversing a judgment of conviction of second-degree sexual assault entered by the LaCrosse county Circuit Court, Michael J. Mulroy, Circuit Judge. The court of appeals reversed the conviction on the ground that the circuit court abused its discretion by precluding evidence the defense proffered of the complainant's prior untruthful allegations of sexual assault. We reverse the decision of the court of appeals.

[155 Wis.2d 777] Two issues are presented on appeal from the conviction: (1) whether the circuit court abused its discretion and violated the defendant's constitutional rights to confront witnesses and to present a defense when it precluded testimony the defendant proffered concerning the complainant's prior untruthful allegations; and (2) whether the circuit court abused its discretion when it permitted the state to present expert testimony regarding characteristic behavior of sexual assault victims after assault. 1

We hold that the circuit court did not abuse its discretion and that the exclusion of the proffered evidence did not violate the defendant's constitutional rights. We therefore reverse the decision of the court of appeals.

I.

John DeSantis, the defendant, was found guilty of one count of second degree sexual assault under sec. [155 Wis.2d 778] 940.225, Stats.1987-88, 2 and not guilty of burglary on charges stemming from events on the night of September 17, 1987.

The defendant had filed a pretrial motion, sec. 971.31(11), Stats.1987-88, seeking to introduce evidence at trial that the complainant had made prior untruthful allegations of sexual assault. Section 972.11(2)(b)3 allows the introduction of such evidence, providing in part as follows:

(b) If the defendant is accused of a crime under s. 940.225 ... any evidence concerning the complaining witness's prior sexual conduct or opinions of the witness's prior sexual conduct and reputation as to prior sexual conduct shall not be admitted into evidence during the course of the hearing or trial, nor shall any reference to such conduct be made in the presence of the jury, except the following, subject to s. 971.31(11):

1. Evidence of the complaining witness's past conduct with the defendant.

Page 603

2. Evidence of specific instances of sexual conduct showing the source or origin of semen, pregnancy or disease, for use in determining the degree of sexual assault or the extent of injury suffered.

3. Evidence of prior untruthful allegations of sexual assault made by the complaining witness. 3

[155 Wis.2d 779] At the hearing to determine whether the circuit court would allow the defense to introduce the evidence, the defendant produced a witness who had been a neighbor of the complainant at a University dormitory during the 1985-86 school year. The neighbor, Ms. N.G., testified that late one night during autumn 1985, the complainant came to N.G.'s room, crying and very upset, and stated that she, the complainant, had been raped outside the dormitory. The complainant did not provide any details or describe or identify her assailant. Neither the complainant, N.G., nor N.G.'s roommate (who was present in N.G.'s room when the complainant made the allegations but who never testified at the pre-trial hearing or at trial) reported the occurrence to campus authorities or the police.

N.G. further testified that in the spring of 1986, the complainant said that "it didn't happen exactly the way she [the complainant] had said that it did." N.G. interpreted the complainant's statements as a denial of being raped in the autumn of 1985. N.G. testified that she later heard that the complainant told a mutual friend that the 1985 incident involved "some guy walk[ing] up to her and put[ting] his arm around her and sa[ying] hey, where's the party."

[155 Wis.2d 780] A question about N.G.'s possible partiality and bias was raised by N.G.'s concession on cross-examination that the defendant was a friend of one of N.G.'s friends.

After hearing N.G.'s testimony, the circuit court ruled that her testimony would not be admissible under sec. 972.11(2)(b)3, which permits evidence of prior untruthful allegations of sexual assault. The circuit court characterized the testimony as "a lot of nebulousness" that would "lead to jury confusion," stating:

What we have basically is a lot of nebulousness ... and that basically was that in the fall of 1985 [the complainant] reported being raped and that--on two occasions in my notes--when asked about what the statements were in spring of 1986 indicated it didn't happen the way she said it did. I don't know how more nebulous you could get. There could be a great many variances from the time that it happened to the description of the individual ... to all the circumstances of the sexual assault. I--To say that it didn't happen the way that she said it did does not, from my perspective, fall necessarily within the prior untruthful allegation of sexual assault contest of the state. I think it would, if it were admitted, lead to jury confusion, and from the perspective at least from what I've heard today, there was very little probative value in the evidence ... I think to a great extent that the [rape shield] statute is designed to bring in those areas that I think were alluded to a certain extent where individuals make false accusations against other individuals that they later recant their testimony on or prove to be false. And here was a very general statement without identification of anybody involved that a sexual assault in some form had taken place.

At the trial, defense counsel examined the complainant about the 1985-86 incidents outside of the presence[155 Wis.2d 781] of the jury. The complainant denied ever telling N.G. that she had been raped and described the 1985 occurrence as follows:

There was a man there, approached me in front of the dormitory one night on my way home. He--I--He was walking over by Whitney Food Center. I thought it was someone I knew. As he got closer to me it was--I had kind of yelled his

Page 604

name across the street to him because at the time my roommate and I were looking to buy a carpet from somebody, and I thought it was Steve, and I was, you know, I was hey, Steve, you know, have any carpet? And as he got closer to me it was just wait a second, you're not Steve. And he was just like putting his arm around me. And I ran to the dorm. The man never pinned me down on the ground.

After hearing the complainant's testimony, the circuit court ruled that the defendant could not cross-examine the complainant about her prior allegations of sexual assault on grounds of "relevancy as well as remoteness."

During the trial, the complainant and the defendant presented different versions of what happened on the evening of September 17, 1987.

The complainant testified that she and several friends had gone to two taverns in downtown LaCrosse. At closing time the complainant abandoned plans to leave the tavern with a friend and walked alone to her apartment. According to her testimony, the complainant felt someone come behind her as she opened the door. The person stated, "My name is John. I know you want me. I've been watching you all night ..." The defendant pushed the complainant into her apartment, forcibly disrobed her and sexually assaulted her. During the assault, the defendant allegedly inserted his fingers and [155 Wis.2d 782] then his penis into her vagina. After the assault, according to the complainant, the defendant stated, "It's getting late. I got to get going home. I'm way over there off Division Street ..." The complainant then wrapped a comforter around herself, ran to the bathroom and locked herself in. When she emerged, the defendant was gone and money was missing from a table in her apartment. After getting dressed, she attempted to call several friends by telephone. She went to a local emergency room with an acquaintance and reported the assault to the police.

The defense called two witnesses who testified that the complainant had a reputation for being untruthful. One witness was N.G.; the other was L.S., the woman whom the complainant summoned after the defendant's attack. L.S. testified that the complainant's reputation for untruthfulness related particularly to the complainant's dating situations. A third witness, who was present at the tavern that night, contradicted the complainant's testimony that she had not seen the defendant in the hours before the attack. This witness also testified that the complainant was "very definitely" drunk that night.

The defendant testified that during the evening of September 17, he drank very heavily and smoked marijuana throughout the evening. Later that night, between 11:30 P.M. and 2:00 A.M., the defendant and the complainant and several other people went out drinking together at two taverns. At closing time, both he and the complainant were at the same tavern. The defendant testified that he had only "split-second" recollections of the events that followed his departure from the tavern and that he did not remember how he got to the complainant's apartment. The defendant remembers having his finger outside of the complainant's vagina, attempting to have intercourse, and finding that his penis was [155 Wis.2d 783] limp. The defendant realized that he was not at his own home and a...

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89 practice notes
  • State v. Moats, No. 88-0431-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • 28 June 1990
    ...to find untruth, it usurped the function of the jury because weight given to the evidence is for the trier of fact. In State v. DeSantis, 155 Wis.2d 774, 456 N.W.2d 600 this court reviewed three determinations that a circuit court must make under sec. 971.31(11), Stats., before it admits ev......
  • IN RE MARRIAGE OF FRANKE v. Franke, No. 01-3316.
    • United States
    • United States State Supreme Court of Wisconsin
    • 6 February 2004
    ...in its own examination of the record to determine whether the facts provide support for the circuit court's decision. State v. DeSantis, 155 Wis. 2d 774, 777 n.1, 456 N.W.2d 600 39. Combined Reply Brief and Response Brief of Respondent-Appellant and Cross-Respondent Martin T. Franke at 4. 4......
  • Perkins v. Dunn, CASE NO. 7:14-CV-1814-SLB
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • 19 September 2019
    ...of the trial by misleading the jury or by influencing the jury to decide the case upon an improper basis." State v. DeSantis, 456 N.W.2d 600, 608 (Wisc. 1990)(emphasis added). Therefore, "unduly prejudicial" is similar in meaning to the term "unfairly prejudicial," ......
  • State v. Long, No. SC 85620.
    • United States
    • Missouri Supreme Court
    • 1 July 2004
    ...278, 221 Ill.Dec. 727, 676 N.E.2d 248, 257-58 (1996); State v. McCarroll, 336 N.C. 559, 445 S.E.2d 18, 20 (1994); State v. DeSantis, 155 Wis.2d 774, 456 N.W.2d 600, 606 (1990); Roundtree v. U.S., 581 A.2d 315, 322 (D.C.1990); Smith v. State, 259 Ga. 135, 377 S.E.2d 158, 160 (1989); Miller v......
  • Request a trial to view additional results
89 cases
  • State v. Moats, No. 88-0431-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • 28 June 1990
    ...to find untruth, it usurped the function of the jury because weight given to the evidence is for the trier of fact. In State v. DeSantis, 155 Wis.2d 774, 456 N.W.2d 600 this court reviewed three determinations that a circuit court must make under sec. 971.31(11), Stats., before it admits ev......
  • IN RE MARRIAGE OF FRANKE v. Franke, No. 01-3316.
    • United States
    • United States State Supreme Court of Wisconsin
    • 6 February 2004
    ...in its own examination of the record to determine whether the facts provide support for the circuit court's decision. State v. DeSantis, 155 Wis. 2d 774, 777 n.1, 456 N.W.2d 600 39. Combined Reply Brief and Response Brief of Respondent-Appellant and Cross-Respondent Martin T. Franke at 4. 4......
  • Perkins v. Dunn, CASE NO. 7:14-CV-1814-SLB
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • 19 September 2019
    ...of the trial by misleading the jury or by influencing the jury to decide the case upon an improper basis." State v. DeSantis, 456 N.W.2d 600, 608 (Wisc. 1990)(emphasis added). Therefore, "unduly prejudicial" is similar in meaning to the term "unfairly prejudicial," ......
  • State v. Long, No. SC 85620.
    • United States
    • Missouri Supreme Court
    • 1 July 2004
    ...278, 221 Ill.Dec. 727, 676 N.E.2d 248, 257-58 (1996); State v. McCarroll, 336 N.C. 559, 445 S.E.2d 18, 20 (1994); State v. DeSantis, 155 Wis.2d 774, 456 N.W.2d 600, 606 (1990); Roundtree v. U.S., 581 A.2d 315, 322 (D.C.1990); Smith v. State, 259 Ga. 135, 377 S.E.2d 158, 160 (1989); Miller v......
  • Request a trial to view additional results

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