State v. Jackson

BROWN, J.

(dissenting). The doctrine of "curative admissibility" is a remedy that a trial court may apply when a party "opens the door" to otherwise inadmissible evidence by trying to exploit that evidence to the disadvantage of the opposing party.1 In this case, the *219majority concludes that the prosecutor "opened the door" to the shielded evidence concerning Kelly H.'s prior sexual relationship with Jackson when he asked Jackson if his financial disagreement with Kelly H. was the reason why Kelly H. was allegedly fabricating the charges against him. See majority op. at 211. With this question, the majority reasons that the prosecutor "opened the door" to the general issue of Kelly H.'s credibility and thus the trial court should have permitted Jackson to introduce the shielded evidence regarding Kelly H.'s prior sexual conduct. See majority op. at 213.

1 believe that the majority has misapplied the doctrine of curative admissibility. Jackson had previously testified that his financial disagreement with Kelly H. was the only source for the tension between them. The prosecutor's attempt to confirm Jackson's theory of the case, therefore, did not "open the door" to the issue of Kelly H.'s overall credibility. I therefore dissent from the majority's decision that the trial court should have permitted Jackson to refer to the evidence which it previously shielded under the rape shield statute. See majority op. at 213. I would affirm Jackson's conviction.2

*220I will begin my analysis with a brief review of the trial court's pretrial ruling relating to Kelly H.'s prior sexual conduct. I will demonstrate that Jackson was the one who first offered the evidence that Kelly H. was biased against him because of their financial disagreement. I will then explore what took place during trial. Here, I will show that the prosecutor never "opened the door" to the issue of Kelly H.'s overall credibility and never tried to exploit the shielded evidence concerning Kelly H.'s prior sexual conduct.

I now turn to the pretrial proceedings during which the trial court correctly rejected (I agree with the majority on this matter) Jackson's request to introduce the evidence regarding his and Kelly H.'s prior sexual relationship. I begin by emphasizing that Jackson testified during the evidentiary hearing. He thoroughly described the living and financial arrangements between himself, his fiancee, Jennifer, and Kelly H. Moreover, Jackson described the background and intimate details of his alleged sexual relationship with Kelly H. On this latter subject, I note that Jackson claimed that he abruptly "cut it off' because he "didn't want Jenny to find out.. .." See majority op. at 208.

During Jackson's testimony, his counsel specifically directed him to the issue of how his sexual relationship with Kelly H. related to the defense theory that Kelly H. had fabricated the sexual assault (and the other charges). Here, Jackson explained that Kelly H. was mad at him because he was moving out, thus leaving her responsible for additional rent, and that he owed Kelly H. money for the telephone. Defense coun*221sel then asked Jackson what I perceive to be the crucial question of whether there were other reasons why Kelly H. might harbor bad feelings towards him which, in turn, would motivate her to fabricate these charges. Defense counsel specifically inquired:

Q. When the fight happened on December the 1st of 1994, what did you perceive the reasons to be for the fight, aside from the money?
A. That was it. [Emphasis added.]

But despite this narrow record, defense counsel argued to the trial court that the evidence concerning Jackson and Kelly H.'s prior sexual relationship was relevant because it "certainly would add to the anger that she was experiencing at that point in time."

The trial court rejected this argument. In light of Jackson's defense — that the assault never happened — the trial court ruled that this prior sexual relationship was not relevant. The court explained that:

There is no evidence of prior unfruitful allegation of sexual assault by this complaining witness. All you want to do is bring in the fact, the alleged fact, that they had sex. Maybe they changed the oil in the car together. It's interesting, but it's not material to the fact that he said it didn't happen, they had a scuffle relating to an argument over money.

I wholeheartedly join in this analysis and join the majority's decision insofar as it upholds this ruling. See majority op. at 211.

However, I depart from the majority's opinion at the point where it goes on to conclude that the trial court was bound to reverse this ruling when the prosecutor asked Jackson, at trial, if his financial *222disagreement with Kelly H. was the reason why Kelly H. was allegedly biased against him. The majority suggests that the prosecutor "opened the door" to the issue of Kelly H.'s credibility and therefore was trying to exploit the fact that Kelly H.'s prior sexual conduct (which supposedly would bear on her credibility) had been declared inadmissible under the rape shield statute. The majority effectively holds that to preserve Jackson's constitutional right to present a defense, the trial court should have set aside the rape shield law and allowed Jackson to tell the jury that he and Kelly H. had been sexually involved.

But when the prosecutor asked Jackson this question, he was not trying to take advantage of the fact that the evidence relating to his witness's prior sexual conduct had been declared off limits. During pretrial proceedings, Jackson was the one who claimed that his financial disagreement with Kelly H. was the source, and the only source, of Kelly H.'s alleged bias.

Moreover, during trial Jackson continued with his theory that the financial problems were at the root of his conflict with Kelly H. During direct examination, Jackson explained that she was constantly asking him "when are you going to help pay the rent and when [are] you going to help pay the phone bill. . . ." Indeed, Jackson testified that during the November before the assault, Kelly H. had become so concerned about the financial arrangements at the apartment that she took out the phones from the apartment's common areas (apparently the phone line was in her name) and put a block on the line so that only she could use it. According to Jackson, Kelly H. had even threatened to disclose to the landlord that Jackson was living at the apartment, which would have raised the rent. Jackson alleged that he, Jennifer and Kelly H. "had made an agreement that *223my name not be on the lease, so we wouldn't have to pay the extra $ 100." Finally, Jackson explained that on the day of the alleged assault, Kelly H. started "verbally whipping" him about how he had to get out of the apartment and how he was going to pay what he owed. This argument led to a brief pushing match.

Faced with the testimony that Jackson gave during the pretrial evidentiary hearing and on direct examination at trial, the prosecutor asked Jackson on cross-examination if "the fact that she had some disagreement over finances with you in the home" was the reason why she was falsely accusing him. But Jackson, instead of just confirming his earlier testimony, tried to supplement the record by claiming that "it was more to it than it."

Although the record shows how the trial court interrupted the proceedings at this stage to determine if Jackson could make an offer of proof to support his new position — Jackson could not — the majority holds that the trial court erred. The majority reasons that the prosecutor "opened the door" to the overall issue of Kelly H.'s credibility by asking this question and thus, regardless of the rape shield law, the trial court was constitutionally bound to permit Jackson to tell the jury that he and Kelly H. had a prior sexual relationship. I disagree with the majority's analysis for two reasons.

First, after reviewing the record, I am convinced that the prosecutor did not "open the door." When one party attempts to exploit evidence which has been declared out of bounds, the doctrine of curative admissibility permits a trial court to cure the error by having the other party respond with its own version of the inadmissible evidence. See Edward J. Imwinkelried, Judicial Remedies for the Exposure of the Jury to "Irrel*224evant" Evidence, 34 Hous. L. Rev. 73, 86-87 (1997); Dale A. Nance, A Theory of Verbal Completeness, 80 Iowa L. Rev. 825, 869 (1995). Although very few Wisconsin cases address this principle in detail, the existing case law suggests that the doctrine is premised on a basic notion of "fair play." See State v. Coogan, 154 Wis. 2d 387, 399-400, 453 N.W.2d 186, 190 (Ct. App. 1990) (quoting Karl v. Employers Ins., 78 Wis. 2d 284, 300, 254 N.W.2d 255, 262 (1977)).

This case in no way comes within the definition of the "curative admissibility" doctrine. The prosecutor did nothing unfair when he asked Jackson about their financial disagreement. Jackson was the one who originally stated for the record that this was the only reason why he fought with Kelly H. on the day of the assault. Moreover, by claiming that Kelly H. had completely fabricated her sexual assault claim, Jackson was the one who "opened the door" to the general issue of why Kelly H. might be motivated to falsely accuse him. In fact, it seems to me that the trial court was carefully attuned to how Jackson's theory of the case related to the evidence concerning Kelly H.'s prior sexual conduct as it interrupted the proceedings and gave Jackson another opportunity to show that, contrary to his earlier testimony, Kelly H. was also biased against him because Jackson had abruptly broken off their sexual relationship.

Turning next to the constitutional analysis, and assuming that the prosecutor's question on cross-examination somehow "opened the door" to Kelly H.'s credibility, I do not understand how the trial court was not still bound to apply the rape shield law. I understand that the supreme court recognized in State v. Pulizzano, 155 Wis. 2d 633, 456 N.W.2d 325 (1990), that the rape shield law may sometimes have to give *225way to the defendant's right to present evidence. See id. at 656-57, 456 N.W.2d at 335; accord Michael R.B. v. State, 175 Wis. 2d 713, 736, 499 N.W.2d 641, 651 (1993). But before a trial court casts aside a witness's rape shield protection, the defendant must make an offer of proof showing (among other things) that the evidence is "clearly relevant to a material issue." See Pulizzano, 155 Wis. 2d at 656, 456 N.W.2d at 335.

However, as the record certainly demonstrates, Jackson was unable to make this showing when he was given a new opportunity to do so. Jackson had testified that he had abruptly broken off his sexual relationship with Kelly H., but he never provided any indication that she cared. As the State explained in its brief:

Defendant never testified that the prior sexual relationship caused the victim to become embittered or jealous so as to provide her with a motive for fabricating charges of sexual assault, kidnapping and other crimes.

The trial court understood that if Jackson had shown that Kelly H. was upset with him for breaking off the sexual relationship, then their past sexual relationship would have been relevant. Jackson was simply unable to make that offer of proof, both before trial or during the midtrial interruption. Hence, the trial court correctly declined to admit this evidence. Regardless of whether the prosecutor "opened the door" to the general issue of Kelly H.'s credibility, Jackson's constitutional right to present a defense was preserved because Jackson never showed how his prior relationship with Kelly H. was relevant to the case.

See Edward J. Imwinkelried, Judicial Remedies for the Exposure of the Jury to "Irrelevant" Evidence, 34 HOUS. L. Rev. 73, 86-87 (1997); Dale A. Nance, A Theory of Verbal Completeness, 80 Iowa L. Rev. 825,869 (1995).

The majority accepts Jackson's other claim that the trial court erred when it admitted the letters that Jackson had written to Jennifer because those letters were not relevant. See majority op. at 216. While I agree that these letters should not have been admitted, I would nonetheless uphold Jackson's conviction because I believe that this error was harmless. Although these letters negatively affected Jackson's credibility, this case was really about whether Kelly H.'s version of the events was credible. As Jackson's defense was that the assault never occurred, his guilt turned on the whether the jury believed Kelly H.'s claims that this assault occurred. Thus, evidence which *220impeached Jackson's credibility did not contribute to the conviction because such evidence did not make Kelly H. any more credible. See State v. Dyess, 124 Wis. 2d 525, 543, 370 N.W.2d 222, 231 (1985).