State v. Gustafson
| Decision Date | 04 September 1984 |
| Docket Number | No. 81-2015-CR,81-2015-CR |
| Citation | 350 N.W.2d 653,119 Wis.2d 676 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. James R. GUSTAFSON, Defendant-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
Louis B. Butler, Jr., Asst. State Public Defender, for defendant-appellant-petitioner.
Stephen W. Kleinmaier, Asst. Atty. Gen., argued, for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., on brief.
James Gustafson seeks review of a decision affirming his conviction of two counts of second-degree sexual assault. During trial, Gustafson's minor son, R.G., was called as a witness on Gustafson's behalf. Gustafson argues that the trial court erred by allowing into evidence testimony that R.G. had entered a plea of no contest in juvenile court and had been judged delinquent on charges stemming from the same incident that resulted in one of the charges against Gustafson. Gustafson also argues that because evidence was presented on one of the counts indicating that he had committed more than one act of sexual contact with the minor female, B.G., the trial court erred in not instructing the jury that it had to unanimously agree on the specific act he committed.
Despite the failure of Gustafson's attorney to raise a specific objection to the admissibility of evidence of R.G.'s delinquency adjudication and no contest plea, this court holds that it was error to admit such evidence. A majority of this court, however, holds that the error was not plain error. A majority also holds that Gustafson was not denied his rights to due process and to a unanimous jury verdict by the trial court's failure to give a specific unanimity instruction. However, because one member of this court would reverse and remand on the basis that the admission of evidence of R.G.'s juvenile adjudication and no contest plea was plain error requiring reversal, and because three other members of this court would reverse and remand for a new trial on the basis that Gustafson's constitutional rights were violated by the trial court's failure to instruct the jury that it had to unanimously agree on the specific act he committed in order to reach a unanimous verdict, there is a majority for reversing and remanding for a new trial. We therefore reverse the decision of the court of appeals and remand for a new trial.
On October 10, 1980, Gustafson and his fifteen year old son, R.G., met two girls, C.Y. and B.G., who were fourteen-year-old classmates of R.G.'s, in Manitowoc. C.Y. and B.G. asked R.G. to ask his father to buy liquor for them, which Gustafson did. All four went to a park and drank. After C.Y. and B.G. became drunk, Gustafson took them and R.G. to his apartment. C.Y. and B.G. became ill in the bathroom. R.G. joined C.Y. in the bathroom while Gustafson took B.G. from the bathroom to the living room.
B.G. fell asleep on the sofa in the living room but awoke when Gustafson pulled up her sweater and bra, and touched her breast with his hand and with his mouth. Gustafson stopped when B.G. indicated that she had to use the bathroom.
B.G. stayed in the bathroom with C.Y. for a few minutes. Gustafson then took B.G. back to the sofa where she fell asleep. She was again awakened when Gustafson pulled up her sweater and touched her breasts. Gustafson also unzipped her pants, placed his hand inside of them and touched her pubic area with his hand. B.G. hit Gustafson, ran out of the apartment, and fell asleep in some bushes.
Once C.Y. discovered that B.G. had left, she demanded that Gustafson take her home. As he drove her home, Gustafson stopped the car, reached under C.Y.'s shirt and touched her breasts. After C.Y. hit him, Gustafson drove her home.
Gustafson was charged with two counts of second-degree sexual assault, contrary to sec. 940.225(2)(e), Stats. That statute provides: One count with which Gustafson was charged related to the alleged sexual assault of B.G., and one count related to the alleged sexual assault of C.Y.
Prior to Gustafson's trial, a delinquency petition was filed against R.G. relating to his alleged sexual assault of C.Y. during the same evening that Gustafson allegedly sexually assaulted B.G. and C.Y. R.G. pled no contest in juvenile court and subsequently was adjudicated delinquent.
Before Gustafson's trial, the state informed the trial court that it believed Gustafson planned to call R.G. as a witness at trial. The state asked the court to rule that it could question R.G. about his no contest plea and his adjudication of delinquency. The court ruled that the state could question R.G. about the adjudication of delinquency.
At trial, Gustafson called R.G. as a witness. During direct examination of R.G., the following exchange occurred between Gustafson's attorney and R.G.:
During cross-examination of R.G. by the district attorney, this exchange took place:
At trial, the trial court gave the following definition of sexual contact in the jury instructions, as it related to the alleged sexual assault of B.G., without objection by counsel: "Sexual contact is any intentional touching of the breasts or pubic area, clothed or unclothed, of [B.G.] with the defendant's hand or the defendant's mouth." The trial court also gave a standard unanimity instruction, which stated:
The jury found Gustafson guilty of both counts of sexual assault. Gustafson appealed to the court of appeals. In a published decision, cited below, 1 the court of appeals affirmed his conviction. Gustafson filed a petition for review with this court, which we granted.
The issues for review are:
(1) Did the trial court err in admitting evidence at Gustafson's trial of R.G.'s prior juvenile delinquency adjudication and R.G.'s no contest plea?
(2) Was Gustafson denied his constitutional rights to due process and to a unanimous jury verdict because, although evidence was presented that Gustafson had performed more than one act of sexual contact with the minor female, B.G., the trial court did not instruct the jury that it had to unanimously agree on the specific act he committed before it could find him guilty of second-degree sexual assault?
Gustafson argues that it was error to admit evidence of R.G.'s prior adjudication of delinquency and of his no contest plea. The state contends, however, that Gustafson waived his right to have the alleged error reviewed as a matter of right because Gustafson allegedly failed to properly object at trial. We agree.
Under sec. 901.03(1)(a), Stats., a party may not claim that a ruling admitting evidence was erroneous unless a substantial right of the party is affected and "... a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context...." We have repeatedly held that a specific objection to evidence is necessary in order to entitle the objector to raise the issue on appeal. See Holmes v. State, 76 Wis.2d 259, 271, 251 N.W.2d 56 (1977); State ex rel. Hussong v. Froelich, 62 Wis.2d 577, 602-03, 215 N.W.2d 390 (1974).
The record in this case indicates that Gustafson's attorney did not make a specific objection to the admissibility of evidence relating to R.G.'s juvenile adjudication, or to the admissibility of R.G.'s no contest plea. Prior to trial, the state asked the trial court to rule on the admissibility of evidence that the state wanted to use to impeach R.G. if the defense called him as a witness. The state specifically referred to R.G.'s prior juvenile adjudication of delinquency and his no contest plea entered in juvenile court. The state indicated that it intended to cross-examine R.G. about his prior admissions. Gustafson's attorney responded that R.G.'s no contest plea was not and should not be construed as an admission. This is the only statement by Gustafson's attorney that could be construed as an objection to the admissibility of evidence relating to R.G.'s adjudication of delinquency and his no contest plea. However, immediately thereafter his attorney stated, "Our objection is to allowing testimony as to [R.G.'s] conviction without the tempering evidence that it was pursuant to a no contest plea, not a guilty plea." The trial court subsequently ruled that the state could question R.G. about the adjudication of delinquency. After the court ruled, Gustafson's attorney stated that R.G. could "... explain that away, that he did plead no contest ..." and that "... he [R.G.] should ... be able to testify that he didn't make any admissions, that he did it on a plea of no contest." He subsequently agreed, both before and after the...
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