State v. Robinson

• Decision Date: 09 November 1988
• Docket Number: No. 87-0280-CR,87-0280-CR
• Citation: 146 Wis.2d 315,431 N.W.2d 165
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Thomas A. ROBINSON, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 165

431 N.W.2d 165

146 Wis.2d 315

STATE of Wisconsin, Plaintiff-Respondent, v. Thomas A. ROBINSON, Defendant-Appellant-Petitioner.

No. 87-0280-CR.

Supreme Court of Wisconsin.

Argued Sept. 8, 1988.

Decided Nov. 9, 1988.

Robert R. Flatley, argued, and Will & Flatley, on brief, Green Bay, for defendant-appellant-petitioner.

Thomas J. Balistreri, Asst. Atty. Gen., argued, with Donald J. Hanaway, Atty. Gen., on brief, for plaintiff-respondent.

CECI, Justice.

This is a review of an unpublished decision of the court of appeals, State v. Robinson, 1987, 141 Wis.2d 979, 415 N.W.2d 862, which affirmed a judgment and order of the circuit court for Brown county, Alexander R. Grant, Circuit Judge. The appeal was from a judgment of conviction of the defendant for first-degree sexual assault under sec. 940.225(1)(b), Stats., ¹ and for theft under sec. 943.20(1)(a). ² The defendant also appealed the circuit court's order denying his motion for a new trial. Three issues are presented for review. The first issue is whether the circuit court properly excluded evidence of the complainant's pregnancy. The second issue is whether the circuit court properly permitted a rape crisis center worker to testify as an expert witness. The third issue is whether a new trial should be granted in the interest of justice. The court of appeals concluded that the circuit court did not abuse its discretion in making its evidentiary rulings and, therefore, affirmed the judgment and order. We affirm the decision of the court of appeals.

The facts revealed by the record are as follows. On October 8, 1985, the defendant received a withheld sentence and was placed on five years' probation for a previous first degree sexual assault conviction involving a minor. In addition to his probation term, the defendant was to receive one year in the Brown county jail, with work release privileges, which was to commence on October 21, 1985. The incident which led to the sexual assault conviction before this court happened on October 14, 1985, at approximately 10:00 a.m. The assault occurred as the complainant was walking through a garage attached to her apartment building to her vehicle which was parked outside the garage. The complainant was grabbed from behind by the defendant, who choked her and threatened her with what she believed was a knife. The defendant then pushed the complainant through a door in the garage into the basement of her apartment building. Once inside the basement, the defendant tied the complainant's wrists together with an electrical cord and secured the cord to a couch located in the basement. The defendant then wedged a piece of wood against the handle of the door leading into the basement. He then returned to the complainant, untied her hands, and sexually assaulted her orally and vaginally. At the time of the assault, the complainant was pregnant. Following the assault, on October 14, 1985, at approximately 12:45 p.m., the defendant took an automobile from an automobile dealer for the expressed purpose of test-driving the vehicle. The defendant then fled the jurisdiction with the vehicle, which was later recovered in the state of Ohio.

The defendant had known the complainant for six to seven months prior to the assault. During this period, the defendant and the complainant had engaged in sexual relations. The complainant had ended her relationship with the defendant three to four weeks prior to the assault. On March 11, 1986, the defendant was found guilty of first degree sexual assault for the above-described offense. On May 9, 1986, the defendant was sentenced on the sexual assault charge for an indeterminate term of not more than twenty years.

At the circuit court level, two evidentiary disputes arose. The first occurred on the morning of the trial when the state filed a motion in limine, citing sec. 972.11, Stats., asking the court to prohibit the defense from questioning any of the state's witnesses regarding the complainant's pregnancy. In response to the motion, the defense counsel explained why he wanted to question the state's witnesses regarding the complainant's pregnancy:

"The medical records show as to the pregnancy test that it is positive, showing the possibility that the young lady was pregnant. The question arises, was there--were there any conversations between my client and the alleged victim as to pregnancy prior to this alleged sexual assault.

"Now, I, without divulging what my client [will state] or trying not to, if he takes the stand, there is no question that there were conversations about pregnancy and I feel that I should be allowed to question the alleged victim as to whether those conversations took place prior to the alleged sexual assault, because I feel it's important to show the question of phone calls that were made, conversations that were made between my client and the alleged victim as to the question of abortion and the question of whether she was bearing Mr. Robinson's child prior to this alleged sexual assault, and I think it's very important that the jury be allowed to hear it."

The circuit court noted that sec. 972.11(2)(b), Stats., ³ prohibits any questions concerning the complaining witness's prior sexual conduct or opinions of the witness's prior sexual conduct with any person other than the defendant. The circuit court also noted that sec. 971.31(11), Stats., provides: "In actions under s. 940.225, evidence which is admissible under s. 972.11(2) must be determined by the court upon pretrial motion to be material to a fact at issue in the case and of sufficient probative value to outweigh its inflammatory and prejudicial nature before it may be introduced at trial." Therefore, the circuit court held that evidence of the complainant's pregnancy at the time of the assault was not material to a fact at issue in this case because the defendant was not charged with any degree of sexual assault in which it was necessary to prove specific instances of sexual conduct to show the source or origin of semen, pregnancy, or disease, so as to be admissible under sec. 972.11(2)(b)2. Consequently, the circuit court granted the state's motion to exclude the defense from questioning any of the state's witnesses regarding the complainant's pregnancy.

The second evidentiary dispute at trial related to the testimony of a worker from a rape crisis center. The worker had met the complainant at the hospital and testified about both her observations of the complainant and her observations of other sexual assault victims, based upon her experience working at the rape crisis center. The prosecutor asked the following questions and received the following answers from this witness:

"Q What did you observe with regard to [the complainant] when you arrived at the hospital?

"A The first thing I observed was that [the complainant] was extremely pale, very agitated, she was trembling, on the verge of possible hysteria.

"Q Did she appear frightened to you?

"A Extremely frightened, yes, uncommunicative.

"Q Did she express any fear of retaliation from the defendant?

"A Yes, it seemed to be upper-most on her mind.

"Q What is the function of a rape crisis worker in that sort of situation?

"A Basically our function is to be an advocate for the victim, just give them emotional support, if they need information, or anything possibly. We are there to provide for them.

"Q Do you make an effort to explain what their legal options are, for example?

"A Yes.

"Q Is there some effort made to explain the intricacies of the legal system to them?

"A Right.

"Q In your conversations or dealing with [the complainant], did she ever express to you a [sic] reservations or doubts about cooperating with the police and prosecuting this particular case?

"A No.

"Q Have you in your experience or in working with the Rape Crisis Center observed something that was referred to as the rape trauma syndrome?

"A Yes.

"Q Is it uncommon in your experience for a victim of a sexual assault in the time period immediately following the assault to emotionally be very flat or appear to be just emotionally dead even?

"A Very often."

At this point, the defense counsel objected regarding the form of the question as to people other than the complainant. Defense counsel stated that he did not mind the prosecutor questioning the worker about the complainant, but had to object to the general question. In response, the prosecutor claimed that this witness was an expert, and he then proceeded to qualify her as such by asking her about her experience. This witness stated that she had worked at the center for six years and had dealt with seventy to eighty sexual assault victims. The prosecutor then asked the witness the following questions:

"Q I believe the question was before we got started on this other business, if it was uncommon or common, or whatever term you care to use, in your experience for a sexual-assault victim to be emotionally flat immediately after the assault?

"A Yes, it's very common.

"Q Does that often change in the period of, you know, hours or days or weeks after the assault?

"A Yes, it does.

"Q So that apparent shift in emotions are relative calmness to agitation is something you see very commonly?

"A Right."

The court of appeals rejected the defendant's evidentiary objections and affirmed the defendant's conviction. The court held, in regard to the issue of whether evidence of the complainant's pregnancy was properly excluded, that under sec. 901.03(1)(b), Stats., ⁴ a party must make an offer of proof concerning the substance of the excluded testimony to preserve the issue for appeal. While the offer need not be stated with complete precision or unnecessary detail, the court held, citing Milenkovic v. State, 86 Wis.2d 272, 284, 272 N.W.2d 320 (Ct.App.1978), that the offer should state an evidentiary hypothesis underpinned by a sufficient statement of facts to warrant the conclusion or inference that...