Summary
In State v. Perlin (1955), 268 Wis. 529, 537, 68 N.W.2d 32, the trial court had denied defendant's request for a lie detector test and this court said, "... results of such a test are not evidence admissible upon trial...."
Summary of this case from Hemauer v. StateOpinion
December 10, 1954 —
January 11, 1955.
APPEAL from a judgment of the municipal court for the Western district of Waukesha county: ALVIN G. BRENDEMUEHL, Judge. Affirmed.
For the appellant there were briefs by Schroeder Schroeder of Milwaukee, attorneys, and Henry P. Hughes of Oshkosh of counsel, and oral argument by Robert W. Schroeder, William A. Schroeder, and by H.S. Humke of Sheboygan.
For the respondent there was a brief by the Attorney General and William A. Platz, assistant attorney general, and James D'Amato, district attorney of Waukesha county, and oral argument by Mr. Platz and Mr. D'Amato.
Defendant was charged with taking improper liberties with the privates of a minor by the use of the hand in violation of sec. 351.41, Stats., with taking indecent and improper liberties with a female under the age of sixteen years in violation of sec. 351.34, and with contributing to the delinquency of a child in violation of sec. 351.20. The case was tried to the court without a jury and judgment was entered finding the defendant guilty on all three counts and committing him to the state department of public welfare pursuant to sec. 340.485.
The three offenses involved one Joanne ______, aged fourteen years. Defendant is forty-six years old.
Joanne was a school friend of Barbara Perlin, daughter of the defendant. The offenses are alleged to have occurred while defendant's wife was in California and defendant and the daughter lived in their home near Oconomowoc, Waukesha county, on the shore of Nashotah lake.
On October 27, 1953, Joanne and Barbara went to the Perlin home after school and had dinner with the defendant. Early in the evening when a neighbor dropped in the girls went upstairs to Barbara's bedroom where Barbara drank a cocktail and Joanne had a glass of whiskey or brandy. Defendant had prepared the cocktails and handed them to Barbara in a shaker. He testified he did not put any gin in the cocktails. Joanne became dizzy and sick.
The girls returned downstairs and Joanne and defendant sat on the davenport watching television. Their conversation included a discussion of the Kinsey report and sex relations. Joanne testified that when Barbara went out of the room defendant rubbed his hand across her breasts twice, but defendant denied this. Later when the girls, in their pajamas, were setting their hair in Barbara's bedroom defendant came in. Joanne testified that he lay on the bed; that she got into bed, then Barbara, and then the defendant, with Joanne in the middle. Defendant denied he got into the bed. Joanne testified:
"Mr. Perlin kept pulling me over toward him. He put his hand on private. I pulled over toward Barbara. After a while Barbara got up. She went to the bathroom, lights were on. I went over toward Barbara's side of bed. When Barbara came back I moved over by Barbara, then she fell out of bed. Mr. Perlin got out of bed and asked what was the matter. She said, `you don't have to take it out on my girl friends.' He said do you want me to leave the room, then he left the room . . .
"After we got in bed for a while he kept pulling me over toward him, he had his hand on my private. I pulled over toward Barbara. She went into the bathroom, she was crying. She came back, she fell on the floor. Mr. Perlin got out of bed and he asked what was the matter. She said, `you don't have to take it out on my girl friends.' He asked if she wanted him to leave the room, and then he left the room."
Barbara testified that on October 27th Joanne came home with her, they ate and watched television; that she drank an Alexander and Joanne drank brandy or whiskey and water. She stated that the defendant came into the bedroom after they were in bed, that he sat on the bed and talked with them and left after about ten minutes.
Barbara having been found a hostile witness, the state was permitted, for impeachment purposes, to question her with reference to a statement she made to the district attorney on November 10th. In a portion of said statement which was read into the record Barbara said the defendant got into bed with the girls and "he was fooling around with her [Joanne];" that Barbara deliberately fell out of bed so that he would get out; that she later told him "he shouldn't fool around with my girl friend." Barbara was asked whether she was asked those questions and made those answers and she testified "I might have."
She testified that she told the defendant that evening in the bedroom that "you don't have to take it out on my girl friends" and explained that she was referring to chasing Joanne's boy friends away earlier that evening. She further testified that she did leave the bedroom temporarily while her father was there.
On November 4th Joanne was one of thirteen girls who attended a "slumber party" at the defendant's home. The party lasted all night. Joanne was the youngest girl there. Joanne testified that she went into the kitchen on two occasions and found the defendant there drinking, once in the company of a male friend and the other time in the company of most of the girls who were sitting at the table drinking beer, whiskey, and vodka. Joanne drank whiskey, wine, vodka, and beer in the presence of the defendant and it made her sick. Defendant admitted he saw the girls drinking and that he purchased the wine and beer. One of the girls testified, "He said he wasn't going to give us the wine. He said we were just supposed to act as if we found it on the table."
During the party the girls played records, danced, played pool, and charades. One of the records played was a popular piece available on juke boxes and at record stores, and the defendant commented he thought it was "off color." Several of the girls testified that he remarked that the piece was off color and explained its immoral meaning to them.
Further facts will be stated in the opinion.
Appellant's first assignment of error is that the trial court considered the statement of Barbara Perlin, admitted for impeachment purposes, as corroboration of Joanne's testimony and as affirmative proof of defendant's guilt.
The record shows that in discussing the examination of Barbara on her statement the district attorney said, "This is impeaching testimony, your Honor, and this is proper cross-examination." The court replied, "I suppose strictly for impeaching purposes and not direct proof. Go ahead."
In the trial court's decision it stated, "The testimony of Joanne _____ is positive and direct. It is denied by defendant, yet her testimony is corroborated. . . . The defendant, of course, denies testimony of Joanne _____ but her testimony is strongly corroborated by the testimony of Barbara Perlin. . . . I am not considering testimony taken that is not in the record. That isn't any part of it. I'm talking about her testimony on the stand corroborating (Joanne _____)."
Appellant argues that none of Barbara's testimony corroborates Joanne as to the essentials of the charge. Obviously, acts such as the defendant is charged with are never committed openly and it is hardly likely that corroborating testimony may be obtained as to the specific acts. But Barbara's testimony did corroborate Joanne in a number of respects: That on October 27th defendant mixed cocktails and gave them to the girls when they went up to Barbara's bedroom; that on this occasion Joanne had a brandy or whiskey and water; that the defendant did come into the girls' bedroom that night; that she left the bedroom while her father was there with Joanne; that she told her father, "You don't have to take it out on my girl friends." Defendant corroborated Joanne's testimony that Barbara fell out of bed while he was in the room.
Barbara's statement to the district attorney did in fact impeach her testimony in so far as it conflicted with Joanne's story that the defendant got into bed with the girls. In so far as her testimony was unimpeached, it did corroborate Joanne.
This court has held that no corroborating testimony is required in a case of this kind, Varga v. State (1930), 201 Wis. 579, 230 N.W. 629; and this is particularly true where the testimony of the minor victim is straightforward and consistent and no motive is shown which would have caused her to testify falsely. The trial court was the trier of the fact in this case and the credibility of Joanne's testimony was a matter for it to determine. State v. Evjue (1949), 254 Wis. 581, 37 N.W.2d 50.
Appellant's second assignment of error is that the court improperly admitted the testimony of defendant's immoral conduct and lewd conversation with girls other than the complaining witness. The record shows that defendant's counsel made no objection on that ground at the trial and made no motion thereafter to strike the evidence. As a matter of fact, during the testimony of one of the girls referred to, counsel objected to a question on the ground that it called for a conclusion of the witness, stating, "Asking what was he referring to is a conclusion. She can state what he said, but not what he was thinking."
Count 3 of the information charges that defendant's acts of November 4th contributed to the delinquency of Joanne _____. One of the other girls testified as to immoral acts of the defendant when she was dancing with him; another testified as to his lewd conversation while several of the girls, not including Joanne, were riding in a jeep with him that night.
Appellant urges that evidence of immoral conduct with persons other than the complaining witness is not admissible, but we consider the evidence here, being of acts bearing such a close relationship in both time and character to the specific conduct with which defendant is charged, is such as to show that the crime charged grew out of a general state of mind and was part of a general pattern of conduct indulged in by the defendant on the night in question, and is admissible as part of the res gestae.
"The decisions are in accord that, unless it forms a part of the res gestae, evidence of sexual offenses committed against others than the prosecuting witness is inadmissible in a prosecution for taking indecent liberties with child." Anno. 167 A.L.R. 622.
It is finally contended that defendant has been deprived of his constitutional right to a fair and impartial trial upon competent evidence. The contention rests largely upon the argument that the trial court erroneously admitted and considered evidence which was inadmissible as discussed above. Appellant concedes that there is ordinarily a presumption that the trial court acted only upon competent evidence. We are not convinced that such presumption is rebutted in this case.
In addition to the questions submitted on the admissibility of the evidence, however, appellant asserts that the trial court was confused as to the dates and construed the evidence of misconduct on November 4th as corroborative of the testimony of Joanne as to the events of October 27th. The argument is based upon the court's decision, but we find therein no evidence of such confusion. There were three charges in the information. Joanne gave positive testimony on all three. The remarks made orally by the trial court in its decision are rather general and relate to corroboration on all counts. There is some reference to one point in the testimony where the court apparently had the November 4th incidents in mind when the events being testified to were those that occurred on October 27th, but the record shows that the district attorney made such fact clear.
It is significant to note in this connection that upon preliminary examination of Joanne by the district attorney, the defendant's counsel interjected, "I think it would be well to consolidate the testimony on both counts. I'm willing to stipulate to that. Then you can examine her on both matters and make it simpler." Later on the district attorney, completing his examination of Joanne on the events of November 4th, indicated he would examine her later as to October 27th, and defendant's counsel again stated, "I would just as soon consolidate them. It makes them easier if you examine both at the same time." Thus, if any confusion arose out of this situation, it was invited by defendant's counsel.
Appellant states in his brief, after some comment regarding the mental and professional ability of a court which is primarily a traffic court, "The entire record of this trial reflects a situation which can only be described as a blot upon the administration of justice." If defendant considered the court incompetent he could have filed an affidavit of prejudice but he did not do so.
There is a further complaint that a proper transcript was not prepared. We can only say that defendant's counsel was apparently satisfied with it since he signed the stipulation settling the bill of exceptions.
Some argument is also made to the effect that the trial court improperly denied defendant's request for a lie-detector test. The argument is entirely without merit. Sec. 165.04(1), Stats., provides for analysis of evidence submitted to the crime laboratory by defendants upon approval of the court, but it does not require the services of the lie detector where requested by defendants. In any event, results of such a test are not evidence admissible upon trial. LeFevre v. State (1943), 242 Wis. 416, 8 N.W.2d 288.
Reference was made in oral argument to a statement sent by the district attorney to the trial court and counsel after trial and before decision. The record fails to disclose any facts with regard to this. Defendant's counsel did not mention it in his motion for a new trial, nor did he call attention to it in the brief filed in this court, and we cannot now consider it.
By the Court. — Judgment affirmed.