State v. Mares, 88-1530-CR

• Decision Date: 01 March 1989
• Docket Number: No. 88-1530-CR,88-1530-CR
• Citation: 439 N.W.2d 146,149 Wis.2d 519
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Juan MARES, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 146

439 N.W.2d 146

149 Wis.2d 519

STATE of Wisconsin, Plaintiff-Respondent, v. Juan MARES, Defendant-Appellant.

No. 88-1530-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Jan. 31, 1989.

Opinion Released March 1, 1989.

Opinion Filed March 1, 1989.

William J. Tyroler, Asst. State Public Defender, for defendant-appellant.

Donald J. Hanaway, Atty. Gen., and James M. Freimuth, Asst. Atty. Gen., for plaintiff-respondent.

Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.

NETTESHEIM, Judge.

Juan Mares appeals from a judgment convicting him of four counts of second-degree sexual assault, contrary to sec. 940.225(2)(e), Stats. ¹ He contends that the trial court erroneously admitted substantive evidence of prior consistent statements made by two of the state's witnesses. Maresalso argues that the trial court improperly allowed the state to inquire into concerns of the victim's sisters because of Mares' actions intruding on their privacy. Finally, when the court precluded any further testimony on this subject, Mares argues that the prosecutor committed misconduct by flouting the ruling.

We conclude that because Mares implied that two of the state's witnesses had been improperly influenced and had recently fabricated portions of their testimony, their prior consistent statements were properly admitted for substantive purposes under sec. 908.01(4)(a)2, Stats. We also conclude that the trial court properly allowed inquiry into the other girls' concerns about Mares' actions intruding on their privacy since the defense had opened the door to this inquiry on cross-examination. Furthermore, we conclude that the prosecutor's subsequent questions were proper and within the limits of the trial court's ruling. Therefore, we affirm the judgment.

At trial, the victim, M.E., testified to the sexual assaults alleged in the information. She stated that Mares had sexual contact with her on two occasions while she was living in Racine; once after she had fallen asleep on her mother's bed, and another time while she was pretending to sleep on the living room couch. Mares was her mother's boyfriend, and he lived with M.E. and her mother. M.E. also testified to prior, uncharged sexual contact involving Mares which occurred when he was living with M.E. and her mother in California. M.E. stated that Mares had touched her and her cousin, K.W., sexually, that they told M.E.'s mother about the touchings, and that they then barred the door to their bedroom with a knife so that Mares could not get in.

On cross-examination, Mares impeached M.E. with her preliminary hearing testimony in which she had attributed the details of the assault on the bed to the assault on the couch, and vice versa. Mares then implied, both on cross- and recross-examination, that the prosecutor had influenced M.E.'s trial testimony. Although the preliminary hearing had been limited to the Racine events, Mares also brought up M.E.'s preliminary hearing statement that she never told her mother about the events until after the matter was reported to the police. This implied to the jury that M.E. was also fabricating when she stated that while in California she had told her mother about the touchings that occurred there.

The state's next witness, Dr. Mary Welch, testified to an earlier consistent statement M.E. made to her during a counseling session. This session took place two months after M.E. had reported the assaults to the police and ten months before the preliminary hearing. Dr. Welch's brief testimony revealed that M.E. had told her about the sexual contact in California and that she had tried to tell her mother about the contact while still in California. M.E. also told Dr. Welch that Mares had "fondled her and then raped her" in Racine and that she did not tell her mother because she did not think she would be believed.

Mares objected to Dr. Welch's testimony on hearsay grounds. The state responded that because Mares had brought up all the inconsistencies between M.E.'s preliminary hearing and trial testimony and implied that she was lying at trial, the prior statement M.E. had made to Dr. Welch was admissible under sec. 908.01(4)(a)2, Stats., as a prior consistent statement. The trial court agreed to the admissibility of Dr. Welch's testimony under sec. 908.01(4)(a)2, finding that it rebutted Mares' implication that M.E. had a motive to lie. The court also denied Mares' request for a limiting instruction to the jury, ruling that the statement could come in substantively.

The state next called K.W. as a witness. On cross-examination, Mares implied that K.W. had been improperly influenced by talking to M.E. three days before trial. The state then called the investigating officer, Barbara Munoz, to testify about an earlier consistent statement that K.W. made to her during the investigation of the assaults nearly a year and a half earlier. Again, Mares objected on hearsay grounds. The court overruled the objection, and Munoz' corroborating testimony was brought in substantively.

M.E.'s mother, Victoria, also testified for the state. On cross-examination, Mares elicited her testimony that in California M.E.'s sisters, JoJo and Patty, had also put a knife in their bedroom door because of "privacy problems" they were experiencing. Mares objected to the state's inquiry on redirect as to what these "privacy problems" were. The trial court overruled the objection, and the state elicited testimony that the girls did not like Mares coming into their room whenever he felt like it. At this point, however, the court precluded the state from bringing in any further evidence on this topic. The state, however, asked two further questions along these lines without objection from Mares. Mares was convicted of four counts of second-degree sexual assault. He appeals the trial court's denial of his three evidentiary objections.

Generally, a question regarding the admissibility of evidence presents a matter of trial court discretion. State v. Stinson, 134 Wis.2d 224, 232, 397 N.W.2d 136, 139 (Ct.App.1986). An abuse of discretion can occur if it is premised upon an error in the appropriate and applicable law. Thorpe v. Thorpe, 108 Wis.2d 189, 195, 321 N.W.2d 237, 240 (1982). Whether M.E.'s and K.W.'s statements fall within the hearsay exception of sec. 908.01(4)(a)2, Stats., presents a question of statutory interpretation. This is a question of law to which we apply an independent standard of review. State v. Gavigan, 122 Wis.2d 389, 391, 362 N.W.2d 162, 164 (Ct.App.1984).

Section 908.01(4)(a)2, Stats., reads in relevant part:

(4) STATEMENTS WHICH ARE NOT HEARSAY. A statement is not hearsay if:

(a) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:

....

2. Consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive.

It is undisputed that a prior consistent statement of a witness is not hearsay and may be offered for substantive purposes if the requirements of sec. 908.01(4)(a)2, Stats., are met. State v. Gershon, 114 Wis.2d 8, 11, 337 N.W.2d 460, 461 (Ct.App.1983). Section 908.01(4)(a)2 requires that: (1) the declarant testify at trial and be subject to cross-examination concerning the statement; (2) the statement is consistent with the declarant's testimony; and (3) the statement rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. See Gershon, 114 Wis.2d at 10-11, 337 N.W.2d at 461. Neither Mares nor the state disagrees that the first two requirements were met by both M.E. and K.W. in this case. The issue in this case involves the third requirement, that the prior statement rebut an express or implied charge of recent fabrication or improper influence or motive.

Mares' argument is that the statements are not prior because M.E. and K.W. harbored earlier motives to lie about Mares' activities. Thus, Mares reasons that the motives--not the statements--are prior and therefore the evidence is inadmissible under sec. 908.01(4)(a)2, Stats. Mares supports this argument with references to his cross-examination of M.E. and K.W. Mares elicited testimony from M.E. that he had beaten her on the day that she was allegedly assaulted on the couch. K.W. testified that Mares had beaten her when they were living in California. Both girls stated that they had originally liked Mares, but after he had sexually molested them in California they no longer liked him. Therefore, Mares argues that both M.E. and K.W. had a motive to lie which predated their statements to the counselor and police investigator. As such, Mares contends that these later statements are not admissible to rebut the preexisting motive to falsify.

Section 908.01(4)(a)2, Stats., recognizes three "rebuttal" situations in which a prior consistent statement can be used: (1) recent fabrication; (2) improper influence; and (3) motive. Mares' argument invokes the last of these, arguing that M.E. and K.W. harbored a prior motive to lie about him based upon the physical and sexual assaults. Even if we accept this premise, Mares overlooks that this case also presents the other two circumstances recognized by the statute, a charge of recent fabrication and improper influence. Mares' own cross-examination implied that the girls had recently fabricated their testimony because of their "collaboration" with the prosecutor and each other after the preliminary hearing. This evidence also implied that the witnesses' testimony had been improperly influenced. Since both M.E.'s and K.W.'s statements preceded the events of alleged fabrication and improper influence, we conclude that the statements were properly admitted as prior consistent statements for the truth of the matters asserted therein. ² Sec. 908.01(4)(a)2.

As to M.E., Mares asserts that he never...