State v. Veum
| Decision Date | 15 April 1993 |
| Docket Number | No. 92-0787-CR,92-0787-CR |
| Citation | 502 N.W.2d 617,176 Wis.2d 511 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. John P. VEUM, Jr., Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Before EICH, C.J., DYKMAN and SUNDBY, JJ.
DYKMAN.
This is an appeal from John Veum's judgment of conviction for second-degree sexual assault, and from an order denying his postconviction motions. Veum asserts that he is entitled to a new trial because the jury heard evidence to the effect that the complainant, L.L., was being truthful when she told others that she had been sexually assaulted. Veum also contends that testimony concerning L.L.'s prior consistent statements was hearsay, the admission of which entitles him to a new trial.
Veum agrees that he made no objection to the evidence of which he now complains. He therefore contends that the admission of the evidence was plain error, and that he is entitled to a new trial despite his failure to object. Alternatively, he asks that we reverse his conviction pursuant to sec. 752.35, Stats., our discretionary reversal statute. We conclude: (1) that Veum waived his objections to the disputed evidence; (2) that if admission of the evidence was error, it was not plain error; and (3) that we will not exercise our power of discretionary reversal. Accordingly, we affirm.
The state asked each of five witnesses questions about L.L.'s credibility. The following are representative of the questions the state asked:
[W]hen [L.L] came to you in the summer of 1988 and told you about what had happened a year earlier, did you have any reason to disbelieve her?
[O]n the basis of what you observed the following Sunday, did anything occur at that time which gave rise to any concern on your part that [L.L.] wasn't being truthful?
During the course of that second interview[,] did anything occur which led you to suspect the legitimacy of [L.L.'s] complaint?
Veum did not object to these and similar questions which elicited answers about L.L.'s prior consistent statements which she had made about the charged assault. By failing to object to testimony, a defendant does not preserve an asserted error for appeal. We need not consider unpreserved arguments. State v. Wolff, 171 Wis.2d 161, 165, 491 N.W.2d 498, 500 (Ct.App.1992). However, sec. 901.03(4), Stats., provides: "Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the judge." Veum asserts that the admission of evidence of which he complains is plain error.
"[T]he plain-error doctrine should be reserved for cases where there is the likelihood that the erroneous introduction of evidence has denied a defendant a basic constitutional right." State v. Sonnenberg, 117 Wis.2d 159, 178, 344 N.W.2d 95, 104 (1984). State v. Haseltine, 120 Wis.2d 92, 96, 352 N.W.2d 673, 676 (Ct.App.1984), does not identify the rule that no witness should be permitted to give an opinion that another witness is telling the truth as a basic constitutional right. Veum does not argue that this is a constitutional right. The inadmissibility of prior consistent statements is not a constitutional right, but a rule of evidence. Section 908.01(4)(a)2., Stats. The errors, if errors they were, were not plain.
Veum also requests that we review the asserted errors in admitting evidence under sec. 752.35, Stats., our discretionary reversal statute. We may reverse under this statute where we conclude that there has been a miscarriage of justice. However, we must first conclude that there is a substantial probability of a different result on retrial. Vollmer v. Luety, 156 Wis.2d 1, 19, 456 N.W.2d 797, 805 (1990). We may also reverse under sec. 752.35 where the real controversy has not been fully tried. Under this theory, we need not conclude that the outcome would be different on retrial. Id.
We cannot conclude that Veum would be acquitted on retrial. The issue in this case was whether Veum or L.L. was telling the truth. The demeanor of these two witnesses and the reasonableness of their testimony were the focus of the trial. Without the evidence of which Veum complains, the focus would be the same. There is not a substantial probability of a different result on retrial. We will not reverse under the "miscarriage of justice" part of sec. 752.35, Stats.
Veum asserts that as far as the "real controversy not fully tried" clause of sec. 752.35, Stats., is concerned, this case is indistinguishable from State v. Romero, 147 Wis.2d 264, 432 N.W.2d 899 (1988). In Romero, the court reversed and granted a new trial because two witnesses were permitted to give an opinion that the complainant was telling the truth. The court said: "There is a significant possibility that the jurors, when faced with the determination of credibility, simply deferred to witnesses with experience in evaluating the truthfulness of victims of crime." Id. at 279, 432 N.W.2d at 905.
There is an initial similarity between this case and Romero. But the focus and emphasis in the two cases is different. In Romero, the prosecutor made much of the fact that a social worker knew the victim well enough to form an opinion as to the victim's character for truthfulness. The prosecutor qualified a police officer as an expert with over sixteen years of experience in forming opinions as to truthfulness, who testified: "In my opinion, [the victim] was being totally truthful with us." Id. at 269, 432 N.W.2d at 901.
Here, the prosecutor asked each witness whether he or she had any reason to disbelieve L.L., or whether he or she observed any inconsistencies in L.L.'s recollections of the asserted assault, or whether he or she had any reason to doubt L.L.'s credibility, or whether anything occurred which caused the witness to suspect the legitimacy of L.L.'s story. This method of questioning is a less blatant inquiry into the witnesses' belief that L.L. was telling the truth. There is a difference between testimony that a complainant was being truthful and testimony that the witness saw no evidence of lying. The latter type of statement leaves open the rejoinder that one can be lying without showing some overt evidence of the lie.
Nor did the prosecutor focus his closing argument on the opinions of the witnesses as to L.L.'s truthfulness. For the most part, the prosecutor commented on Veum's attempts to discredit L.L.'s testimony. The focus of the closing arguments was on the discrepancies in the stories L.L. told to three other persons. The prosecutor noted: "[I]t is perhaps the most crucial single piece of evidence in this case, that Jeff Veum, the defendant's own brother, testified that the defendant is truthful when it is in his interest to be truthful." Though the prosecutor noted that Jeff Veum had no reason to doubt L.L. when she told him of the assault, that was the extent of the prosecutor's use of the "no reason to doubt" evidence.
All told, the "no reason to doubt" evidence and the prosecutor's use of that evidence comprised no more than three pages out of a 350-page transcript. The controversy at trial was the testimony L.L. gave at trial versus her explanation of the events of the assault which she gave to three persons prior to trial. That controversy was fully tried and argued. The jury believed L.L. because it concluded that her testimony was consistent except as to details of little importance. It accepted L.L.'s explanation of why the case took several years to be reported and to come to trial, despite Veum's attacks on that explanation. In short, Veum was convicted because the jury disbelieved him, and believed L.L., not because other persons had no reason to disbelieve L.L.
Veum asserts that witnesses testified as to what L.L. told them about the assault. That testimony, he contends, constitutes inadmissible prior consistent statements of L.L. L.L.'s mother testified that L.L. had told her that Veum had "put his hands down in her private area." A friend of L.L.'s testified that: "[T]he most extreme thing she told me was that he had taken off her shirt." These statements are very different from what L.L. told the jury about Veum's assault on her. At best, the statements are prior inconsistent statements. Veum based his entire defense on his denial of the assault, and the inconsistencies in L.L.'s several explanations of what happened.
If the statements attributed to L.L. were inadmissible, the admission of the statements is harmless error. The test for whether an error, constitutional or not, is harmless is whether there is a reasonable possibility that the error contributed to the conviction. State v. Boshcka, 173 Wis.2d 387, 402, --- N.W.2, 496 N.W.2d 627d ----, ---- (Ct.App.1992). Given the testimony at trial and the nature of Veum's defense, there is no reasonable possibility that any inadmissible prior consistent statements contributed to his conviction. Any error was harmless.
We conclude that the real controversy was tried in Veum's case. Accordingly, there is no reason to exercise our discretion and order a new trial pursuant to sec. 752.35, Stats.
By the Court.--Judgment and order affirmed.
Not recommended for publication in the official reports.
No area of law is in greater disarray in Wisconsin than the effect of plain error 1 on an otherwise valid criminal judgment. Decisions hold that failure to make a contemporaneous objection to the admission of inadmissible evidence waives the right to appellate review. Other decisions hold that the error of receiving unobjected-to inadmissible evidence affecting the substantial rights of a criminal defendant requires reversal of a judgment of conviction. I conclude that no per se rule can be applied to plain...
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