State v. Eugenio
| Citation | 579 N.W.2d 642,219 Wis.2d 391 |
| Decision Date | 25 June 1998 |
| Docket Number | No. 96-1394-CR,96-1394-CR |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Juan EUGENIO, Defendant-Appellant-Petitioner. |
| Court | United States State Supreme Court of Wisconsin |
For the defendant-appellant-petitioner there were briefs and oral argument by Eduardo M. Borda, Milwaukee.
For the plaintiff-respondent the cause was argued by Paul Lundsten, Assistant Attorney General, with whom on the brief was James E. Doyle, Attorney General.
The defendant, Juan Eugenio, seeks review of a published decision of the court of appeals 1 that affirmed the defendant's conviction for first-degree sexual assault of a minor. The defendant argues that the circuit court erred in allowing the State to offer character evidence of a victim's truthfulness and in introducing evidence of the victim's prior consistent oral statements under the "rule of completeness." The defendant also asserts prosecutorial misconduct arising from the State's failure to encourage the victim to cooperate with a defense investigator prior to trial. Because we determine that the circuit court properly admitted both the character evidence and the complete prior statements, and because we discern no legal basis for a claim of prosecutorial misconduct, we affirm the decision of the court of appeals.
¶2 The defendant was charged with one count of first-degree sexual assault of a child and one count of "threats to injure," contrary to Wis. Stat. §§ 948.02(1) 2 and 943.30(1), 3 respectively. The charges arose from an incident four years earlier in the spring of 1991 in which the defendant allegedly sexually abused a six-year-old child, and then threatened to kill her if she told anyone.
¶3 As part of the pretrial investigation, the defendant's attorneys asked the victim's mother to allow the child to speak with a defense investigator. The victim's mother contacted the district attorney's office, which arranged for the meeting to occur in that office. At the scheduled meeting between the investigator and the child, an assistant district attorney neither actively encouraged cooperation with the defense nor discouraged such cooperation. She advised the victim's mother that the defense investigator was present to elicit information from the child for later use in court. The mother subsequently refused to allow her child to be questioned by the investigator, concluding that the investigator's purpose was to "mess up" her daughter.
¶4 The defendant then asked the circuit court to dismiss the case, asserting that the assistant district attorney's actions constituted prosecutorial misconduct. The defendant claimed that under the standards of conduct adopted in State v. Simmons, 57 Wis.2d 285, 203 N.W.2d 887 (1973), the assistant district attorney had a duty to encourage the victim's cooperation with the defense investigation. The circuit court denied the request for dismissal.
¶5 At trial, the defense highlighted in its opening statement what it considered to be inconsistencies in the victim's statements and the defense's theory that the victim made those statements to get attention. The defense continued this concentration on inconsistencies during its cross-examination of the victim.
¶6 Considering defense counsel's assertions at opening statements to be an attack on the victim's character, the circuit court, pursuant to Wis. Stat. § 906.08(1), allowed the State to rehabilitate the victim's character by offering the testimony of the victim's school counselor. The counselor testified that in her opinion the victim was a truthful individual. Based on the rule of completeness, the circuit court also admitted the highlighted inconsistent statements in their entirety.
¶7 The jury subsequently convicted the defendant of sexually assaulting the victim, but acquitted him of the "threat to injure" count. The circuit court then sentenced the defendant to 12 years in prison. The defendant appealed the conviction.
¶8 The court of appeals affirmed. It concluded that the circuit court properly exercised its discretion in admitting the testimony concerning the victim's character for truthfulness. Next, the court of appeals determined that the victim's consistent oral statements were admissible under the rule of completeness as it exists in our common law. Finally, the appellate court concluded that the circuit court had not erred in denying the defendant's motion based on prosecutorial misconduct since the assistant district attorney had not actively discouraged the victim's cooperation with the defense investigator and since no duty exists to actively encourage cooperation.
¶9 The defendant first challenges the circuit court's admission of character testimony offered by the State to rehabilitate the truthfulness of the victim under Wis. Stat. § 906.08(1). Pursuant to that statute:
the credibility of a witness may be attacked or supported by evidence in the form of reputation or opinion, but subject to these limitations: a) the evidence may refer only to character for truthfulness or untruthfulness, and b), except with respect to an accused who testifies in his or her own behalf, evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
Wis. Stat. § 906.08(1).
¶10 As a threshold matter, the parties dispute the standard of review by which we review a circuit court's determination that the character for truthfulness of a witness has been impugned in a manner sufficient for the party offering the witness to proceed under Wis. Stat. § 906.08(1). 4 The defendant asserts that we review such issues as a matter of law, while the State would have us consider the decision as a mixed question of law and fact.
¶11 A determination of whether a witness's character for truthfulness has been attacked in a manner sufficient to invoke Wis. Stat. § 906.08(1) necessarily requires a circuit court to weigh the impact of the proffered character allegations based on their content and the tenor with which they are offered. Thus, such inquires are circumstance dependent. See Federal Advisory Committee Note to Federal Rule of Evidence 608; Charles Alan Wright & Victor James Gold, Federal Practice and Procedure § 6116, at 66-73 (1993). Because we cannot suitably evaluate such factors based on a cold record, a circuit court's decision that a witness's character for truthfulness has been attacked is due the deference that this court normally awards evidentiary rulings. See Michael R.B. v. State, 175 Wis.2d 713, 723, 499 N.W.2d 641 (1993).
¶12 However, we are also cognizant that a proper exercise of discretion requires the circuit court to apply the correct standard of law to the facts at hand. See State v. Pharr, 115 Wis.2d 334, 342, 340 N.W.2d 498 (1983). Because determination of the proper legal standard to be applied by circuit courts faced with possible character attacks on witnesses requires interpretation of Wis. Stat. § 906.08, we conduct that portion of our review of this case as a matter of law. See McEvoy v. Group Health Coop. of Eau Claire, 213 Wis.2d 507, 517, 570 N.W.2d 397 (1997). Accordingly, we determine that the issue in this case is a mixed question of fact and law and we turn to an examination of the facts and the proper test to be applied to those facts under Wis. Stat. § 906.08(1).
¶13 During opening statements, defense counsel highlighted several inconsistent statements made by the victim concerning the circumstances surrounding her alleged sexual abuse by the defendant. In concluding her opening arguments, defense counsel then stated that:
[r]epeating a lie doesn't make it true. You will hear all these different versions because every time she's told someone the story has changed. What didn't change was the attention she got for telling the story, the excitement.... You will hear testimony that as a result of this disclosure police officers came to see her, social workers came to see her. She went to court. She met with victim witness people. She met with district attorneys. You will hear that she received a great deal of attention for this disclosure.
Defense counsel then focused her cross-examination of the victim on these same inconsistencies.
¶14 Believing the defense counsel's tactics to be an attack on the character of the victim, the State offered the testimony of the victim's school counselor that the victim was a generally truthful individual. After consideration, the circuit court allowed the witness to opine as to the victim's truthfulness based on Wis. Stat. § 906.08(1). The circuit court made this ruling after finding that:
the character has been attacked both in opening by defense counsel and in cross-examination, primarily opening, and I'm basing that on the following, not so much the questions being asked but on the opening it seemed to indicate certain improper motives dealing with her character, to get attention, etc., as it relates to making up or fabricating the story.... [T]herefore ... the Court believes the character has been attacked and, consequently, would allow the basis of the opinion testimony.
In making this determination, the circuit court relied upon State v. Eisenberg, 48 Wis.2d 364, 180 N.W.2d 529 (1970).
¶15 As noted above, Wis. Stat. § 906.08(1) will allow a witness's penchant for truthfulness to be the topic of rehabilitative evidence only when "the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise." Wis. Stat. § 906.08(1). Application of this portion of the statute raises two legal questions. First, do assertions about a witness's character made during opening statements constitute an attack on the character for truthfulness of the witness "by opinion or reputation evidence or otherwise"? Second, assuming that the assertions made during opening statements can call a witness's...
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