State v. Jackson, 96-1618-CR

• Decision Date: 20 March 1998
• Docket Number: No. 96-1618-CR,96-1618-CR
• Citation: 216 Wis.2d 646,575 N.W.2d 475
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Ronald JACKSON, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 475

575 N.W.2d 475

216 Wis.2d 646

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Ronald JACKSON, Defendant-Appellant.

No. 96-1618-CR.

Supreme Court of Wisconsin.

Argued Jan. 6, 1998.

Decided March 20, 1998.

For the plaintiff-respondent-petitioner there were briefs by Marguerite M. Moeller, Assistant Attorney General, with whom on the briefs was James E. Doyle, Attorney General.

For the defendant-appellant there was a brief and oral argument by Glenn L. Cushing, Assistant State Public Defender.

ANN WALSH BRADLEY, Justice.

The State of Wisconsin (State) seeks review of a published decision of the court of appeals ¹ that reversed the defendant's convictions as a repeat offender of first-degree sexual assault, kidnapping while armed, robbery, threat to injure, and armed burglary. The State asserts that the circuit court properly excluded evidence of prior consensual sexual relations between the defendant and the complainant, and correctly permitted the State to admit hostile letters written by the defendant for purposes of impeaching a witness. Because we determine that the circuit court's refusal to admit evidence of the prior sexual relationship was proper under Wisconsin's rape shield statute, Wis. Stat. § 972.11 (1993-94), ² and that any error in allowing the State to reference the letters written by the defendant was harmless, we reverse the decision of the court of appeals.

In mid 1994, the complainant moved into a townhouse already occupied by the defendant and his girlfriend. The defendant contends that at that time, he and the complainant had a brief sexual relationship consisting of sexual intercourse on three occasions.

Subsequently, the defendant's girlfriend fell behind on payment of her share of the rent and utility bills, forcing the complainant to cover the difference. The complainant apparently then began asking the defendant to cover the difference. He refused and a strained relationship developed between the parties.

On December 1, 1994, the police were called to the townhouse by the complainant. She alleged that an assailant had entered her room carrying a knife and ordered her to remove her clothing. She tried to escape and he chased her over all three floors of the home. The complainant and the assailant struggled over the knife, leaving the complainant injured. After the assailant robbed her, save for a $20 bill left at the complainant's request, the assailant fled. While interviewing the complainant, the police searched the townhouse. Only when they advised her that no one else was present did she then identify the defendant as her assailant.

The State charged the defendant with one count each of sexual assault, robbery, kidnapping while armed, threat to injure, and armed burglary, all as a repeater. ³ Three days before trial the defendant filed a motion to admit evidence of a prior consensual sexual relationship with the complainant, evidence alleged to be relevant to "the issue of consent to sexual contact, the voluntariness relative to kidnapping and related matters."

The morning of the first day of trial the defendant apparently changed his defense and admitted that an altercation with the complainant had taken place, but denied that any sexual contact occurred during the incident. Nevertheless, defense counsel continued to argue for admission of the sexual history evidence, since "[i]t is not directly a question of consent, but it is a question of what consent on prior occasion implies about the whole relationship...." The circuit court denied the motion. The court ruled that since the defendant was denying sexual contact during the incident in question, consent was not an issue and the proffered evidence failed to meet the requirements of Wis. Stat. § 971.31(11) ⁴ that evidence be probative and material.

The defendant's argument at trial centered on portraying the complainant as a vindictive and malicious liar who had filed trumped-up charges against the defendant. Prior to the State's cross-examination of the defendant, the defense had not offered proof of any secondary motivation for the complainant's charges other than the parties' financial disagreements and the complainant's dislike of the defendant. While exploring the defense's theory that the complainant had lied, the State reiterated the defendant's prior testimony concerning motive and asked the defendant, "And you're offering here, for the motive for why she wants to do that, the fact that she had some disagreement over finances with you in the home?" The defendant replied, "No, it was more to it than it. It was more issues that could have been brought out into court that I was told I couldn't talk about."

The defendant then argued to the circuit court, out of the presence of the jury, that this colloquy opened the door to evidence of the complainant's prior sexual history with the defendant and that the court should remove its earlier prohibition on such testimony. The circuit court disagreed and again prohibited the defendant from mentioning the prior sexual relationship.

During the course of trial the State attempted to utilize portions of two letters written by the defendant to his girlfriend. The letters appeared to be threatening and contained obscene language. The circuit court admitted the letters during the girlfriend's testimony to establish the defendant's common use of particular slang terminology.

The circuit court also allowed the State to use excerpts from one of the letters during the State's cross-examination of the girlfriend's sister (hereinafter "the sister"). The sister referenced that letter on her own initiative, but immediately dismissed its contents as nonthreatening. The circuit court allowed the State to attempt to impeach this statement and the underlying credibility of the sister's testimony by reading five excerpts. Finally, the State also referenced the excerpts from the letter on three occasions during closing arguments--without objection from the defense.

The jury convicted the defendant on each of the five counts. The circuit court then sentenced him to an indeterminate term of at least 65 years in prison with concurrent probation for 25 years. The defendant appealed the conviction.

The court of appeals reversed the defendant's conviction and remanded the case for a new trial. While the appellate court agreed with the circuit court's initial denial of the defendant's motion to admit evidence of a prior sexual relationship under the rape shield law, it concluded in a split decision that the State had opened the door to the evidence in its cross-examination of the defendant about the complainant's motives. Because the circuit court excluded the evidence after the door was opened, the court of appeals held that the defendant's constitutional right to present a defense had been violated. Finally, the court of appeals also determined that the State's use of the defendant's threatening letters during cross-examination of the girlfriend and her sister, as well as the State's references to the letters during closing arguments, constituted prejudicial error.

We are thus confronted with two questions: (1) whether the circuit court properly excluded the defendant's proffer of evidence of the complainant's sexual history with him, despite the defendant's constitutional rights to confrontation and to present a defense, and (2) whether the circuit court's decision not to bar the State's use of the defendant's threatening letters constitutes prejudicial error. The admission of evidence is a decision left to the discretion of the circuit court. See In Interest of Michael R.B., 175 Wis.2d 713, 723, 499 N.W.2d 641 (1993). We will not find an erroneous exercise of discretion where the circuit court applies the facts of record to accepted legal standards. See State v. Kuntz, 160 Wis.2d 722, 745, 467 N.W.2d 531 (1991).

A determination of whether the circuit court's actions violate the defendant's constitutional rights to confrontation and to present a defense is a question of constitutional fact. See State v. Heft, 185 Wis.2d 288, 296, 517 N.W.2d 494 (1994). For purposes of reviewing a question of constitutional fact, we adopt the circuit court's findings of fact, unless clearly erroneous, but independently apply those facts to the constitutional standard. See State v. McMorris, 213 Wis.2d 156, 165, 570 N.W.2d 384 (1997).

I. Admission of Evidence of Prior Consensual Sex

The defendant argues that the circuit court erroneously exercised its discretion by refusing to admit evidence of his prior sexual relationship with the complainant as evidence of her motivation to fabricate the charges. The defendant further asserts that this refusal constitutes a constitutional deprivation of his right to confront adverse witnesses and to present a defense.

The constitutional rights to confrontation and compulsory process are based in Article I, Section 7 of the Wisconsin Constitution ⁵ and in the Sixth Amendment to the United States Constitution. ⁶ These clauses guarantee to criminal defendants the right to cross-examine witnesses and to present evidence in their own defense. See State v. Pulizzano, 155 Wis.2d 633, 456 N.W.2d 325 (1990). While these rights are fundamental and essential to a fair trial, they are not absolute. See id. at 645-46, 456 N.W.2d 325. Confrontation and compulsory process only grant defendants the constitutional right to present relevant evidence that is "not substantially outweighed by its prejudicial effects." Id. at 646, 456 N.W.2d 325.

The defendant's proffer of past sexual contact with the complainant in this case directly implicates Wis. Stat. § 972.11, ⁷ Wisconsin's rape shield statute. Under the rape shield statute, a defendant may not offer evidence relating to a victim's past sexual history or reputation absent application of a statutory or judicially created exception. See Wis. Stat. §§ 972.11(2)(b)1-3; Pulizzano, 155 Wis.2d at 647, 456...