State v. Pittman, 91-1413-CR

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtSTEINMETZ; BABLITCH
Citation496 N.W.2d 74,174 Wis.2d 255
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Anthony PITTMAN, Defendant-Appellant-Petitioner. . Oral Argument
Docket NumberNo. 91-1413-CR,91-1413-CR
Decision Date04 November 1992

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496 N.W.2d 74
174 Wis.2d 255
STATE of Wisconsin, Plaintiff-Respondent,
Anthony PITTMAN, Defendant-Appellant-Petitioner.
No. 91-1413-CR.
Supreme Court of Wisconsin.
Oral Argument Nov. 4, 1992.
Opinion Filed March 10, 1993.

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[174 Wis.2d 260] For the defendant-appellant-petitioner there were briefs and oral argument by Jack E. Schairer, Asst. State Public Defender.

For the plaintiff-respondent the cause was argued by Sharon Ruhly, Asst. Atty. Gen., with whom on the brief was James E. Doyle, Atty. Gen.


There are five issues presented in this case. First, in a criminal prosecution under sec. 940.225(2)(d), Stats., "sexual intercourse with a person who the defendant knows is unconscious," whether an expert's opinion that a woman under hypothetical conditions similar to those presented in this case could not sleep through a complete act of sexual intercourse was properly excluded by the trial court under sec. 904.01 (relevant evidence) and sec. 907.02 (expert testimony), given the following circumstances:

1. The victim claimed that the defendant had sexual intercourse with her while she was asleep.

[174 Wis.2d 261] 2. The hypothetical facts upon which the expert's opinion was based, although similar to the instant facts, differed from those facts in certain critical respects.

3. The expert would have testified that the amount of stimulation needed to wake a person up varies with each individual.

4. The expert did not examine the victim.

Second, under the foregoing facts, whether expert testimony on the stages of sleep, the effects of alcohol on sleep, and the amount of stimulation needed to arouse someone from sleep was properly excluded by the trial court under sec. 904.01, Stats., and sec. 907.02.

Third, under the foregoing facts, whether a chart that determines a person's blood alcohol concentration ("BAC") by number of drinks consumed and body weight was properly excluded by the trial court under sec. 904.01, Stats., when defense counsel failed to proffer any evidence to establish the effect of intoxication on a person's inhibitions, ability to perceive events, and ability to recall events.

Fourth, whether the trial court's exclusion of the aforementioned evidence violated

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the defendant's right to present a defense guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 7 of the Wisconsin Constitution.

Fifth, whether sec. 940.225(2)(d), Stats., is unconstitutionally vague.

We conclude that the trial court properly excluded the above-mentioned evidence and that said exclusion did not violate the defendant's constitutional right to present a defense. We also conclude that sec. 940.225(2)(d), Stats., is not unconstitutionally vague.

[174 Wis.2d 262] On September 17, 1990, the defendant, Anthony E. Pittman, was convicted in Milwaukee county circuit court, the Honorable Frank T. Crivello, of second degree sexual assault, under sec. 940.225(2)(d), Stats., for having sexual intercourse with a person he knew to be unconscious. The court of appeals in an unpublished opinion affirmed the conviction, 168 Wis.2d 358, 485 N.W.2d 838. This court granted the defendant's petition for review. The facts surrounding the alleged assault are detailed below.

On the afternoon of December 25, 1989, the victim, Heidi B., went to her boyfriend, Michael Kelner's apartment. The couple had planned to spend Christmas day together. After spending some time together in the afternoon, they joined Kelner's downstairs neighbors, Kathy and John Bohn, for a Christmas celebration which included dinner.

After dinner, Heidi and Kelner returned to his apartment. Both parties indicated that they anticipated having sex. While Heidi prepared the bed, Kelner went into the living room. He wanted to play his turn on a board game that he and Heidi's brother had been playing over several days. While doing so, Kelner fell asleep on the living room sofa. Heidi made up the bed, undressed, and laid down to wait for Kelner. She also fell asleep.

Pittman had been staying with Kelner. He was present for the Christmas festivities and dinner. When Heidi and Kelner returned to Kelner's apartment, Pittman remained downstairs and watched a movie with Kathy Bohn. After the movie, Pittman also went up to Kelner's apartment.

Heidi testified that she awoke feeling pressure on her legs and a penis being removed from her vagina. She did not feel entry or thrusting. Heidi indicated and a medical exam confirmed that ejaculation had occurred.

[174 Wis.2d 263] Once awake, Heidi opened her eyes and saw Pittman getting up off of her. Neither she nor Pittman spoke. Pittman turned and left the room. Heidi then got up, wrapped a blanket around herself, and went into the living room. She woke Kelner and told him that Pittman had raped her. Pittman was on the sofa next to Kelner, apparently asleep.

Kelner told Heidi to go downstairs to the Bohn's, notify the police, and notify her brother. She did so. John Bohn came up immediately. Heidi's brother called the police. Kelner and John Bohn detained Pittman until the police arrived.

There was inconsistent testimony as to the amount of alcohol Heidi consumed during the day and evening in question. She testified that she consumed two to three glasses of wine with dinner and that she had no more than two shots of Jack Daniels in the afternoon. She said nothing about champagne or beer. Kelner testified that Heidi drank two glasses of champagne with him in his apartment and may have had "somewhere in the neighborhood of two to three cans" of beer downstairs.

In addition, the timing of events on the day in question is unclear. There was varying testimony on when dinner ended. Heidi stated that she finished dinner at 11:30 p.m. Kathy Bohn testified that dinner ended at 10:45 p.m. Michael Kelner testified that he did not know what time dinner ended, but thought it was around 6:00 or 6:30 p.m.

The record is also unclear as to when Heidi fell asleep. She testified that dinner ended at approximately 11:30, and then she and Kelner went upstairs. Once upstairs, Heidi took her clothes off in the bedroom and did not leave that room thereafter. Kelner testified that he and Heidi left the Bohn residence at around 10:00 or 10:30

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p.m., although he did not know the exact time. [174 Wis.2d 264] Heidi went upstairs first, and Kelner came up about five minutes later. Once upstairs, Kelner observed Heidi come out of the bathroom. She told him that she was going to get ready for bed and then went into the bedroom. Kelner estimated that he fell asleep about 20 to 25 minutes later. Kathy Bohn testified that dinner ended at around 10:45 p.m. and that the victim and Kelner left her apartment 45 minutes later.

The record is similarly unclear as to when the act of intercourse took place. Kathy Bohn testified that she did not know what time Pittman went upstairs. Kelner told a police officer on the scene that he was awakened at 2:55 a.m. Heidi's brother called the police. That call came in at 3:59 a.m. Pittman did not testify.

In addition to testifying about the alleged assault, Heidi testified about some of her personal characteristics. She stated that she weighs 125 pounds, and she also stated that she has two children, ages eleven and four, from prior marriages. Medical reports revealed that Heidi was 29 years old at the time of the incident.

Defense counsel listed a series of medical conditions that could have affected Heidi's ability to sense vaginal penetration. Heidi replied that to her knowledge she did not have any of them. She also stated that she did not have a drug problem and took no drugs on Christmas day.

The jury also heard ample evidence that Heidi was a heavy sleeper. Heidi stated that she has slept through thunderstorms and often sleeps through her alarm. She described how her youngest son would come into her room in the morning, turn on the television full volume, jump on the bed, and kiss her on the face. It would take several minutes of this activity to wake her up. In addition, Heidi stated that she occasionally sleeps through her children's crying at night. Kelner testified that [174 Wis.2d 265] sometimes Heidi falls asleep with the TV on. Consequently, on the following morning, both the TV and Heidi's alarm which was located near her head would be making noise. Even then, Kelner would still have to shake her to wake her up. He also testified that if the kids cried at night, he would wake up first. He would then have to wake Heidi up by shaking her.

The defense conceded that Pittman had intercourse with Heidi but argued that Heidi consented to and was conscious during the entire act. The defense alleged that Heidi subsequently claimed sexual assault merely to get attention from Kelner or because she felt remorse for engaging in casual sex.

In support of this theory, defense counsel attempted to present expert testimony regarding sleep. In her offer of proof made outside the presence of the jury, defense counsel explained that she intended to put Dr. Paul A. Nausieda, M.D. on the stand. Essentially, Dr. Nausieda's testimony would cover five topics. First, he would state that he had reviewed the police reports and the rape crisis center medical reports.

Second, he would explain sleep architecture. There are four stages of sleep. Each stage is a progressively deeper level of sleep. In addition to the four stages there is a period known as REM sleep, which is the hardest period of sleep from which to awaken someone.

Third, he would explain the effect of alcohol on sleep. Alcohol tends to suppress REM sleep. Moderate amounts of alcohol before bed, i.e., three glasses of wine and two shots of Jack Daniels, tends to make a person wake up at night.

Fourth, he would explain the types of sensory stimulation needed to wake a person. Specifically, he would state that "when a person is asleep ... they are ... aware of ... [the]...

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