State v. Pulizzano

• Decision Date: 12 June 1990
• Docket Number: No. 88-0010-CR,88-0010-CR
• Citation: 155 Wis.2d 633,456 N.W.2d 325
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Angela PULIZZANO, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 325

456 N.W.2d 325

155 Wis.2d 633

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Angela PULIZZANO, Defendant-Appellant.

No. 88-0010-CR.

Supreme Court of Wisconsin.

Argued March 7, 1990.

Decided June 12, 1990.

Sharon Ruhly, Asst. Atty. Gen., argued, Donald J. Hanaway, Atty. Gen., on the briefs, for plaintiff-respondent-petitioner.

Matthew H. Huppertz (argued), and Carlson & Huppertz, S.C., Waukesha, on brief, for defendant-appellant.

DAY, Justice.

This is a review of that part of a decision of the court of appeals, State v. Pulizzano, 148 Wis.2d 190, 434 N.W.2d 807 (Ct.App.1988), which reversed an order and judgment of conviction for four counts of first degree sexual assault contrary to sec. 940.225(1)(d), Stats.1985-86, ¹ entered by the circuit court for Kenosha County, the Honorable David M. Bastian, Judge. The first question is: Was Ms. Pulizzano denied her constitutional rights to confrontation and compulsory process when the circuit court, pursuant to sec. 972.11(2), Stats.1985-86 ² (the rape shield law), excluded evidence of a prior sexual assault experienced by one of the four complaining child witnesses, M.D., a seven year old. The second question is: Did the circuit court abuse its discretion when it permitted the prosecutor to argue in closing that because Ms. Pulizzano had been sexually abused as a child, she was more likely to commit the sexual assaults alleged in this case.

We conclude that Ms. Pulizzano was denied her constitutional rights to confrontation and compulsory process when the circuit court prohibited her from presenting evidence of the prior sexual assault of the child complainant for the limited purpose of establishing an alternative source for M.D.'s sexual knowledge. Accordingly, we affirm the decision of the court of appeals. Because the case is remanded for a new trial and the second question may again be an issue, we further conclude that the circuit court abused its discretion in permitting the prosecutor's closing remarks.

Ms. Pulizzano was charged with the four counts of first degree sexual assault on November 12, 1986. A preliminary examination was held on December 1, 1986, and she was bound over for trial. Prior to trial, Ms. Pulizzano requested the circuit court to permit cross-examination of M.D. regarding a prior sexual assault he had been the victim of two or three years earlier. Relying upon State v. Padilla, 110 Wis.2d 414, 329 N.W.2d 263 (Ct.App.1982), Ms. Pulizzano asserted that evidence of the prior sexual assault would be relevant to rebut the inference that M.D. could only have possessed the explicit sexual knowledge he did if he and the other children had been sexually assaulted by Ms. Pulizzano. To support her request, Ms. Pulizzano offered the report of William Freund, M.D., a psychiatrist who treated M.D. for emotional problems caused by the earlier incident. In his report, dated April 16, 1985, Dr. Freund noted that M.D. stated he was having dreams in which a woman and two others performed fellatio on him. Dr. Freund then elicited that M.D. had been sexually abused sometime in 1984 by three adults, including an "older" woman. The sexual assault included fondling and "sodomy of the penis," and because M.D. stated he was "hurt" in the incident, Dr. Freund opined that anal penetration may also have occurred. Dr. Freund's report further stated that M.D. was "very precocious sexually" and abnormally interested in sexual material. Dr. Freund noted that M.D. would simply walk up to other children and ask them to perform fellatio on him. Ms. Pulizzano's counsel later made a formal offer of proof for the record.

The prosecutor contended that Ms. Pulizzano failed to make an adequate offer of proof under Padilla because she failed to show sufficient similarity between the two sexual assaults to establish an alternative source for sexual knowledge. The prosecutor did not dispute that M.D. was the victim of an earlier sexual assault. The prosecutor disagreed, however, that M.D.'s testimony regarding what occurred in the previous incident would be the same as what Dr. Freund reported. The proper procedure, the prosecutor asserted, was to have M.D. examined in camera, and Ms. Pulizzano had not moved the court to do so.

The circuit court denied Ms. Pulizzano's request on the basis the evidence was excluded by the rape shield statute, sec. 972.11, Stats. The circuit court reasoned that even an adequate offer of proof under Padilla does not grant a defendant an "absolute" right to introduce evidence which otherwise would be excluded by the statute. The circuit court held that the relevance of M.D.'s prior sexual assault, if any, was substantially outweighed by considerations of unfair prejudice, confusion of the issues and misleading the jury, contrary to sec. 904.03, Stats.1985-86. ³

At trial, M.D. testified that on August 30, 1986, Ms. Pulizzano had sexual contact with him and three other children, who ranged in age from three to five years old. Two were Ms. Pulizzano's own children, a daughter and a son, while the other was, like M.D., Ms. Pulizzano's nephew. M.D., who was the only one of the children to testify, alleged that the sexual contact included fondling, fellatio, anal penetration with an object, and digital vaginal penetration. Afterwards, M.D. asserted, Ms. Pulizzano threatened the children and told them not to tell anyone about the incident.

Ms. Pulizzano testified in her own defense and denied that she had sexual contact with the children. During the course of direct examination, Ms. Pulizzano asserted that she "would never ever do to those children what was done to me when I was little." While being cross-examined, Ms. Pulizzano further testified that as a child she had been sexually abused by her mother and sister, and that prior to that she had once been beaten and raped.

In reference to Ms. Pulizzano's testimony that she had been sexually abused as a child, the prosecutor in closing argued:

I think that, ladies and gentlemen, it's more likely when something like this has happened to you in the past when you were younger for when you've grown up to perpetuate the same type of conduct on innocent children.

Ms. Pulizzano objected to the prosecutor's argument at the time it was made and subsequently moved for a mistrial on that basis. The circuit court denied both the objection and the motion for mistrial on the ground the inference the prosecutor had drawn was "a matter of common knowledge."

On April 2, 1987, the jury returned a verdict convicting Ms. Pulizzano of all four counts, and a judgment of conviction was subsequently entered.

Ms. Pulizzano appealed. The court of appeals reversed on the ground that Ms. Pulizzano's offer of proof established a "good faith" basis to cross-examine M.D. regarding the prior sexual assault. Pulizzano, 148 Wis.2d at 195, 434 N.W.2d 807. The court of appeals reasoned that Dr. Freund's report showed sufficient similarity between the earlier incident and the acts Ms. Pulizzano was alleged to have committed to permit limited inquiry regarding the prior sexual assault in order to rebut the inference that M.D. could not have possessed the sexual knowledge he did unless the allegations here were true. Id. at 196, 434 N.W.2d 807. The court of appeals held that under the "balancing" test set forth by the United States Supreme Court in Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), Ms. Pulizzano was denied her sixth amendment rights because sec. 972.11, Stats., excluded evidence of the prior sexual assault. Pulizzano, 148 Wis.2d at 198-202, 434 N.W.2d 807. Ms. Pulizzano also appealed an order of the circuit court excluding evidence of an alleged prior untruthful allegation of sexual assault made by M.D. The court of appeals affirmed that order. Pulizzano, 148 Wis.2d at 202-03, 434 N.W.2d 807. Because it remanded the case for a new trial, the court of appeals did not reach the issue of the propriety of the prosecutor's remarks in closing.

The State petitioned this court for review, which was granted. Ms. Pulizzano did not seek cross-review of that part of the court of appeals' decision which upheld the circuit court's order excluding evidence of the alleged prior untruthful allegation of sexual assault made by M.D. We affirm that part of the court of appeals' decision reviewed and remand the case for a new trial.

The evidence Ms. Pulizzano sought to present was that M.D. had been the victim of a prior sexual assault which involved acts similar to those alleged here. Ms. Pulizzano does not contend here, nor did she in either court below, that evidence of the prior sexual assault is outside the scope of that barred by sec. 972.11, Stats. Both the circuit court and court of appeals held that the statute prohibited admission of the evidence. Although our review is independent of those courts, State v. Sher, 149 Wis.2d 1, 8, 437 N.W.2d 878 (1989), we agree with that conclusion. The prior sexual assault M.D. experienced clearly constitutes "sexual conduct" as that term is defined in sec. 972.11(2)(a). As the evidence does not fall within any of the enumerated exceptions, the statute bars its admission. Cf. State v. Mitchell, 144 Wis.2d 596, 619, 424 N.W.2d 698 (1988). The particular purpose for which admission is sought in this case, to establish an alternative source for sexual knowledge, does not alter that conclusion. One of the primary objectives of sec. 972.11, was to "reflect the judgment that most evidence about chastity has far too little probative value on the issue of consent to justify extensive inquiry into the victim's sexual history." State v. Herndon, 145 Wis.2d 91, 104-05, 426 N.W.2d 347 (Ct.App.1988); State v. Vonesh, 135 Wis.2d 477, 484, 401 N.W.2d 170 (Ct.App.1986). Evidence of a woman's prior sexual conduct was historically considered relevant to the issues of consent and general credibility. State v. Gavigan, 111 Wis.2d 150, 156, 330 N.W.2d 571 (1983)....