State v. Johnson
| Decision Date | 10 May 1989 |
| Docket Number | No. 87-1471-CR,87-1471-CR |
| Citation | 439 N.W.2d 122,149 Wis.2d 418 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Edward JOHNSON, Defendant-Appellant. * |
| Court | Wisconsin Supreme Court |
Paul Lundsten, Asst. Atty. Gen., argued, Donald J. Hanaway, Atty. Gen., on brief, for plaintiff-respondent-petitioner.
Charles Bennett Vetzner, Asst. State Public Defender, for defendant-appellant.
This is a review of an unpublished court of appeals' decision, 145 Wis.2d 905, 430 N.W.2d 379, which reversed a judgment of conviction and order by the Circuit Court for Dane County, Honorable Michael B. Torphy, Judge. The defendant, Edward Johnson (Johnson), was convicted by a jury of two counts of second-degree sexual assault, contrary to sec. 940.225(2)(a), Stats. 1987-88. 1 Exercising its discretionary reversal power granted to it by sec. 752.35, 2 the court of appeals reversed Mr. Johnson's conviction. It ruled the real controversy was not fully tried because evidence that the victim was not intending to pursue a civil suit against the defendant for the alleged assault was introduced at the trial. We reverse.
There are two issues presented: First, is evidence that a complainant has not contemplated or initiated a civil action against the defendant admissible in a criminal trial before such an assertion is made by the defendant to challenge the victim's credibility? We hold it is not. Second, did the court of appeals abuse its discretion by reversing the defendant's conviction in this case? We hold that a court could not reasonably conclude the inadmissible evidence so clouded a crucial issue that it prevented the real controversy from being fully tried. Thus, we conclude the court of appeals abused its discretion and we reverse its decision.
Johnson was accused of committing two counts of sexual assault. He was tried before a jury in a trial which lasted one day. In his opening statement the prosecutor told the jury that Seconds later he once again stated B. had "no reason to falsify." At the end of his opening statement he told the jury:
[B.] will tell you that there's no reason in this world whatsoever why she would testify falsely. The first lawyer she ever saw in this case was a member of the District Attorney's office a month and a half, two months ago. She'll tell you there are no pending lawsuits. She hasn't filed a civil law claim or anything.
No objection was made by defense counsel to those remarks.
As the first witness for the state, B. testified as follows: B. entered the tavern where Johnson worked just before closing time. B. stated she saw a couple sitting at the bar and Johnson standing behind the bar. The juke box was playing. She asked Johnson, who she knew from previous visits to the tavern, if she could use the toilet. Johnson said "yes" and asked B. if she wanted to "get high." B. said she "wasn't interested" and went into the toilet.
Johnson followed her and again asked if she wanted to "get high." Once again she said "no" and asked him to leave. Johnson grabbed B. and pushed her up against a wall. He began kissing her as B. tried to push him away and she continuously asked him to stop in a "raised" voice, but said she was not "yelling." Johnson partially disrobed her and began "jabbing" his hand into B.'s vagina. B. said "it hurt a lot" and repeatedly asked him to stop. Johnson then pulled his own pants and underwear down, grabbed B. and pushed her down on the toilet. He grabbed her and forced her to commit fellatio.
Johnson then pulled his pants back on and ran out the door. B. dressed, threw water on her face, and gagged into the sink. She ran out of the bar and drove home. B. stated numerous times that she never desired, encouraged or consented to any part of the assault.
When she arrived home, she called a friend and she changed her clothes. She noticed there was blood on her underpants. She stated that it was not menstrual blood. Her vagina was also sore. Her friend came over and they talked, but B. did not seek medical attention or call the police. B. also talked to a friend who was a police officer, but asked that it remain personal. Sometime thereafter, a police officer called to investigate the incident.
At the end of the direct examination, the following exchange took place:
Q Other than myself and another member of the District Attorney's office, have you ever seen a lawyer about this case?
A No, I haven't.
Q Have you filed a civil lawsuit against either [the tavern] or Edward Johnson?
A No, I haven't.
Q Is there any lawsuit pending seeking civil damages such as money?
A No.
Q [B.], is there any reason in the world whatsoever why you would testify falsely against Edward Johnson?
A No.
Once again, counsel for defendant did not object.
On cross-examination, Johnson's counsel questioned B. about a possible civil lawsuit.
Q On direct examination Mr. Bablitch inquired of you as to whether or not you've seen a lawyer and commenced a civil lawsuit. Do you remember those questions?
A Yeah.
Q Are you aware that a conviction in this case would mean almost an automatic victory in a civil suit?
A No, I'm not aware of it.
Q And you haven't talked to your friends about the possibility of your going to trial in a civil suit against him, have you?
A No, I haven't.
The last questions on redirect by the prosecutor were as follows:
Q Had you ever talked to your friends about filing a civil lawsuit?
A No.
Q Do you know what a civil lawsuit even is?
A Not really.
After B. finished testifying, her friend testified how upset B. was shortly after the alleged assault. B.'s employer at the time she was allegedly assaulted was the next witness for the prosecution. She testified that B. was almost never late for work, but on the morning after the incident, B. called in upset saying she would not be in at work because she had been raped.
B.'s roommate at the time the alleged assault occurred was the prosecution's fourth witness. She testified that B. was upset the night of the assault and the morning after. B. told her that she had been sexually assaulted at the tavern by Johnson. Two of these witnesses said B. was a quiet person who usually kept to herself. All three testified that they believed B. was an honest person. The prosecution next called the investigating officer. Its last witness was a counselor from the Dane County Rape Crisis Center.
The defense first called the person who, according to the tavern's business records, was working with Johnson on the night in question. The witness testified as to the regular closing routine of the tavern and his general experiences in closing with Johnson. He, however, could not remember the specific night of the alleged assault or whether B. was there on that night.
A woman with whom Johnson shared living quarters testified next for the defense. She stated that on the night in question she called the tavern to ask if Johnson needed a ride home. He declined, saying he would get a ride from his co-worker. She also said that one night Johnson and she encountered B. at a basketball game. Johnson said "hi" to B. and B. "smirked" and turned to her friend. Johnson commented to the witness, "I wonder what that's all about?"
Johnson was the last witness for the defense. He stated that B. came into the tavern and started telling him how she was partying and that she was feeling good. She then kissed Johnson, who just stood there. B. asked for a drink but Johnson told her it was too late. She then kissed him again and this time he kissed her back. They kissed for a few minutes and B. opened up the bathroom door. B. began backing into the bathroom and asking where they could go. Johnson replied that he and his co-worker were waiting to go home. She continued kissing Johnson and she started rubbing his pants. He began touching her and this continued for a few minutes until they heard Johnson's co-worker. Johnson said they had to go. He left the bathroom and went back to the bar. He later returned to the bathroom and B. ran out. Johnson stated that he never forced B. to engage in any sexual contact, that B. initiated it all, and all that happened was some kissing and mutual rubbing on the outside of their clothes. On cross-examination, the prosecutor asked Johnson if he was being sued by B. Johnson stated he did not know.
In his closing argument, the prosecutor stressed that this was a question of B.'s word against Johnson's word. "The question is credibility and for you the question is whether or not the defendant is lying or was [B.] lying." The prosecutor also stated "the first time she saw a lawyer in this case was when she came to a D.A. in the office and saw an associate of mine."
The prosecutor continued to stress that B. had no reason to lie-- He also asserted Johnson had plenty of reason to lie.
Defense counsel, in his closing argument, asserted that B.'s story was unreasonable and inconsistent. On rebuttal, the prosecutor stated that The prosecutor ended by once again noting B. had no reason to lie.
Johnson was found guilty of two counts of second-degree sexual assault contrary to sec. 940.225(2)(a), Stats. He was sentenced to five years imprisonment. Counsel for Johnson moved for postconviction relief, including a claim that B.'s testimony concerning a civil suit against Johnson was improper. 3 The circuit court entered an order denying the motion.
Johnson appealed the judgment of conviction and the...
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