State v. Romero , 147 Wis. 2d 264 ( 1988 )

WILLIAM G. CALLOW, J.

Herberto Romero seeks review of an unpublished decision of the court of appeals which affirmed the judgment of conviction for first-degree sexual assault of the circuit court for Door county, Judge Edwin C. Stephan. The court of appeals’ decision also affirmed the circuit court’s order denying Romero’s motion for a new trial.

There are two issues presented to this court for review. First was it plain error for the circuit court to admit a police officer’s testimony concerning allegations of other incidents of sexual assault? Second, was it plain error for the circuit court to admit testimony by the police officer and a social worker that the complainant was truthful in her accusations?

Although the parties have requested that we address these issues under the plain error standard, we find it appropriate, as we discuss later, to analyze them under that portion of sec. 751.06, Stats., which provides for a reversal of a judgment of conviction if the record reveals that the real controversy has not been fully tried, regardless of whether a proper objection appears in the record. We conclude that the admission of testimony concerning other incidents of assault was erroneous but that the error was not sufficiently egregious to require a reversal of the judgment. We also conclude, however, that the admission of testimony that the complainant was truthful in her accusations and the prosecutor’s commentary so clouded the crucial issue of credibility that it may be fairly said that the real controversy was not fully tried. We, therefore, reverse that part of the court of appeals’ decision which upheld the admission of the challenged testimony and remand the case for a new trial.

The information in this case alleged that Romero had sexual intercourse with his stepdaughter, E.B., who, at the time, was seven years of age. At trial the key witness for the state was the complainant, E.B. She testified that in October, 1984, Romero had called her into his bedroom to fix his television. She stated that she walked into the room and found that the TV was fine. She claims, however, that as she stood near the bed, Romero removed her clothes and pulled her into bed with him. She stated that he touched her "[w]here I go to the bathroom” with his "[h]ot dog.” She also stated that his "hot dog” was inside of her, that he moved around, and that this hurt her. She said that, although she told him to stop, he refused. Afterward she said she felt some "gooshy” stuff where she went to the bathroom. She also testified that she did not report the incident immediately, telling only her four-year-old sister about it.

The state called several other witnesses to support its case. Both E.B.’s mother and Shirley Senarighi (Senarighi), the school guidance counselor, testified that E.B. was an honest child. Senarighi also testified that she had interviewed E.B. about the alleged assault after E.B.’s teacher referred E.B. to her, and she related what E.B. had told her at that time. This description was consistent with E.B.’s testimony in court.

The next two witnesses for the state testified that they interviewed E.B. after Senarighi reported the case to the Department of Social Services. The substance of their testimony forms the basis for this appeal. Beverly Rice (Rice), a social worker from the Door County Department of Social Services, testified about her talks with E.B. The prosecutor then asked her whether she knew E.B. well enough to form an opinion as to E.B.’s "character for truthfulness or untruthfulness.” The defense counsel objected to this question on the ground that Ricé did not have an opportunity over a period of time to form such an opinion. The court overruled this objection stating that lack of long-standing opportunity to form an opinion went only to the weight of the testimony. Rice then responded to the question stating that E.B. "was honest with us from the time of the first interview through my subsequent contact with her.”

The next witness was Police Officer Dwight Krimbill (Krimbill). He testified that he had experience investigating one hundred or more sexual assaults. The prosecutor then began the following exchange:

"Q. With respect to your experience in your 16% years, Officer, in investigating sexual assault cases and interviewing people, as part of your professional duties do you have to assess the credibility of either the victim or the perpetrator who is giving statements on these matters?

"A. Yes, sir.

"Q. Going even more broadly than sexual assault cases, in the general realm of criminal investigation, is [it] part of your duties to assess the credibility of both victim and perpetrator and other witnesses to crimes?

"A. Yes, it is.

"Q. Based, then, upon that 16% years of experience, after your two interviews with [E.B.], were you able to form an opinion as to [E.B.’s] character for truthfulness as far as you were concerned?

"A. Yes, sir. In my opinion, [E.B.] was being totally truthful with us.”

The defense counsel did not object to either the questions or the answers in this exchange.

On cross-examination the defense counsel prompted the following exchange when he asked a question about Krimbill’s investigation:

"Q. Okay. Did you talk to her two brothers?

"A. Talked to Ben.

"Q. You didn’t talk to Jessie?

"A. No.

"Q. How many investigations have you done in sexual assaults?

"A. Approximately a hundred or more.

"Q. Okay.

"A. The reason I only talked to Ben is she had indicated to me that that’s who she had called for to come down and help her on one of the other occasions.

"MR. BROWN [defense counsel]: Objection, your Honor. I move to strike it as not responsive.

"THE COURT: Well, I don’t think we can unring the bell, can we?

"MR. BROWN: Well, I move to strike it, your Honor.

"THE COURT: Well, denied.”

After this objection was considered by the court, the cross-examination continued.

"Q. (By Mr. Brown) Now, if you want, let’s go back to page two. In your report, does it state that the counselor called [E.B.] into her office and she said that she was touched by her step dad.

"A. Yes, sir. It does.

"Q. Did she ever — did you ever ask her how she knew it was two days before Halloween?

"A. Yes, sir. We, in our conversation with her, she indicated to us that there were four incidents, and she knew the time period because she remembered Halloween being grounded because she had gone trick or treating without permission. And when she got home after trick or treating had been grounded.”

Defense counsel did not move to strike this answer.

The state’s final witness was Dr. Ferrin Holmes who had examined E.B. approximately a year after the alleged assault. He stated that such a delay by a child in reporting sexual assault is not unusual. Although he found no physical signs of sexual abuse, he noted that such signs would have disappeared within a year. Cross-examination revealed that, during his examination of E.B., he was unable to insert either a finger tip or a Q-tip into her vagina because E.B. felt great pain when he attempted to do so. On redirect examination Dr. Holmes stated that it was not impossible for Romero’s penis to have caused an intrusion which would constitute penetration under Wisconsin’s sexual assault law.

Romero was the first of six witnesses for the defense. He denied committing the assault and claimed to have come back to Wisconsin voluntarily after his arrest in Florida in order to straighten out the situation.

Five defense witnesses testified that Romero had a good reputation for truthfulness. They included the minister who had sponsored Romero when he first arrived as a Cuban refugee, two employers, and the wife and daughter of one of his employers.

In his closing argument the prosecutor discussed E.B.’s testimony and then stated:

"I think in addition to her own testimony, her direct testimony, as to what it was that happened to her in October of 1984, you heard the testimony of witnesses who were involved in the investigation. And these were not witnesses who have known her from school for a couple hours, or witnesses who see her at a 4-H meeting once a week, or witnesses who know her from the playground.

"These are witnesses who dealt with her with respect to this case, professionals who are trained to investigate this type of case, professionals who had years and years of training and experience in screening out false statements, incorrect statements, mistaken statements.

"And you heard every single one of them testify that based not only on their knowledge of [E.B.] and their contacts with [E.B.], but on all their vast years of experience — the 14 % years of experience that Mrs. Rice has, the 16% years of experience that Officer Krimbill has, the 10,12,13 years of experience that Mrs. Senarighi has. They all believed [E.B.] in the main to be honest, and with respect to this specific criminal case on these specific criminal charges* they believed her to be telling the truth.”

Later, again relying upon the testimony of the prosecution witnesses, he stated:

"This is not simply a case of [E.B.’s] word against this defendant, for one to rise and fall, depending on which you want to believe today or which you’ll believe tomorrow. You had that testimony from [E.B.], backed up by the testimony of three trained professionals — Officer Krimbill, Mrs. Rice, and Mrs. Senarighi, as to their view of it.

"And again, like [E.B.] — but for different reasons — these are not people who, when they hear the cry of wolf of a sexual assault, that they weigh into the fray without looking, and suddenly we’re in court with unfounded, unsubstantiated, and baseless claims.

"These are people who are trained to deal with cases like this.

"We don’t get before you, ladies and gentlemen, without cause and without there being in existence an actual crime.”

The defense counsel argued that E.B. was lying about the sexual assault. He pointed to Dr. Holmes’ testimony, claiming that it was impossible for Romero to have been inside E.B. as she claimed.

The court instructed the jury that it could find Romero guilty of either of two forms of first-degree sexual assault: sexual intercourse with or sexual contact with a person twelve years of age or younger. The jury deliberated and found that Romero was guilty of sexual assault, having had sexual intercourse with E.B., a child of twelve years of age or younger.

In his postconviction motion to the circuit court, Romero moved for a new trial in "the interests of justice” on three grounds: first, the circuit court erred in refusing to strike the testimony referring to other uncharged incidents of sexual assault; second, the circuit court judge refused to recuse himself from the case because of prejudice; third, Romero was denied the effective assistance of counsel. This motion was denied.

Romero then appealed to the court of appeals. In addition to the three claims raised in the postconviction motion, Romero claimed that the circuit court erred in admitting expert testimony that E.B. was truthful in her accusations. The court of appeals held that Romero was not denied the effective assistance of counsel and that there was no showing of prejudice on the part of the trial judge. It also concluded that Rice’s testimony was admissible character evidence. It did not address Krimbill’s assertion that E.B. was truthful. Finally, the court of appeals held that the admission of Krimbill’s references to other incidents was harmless error.

Romero seeks review of the court of appeals’ decision. He raises two of the issues addressed below. He contends, first, that it was plain error for the circuit court to admit Krimbill’s references to other incidents of sexual assault. He further contends that it was plain error for the circuit court to admit the testimony of Krimbill and Rice that E.B. was truthful in her accusations.

In order to preserve an issue for appeal as a matter of right, a party must object to the error at trial, stating the proper ground for the objection. Frankovis v. State, 94 Wis. 2d 141, 152, 287 N.W.2d 791 (1980). Twice on cross-examination Krimbill referred to allegations of other incidents of sexual assault. The first time defense counsel objected, claiming that the answer was not responsive. He asked that the court strike it. The court refused, stating "[w]ell, I don’t think we can unring the bell, can we?” Defense counsel failed to preserve this objection for appeal as a matter of right. Although he moved to strike the first statement as unresponsive, the objection was insufficient to inform the court that the remark was inadmissible evidence of other misconduct; therefore, he failed to preserve it for appeal. Two questions later, when Krimbill again referred to other allegations, defense counsel made no objection and, again, failed to preserve the issue for appeal.

Romero also failed to preserve the right to challenge the testimony relating to E.B.’s credibility. Defense counsel made no objection to Krimbill’s statement that E.B. was "totally truthful” with him. Defense counsel objected to the prosecutor’s question directed to Rice concerning truthfulness on the ground that Rice had not known E.B. long enough to form an opinion as to E.B.’s reputation for truthfulness. He did not object to Rice’s answer that E.B. was honest in her accusations.

Although objections were not properly made at trial, this court may address unpreserved claims by two means. First, it may address plain error under sec. 901.03(4), Stats.¹ Virgil v. State, 84 Wis. 2d 166, 189, 267 N.W.2d 852 (1978). Second, to accomplish the ends of justice it may "reverse the judgment or order appealed from, regardless of whether the proper motion or objection appears in the record.” Section 751.06, Stats.;² State v. Penigar, 139 Wis. 2d 569, 577, 408 N.W.2d 28 (1987). Although the parties' briefs in this case have focused upon the plain error rule, we find it appropriate to ápply the standard set forth in sec. 751.06.³

In Penigar we held that this court may order a new trial under sec. 751.06, Stats., for two reasons: "(1) the real controversy has not been fully tried; and (2) it is probable that justice has for any reason miscarried.” 139 Wis. 2d at 577-78. There are two circumstances under which we have held that the real controversy has not been fully tried: "(1) when the jury was erroneously not given the opportunity to hear important testimony that bore on an important issue of the case; and (2) when the jury had before it evidence not properly admitted which so clouded a crucial issue that it may be fairly said that the real controversy was not fully tried.” State v. Wyss, 124 Wis. 2d 681, 735, 370 N.W.2d 745 (1985). (Citations omitted.)

Both parties agree that KrimbilTs reference to allegations of other incidents involving sexual assault was improper evidence of other acts under sec. 904.04(2), Stats. This error, however, is not such that it requires that we reverse the judgment of conviction. KrimbilPs statements were two isolated references made during a two-day trial upon which the prosecutor never commented in his closing argument. They played an insignificant role in the case. Further, the statements did not improperly bolster E.B.’s credibili-ty____

We do find, however, that sec. 751.06, Stats., requires we remand this case for a new trial because of the admission of the testimony by Krimbill and Rice that E.B. was truthful in her accusations. Again, both parties agree that the admission of this testimony was erroneous. The statements were not simply opinions as to E.B.’s character for truthfulness, under sec. 906.08(1), Stats. Rather, they were impermissible opinions that E.B.'s accusations were true.

While the prosecutor phrased his questions to ask for admissible character evidence, it is clear from the answers of the witnesses that they were assessing the validity of E.B.’s accusations. Rice said that E.B. "was honest with us from the time of the first interview through my subsequent contact with her.” Similarly, Krimbill stated that "[i]n my opinion, [E.B.] was being totally truthful with us.” Even more egregious is the use of the statements made by the prosecutor in closing argument. Referring to the witnesses, he stated: "They all believed [E.B.] in the main to be honest, and with respect to this specific criminal case on these specific criminal charges, they believed her to be telling the truth.” The state incorrectly claims that this is merely character evidence. This testimony was used to assess E.B.’s credibility and is improper.

This testimony was not admissible under sec. 907.01, Stats.,⁴ which states:

"Opinion testimony by lay witness. If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of his testimony or the determination of a fact in issue.”

The testimony in this case was not helpful to the jury. Rather, it tended to usurp the jury’s role. The credibility of a witness is left to the jury’s judgment. State v. Friedrich, 135 Wis. 2d 1, 16, 398 N.W.2d 763 (1987). As the court of appeals declared in State v. Haseltine, 120 Wis. 2d 92, 96, 352 N.W.2d 673 (Ct. App. 1984), "[n]o witness, expert or otherwise, should be permitted to give an opinion that another mentally and physically competent witness is telling the truth.” In Haseltine the court of appeals properly concluded that the admission of psychiatric testimony that a complainant in a rape case was telling the truth was prejudicial error. Id, Other state courts, likewise, have rejected testimony which interferes with the role of the jury by assessing the credibility of a complaining witness. See, e.g., State v. Middleton, 294 Or. 427, 438, 657 P.2d 1215 (1983); State v. Kim, 318 N.C. 614, 621, 350 S.E.2d 347 (1986).

We conclude that the erroneous admission of this testimony requires that we grant a new trial pursuant to sec. 751.06, Stats. Unlike the references to allegations of other incidents, the testimony discussing the truthfulness of E.B.’s accusations played a significant and perhaps decisive role in this case.

Discussion of the truthfulness of E.B.’s accusations was not an isolated incident at trial. The prosecutor elicited testimony that Rice and Krimbill had experience in assessing credibility before they pronounced their determination of truthfulness in this case. Further, the prosecutor relied heavily upon the testimony in his closing argument. He repeatedly emphasized the witnesses’ training and experience in assessing credibility. He insisted that:

"This is not simply a case of [E.B.’s] word against this defendant, for one to rise and fall, depending on which you want to believe today or which you’ll believe tomorrow. You had that testimony from [E.B.], backed up by the testimony of three trained professionals — Officer Krimbill, Mrs. Rice, and Mrs. Senarighi, as to their view of it.”

The sole issue in this case is whether the complainant or the defendant was telling the truth. There was no evidence of guilt in this case beyond E.B.’s testimony. The other state witnesses merely testified about what E.B. had told them. It was simply E.B.’s word against Romero’s, a one-on-one battle of credibility.

This credibility issue was clouded by the admission of the testimony of Rice and Krimbill. Their testimony, and the prosecutor’s use of it, pervaded the entire trial. 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. Therefore, it may be fair to say that the real controversy was not fully tried. We find in this case, as we found in a similar case, Lorenz v. Wolff, 45 Wis. 2d 407, 426, 173 N.W.2d 129 (1970), that the "circumstances of this trial prevented a fair trial of the factual issues of this case.”

We, therefore, reverse and remand for a new trial pursuant to sec. 751.06, Stats.

By the Court. — The decision of the court of appeals is reversed, and the cause is. remanded to the circuit court for a new trial.

1 Section 901.03, Stats., provides in pertinent part:

"(1) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected; and

"(a) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or

"(4) Plain Error. Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the judge.”

2 Section 751.06, Stats., provides: "Discretionary reversal. In an appeal in the supreme court, if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the court may reverse the judgment or order appealed from, regardless of whether the proper motion or objection appears in the record, and may direct the entry of the proper judgment or remit the case to the trial court for the entry of the proper judgment or for a new trial, and direct the making of such amendments in the pleadings and the adoption of such procedure in that court, not inconsistent with statutes or rules, as are necessary to accomplish the ends of justice.”

3 According to State v. Sonnenberg, 117 Wis. 2d 159, 178, 344 N.W.2d 95 (1984), the plain error rule applies when an erroneous introduction of evidence constitutes a denial of "any fundamental constitutional right or a substantial impairment of the right of fair trial.” We conclude that the erroneous admission of evidence in this case is a statutory violation which does not rise to the level of a constitutional violation. Thus, we apply the standard set forth in sec. 751.06, Stats., rather than the plain error standard.

4 Although Romero contends that Rice and Krimbill were expert witnesses, we conclude they were lay witnesses. The circuit court was not asked to declare them as experts, nor did he give the jury an expert witness instruction. Therefore, we analyze the admissibility of the testimony under sec. 907.01, Stats., which deals with the testimony of lay witnesses, rather than under sec. 907.02, which governs the testimony of expert witnesses.