State v. Friedrich, 84-984-CR

CourtUnited States State Supreme Court of Wisconsin
Citation398 N.W.2d 763,135 Wis.2d 1
Docket NumberNo. 84-984-CR,84-984-CR
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Larry W. FRIEDRICH, Defendant-Appellant-Petitioner.
Decision Date14 January 1987

Page 763

398 N.W.2d 763
135 Wis.2d 1
STATE of Wisconsin, Plaintiff-Respondent,
Larry W. FRIEDRICH, Defendant-Appellant-Petitioner.
No. 84-984-CR.
Supreme Court of Wisconsin.
Argued Sept. 5, 1986.
Opinion Filed Jan. 14, 1987.

Page 765

[135 Wis.2d 4] James B. Halferty, Lancaster, for defendant-appellant-petitioner.

Marguerite M. Moeller, Asst. Atty. Gen., argued, for plaintiff-respondent; Kirbie Knutson, Asst. Atty. Gen., Bronson C. La Follette, Atty. Gen., on brief.

DAY, Justice.

This is a review of an unpublished decision of the Court of Appeals, 373 N.W.2d 88, affirming a judgment of conviction of the Circuit Court for Grant county, Honorable John R. Wagner, Circuit Judge. After a jury trial, Larry W. Friedrich (Defendant) was convicted of two counts of second-degree sexual assault in violation of section 940.225(2)(e), Stats. 1

[135 Wis.2d 5] The parties on review have phrased the issues in terms of whether the trial court abused its discretion in refusing to admit or in admitting certain types of evidence, and have asked us to review the court of appeals' affirming of most of these trial court rulings. This court will not ordinarily review a court of appeals' decision in a criminal case where only the question of the proper exercise of a trial court's discretion was before the court of appeals. State v. Outlaw, 108 Wis.2d 112, 120, 321 N.W.2d 145 (1982). See also, State v. McConnohie, 113 Wis.2d 362, 334 N.W.2d 903 (1983). Exceptions to this general rule have been made, however, as in Outlaw, where this court accepted for a review a case based on allegations by the state that the court of appeals in that case had imposed upon it an inappropriate burden of proof. Outlaw, 108 Wis.2d at 120, 321 N.W.2d 145. The Outlaw court stated: "The burden of proof to be assumed by the parties under section 905.10(3)(b), Stats., proceedings is clearly a matter of statewide importance and would have an effect on numerous criminal, and some civil, cases in the future." Id. (Emphasis added.)

This case was accepted, in part, because we found that it raised important issues regarding the admissibility of psychological evidence, particularly "psychological profile" evidence when offered by a defendant for the purpose of showing his or her own pertinent traits of character. In reaching these issues, we have followed the [135 Wis.2d 6] approach used by the parties and thus, in reviewing the correctness of the court of appeals' conclusion that the trial court did not commit an abuse of discretion in refusing to admit the psychological profile testimony, we in effect review the same issue as reviewed by the court of appeals. Thus, the first issue is: 1) Did the trial court abuse its discretion in refusing to allow a psychologist to testify for the defense that the accused did not fit the "psychological profile" of known incestuous sex offenders?

On the question of the admissibility of prior sex crimes testimony, this court was asked to review the question of whether or not the court of appeals incorrectly held that there was no abuse of discretion in admitting prior sex crimes evidence. We viewed this as a request to look at prior cases by this court to determine whether or not the admissibility here of such testimony under the facts of this case amounted to an abuse of discretion. The case afforded the court an opportunity to lay down more definitive guidelines in future cases involving admissibility of prior sex crimes evidence. As with the "psychological profile" evidence, the prior sex crimes evidence involves a matter of substantial importance.

Page 766

For these reasons, a majority of this court decided to accept review in this case. Thus, the second and third issues are: 2) Did the trial court abuse its discretion in admitting testimony of other sex acts committed against the complainant and another young girl four and six years prior to the charged offense? 3) Did the trial court abuse its discretion in admitting testimony of an adult woman who testified that the Defendant sexually harassed her two years prior to the charged offense?

[135 Wis.2d 7] Having taken for review these issues, we also address a fourth issue raised by the Defendant: 4) Should a new trial be granted in the interest of justice?

We conclude that the trial court did not abuse its discretion in refusing to admit the "psychological profile" evidence since the trial court was never asked to address the question of whether the proffered evidence was admissible to show a pertinent character trait of the accused. We also conclude that the admission of the two prior sex acts with young girls did not constitute an abuse of discretion since the court could have reasonably determined that, when compared with the nature of the crimes for which Defendant was charged, the prior acts served to establish the existence of a general scheme or plan.

Defendant also claims prejudicial error in the admission of the testimony of an adult woman who was allegedly sexually harassed by the Defendant. We conclude this testimony was improperly admitted by the trial court, but its admission constituted harmless error since we also conclude that there is no reasonable possibility that the error contributed to the conviction.

On the basis of the foregoing, we conclude there has been no miscarriage of justice and we are persuaded that a new trial would not lead to a different result. We therefore deny the request for a new trial in the "interest of justice." We affirm the court of appeals and uphold the convictions.

The Defendant was charged and convicted on two counts of second-degree sexual assault under section 940.225(2)(e), Stats., for acts committed against his fourteen-year old niece by marriage. Her testimony established that the assaults occurred on two separate occasions while she was babysitting for Defendant's [135 Wis.2d 8] children. Defendant denied the sexual assaults and produced an alibi defense. He testified that he was working at a tavern on both nights that the assaults allegedly occurred.

At trial, defense counsel made as an offer of proof the testimony of a clinical psychologist, Dr. Thomas Sannito. Such offer took a question and answer form. On the basis of tests administered to Defendant by Dr. Sannito, as well as observations garnered from personal interviews with the Defendant, Dr. Sannito prepared what he called a "psychological profile." He then compared Defendant's psychological profile to the psychological profile of known "incestuous" sex offenders. 2 Dr.

Page 767

[135 Wis.2d 9] Sannito stated that the Defendant's psychological profile was "diametrically opposed or different from the profile established for incestuous fathers and sexual offenders."

The trial court asked Dr. Sannito whether his conclusion that Defendant did not have a profile consistent with performance of the alleged sex offenses would be modified or changed if he were to assume that the Defendant had engaged in prohibited sex acts of a nature similar to the charged offenses with other individuals prior to trial. Dr. Sannito responded that, assuming the prior acts took place, he would then "entertain the idea that possibly, that what we have is a false negative. In other words, a person who absolutely doesn't fit the profile at all, but who in fact is a person who committed these things and we missed it."

After Dr. Sannito set forth the substance of his testimony, defense counsel proceeded to explain his reasons and justifications for offering the evidence. He stated that the witness was presented "as an expert with specialized knowledge, who has tested this Defendant and finds that he lacks certain psychological characteristics." He argued that this finding "tends to corroborate[135 Wis.2d 10] the Defendant's testimony that he did not do these acts," and "tends to negate the complaining witness' testimony that he did those acts."

The state argued that the proffered testimony went to the matter of witness credibility, a matter reserved to the jury, and was therefore inadmissible.

Noting that the only reason that the testimony would be introduced would be to support the Defendant's denial of guilt, the trial court concluded that to admit the evidence would result in a usurpation of the jury function of assessing witness credibility, and disallowed the testimony.

The court of appeals, using an abuse of discretion standard, concluded there was no error. The appeals court noted that expert opinion testimony concerning a general character trait of a Defendant may be admissible, but observed that admission of such testimony rests in the discretion of the trial court. The appeals court found that discretion had been exercised and that there had been a reasonable basis for the determination.

The parties have focused our attention on the matter of identifying the purpose for which the psychologist's testimony was offered. At trial, defense counsel appeared to offer the evidence in order to support Defendant's credibility and impugn the credibility of certain adverse witnesses. The District Attorney and the trial court both understood this to be the purpose of the evidence and defense counsel raised no objection to this characterization. Defense counsel made brief mention of sections 907.02, and 907.04, Stats., 3 dwelling on the former, [135 Wis.2d 11] in order to emphasize that the psychologist could issue an expert opinion on these matters and that his opinions would assist the jury. On appeal, defense counsel argued that the testimony was offered for the limited purpose of establishing that the Defendant did not match the psychological

Page 768

profile of known incestuous offenders, and that the psychologist would not issue an opinion on Defendant's guilt or innocence.

At oral argument, defense counsel maintained that he had clearly stated the purpose for introducing the testimony and that the opinion evidence fit within section 904.04(1)(a), Stats., as...

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