State v. St. George

• Decision Date: 08 May 2002
• Docket Number: No. 00-2830-CR.,00-2830-CR.
• Citation: 252 Wis.2d 499,643 N.W.2d 777,2002 WI 50
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Bradley Alan ST. GEORGE, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

252 Wis.2d 499

2002 WI 50

643 N.W.2d 777

STATE of Wisconsin, Plaintiff-Respondent, v. Bradley Alan ST. GEORGE, Defendant-Appellant-Petitioner.

No. 00-2830-CR.

Supreme Court of Wisconsin.

Oral argument February 6, 2002.

Decided May 8, 2002.

For the defendant-appellant-petitioner there were briefs and oral argument by Donald T. Lang, assistant state public defender.

For the plaintiff-respondent the cause was argued by Gregory M. Weber, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

¶ 1. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.

This is a review of an unpublished decision of the court of appeals,¹ affirming the judgment of conviction and an order denying a motion for a new trial entered by the Circuit Court for Ashland County, Robert E. Eaton, Judge.

¶ 2. This review raises two issues:

1) Was the circuit court's exclusion of the defendant's proffered evidence of the child victim's prior sexual contact with another child a denial of the defendant's constitutional right to present evidence?

2) Was the circuit court's exclusion of the testimony of the defendant's expert witness an erroneous exercise of discretion, or alternatively, a deprivation of the defendant's constitutional right to present evidence, as the defendant asserted?

¶ 3. The court of appeals concluded that these questions should be answered no and affirmed the judgment of conviction and the order denying a new trial.

¶ 4. We agree with the court of appeals that the defendant was not denied his constitutional right to present evidence when the circuit court excluded evidence of the child victim's prior sexual contact with another child. Exclusion of the defendant's evidence of the complaining witness's prior sexual conduct was appropriate under Wis. Stat. § 972.11(2), the rape shield statute. The defendant has failed to meet the requirements set forth in our cases for the proffered evidence to fall within the judicial exceptions to § 972.11(2).

¶ 5. We further conclude, contrary to the court of appeals, that the circuit court erroneously exercised its discretion in excluding the testimony of the defendant's expert witness. We reach this conclusion because in exercising its discretion to exclude the testimony of the defendant's expert witness, the circuit court failed to take into account whether the defendant was denied his constitutional right to present a defense, as the defendant claimed. For the reasons set forth, we conclude that exclusion of the testimony of the expert witness about recantation and interview techniques denied the defendant his constitutional right to present a defense. Accordingly, we reverse the decision of the court of appeals and remand the cause to the circuit court for a new trial.

I

¶ 6. The relevant facts are set forth below, and additional facts are set forth in the discussion of each legal issue.

¶ 7. In October of 1998, the defendant was living in Ashland, Wisconsin, staying most nights with his long-term girlfriend, Tracy Harvey. On the night of October 21-22, 1998, the defendant and Ms. Harvey were sleeping together in her bed. They were joined by one of Ms. Harvey's children, five-year-old Kayla. Sometime during that night the defendant allegedly fondled Kayla's vagina.

¶ 8. The next day Kayla reported the fondling to her mother. Over the course of the next few weeks and months, Kayla allegedly also reported the fondling to a doctor and a social worker. The defendant was charged with first-degree sexual assault of a child, contrary to Wis. Stat. § 948.02(1) (1999-2000).²

¶ 9. The State presented several witnesses who testified that Kayla made out-of-court statements claiming the defendant had improperly touched her. At trial, Kayla denied the incident had ever occurred and even that she had ever made some of the reports. The defendant denied that he had improperly touched the youngster. Ms. Harvey testified that Kayla told her that the defendant had not improperly touched her. Ms. Harvey also stated that she believed the defendant had not improperly touched Kayla and that Ms. Harvey was continuing her relationship with him.

¶ 10. The jury found the defendant guilty, and he was sentenced to 20 years in prison. The defendant moved for post-conviction relief, arguing the same issues as are before this court. The motion was denied. On appeal to the court of appeals, the defendant raised the same two issues. The court of appeals affirmed the judgment of the circuit court.

II

¶ 11. The defendant first challenges his conviction and the order denying his motion for a new trial on the ground that the circuit court violated his constitutional right to present evidence when it excluded evidence that Kayla had experienced sexual contact with another child. According to the defendant, there is evidence that at least one child, and perhaps two other children, previously touched the victim on her private parts.

¶ 12. Before trial, the State filed a motion seeking to exclude evidence that two other children previously had sexual contact with Kayla. The State relied on Wis. Stat. § 972.11(2)(b), the rape shield statute, as the basis for excluding the proffered evidence. Section 972.11(2)(b) provides "a defendant may not offer evidence relating to a victim's past sexual history or reputation absent application of a statutory or judicially created exception"³ at trial.⁴ The statute reads as follows, in relevant part:

(b) If the defendant is accused of a crime under s. . . . 948.02 . . . any evidence concerning the complaining witness's prior sexual conduct or opinions of the witness's prior sexual conduct and reputation as to prior sexual conduct shall not be admitted into evidence during the course of the hearing or trial, nor shall any reference to such conduct be made in the presence of the jury . . . .

[1, 2]

¶ 13. The rape shield statute reflects the "view that generally evidence of a complainant's prior sexual conduct is irrelevant or, if relevant, substantially outweighed by its prejudicial effect."⁵ The proffered evidence is explicitly barred by the rape shield statute.

[3-5]

¶ 14. Our inquiry does not, however, end with this examination of the statute. We have recognized, as the defendant asserts, that the confrontation and compulsory process clauses of the Sixth Amendment of the U.S. Constitution⁶ and Article I, Section 7 of the Wisconsin Constitution⁷ "grant defendants a constitutional right to present evidence."⁸ Our court has stated that "[t]he rights granted by the confrontation and compulsory process clauses are fundamental and essential to achieving the constitutional objective of a fair trial."⁹ The confrontation clause grants defendants "the right to `effective' cross-examination of witnesses whose testimony is adverse,"¹⁰ and the compulsory process clause "grants defendants the right to admit favorable testimony."¹¹

[6, 7]

¶ 15. Despite these constitutional guarantees, a defendant's right to present evidence is not absolute.¹² "Confrontation and compulsory process only grant defendants the constitutional right to present relevant evidence not substantially outweighed by its prejudicial effect."¹³ Thus, the rape shield statute excluding evidence proffered by the defendant does not on its face violate a defendant's constitutional right to present evidence.¹⁴ However, under some circumstances the evidence of a victim's prior sexual conduct "may be so relevant and probative that the defendant's right to present it is constitutionally protected."¹⁵ Thus, the rape shield statute "may in a given case impermissibly infringe upon a defendant's rights to confrontation and compulsory process."¹⁶

[8]

¶ 16. We must, therefore, determine whether in the present case the application of Wis. Stat. § 972.11 deprives the defendant of his constitutional rights. This determination is a question of "constitutional fact" that this court determines independently of the circuit court and the court of appeals but benefiting from their analyses.¹⁷ ¶ 17. The defendant contends that his proffered evidence shows that Kayla had a source of sexual knowledge apart from her alleged experience with him. He argues that because a child as young as Kayla would not possess sufficient knowledge or experience to manufacture the accusation, the jurors will infer that her knowledge comes from the defendant's assault. The evidence of other sexual contacts would, claims the defendant, show an alternate source of the victim's knowledge about sexual matters and would show that the victim possessed sufficient knowledge to formulate her out-of-court accusation.¹⁸

[9]

¶ 18. For the defendant to establish a constitutional right to the admissibility of the proffered evidence that is otherwise excluded by the rape shield statute, the defendant must satisfy a two-part inquiry.¹⁹

[10]

¶ 19. In the first part of the inquiry, the defendant must satisfy each of five factors through an offer of proof that states an evidentiary hypothesis bolstered by a statement of fact sufficient to justify the conclusion or inference the court is asked to accept.²⁰ The five factors are:

1) The prior act clearly occurred.

2) The act closely resembles that in the present case.

3) The prior act is clearly relevant to a material issue.

4) The evidence is necessary to the defendant's case.

5) The probative value outweighs the prejudicial effect.²¹

[11]

¶ 20. After the defendant successfully satisfies the five factors to establish a constitutional right to present evidence, a court undertakes the second part of the inquiry by determining whether the defendant's right to present the proffered evidence is nonetheless outweighed by the State's compelling interest to exclude the evidence.²²

¶ 21. In the present case, we conclude, as did the circuit court and the court of appeals, that the defendant's offer of proof did meet factors one and two of the five factors. The circuit court was satisfied that either Kayla...