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State v. Hammer7/11/2000
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. The defendant wanted to present evidence that on the day before the defendant's alleged sexual assaults, while Steven D. was napping, Josh C. tried to put his penis in Steven D.'s mouth, and Mark D. attempted to put his buttocks in Steven D.'s face. The defense would have alleged that the boys were told to stop by both the defendant and his mother. The defendant also sought to present testimony from the defendant's mother that she caught the boys in the basement quickly pulling their pants up. The defendant would have further claimed that the boys did not refute a statement made in their presence about trying to put their penises in Steven D.'s mouth and generally acting inappropriately. (R. at 37:6.)
. The defendant argued that this evidence was needed to substantiate his claim that the victims engaged in acts virtually identical to those for which he was charged, thus demonstrating a motive to fabricate and bias by the victims. The circuit court ruled the evidence inadmissible after taking into account the six-part test in State v. Herndon, 145 Wis. 2d 91, 122-23, 426 N.W.2d 347 (Ct. App. 1988), overruled on other grounds, State v. Pulizzano, 155 Wis. 2d 633, 644, 456 N.W.2d 325 (1990), which was later modified to a five-part test by this court in Pulizzano.
. The right to confrontation, cross-examination, and compulsory process is vital to insuring an objective and fair trial. Chambers v. Mississippi, 410 U.S. 284, 294 (1973). The confrontation clause gives defendants the right to "effective cross-examination" of witnesses presenting adverse testimony. Davis v. Alaska, 415 U.S. 308, 318 (1974). The compulsory process clause gives defendants the right to present favorable testimony. Chambers, 410 U.S. at 302. However, defendants cannot present irrelevant evidence. State v. Robinson, 146 Wis. 2d 315, 332, 431 N.W.2d 165 (1988).
. "A circuit court has broad discretion in determining the relevance and admissibility of proferred evidence." State v. Oberlander, 149 Wis. 2d 132, 140, 438 N.W.2d 580 (1989) (citing State v. Brecht, 143 Wis. 2d 297, 320, 421 N.W.2d 96 (1988)). In determining the admissibility of evidence, the standard of review is whether the circuit court erroneously exercised its discretion. Pharr, 115 Wis. 2d at 342. "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." Wollman, 86 Wis. 2d at 464. An erroneous exercise of discretion will not be found if there is a reasonable basis for a circuit court's decision. Boodry v. Byrne, 22 Wis. 2d 585, 589, 126 N.W. 503 (1964). However, questions of constitutional significance, such as a defendant's rights to confrontation and compulsory process, may be reviewed without deference to the circuit court. See Pulizzano, 155 Wis. 2d at 648.
. The rape shield statute impermissibly denies a defendant's rights to confrontation and compulsory process if the evidence the defendant seeks to present satisfies the five-factor test of Pulizzano. In Interest of Michael R.B., 175 Wis. 2d 713, 736, 499 N.W.2d 641 (1993). To satisfy the five-factor test, a defendant must show all of the following through an offer of proof:
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. Pulizzano, 155 Wis. 2d at 656.
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