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SCOW approves exclusion of DNA evidence and admission “other acts” evidence in child sexual assault case

State v. David Gutierrez, 2020 WI 52, reversing in part a published court of appeals opinion, 6/3/20; case activity (including briefs)

In a 5-0 decision, SCOW affirms all parts of this published court of appeals decision but one. The court of appeals held that the circuit court erred in refusing to admit evidence that excluded Gutierrez as the source of male DNA in the underwear and around the mouth of a victim of child sexual assault. The assaults involved oral sex and attempted vaginal intercourse. SCOW reversed the court of appeals on that point.

A jury convicted Gutierrez of 3 counts of child sexual assault, incest by a stepparent, and other crimes. The victim’s mouth was swabbed after she had washed her face. One pair of her underwear was swabbed after it was retrieved from a pile of dirty laundry. The other pair was swabbed after it was retrieved from a washing machine  mid cycle.

Under §904.03, relevant evidence may be excluded if its probative value is not outweighed by the danger of unfair prejudice. SCOW held that the swabs had little probative value because no known male was identified as the source of the semen, and the DNA was not saliva or semen. It could have come from other clothes. Opinion, ¶23.

Neither party could say whether the DNA was deposited before or after the assault. The victim’s description of the underwear she wore during the assault was inconsistent with the underwear tested. And admission of the evidence could cause the jury to speculate about the source of the DNA. Opinion, ¶26.

The circuit court admitted evidence that Gutierrez sexually assaulted the victim when she was 6. Applying the “other acts evidence” test of  State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998) and the “greater latitude” rule applicable to child sexual assault cases, both the COA and SCOW held that this evidence was correctly admitted.

The evidence showed Gutierrez’s motive for touching the victim was sexual arousal. It enhanced the victim’s credibility on the current accusations. And under the “greater latitude” rule evidence of prior child sexual assaults is admissible, especially when accompanied by a cautionary instruction. Opinion, ¶¶28-37.

SCOW rejected several additional claims by Gutierrez. He argued that a juror who said “I don’t know if I can be impartial” during voir dire was subjectively biased. SCOW held that it had to presume the juror was impartial–especially since no follow up questions were asked and nothing else in the record suggested that she was biased. Opinion, ¶¶38-42. (citing State v. Lepsch, 2017 WI 27, ¶22, 374 Wis. 2d 98, 892 N.W.2d 682

Gutierrez also argued that he was denied effective assistance of counsel when his lawyer failed to move to strike the juror just mentioned and failed to call his mother to testify that the victim recanted her accusation. The first claim failed because he could not prove that a biased juror was actually seated on his jury (see prior paragraph). The second claim failed because the trial lawyer had a strategic reason for not calling the mother–she was a “loose cannon” who “loved to talk” and would go off on tangents when asked questions. Opinion, ¶¶43-48.

A.W. Bradley withdrew from this case and Hagedorn did not participate because he was on the court of appeals panel (and wrote the dissent). Our post on the petition for review noted that SCOW’s decision had the potential to wreak havoc on the application of the rape shield law. SCOW did not go there.

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