State v. Herndon

• Decision Date: 03 May 1988
• Docket Number: No. 87-0357-CR,87-0357-CR
• Citation: 426 N.W.2d 347,145 Wis.2d 91
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Leonard HERNDON, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 347

426 N.W.2d 347

145 Wis.2d 91

STATE of Wisconsin, Plaintiff-Respondent, v. Leonard HERNDON, Defendant-Appellant.

No. 87-0357-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Oct. 6, 1987.

Opinion Released May 3, 1988.

Opinion Filed May 3, 1988.

Donald J. Hanaway, Atty. Gen. by Sally Wellman, Asst. Atty. Gen., Madison, for plaintiff-respondent.

Kenneth P. Casey, Asst. State Public Defender, Madison, for defendant-appellant.

Before MOSER, P.J., and WEDEMEYER and SULLIVAN, JJ.

MOSER, Presiding Judge.

Leonard Herndon (Herndon) appeals from a conviction of third-degree sexual assault in violation of sec. 940.225(3), Stats. Herndon claims that he was denied his right to confrontation under the sixth amendment of the United States Constitution and article I, section 7 of the Wisconsin Constitution when he was denied the opportunity to cross-examine M.L.P., the juvenile complaining witness, about her prior arrests for prostitution. Herndon argues that an effective cross-examination was necessary to test M.L.P.'s credibility and to show her motive to fabricate the charge. Herndon also claims that he was denied his constitutional right to present witnesses in his own behalf. Herndon argues that the trial court erred in holding that Wisconsin's rape shield law, sec. 972.11(2), Stats., precluded any evidence of M.L.P.'s prior sexual conduct.

The sole issue on appeal is whether Herndon was denied his constitutional right to confrontation and right to present witnesses in his own behalf. We hold that he was and reverse the judgment of the trial court.

FACTS

M.L.P. testified at a preliminary hearing that on March 24, 1986, at about 2 a.m., while she was walking to her mother's home, Herndon sexually assaulted her in the 2400 block of North Martin Luther King Drive. M.L.P. testified that Herndon forced her into his automobile, drove her to a parking lot located near the intersection of Martin Luther King Drive and West Vine Street in the city of Milwaukee, and forced her to commit several acts of oral and vaginal intercourse. M.L.P. further testified that Herndon struck her in the eye and that he later drove his automobile to North 4th Street and West Clark Street and let her out. Based on this evidence, the court found that there was probable cause to believe that a sexual assault had occurred and that Herndon had committed it. Herndon was bound over for trial.

On the trial date, the trial court entertained Herndon's motion to have the rape shield law declared unconstitutional. Herndon presented the following written offer of proof with which the state joined:

Offer of Proof

"In support of the previously filed Motion to Admit Prior Sexual Conduct of the Complaining Witness, the defendant offers the following statement as to his theory of this case and the evidence he intends to adduce at the trial of this cause."

"Leonard Herndon is charged with one count of Second Degree Sexual Assault, a violation of [sec.] 940.225(2)(a), Wis. Stats. The allegation is basically that Mr. Herndon accosted the prosecutrix, [M.L.P.], while she was walking in the 2400 block of North Martin Luther King Drive at approximately 3:00 a.m. on March 24, 1986. He is alleged to have forced her into his automobile and driven her to another location where he allegedly forced her to engage in several acts of sexual intercourse, both oral and vaginal, without her consent. She variously claims that Mr. Herndon struck her either on Martin Luther King Drive or at the scene of the sexual acts depending upon who she spoke to after the matter was reported to the police."

"After his arrest, later that morning, Mr. Herndon gave a statement to the police where he admitted picking up [M.L.P.] after she flagged him down while he was driving his car in the 2400 block of North Martin Luther King Drive at the time in question. He told the police that she told him that she was working and asked him if he had any money. He admitted driving her to another location where they engaged in the acts of intercourse she described. He admitted slapping her after she attacked him and bit him on the finger. He will testify that he believed that she was working as a prostitute and that the acts of sexual intercourse were consensual as acts of prostitution."

"The evidence will also show that [M.L.P.] told the police that she had left her home about 1:45-2:00 a.m. to walk to her aunt's home to borrow some money because she was hungry and out of cigarettes. Her aunt was not home so she decided to walk back home and was accosted by the defendant as mentioned above. After the alleged assault, [M.L.P.] went home to her mother's apartment and told her mother that she had been assaulted by the defendant."

"With this background, Mr. Herndon intends to offer as evidence at the trial of this case that [M.L.P.] was arrested on two prior occasions for engaging in acts of prostitution under circumstances similar to those described by Mr. Herndon to the police on the day of his arrest and the alleged offense, before he could have known of her prior activities. Further, he intends to introduce evidence that [M.L.P.]'s mother, [C.P.], was aware of those prostitution arrests and strongly disapproved of her daughter's prostitution activities. The evidence will also show that [C.P.] had communicated her displeasure over such activities to her daughter before March 24, 1986. Finally, Mr. Herndon intends to introduce evidence that [M.L.P.] has in the past testified, under oath that the police officers who arrested her for these prior acts of prostitution are lying about her activities under oath."

"Specifically, Mr. Herndon intends to adduce testimony that at 11:50 p.m. on August 27, 1985, at 2300 North 27th Street, Milwaukee, Wisconsin, [M.L.P.] waved to Milwaukee Police Officer George Papachristou who was driving his private automobile down that street. Officer Papachristou will testify that after pulling his auto over to the side of the road in this high prostitution area he was patrolling as part of an anti-prostitution unit, [M.L.P.] stated to him that she needed $20.00. He will testify that she offered to give him some "head" for $20.00 unless he wanted "pussy." She offered to "fuck and suck" for $40.00. Detective Orlen Wood will testify that he interviewed [M.L.P.] on August 28, 1985, and that she denied offering Officer Papachristou a "fuck and suck for $40.00." At Mr. Herndon's final probation revocation hearing on May 20, 1986, [M.L.P.] admitted speaking with Officer Papachristou and telling him that she was "dating." She denied, under oath, that she offered to "fuck and suck for $40.00."

"With respect to the second prostitution arrest, Mr. Herndon will call Police Officer Michael Kulman. He will testify that on October 22, 1985 at 9:55 p.m. in the 2500 block of North Martin Luther King Drive he was working with the anti-prostitution unit when [M.L.P.] made eye contact with him as he was driving his car. He will testify that the 2400-2500 block of North Martin Luther King Drive is also a high prostitution area. The 2400 block of that street is where Mr. Herndon first met [M.L.P.]. Officer Kulman will further testify that, after pulling his auto over to the curb, that [M.L.P.] asked him for $20.00. She offered to give the officer "head" for $20.00. She was arrested on the spot. Mr. Herndon will also call Milwaukee Police Detective Donald Peil who will testify that he interviewed [M.L.P.] that evening and that she admitted offering Officer Kulman "head" for $20.00 and that she knew that the term "head" meant oral sex. At the final revocation hearing mentioned above, [M.L.P.] denied, under oath, that she asked Officer Kulman for $20.00 or offered to give him "head." She also denied telling Detective Peil that she had offered Officer Kulman "head" and that she knew what that term meant."

"[C.P.] will also be called to testify by Mr. Herndon. She will testify that she is [M.L.P.]'s mother and that when her daughter came home on March 24, 1986, she was yelling and screaming that she had been raped. She will also testify that she was aware of her daughter's prior arrests for prostitution because she went and picked her up at the police station after each arrest. She will testify that she told her daughter, in no uncertain terms that she did not approve of such activities before March 24, 1986."

"From this review of the proposed testimony, it is clear that Mr. Herndon's theory of defense in this case will be that all acts of sexual intercourse between he [sic] and [M.L.P.] were consensual as acts of prostitution. Further, it will be part of his theory of defense that [M.L.P.] was motivated to engage in acts of prostitution on March 24, 1986, because she needed money to buy food and cigarettes. Finally, it will be part of Mr. Herndon's theory of defense that [M.L.P.] is falsely accusing him of sexually assaulting her in order to explain the swelling and bruising on her face which resulted from Mr. Herndon's slaps. She is falsely accusing Mr. Herndon so that her mother will not punish her for continued prostitution activities."

The trial court, relying on sec. 972.11(2)(c), Stats., refused to allow any testimony or reference to M.L.P.'s prior sexual conduct. ¹ After being advised of his rights, Herndon agreed to go ahead with the trial to the court and to allow the court to use the preliminary hearing evidence as the basis for its findings of fact and conclusions of law. Upon reading the preliminary hearing transcript, the court found Herndon guilty of second-degree sexual assault. Herndon was sentenced to an indeterminate term of four years incarceration to be served consecutively to the term he was then serving as a result of a parole revocation. It is from this judgment that Herndon appeals.

A DEFENDANT'S CONSTITUTIONAL RIGHT TO

CONFRONT ADVERSE WITNESSES AND PRESENT WITNESSES

IN HIS BEHALF

The sixth amendment to the United States Constitution guarantee...