The court rejects Burns’s claim for a new trial in the interest of justice premised on three grounds: 1. Burns was unable to cross-examine the complainant on her implication that he took her virginity; 2. evidence of prior sexual assaults of the complainant by his father, the complainant’s grandfather, was excluded; 3. the prosecutor’s closing arguments improperly bolstered the complainant’s credibility.
1. The trial court made a pretrial ruling excluding “all” evidence of the complainant’s virginity under the rape shield law, ¶7. Nonetheless, she testified that she told a friend that she “didn’t think she was a virgin,” ¶10. The trial court then rebuffed Burns’ attempt to cross-examine her as to whether this statement was true, ¶11. Burns argues on appeal that this sequence of events allowed the jury to incorrectly infer that Burns took her virginity, ¶30. The supreme court first holds that, because evidence of the complainant’s virginity relates to “prior sexual conduct,” it must satisfy an exception to the rape shield law, § 972.11(2), ¶¶31-34. No exception applies; the question becomes whether admissibility was required by the 6-factor test of State v. Pulizzano, 155 Wis. 2d 633, 656-657, 456 N.W.2d 325 (1990), which safeguards the constitutional right to present a defense.
¶36 The third element of the Pulizzano test——that the prior act is clearly relevant to a material issue——precludes admission of evidence of the grandfather’s assaults under the Pulizzano exception to the rape shield law. Evidence of the grandfather’s assaults is not “clearly relevant” to the issue of S.B.’s allegation that Burns sexually assaulted her. There is no assertion that S.B. lied about the grandfather’s conduct, and her truthfulness about those sexual assaults is not probative of Burns’ claim that she lied about his conduct with her. Burns does not provide any compelling argument that S.B.’s assault by the grandfather is “clearly relevant” to whether she is being untruthful in her allegations against Burns. The circuit court did not err when it denied Burns’ motion to cross-examine S.B. on the alleged assaults by the grandfather.
2. Nor did the complainant’s subsequent admission, at the grandfather’s trial for assaulting her, that her testimony at Burns’s trial implying that Burns took her virginity wasn’t entirely truthful, alter the terrain. Her subsequent testimony didn’t raise a suggestion that her testimony at Burns’ trial falsely attributed the grandfather’s acts to Burns, ¶38. Instead, her omitted reference to her grandfather at Burns’ trial was merely her attempt to adhere to the pretrial ruling. Rather than being false, “her testimony shows that she was referring to both the grandfather and Burns,” ¶38.
¶43 In sum, S.B.’s testifying in a way that could imply that Burns took her virginity did not differ in any significant way from her allegation that Burns had intercourse with her when she was 14 years old; Burns was able to challenge S.B.’s truthfulness that intercourse took place. We conclude, therefore, that S.B.’s virginity testimony did not so cloud the critical issue of whether S.B. lied about what Burns did, as to warrant a new trial in the interest of justice.
3. The prosecutor’s closing argument—to the effect that no other explanation accounted for the complainant’s behavior—doesn’t support interest-of-justice relief.
¶51 We understand why Prosecutor Sharp’s comments are troublesome to Burns. However, prosecutors comment on evidence before the jury; they do not comment on evidence the jury has not heard. We also note that Prosecutor Sharp’s first statement about the lack of an alternative explanation for S.B.’s behaviors in his rebuttal argument——the portion of the closing arguments that Burns contends contains the most improprieties——highlighted that he was focusing on the record before the jury. He stated, “All the evidence in the record shows when she came home from [her visits to Wisconsin] she was experiencing problems for no reason, no reason that anybody could make heads or tails out of until she revealed what happened. Otherwise, there’s no explanation for it.” (emphasis added).
¶52 Burns agrees that the circuit court’s initial ruling precluding testimony about the grandfather’s sexual assaults was correct, yet his criticism of the prosecutor’s closing argument is grounded in the notion that the jury should have known of the grandfather’s prior sexual assaults. We are unpersuaded by Burns’ argument. Prosecutor Sharp’s statements in closing argument did not muddle the jury’s understanding of the evidence before them.
The dissent concisely explains the problem with this analysis:
¶63 I conclude that the prosecutor’s closing statements are more than merely “troublesome,” as the majority understates. The prosecutor exploited evidence that was excluded from trial at the prosecutors’ request. The prosecutor asked the jury to infer a fact that the prosecutor knew was false. “Prosecutors may not ask jurors to draw inferences that they know or should know are not true. That is what occurred here and it is improper.”
¶66 As a result of the exclusion of evidence and the prosecutor’s closing argument, the controversy was not fully tried. The case violates a basic rule of criminal law: “To maintain the integrity of our system of criminal justice, the jury must be afforded the opportunity to hear and evaluate such critical, relevant, and material evidence, or at the very least, not be presented with evidence on a critical issue that is later determined to be inconsistent with the facts.”
¶67 Because the jury did not hear evidence central to the determination of whose story was more credible and in his closing statement the prosecutor invited the jury to make an inference he knew was incorrect, I conclude that the real controversy was not fully tried.