State v. Hammer

• Citation: 236 Wis.2d 686,613 N.W.2d 629,2000 WI 92
• Decision Date: 11 July 2000
• Docket Number: No. 98-2900-CR.,98-2900-CR.
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Edward A. HAMMER, Defendant-Appellant.
• Court: United States State Supreme Court of Wisconsin

236 Wis.2d 686

2000 WI 92

613 N.W.2d 629

STATE of Wisconsin, Plaintiff-Respondent, v. Edward A. HAMMER, Defendant-Appellant.

No. 98-2900-CR.

Supreme Court of Wisconsin.

Oral argument March 7, 2000.

Decided July 11, 2000.

For the defendant-appellant there were briefs by Rex R. Anderegg and Anderegg & Mutschler, LLP, Milwaukee, and oral argument by Rex R. Anderegg.

For the plaintiff-respondent the cause was argued by William C. Wolford, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

¶ 1. N. PATRICK CROOKS, J

This case comes before us on certification from the District II Court of Appeals. The appellant, Edward A. Hammer, seeks review of a circuit court decision, which allowed other acts evidence pertaining to his past sexual conduct to be admitted in a current sexual assault case against him. Hammer also seeks review of the circuit court's ruling to prohibit testimony regarding the alleged victims' past sexual conduct, arguing that his Sixth Amendment right to confront witnesses and compel testimony on his behalf outweighed the state's interest in applying the rape shield statute. Hammer argues that the circuit court's rulings on these issues denied his right to a fair trial.

¶ 2. The circuit court convicted Hammer of second-degree sexual assault of a child under Wis. Stat. § 948.02(2) (1995-96),¹ and fourth-degree sexual assault under Wis. Stat. § 940.225(3m). The court ruled that the other acts evidence against Hammer would be allowed because the evidence demonstrated a motive, opportunity, mode or method of operation, and absence of mistake under Wis. Stat. § (Rule) 904.04(2), which the court found were proper purposes under the statute. The circuit court also decided that the other acts evidence was relevant, in accordance with Wis. Stat. § (Rule) 904.01, and that under Wis. Stat. § (Rule) 904.03, the probative value of the evidence substantially outweighed the danger of unfair prejudice against Hammer However, the circuit court prohibited testimony regarding the victims' past sexual conduct, in accordance with the rape shield statute, Wis. Stat. § 972.11, despite Hammer's argument that this violated his right to confront witnesses against him and compel testimony on his behalf under the Sixth Amendment.

¶ 3. We affirm the decision of the circuit court. We hold that the evidence of Hammer's past sexual conduct is admissible under the three-step test set forth in State v. Sullivan, 216 Wis. 2d 768, 772-73, 576 N.W.2d 30 (1998). The evidence of Hammer's past sexual conduct was properly admitted to prove mode or method of operation, and therefore, to establish identity. Further, the evidence is relevant and its probative value is not substantially outweighed by danger of unfair prejudice, confusion, misleading the jury, or undue delay.

¶ 4. We also hold that the evidence of the victims' prior sexual conduct was properly kept from the jury in accordance with the rape shield statute. The state's interest in applying the rape shield statute outweighed the defendant's Sixth Amendment right to confront witnesses and compel testimony. Finally, we hold that the circuit court's admission of Hammer's prior sexual conduct, while excluding the victims' prior sexual conduct, did not violate Hammer's right to a fair trial.

I.

¶ 5. The record indicates that in the early morning hours of June 29, 1997, fourteen-year-old Mark D., seventeen-year-old Steven D., and their friend, sixteen-year-old Josh C., were staying at the home of defendant Edward A. Hammer's parents in Waterford, Wisconsin, where Hammer resided. Allegedly, the defendant sexually assaulted all three boys during their stay at his parents' home.

¶ 6. The three boys had arrived at the home the day earlier accompanied by the defendant's brother, Steven Hammer. Steven Hammer is the stepfather of Mark D. and Steven D. Steven Hammer and the three boys had driven from Ohio to pick up Steven Hammer's two younger children, who had been visiting at their grandparents' home.

¶ 7. The defendant is a homosexual. (R. at 40:43-44.) On the day of their arrival, but before the alleged incident, the boys allegedly made derogatory remarks to the defendant about homosexuals, even though they knew of his sexual orientation. Steven Hammer also intensely disapproved of his brother's homosexuality, but the rest of the Hammer family apparently was comfortable with it.

¶ 8. All three boys testified at trial as to their experiences while staying at the Hammer residence.² In the early morning of June 29, 1997, the boys were asleep in the basement of the defendant's residence. Steven D. slept on the bottom tier of a bunk bed, while Mark D. and Josh C. shared a hideaway bed. The defendant had been at a wedding that night, returning home at approximately 3:00 a.m. Around that time, Steven D. awoke because he felt someone touching his genital area with cold hands under his underwear and boxer shorts. He did not know who had touched him, but the hands did not touch his penis. He also noticed that the covers had been pulled off of him. He slapped at the hands to push them away.

¶ 9. After experiencing this sensation, Steven D. got up to go to the restroom. On his way to the restroom, he found the defendant lying on the floor next to the bed where Josh C. and Mark D. slept, but by the time he returned to bed, the defendant was gone. He also noticed that when the boys originally went to bed, two night-lights had been left on. When he woke up, the night-lights were turned off. Upon returning to bed, he turned the night-lights back on. Shortly thereafter, Steven D. recalled that the defendant came back downstairs. Steven D. got out of bed again, telling the defendant that he was sleepless and thirsty. The defendant sat down in a chair next to the hideaway bed and asked Steven D. why he was unable to sleep. He replied that he did not know why he was unable to sleep. Steven D. procured a soda from the downstairs refrigerator and after drinking it, went back to bed. As he was falling asleep, he heard the defendant talking to Mark D. about the wedding. His next recollection was of Josh C. getting into Steven D.'s bed and saying that Ed had done something to Mark and him and that he wanted to kill Ed. Josh C. also said that he and Mark had awakened Steven Hammer to tell him what happened.

¶ 10. Mark D. testified that the defendant awoke him by tapping him on his forehead. The defendant allegedly said that he was cold and wondered if Mark D. would move over so that the defendant could get into bed. According to Mark D., while the defendant was in bed talking to Mark D. about football and wrestling, the defendant reached over and touched Josh C. in the hip and buttocks. (R. at 36:205, 219-222.) Mark D. then went to the restroom, and when he returned, he found the defendant lying in the middle of the bed next to Josh C. Mark D. got back into the bed next to the defendant and fell asleep.

¶ 11. Not long after Mark D. got back into bed, Josh C. said "quit" it and Mark D. heard Josh C. "slap something away." (R. at 36:206.) Josh C. testified that he did not see who had touched him at that time, but later confirmed that the defendant was in bed with him. He also testified that the individual touched his back under his t-shirt and his buttocks and legs over his shorts. After slapping the individual's face and throwing his hands away from Josh C.'s body, Josh C. went to the restroom and then got into the top bunk bed.

¶ 12. According to Mark D., the defendant then turned toward him. The defendant touched Mark D.'s penis with his hand. The defendant also grabbed Mark D.'s hand and put it on his penis while he sucked Mark D.'s penis. Mark D. also testified that he "kept asking me if I am going to remember this in the morning." (R. at 36:206.) At first Mark D. did not respond and pretended to be asleep, hoping that the defendant would leave him alone, but when the defendant began to suck his penis, he got out of bed. Mark D. woke up Josh C. and the two boys went upstairs together. While Mark D. and Josh C. were conversing upstairs, they saw the defendant crawling up the basement stairs to go to his bedroom. The boys then woke up Steven Hammer and Steven D. and told them what had just transpired.

¶ 13. The defendant's parents were also awakened and told of the boys' accusations. Mrs. Hammer found the defendant asleep in his own bedroom, and the defendant denied touching the boys improperly. Nonetheless, Steven Hammer had the boys prepare written statements and summoned the police, whereupon the defendant was arrested. Mrs. Hammer told the police that her son had confided that when he becomes intoxicated, he has homosexual urges upon which he acts. The defendant's blood alcohol level at 7:21 a.m. was .13.

¶ 14. The amended information reflects that the defendant was charged with (1) attempted second-degree sexual assault of an unconscious victim (Steven D.) under Wis. Stat. § 940.225(2)(d); 2) fourth-degree sexual assault (of the same person—Steven D.) under Wis. Stat. § 940.225(3m); (3) second-degree sexual assault of a child (Mark D.) under Wis. Stat. § 948.02(2); and (4) fourth-degree sexual assault (of Josh C.) under § 940.225(3m).

¶ 15. Prior to trial, the state requested permission to use prior acts evidence. The state wanted to bring into evidence an incident that had supposedly occurred five to seven years earlier when the defendant was a guest at the Ohio home of Jason B. The defendant awoke Jason B. by fondling Jason B.'s penis. Jason B. did not report the incident to the police at that time. He recalled that the event took place more than four years ago. Jason B. would have been twenty years old and the defendant eighteen. However, the defendant's sister presented photographs and a letter to show that the incident actually took place in 1990, when the defendant was a minor, at age sixteen.

¶ 16. The circuit court, the Honorable Gerald...