State v. Eugenio

• Decision Date: 23 April 1997
• Docket Number: No. 96-1394-CR,96-1394-CR
• Citation: 565 N.W.2d 798,210 Wis.2d 347
• Court: Wisconsin Court of Appeals
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Juan EUGENIO, Defendant-Appellant. d

Page 798

565 N.W.2d 798

210 Wis.2d 347

STATE of Wisconsin, Plaintiff-Respondent, v. Juan EUGENIO, Defendant-Appellant. ^d

No. 96-1394-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Feb. 24, 1997.

Opinion Released April 23, 1997.

Opinion Filed April 23, 1997.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Eduardo M. Borda of Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Atty. Gen., and Paul Lundsten, Asst. Atty. Gen.

Before SNYDER, P.J., and BROWN and ANDERSON, JJ.

BROWN, Judge.

A jury found that Juan Eugenio sexually assaulted a six-year-old girl. He claims, first, that the prosecutor had a duty under Wisconsin law to encourage the victim to make herself available for an interview with a defense investigator. Second, he argues that only when a defendant attacks a victim's "general reputation" for truthfulness, as opposed to an attack on the victim's truthfulness in a particular case, can the State submit evidence showing how the victim is a truthful person. Third, he contends that the State should not have been permitted to introduce the whole of the victim's earlier statements under the "doctrine of completeness" after he cross-examined the victim about inconsistencies in certain statements. Because Wisconsin law does not impose upon its prosecutors a duty to "encourage" a victim to cooperate with the defense, does not limit rehabilitation evidence to instances where a victim's general reputation for truthfulness is disputed, and does not prohibit the trial court from using its discretion regarding the "doctrine of completeness," we affirm.

The basic facts surrounding the assault are essentially irrelevant to the analysis of the issues presented on appeal. We will therefore discuss the background facts only as they become necessary to our analysis.

We begin with Eugenio's allegation of prosecutorial misconduct. Prior to trial, Eugenio moved to dismiss the case on grounds that the district attorney's office had lobbied the victim and her mother not to cooperate with the defense. Eugenio's investigator had arranged to interview the victim at the district attorney's office a few days before trial. The meeting, however, was not productive because the victim's mother became concerned that Eugenio was only going to use the information gathered during this interview to "mess up" her daughter at trial. The trial court, however, denied the motion, reasoning that the evidence did not show that the district attorney's office discouraged the victim from cooperating with Eugenio.

Eugenio nonetheless complains that the district attorney who was present at the hearing "made certain not to correct [the mother's] mistaken belief that [the investigator] only wanted to 'mess up' her daughter." He argues that the prosecution had a responsibility to aid the investigator by clarifying for the victim what the interview was about.

The standard that guides this state's prosecutors on their relationship to the defense's investigation was set out in State v. Simmons, 57 Wis.2d 285, 203 N.W.2d 887 (1973). There, the supreme court adopted Standard 3.1(c) of the American Bar Association's STANDARDS RELATING TO THE PROSECUTION FUNCTION (1971), which provides:

A prosecutor should not discourage or obstruct communication between prosecutive witnesses and defense counsel.

It is unprofessional conduct for the prosecutor to advise any person or cause any person to be advised to decline to give the defense information which he has the right to give.

Simmons, 57 Wis.2d at 292, 293, 203 N.W.2d at 892, 893. Since the prosecution did not impede Eugenio's investigator or otherwise discourage the victim from meeting with him, the State maintains that the prosecution's neutral attitude was proper under the standard adopted in Simmons.

As we noted above, however, Eugenio contends that the State's interpretation of this standard is not correct. He argues that a prosecutor is not just required to remain neutral. Rather, a prosecutor also has a duty to try to encourage prosecutive witnesses to make themselves available to the defendant. As support, Eugenio cites to the official commentary that accompanied Standard 3.1(c) adopted in Simmons. The pertinent parts of this commentary provide:

In the event a witness asks the prosecutor ... whether it is proper for the witness to submit to an interview by opposing counsel or whether he is under a duty to do so, the witness should be informed that ... it is proper ... and that it is in the interest of justice that the witness make himself available....

Simmons, 57 Wis.2d at 293, 203 N.W.2d at 892. So while Standard 3.1(c) directs that a prosecutor should take a neutral stance, Eugenio maintains that the commentary elaborates on how a prosecutor should actively encourage his or her witnesses to interview with the defense. He concludes that under the commentary's view of the standard, the prosecution engaged in misconduct when it failed to clarify for the victim and her mother that the investigator was not there to "mess up" the victim.

We nonetheless hold that only Standard 3.1(c) applies because that was the only portion of the Standards that the Simmons court adopted. It cited but did not adopt the commentary. We reach this conclusion based on the supreme court's historical practice of formally adopting commentary when it wishes to make the commentary into law.

The official comment which accompanies a source of authority is not automatically law; it is "persuasive authority." See Paulson v. Olson Implement Co., Inc., 107 Wis.2d 510, 523-24, 319 N.W.2d 855, 861-62 (1982). When the supreme court has determined that a principle in a comment should become law, it has formally adopted it. For example, in Paulson, the court referred to U.C.C. § 2-607 comment 4 and stated: "[W]e find it persuasive authority which we adopt in order to protect purchasers." See Paulson, 107 Wis.2d at 523-24, 319 N.W.2d at 861-62 (emphasis added). ¹

In other circumstances, while the court has recognized comments in the text of an opinion, it has elected not to adopt them as law. Here, Dippel v. Sciano, 37 Wis.2d 443, 155 N.W.2d 55 (1967), serves as an example. In Dippel, the supreme court adopted the RESTATEMENT (SECOND) OF TORTS § 402A. It did so with the following language: "For products-liability cases we adopt the rule of strict liability in tort as set forth in sec. 402A...." Dippel, 37 Wis.2d at 459, 155 N.W.2d at 63. The Dippel court, however, also noted that the Restatement was supplemented by several comments and clarified that: "We do not at this time specifically accept or reject any of the comments...." See id. Nonetheless, almost twenty years later, the court was asked to adopt "comment k." See Collins v. Eli Lilly Co., 116 Wis.2d 166, 196, 342 N.W.2d 37, 51-52 (1984). Faced with this question, the court clarified that: "We have not adopted comment K to sec. 402A, and we decline to do so in this case." Id. at 197, 342 N.W.2d at 52. In the margin, we have identified two other examples of how the supreme court has treated comments to legal authority. ²

Thus, based on the supreme court's historical practice of treating the commentary that often accompanies legal authority as a separate source, we conclude that the comments accompanying Standard 3.1(c) are not authority because the Simmons court did not adopt them. We accept the State's explanation that the court only quoted the commentary "as a means of explaining the 'rationale' behind the standard." See Simmons, 57 Wis.2d at 292, 203 N.W.2d at 892.

Having concluded that only Standard 3.1(c) applies, we affirm the trial court's determination that the prosecution did not engage in misconduct. The prosecution remained neutral during the failed meeting between Eugenio's investigator and the victim. While it did not encourage the victim to participate in the interview, it was under no duty to do so.

We next examine Eugenio's arguments concerning the trial court's evidentiary rulings. Here, we first address Eugenio's argument that the court erred in its analysis of the victim's supportive character evidence. It specifically involves the testimony from a counselor at the victim's school. This counselor testified that, in her opinion, the victim was "truthful."

The trial court allowed the State to introduce this evidence after it found that Eugenio had attacked the victim's character for truthfulness during his opening statements. The court noted that Eugenio had attributed improper motives to the victim, primarily that she was lying about the events in order to get attention. The court therefore determined that the State should be able to rehabilitate the victim's character through the counselor.

On appeal, Eugenio alleges that the trial court made two errors. Eugenio first contends that the trial court misinterpreted the nature of his trial strategy. He argues that he was not attacking the victim's character for truthfulness; rather, he was attacking her ability to recall the facts of this case. Eugenio also argues that the court wrongly determined that his opening statements could serve as the basis for its finding that the victim's character for truthfulness had been attacked.

The admission of supportive character evidence is governed by § 906.08, STATS., ³ which provides that: "[E]vidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise." Section 906.08(1)(b). Parties use this type of evidence to circumstantially aid the jury in reaching a conclusion (good or bad) about a particular witness's credibility. See 7 DANIEL D. BLINKA, WISCONSIN PRACTICE: EVIDENCE § 608.1, at 296 (1991).

Parties may only introduce supportive character evidence after that witness's character has been directly challenged. See id., § 608.1, at 298. One of the ...