State v. Sonnenberg

STEINMETZ, J.

(concurring). I join Justice Callow’s concurring opinion. Further, I would state that if the district attorney asks a question of the defendant regarding sexual infidelity, which as in this case was whether the defendant asked Cathy Herman for sexual activity, and the district attorney is bound by his negative answer, then the defendant’s attorney would necessarily ask that the district attorney’s question be stricken from the record and the jury instructed to disregard it. Standing by itself, the question and its content are without foundation and merely suggest prejudicial information. Even if the trial court would overrule the lack of foundation objection, the question would suggest to the jury that it would hear more on the subject. When it hears no more on the subject, it is impossible to predict whether that would redound to the prejudice of the defendant or the state. The defendant raised the subject of his sexual proclivity on direct examination and it was irrelevant at that time. Since it was heard and became evidence to be considered by the jury, the attack on its believability should be allowed.

There is an issue of the nearness in time of Cathy Herman’s information to another event. The question is what event is the witness’s information to be related to in time. As I analyze it, the information is not related to the offense, since it is irrelevant to whether that event occurred. Rather, it is related in time to the defendant’s statement on direct examination; it is relevant to his *186credibility and is close in time to that event. Such an analysis is eminently fair to the defendant, since he raised the subject of his sexual fidelity to his wife and is best aware of his philanderings or attempts at it, if any have taken place. If there have been other recent transgressions or attempts at sexual infidelity close in time to his testimony, he would be well-advised not to try to impress the jury with his alleged fidelity which could be questioned.

If the district attorney were not allowed to follow up his question with available information, an overzealous district attorney could ask a question inferentially loaded with prejudicial ideas and not be presently prepared to offer proof. The trial court would almost by necessity be required to hold an offer of proof hearing to make sure that the district attorney had follow-up evidence to the question in order to avoid an ethics problem and then not allow the jury to hear the information.

I concur with the majority; however, I would find the foundation testimony of Cathy Herman permissible under sec. 906.08, Stats., since the defendant volunteered the subject on direct examination. He caused the subject to become relevant to his credibility, if not to the charged act of the offense.