State v. Frederick Eugene Walker, 2018AP186-CR, District 1, 11/27/18 (not recommended for publication); case activity (including briefs)
Walker challenges his child sexual assault conviction, arguing the complaining witness’s mother improperly vouched for her daughter’s honesty. He also argues the trial court wrongly excluded evidence of the complaining witness’s sexual activity with another person. The court of appeals rejects his claims.
The Haseltine claim
Walker was charged with repeated sexual assault of T.C.B. over a 10-month period. At trial, T.C.B.’s mother was asked if she remember the first conversation she had with her daughter, and what her and her daughter’s “emotions” were. T.C.B.’s mother responded: “I’m, like, she doesn’t lie. She’s not going to lie. I’m, like, I just can’t believe—and I just honestly could not believe that the situation she was in took place.” She added she was “baffled” and “numb,” and then added, again, “[T.C.B.] don’t lie.” (¶¶14-15, 23). Trial counsel didn’t object, and failure to do so wasn’t deficient because the testimony didn’t violate the rule against permitting one witness to vouch for the honesty of another:
¶24 The cases in which testimony has been found to be improper vouching are cases where a witness has given an opinion about whether a witness was lying in court. See [State v.] Romero, 147 Wis. 2d [264,] 277-78[, 432 N.W.2d 899 (1988)] (witness said another witness “was being totally truthful with us”), State v. Echols, 2013 WI App 58, 348 Wis. 2d 81, 831 N.W.2d 768 (trial court erred in admitting testimony fromdefendant’s employer that defendant spoke normally but stuttered when he was lying), and State v. Tutlewski, 231 Wis. 2d 379, 605 N.W.2d 561 (Ct. App. 1999) (expert witness testified that developmentally disabled witness was incapable of lying).
¶25 In contrast, this court has found it not to be a Haseltine violation where testimony has revealed a witness’s assessment of truthfulness prior to trial. See State v. Snider, 2003 WI App 172, 266 Wis. 2d 830, 668 N.W.2d 784 (testimony from investigating detective that during course of investigation hebelieved victim’s statement and did not believe defendant’s version of what had occurred did not violate Haseltine rule), and State v. Miller, 2012 WI App 68, 341 Wis. 2d 737, 816 N.W.2d 331 (comments of detective during video-recorded interview with defendant which was played for jury, stating that defendant was lying during the interview, were not a Haseltine violation).
¶26 The facts here are distinguishable from those in cases where a Haseltine violation has been found. First, the question the prosecutor asked was about the witness’s emotional reaction to learning of the assaults—not a question about T.C.B.’s truthfulness as a witness. Second, T.C.B.’s mother’s answer was clearly an expression of her shock and the conflict she felt when she looked at her daughter’s face after learning of the assaults—not an opinion about T.C.B.’s honesty. In fact, she stated as part of the answer that she “could not believe” the accusations. She stated that she “could not believe that the situation … took place,” that she “can’t believe,” and that “this can’t—I don’t think—.” At the same time she was feeling that “she doesn’t lie,” “she’s not going to lie,” and “T.C.B. don’t lie.” In this context, the testimony is similar to the admissible testimony of the detective in [State v.] Smith. There, the testimony about the truthfulness of a witness was “simply an explanation of the course of events during the interrogation,” Smith, 170 Wis. 2d [701,] 718, [490 N.W.2d 40 (Ct. App. 1992),] and here, it is simply an explanation of the mother’s reaction to seeing her daughter and learning of the accusations.
Furthermore, the mother’s statement was admissible because Walker’s opening statement labeled T.C.B. as a liar, and § 906.08(1) and State v. Eugenio, 219 Wis. 2d 391, 579 N.W.2d 642 (1988), allow evidence of character for truthfulness when a witness is attacked as having a character for untruthfulness. (¶¶28-33).
T.C.B.’s other sexual conduct
T.C.B. testified she obtained birth control, which the discovery indicated she got because she was sexually active with others, not because of Walker. Walker wanted to elicit that from T.C.B. because otherwise her testimony created the false impression that she was using birth control because of the alleged conduct with Walker. He argued that although such questioning would ordinarily be barred by the rape shield law, § 972.11(2), it was permitted in this case under the doctrine of curative admissibility, as set forth in State v. Dunlap, 2002 WI 19, 250 Wis. 2d 466, 640 N.W.2d 112. (¶¶8-9, 16-17, 34).
The court of appeals affirms the trial court’s exclusion of the evidence:
¶37 Under the Dunlap analysis, which controls here, the threshold question is whether the complained-of evidence was admissible; admissible evidence does not open the door to the “curative” evidence Walker sought to introduce. The context of T.C.B.’s testimony that she told her father she was sexually active was her explanation of the source of the condoms that were used during the assaults. The use of condoms was relevant to T.C.B.’s testimony concerning the sex act in the dining room, and it was offered for a purpose other than “as substantive proof” of the sexual assaults. Like the evidence in Dunlap, this evidence was admissible given the purpose for which it was offered. Because the evidence was admissible, it did not open the door to curative evidence from Walker, and the trial court did not erroneously exercise its discretion in excluding such evidence.
