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COURT OF APPEALS DECISION DATED AND RELEASED April 18, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-0370-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
KENNETH R. ZIELINSKI,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Portage County:
JOHN V. FINN, Judge. Affirmed.
Before Eich, C.J.,
Gartzke, P.J., and Sundby, J.
PER
CURIAM. Kenneth R. Zielinski appeals from a judgment
convicting him of sexual assault of and incest with his fifteen-year-old half
sister. The issue is whether the trial
court erroneously exercised its discretion in precluding opinion testimony from
a police officer about the alleged victim's character for untruthfulness. Because the trial court exercised its
discretion, we affirm.
A jury found Zielinski
guilty of the second-degree sexual assault of a child, contrary to
§ 948.02(2), Stats., and
incest with a child, contrary to § 948.06(1), Stats. There were no
witnesses to the alleged assault and no physical evidence to support the
State's case. Consequently, the
credibility of Zielinski and the alleged victim, L.Z., were determinative jury
issues.
If Zielinski put L.Z.'s
character for truthfulness in issue, the State intended to call the
investigating officers as rebuttal witnesses.
Two family members opined that L.Z.'s character was untruthful.[1] Zielinski also proffered veteran Police
Officer Stephen R. Fredock who would opine that L.Z.'s character was not
truthful, based on his five or six contacts with her which were unrelated to
this case. The trial court precluded
that testimony to avoid rebuttal testimony from the investigating officers. These officers' opinions would be based on
their prior contacts with L.Z., not on whether they believed her accusations in
this case.
The trial court
precluded all of the officers' testimony because it would invade the province
of the jury and result in confusion.
The trial court reasoned that:
These
officers are involved in an investigation, and I think it's a little bit of a
different situation than it is when we're talking about the [family-member
witnesses]. I don't--if I do that, then
I think the State would be entitled to bring in the other officers to give
their opinion as to truthfulness, and I really want to avoid that. I don't think that's appropriate. You're going to have the jury saying,
"Well, we have one officer says she's untruthful; two officers say she's
truthful. I guess the majority wins," and I don't think that's
appropriate.... We have a jury to listen to the facts and determine the
evidence from the facts ....
The parties agree that
this evidentiary ruling is discretionary.
See, e.g., State v. Pharr, 115 Wis.2d 334, 342, 340
N.W.2d 498, 501 (1983). "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." State v. Wollman, 86 Wis.2d
459, 464, 273 N.W.2d 225, 228 (1979).
The trial court has not erroneously exercised its discretion if its
ruling is a product of a rational mental process in which it applied the facts
to the law to achieve a reasoned and reasonable determination. LaRocque v. LaRocque, 139
Wis.2d 23, 27, 406 N.W.2d 736, 737 (1987).
Zielinski
challenges the exclusion of Officer Fredock's testimony under § 906.08(1),
Stats.,[2]
and State v. Cuyler, 110 Wis.2d 133, 138-39, 327 N.W.2d 662, 665
(1983). However, these authorities do
not render this evidence automatically admissible. Id. at 139, 327 N.W.2d at 666. Although the testimony of the investigating
officers is distinguishable from that of Officer Fredock, the trial court
reasoned that it would be unfair to allow Officer Fredock to testify, but
preclude the State from rebutting his testimony. While that is not the only conclusion that could be reached in
ruling on this evidence, it is "reasoned and reasonable." See, e.g., LaRocque, 139
Wis.2d at 27, 406 N.W.2d at 737. The
investigating officers' opinions were based on their prior investigations of
L.Z. as a sexual assault victim.[3]
Because those assailants were convicted, the Zielinski jurors could be unduly
persuaded that L.Z. was truthful in those cases. This evidence, while arguably probative, is unfairly prejudicial
because jurors could consider L.Z.'s otherwise irrelevant history with undue
harshness or undue sympathy. See
§ 904.03, Stats. The trial court also was concerned that the
jury would confuse the investigating officers' testimony about their prior
experiences with L.Z. from their experiences with her in this case. Its characterization of this proffered testimony
as encompassing "side issues" is reasoned and reasonable. See, e.g., LaRocque, 139
Wis.2d at 27, 406 N.W.2d at 737.
The trial court
precluded the officers' opinions on the alleged victim's character for
truthfulness because it feared that those opinions would replace the jurors'
personal observations of L.Z.'s demeanor and encroach upon their duty to gauge
the truthfulness of her testimony.[4] See In re Estate of Dejmal, 95
Wis.2d 141, 151-52, 289 N.W.2d 813, 818 (1980). The trial court properly exercised its discretion because its
decision to preclude that evidence was reasoned and reasonable.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] These witnesses were the mother of L.Z. and Zielinski, Viola, and Zielinski's wife, Diane. Viola and Diane testified that L.Z. was not staying at Zielinski's residence when the alleged assault occurred. On cross-examination, the prosecutor inquired about whether Viola held a grudge against L.Z. for disclosing the family's alcohol problem to a social services representative. Diane admitted that she did not believe L.Z.'s accusations against her husband.
[2] Section 906.08(1), Stats., provides that:
[T]he
credibility of a witness may be attacked or supported by evidence in the form
of reputation or opinion, but subject to these limitations: a) the evidence may refer only to character
for truthfulness or untruthfulness, and b), except with respect to an accused
who testifies in his or her own behalf, evidence of truthful character is
admissible only after the character of the witness for truthfulness has been
attacked by opinion or reputation evidence or otherwise.
[3] Zielinski asserts that the trial court's ruling encourages the State to threaten every criminal defendant with presenting the investigating officers' testimony to rebut evidence of the alleged victim's character for truthfulness. Police officers would not have the familiarity with most alleged victims for this type of rebuttal. Moreover, the trial court has the discretion to exclude that type of threatened retaliatory rebuttal.