State v. Hartman, 86-1188-CR

• Decision Date: 13 September 1988
• Docket Number: No. 86-1188-CR,86-1188-CR
• Citation: 426 N.W.2d 320,145 Wis.2d 1
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. William HARTMAN, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 320

426 N.W.2d 320

145 Wis.2d 1

STATE of Wisconsin, Plaintiff-Respondent, v. William HARTMAN, Defendant-Appellant-Petitioner.

No. 86-1188-CR.

Supreme Court of Wisconsin.

Argued April 26, 1988.

Opinion Filed July 19, 1988.

Reconsideration Denied Sept. 13, 1988. ^*

Mary E. Waitrovich, Asst. State Public Defender, for defendant-appellant-petitioner.

Barry M. Levenson, Asst. Atty. Gen., with whom on the brief was Donald J. Hanaway, Atty. Gen., for plaintiff-respondent.

CALLOW, Justice.

This is a review of an unpublished decision of the court of appeals which affirmed a judgment of conviction entered by the circuit court for Columbia county, Judge Lewis W. Charles, which found William Hartman guilty of second-degree sexual assault, 140 Wis.2d 866, 412 N.W.2d 901.

On review, William Hartman (Hartman) raises two issues. First, in a criminal case in which the defendant is charged with having sexual intercourse with a girl between the ages of twelve and sixteen, can the state enter into evidence the results of human leukocyte antigen and red blood cell tests? Second, did the admission of expert testimony that Hartman was the father of the victim's child deny Hartman due process and a fair trial? We conclude that two of the statistics generated by the human leukocyte antigen tests--the probability of exclusion and paternity index--are admissible in a criminal case in which the defendant is charged with sexual assault. However, we conclude that a third statistic--the probability of paternity--is inadmissible in such a case. Because the state's introduction into evidence of Hartman's probability of paternity based upon the human leukocyte antigen tests constituted prejudicial error, we reverse the decision of the court of appeals. Because we conclude that the admission of the probability of paternity constitutes prejudicial error and, therefore, requires a new trial, we do not reach the question of whether the admission of expert testimony that Hartman was the father deprived Hartman of due process or denied him a fair trial.

In August of 1985, defendant Hartman was charged with two counts of second-degree sexual assault. The charges were based upon allegations that Hartman had sexual intercourse with a fourteen-year-old girl, B.S., on or about April 7, 1984, and on or about April 15, 1984. Hartman interposed an alibi defense, and the case proceeded to trial in January, 1986.

At trial, B.S. testified to the following. On Saturday, April 7, 1984, B.S. went to her father's house to pick up some money to pay for bowling. Upon arriving at the house, she knocked on the door and was let into the house by Hartman, the brother of her father's roommate. Hartman was the only one home at the time. After searching unsuccessfully in the kitchen, B.S. went to her father's bedroom to look for the bowling money.

According to B.S., Hartman followed her into the bedroom and asked several times if she wanted to go to bed with him. Although B.S. refused repeatedly, Hartman eventually pushed her onto the bed and had sexual intercourse with her. Both Hartman and B.S. left the house shortly thereafter. B.S. did not tell anyone at that time what had happened.

On Sunday, April, 15, 1984, B.S. was at her father's house with her father and brothers. After her father and brothers left to play ball, B.S. went into the bathroom to get some dirt out of her eye. While she was trying to clear the dirt from her eye, Hartman entered the bathroom, removed B.S.'s clothing, and had sexual intercourse with her on the bathroom floor. B.S. also did not immediately tell anyone of this second incident.

In October, 1984, B.S. told the police and her mother that she had been raped in a ravine by a man she did not know. About a week later, B.S. went back to the police station, recanted her story about the man in the ravine, and told the police that Hartman had raped her.

B.S. further testified that she was fourteen years of age at the time Hartman had sex with her and that she became pregnant during 1984. According to B.S., her last menstrual cycle was on or about March 20, 1984. Moreover, she did not have sexual intercourse with anyone other than Hartman between her last menstrual period and the birth of the baby.

George Gaucys (Gaucys), director of the Histocompatibility Laboratory at the Madison Red Cross, testified concerning the results of human leukocyte antigen (HLA) and red cell tests which were done on blood samples taken from B.S., her child, and Hartman. According to Gaucys, 98.48 percent of all falsely accused men would be excluded by the tests run in this case. Moreover, Hartman could not be excluded as the father under the tests "[b]ecause [Hartman] had the necessary, or obligatory haplotype, or genes, to be the father of this child."

Gaucys further testified that the tests indicated that Hartman had a paternity index of fifty-six. According to Gaucys, a paternity index of fifty-six "means that this man, William Hartman, is 56 times more likely to be the true father than a random man from the same population." Gaucys also testified that there was a 98.26 percent chance that Hartman was the real father. According to Gaucys, the chance that Hartman was the father, or the probability of paternity, was based upon assuming a 50 percent chance. When asked to explain what was meant by a 50 percent chance, Gaucys stated: "Fifty per cent prior chance, or prior probability. This shows that the laboratory is completely neutral. We don't give any weight for or against this particular man in this case." Moreover, the 50 percent prior chance did not take into account accessibility, whether Hartman lived in the same community or any factors outside of the genetic evidence. Based upon the test results, Gaucys concluded that paternity was "very likely." In conclusion, Gaucys testified that the probability of paternity could never reach 100 percent because it was possible that another person could have the same genetic markers necessary to be the father of the child in question.

On cross-examination, Gaucys again testified that the probability of paternity could never reach 100 percent. Moreover, in response to defense counsel's question whether he could testify within a degree of medical certainty that Mr. Hartman is the father of this child, Gaucys stated "[w]ithin all the tests that we've done, and in my opinion, yes, sir." On further cross-examination, Gaucys reiterated that the tests could not reach 100 percent, i.e., there is an element of doubt in the conclusion that Hartman is the father.

Hartman testified on his own behalf and presented a partial alibi defense. Hartman testified that he was in La Crosse on April 6, 1984, and that he returned to his parents house in the Wisconsin Dells area around noon on April 7. According to Hartman, he slept for approximately twenty minutes, at which time he was awakened by a telephone call from his brother. After arranging to go to Green Bay with his brother for a racquet ball tournament, Hartman slept a short while longer. At 2 p.m. Hartman and his brother went to Green Bay where Hartman spent the night. Hartman's brother and a friend of Hartman offered testimony in support of Hartman's contention that Hartman was in Green Bay on the 7th of April.

Hartman also testified that he visited friends in La Crosse from April 13 through April 16. Hartman denied being at his brother's house on April 7 or April 15 and denied having sexual relations with B.S. at any time.

Hartman was found guilty of second-degree sexual assault for having sexual intercourse with B.S. on or about April 7, 1984, and was acquitted of the charge of sexual assault stemming from the alleged incident on or about April 15, 1984. A judgment of conviction was entered, and Hartman was subsequently sentenced to an indeterminate term of not more than three years in the Wisconsin State Prison. Execution of the sentence was stayed, and Hartman was placed on probation for three years, with a condition of probation to spend six months in the county jail under a work release program. Hartman appealed the judgment of conviction to the court of appeals.

In an unpublished decision, the court of appeals affirmed the judgment of conviction. First, the court of appeals rejected Hartman's contention that Gaucys' testimony that Hartman was the father of the child improperly bolstered B.S.'s credibility. According to the court, although opinion testimony that someone is telling the truth is inadmissible, Gaucys' testimony was not an opinion that B.S. was telling the truth. Instead, the court concluded that the testimony merely corroborated B.S.'s claim that intercourse had occurred. According to the court, because corroborating evidence is not the same as giving an opinion that someone is telling the truth, Gaucys' testimony that Hartman was the father of the child was admissible.

The court of appeals also rejected Hartman's contention that the state was relieved of its burden of proof when the court instructed the jury that the state did not have to prove the exact date of the offense. According to the court, because there was no testimony concerning the exact date of the offense, the state did not have to prove the exact date of the offense. Finally, the court concluded that Hartman did not specifically object at trial to the admission of the paternity results in terms of a statistical probability. Accordingly, the court of appeals did not review that issue.

In November, 1987, we accepted Hartman's petition for review. On review, Hartman raises only the issues of whether the circuit court erroneously admitted the HLA and red blood cell test results and whether Gaucys' testimony that Hartman was the father of the child improperly bolstered B.S.'s credibility. Hartman does not raise the issue of whether the jury instructions relieved the state of its duty to prove the exact date of the offense.

The state argues initially that we should not...