State v. Shomberg, 2006 WI 9 (Wis. 1/31/2006)

• Decision Date: 31 January 2006
• Docket Number: No. 2004AP630-CR.,2004AP630-CR.
• Citation: 2006 WI 9
• Parties: State of Wisconsin, Plaintiff-Respondent, v. Forest S. Shomberg, Defendant-Appellant-Petitioner
• Court: Wisconsin Supreme Court

Page 1

2006 WI 9

State of Wisconsin, Plaintiff-Respondent, v. Forest S. Shomberg, Defendant-Appellant-Petitioner

No. 2004AP630-CR.

Supreme Court of Wisconsin.

Opinion Filed: January 31, 2006.

Appeal from the Circuit Court, Dane County, Patrick J. Fiedler, Judge.

REVIEW of a decision of the Court of Appeals. Affirmed. Reported at: 278 Wis. 2d 813, 691 N.W.2d 927 (Ct. App. 2004-Unpublished)

For the defendant-appellant-petitioner there were briefs by Charles W. Giesen and Giesen Law Offices, S.C., Madison, and Morris D. Berman and Berman Law Office, Madison, and oral argument by Charles W. Giesen.

For the plaintiff-respondent the cause was argued by Christopher G. Wren, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.

An amicus curiae brief was filed by Keith A. Findley, John A. Pray, and Byron C. Lichstein, Madison, on behalf of the Wisconsin Innocence Project of the Frank J. Remington Center, University of Wisconsin Law School.

N. PATRICK CROOKS, J.

¶ 1 This is a review of an unpublished decision of the court of appeals. Petitioner Forest S. Shomberg (Shomberg) appeals the decision of the court of appeals upholding the judgment and order of the circuit court. We address three main issues on appeal. First, we must examine whether the circuit court erroneously exercised its discretion in refusing to allow Shomberg to present expert testimony on eyewitness identification. Second, we are asked to determine whether the circuit court's exclusion of the expert testimony violated Shomberg's constitutional right to present a defense. Finally, this court must resolve whether the circuit court erred in refusing to allow in evidence the fact that Shomberg had offered to take a polygraph examination. Shomberg asks this court to reverse the decision of the court of appeals and remand his case to the circuit court for a new trial in the interest of justice.

¶ 2 We conclude that the circuit court did not, at the time of its decision in 2002, erroneously exercise its discretion in excluding the expert testimony on eyewitness identification proffered by Shomberg. We also determine that even if the circuit court did commit error, any such error was harmless. Further, we hold that the absence of expert testimony on eyewitness identification did not deprive Shomberg of his constitutional right to present a defense. In addition, we determine that Shomberg should not be granted a new trial in the interest of justice, as the real controversy in this case has been fully tried. Finally, we conclude that the offer to take a polygraph was properly excluded, because there was insufficient evidence in the record to find either that Shomberg had initiated the offer to take a polygraph examination, or that he believed the results of the test were admissible.

I

¶ 3 The relevant facts are not in dispute. S.B., a University of Wisconsin undergraduate, was walking home from a party at approximately 2:45 on the morning of March 9, 2002, when she heard footsteps behind her. When she turned to see who was there, she saw the face of a male approximately 12 inches behind her. When S.B. turned away from him to flee, the assailant grabbed her from behind, placing both hands over her mouth. With his hands still over her mouth, he lifted S.B. off the ground, and carried her into an alleyway adjacent to the Frances Street parking ramp near the University of Wisconsin campus. He forced S.B. to her knees with the weight of his body. She managed to pry his hands off her mouth, and she screamed for help. The assailant again covered her mouth with his hands, then, with his right hand, reached under her skirt and grabbed her vaginal area through her pantyhose and panties. S.B. was able to pry his left hand loose and scream again for help.

¶ 4 Alan Ferguson (Ferguson), a private security guard, was in his patrol vehicle at the Frances Street parking ramp working on his shift report when he heard S.B.'s screams. He got out of the car, and followed the sounds down to the alleyway adjacent to the parking ramp. When Ferguson reached the alleyway, he saw a man on the ground on his knees and what appeared to be a person beneath the man. Ferguson then switched his radio to the main dispatch channel, which caused his radio to beep. The assailant turned and looked at Ferguson, got up from the ground and ran away toward an apartment building. Ferguson ran after the man. Ferguson testified at trial that, during the chase, the man slipped on some snow, looked over his shoulder in Ferguson's direction and then continued to flee. Ferguson did not apprehend the man he had chased.

¶ 5 S.B. described her assailant as being 20 or 30 years old, about 5'10" tall, lean, athletic build, with blue eyes. She indicated he had no facial hair and no glasses. She could not recall anything about his hair, but at cross-examination she indicated she knew he was wearing long pants and a long-sleeved shirt. S.B. did not notice any tattoos on her assailant's hands, nor deformities to his fingers.

¶ 6 Ferguson described the assailant in his incident report as a white male in his mid 20's, who was 5'8" to 5' 10" tall (and to police as 5'8"), with a muscular build and a shaved head. Ferguson said the assailant had no facial hair or glasses, and that he saw no scars on his face or head, nor any tattoos on his body. He described the man as wearing a gray, long-sleeved shirt, possibly a sweatshirt, and blue jeans or dark-colored trousers.

¶ 7 On April 4, 2002, S.B. and Ferguson each attended a lineup. S.B. was told that she would see a lineup that may or may not include the man they arrested for assaulting her. All of the individuals in the lineup were wearing jail outfits. Both S.B. and Ferguson independently identified suspect number five on their individual Witness Line-Up Identification Forms. Shomberg was suspect number five, although he was the second person to enter the room.

¶ 8 Shomberg waived his right to a jury trial and a trial to the court, Judge Patrick J. Fiedler, took place on April 8 and 9, 2003. Shomberg was found guilty of second-degree sexual assault, false imprisonment, and two counts of bail jumping, all as a habitual offender pursuant to Wis. Stat. §§ 940.225(2)(a), 940.30, and 946.49(1)(b) (2003-04).¹ He was sentenced to one 20-year term, with an initial confinement of 12 years, and two 10-year sentences, each to run concurrently. On November 14, 2003, Shomberg filed a motion for a new trial and sentencing memorandum. A hearing was held on the motion for a new trial on February 2, 2004. The motion was denied on that same day.

¶ 9 Shomberg filed a notice of appeal in the circuit court on February 25, 2004. The court of appeals filed an unpublished decision on December 23, 2004, affirming the judgment of the circuit court and denying Shomberg's post-conviction motion. This court granted review on March 8, 2005.

II

¶ 10 "The admissibility of expert opinion testimony lies in the discretion of the circuit court." State v. St. George, 2002 WI 50, ¶37, 252 Wis. 2d 499, 643 N.W.2d 777 (citing Martindale v. Ripp, 2001 WI 113, ¶28, 246 Wis. 2d 67, 629 N.W.2d 698; State v. Watson, 227 Wis. 2d 167, 186, 595 N.W.2d 403 (1999)). "We review a circuit court's decision to admit or exclude evidence under an erroneous exercise of discretion standard." Martindale, 246 Wis. 2d 67, ¶28 (citations omitted). We apply the erroneous exercise of discretion standard to both evidentiary issues in this case.

¶ 11 The inquiry into a circuit court's exercise of "discretion in making an evidentiary ruling is highly deferential. . . ." Id., ¶29. As we have previously stated:

The question on appeal is not whether this court, ruling initially on the admissibility of the evidence, would have permitted it to come in, but whether the trial court exercised its discretion in accordance with accepted legal standards and in accordance with the facts of record. The test is not whether this court agrees with the ruling of the trial court, but whether appropriate discretion was in fact exercised.

Id. (citations omitted).

"We will not find an erroneous exercise of discretion if there is a rational basis for a circuit court's decision." Id. (citations omitted).

¶ 12 Wisconsin Stat. § 907.02 provides "[I]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." Wis. Stat. § 907.02.

¶ 13 The circuit court denied Shomberg's request to allow expert testimony on the factors that may influence a witness's ability to identify a stranger, including the relative reliability of sequential versus simultaneous lineups, relative judgment, transference, the absence of a reliable relationship between confidence of the witness and the accuracy of the identification, and examples of people wrongly convicted of crimes based solely on an incorrect identification. The circuit court felt that "'everything that the expert would testify to in essence is within the common knowledge and sense and perception of the jury.'" State v. Blair, 164 Wis. 2d 64, 76-77, 473 N.W.2d 566 (1991) (footnote omitted).

¶ 14 Counsel for Shomberg was unable to articulate satisfactorily for the circuit court the basis upon which the factors influencing the reliability of eyewitness identifications would assist the trier of fact. The factors that Shomberg's lawyer offered were, in the court's estimation, ones that could be adequately explored by cross-examining a testifying witness, and in opening statements and closing arguments.

THE COURT: It sounds like the factors involved here, how much light was available, how long did the person have to view the individual, how close was the individual, was there anything that obstructed the individual's face, had the...