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Evidence: Prior Inconsistent Statements- “State of Mind” Hearsay; Harmless Error / IAC-Prejudice

State v. Anthony L. Prineas, 2012 WI App 2 (recommended for publication), reissued after initial decision withdrawn; for Prineas: Robert R. Henak; case activity; prior historyState v. Prineas, 2009 WI App 28, 316 Wis. 2d 414, 766 NW.2d 206

Evidence – Prior Inconsistent Statements 

Evidence of complainant KAC’s statements made during an alleged sexual assault were admissible as prior inconsistent statements, § 908.01(4)(a)1. Prineas defended on a theory of consent. KAC testified that she repeatedly said “no” during the interactions. Prineas also testified, but the trial court ruled that he couldn’t relate KAC’s statements during the acts, including statements that indicated her consent to the acts.

¶18      Wisconsin Stat. § 908.01(4)(a)1. provides that prior statements by a witness are not hearsay if “[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is … inconsistent with the declarant’s testimony.”  Prior inconsistent statements under this provision are not hearsay and are admissible as substantive evidence and not merely to impeach.  RALPH ADAM FINE, FINE’S WISCONSIN EVIDENCE ch. 908 at 319 (2d ed. 2008); State v. Horenberger, 119 Wis. 2d 237, 247, 349 N.W.2d 692 (1984).  Although the State does not address § 908.01(4)(a), it acknowledges that the statements were inconsistent and admissible as substantive evidence—that KAC consented to the alleged sexual activity.  It is also undisputed that KAC testified at trial, was subject to cross-examination concerning the statements, and was available and subject to subpoena after Prineas testified.  See State v. Miller, 231 Wis. 2d 447, 470-71, 605 N.W.2d 567 (Ct. App. 1999) (“subject to” cross-examination concerning the statement means that the opponent must have an opportunity to examine the declarant regarding the statement, not that the declarant must, in fact, have been cross-examined about the statement).  Prineas’ testimony regarding KAC’s prior inconsistent statements was admissible.

The court reaches the merits, notwithstanding the prior appeal and potential serial-litigation bar, because Prineas asserts ineffective assistance of counsel on the prior go-round, leading the State to acknowledge that the IAC claim “provides a sufficient reason to permist review of the merits,” ¶12 n. 5.

Evidence – “State of Mind” Hearsay 

KAC’s statements were also admissible under the “state of mind” exception to the hearsay rule, § 908.03(3).

¶19      Morever, the statements would also have been properly admitted as a hearsay exception under Wis. Stat. § 908.03.  The “state of mind” exception to the hearsay rule provides:

     (3)  Then existing mental, emotional, or physical condition.  A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.

Sec. 908.03(3).  As the State points out, the 1974 Judicial Council Committee’s Note to this provision indicates that when a cause of action or a defense depends upon a person’s state of mind, “the declarations of the person whose state of mind is at issue are often a primary source of evidence on this matter.”  Wisconsin Rules of Evidence, 59 Wis. 2d R261 (1974).  Thus, because KAC’s lack of consent was an element of the sexual assault charges, her alleged remarks would be a primary source of evidence.[7]  As the State correctly observes, whether KAC actually made the alleged remarks and, if so, whether they indicated consent to sexual activity with Prineas or rather reflected acquiescence to force by Prineas would be jury questions.  See id. at R260 (trustworthiness concerns are “directed to the weight and sufficiency of the evidence and the credibility of the declarant, not to the admissibility of the statement”).

Harmless Error – IAC-Prejudice 

Whether viewed as a function of ineffective-assistance prejudice, or of harmless-error analysis, wrongful exclusion of these statements requires new trial.

¶26      The issue at trial was consent, and the question of consent under Wis. Stat. § 940.225(4) requires “an affirmative indication of willingness.”  Long, 317 Wis. 2d 92, ¶31.  KAC’s alleged requests as to locking the door, wearing protection, and changing positions during the encounter could all contribute to a finding that there was an affirmative indication of willingness.  We reject the State’s suggestion that Prineas’ descriptions of the victim’s movements and his actions are cumulative to testimony regarding KAC’s alleged remarks during the assault. …

¶27      This brings us to credibility.  “Evidence is cumulative when it ‘supports a fact established by existing evidence.’”  Thiel, 264 Wis. 2d 571, ¶78 (citation omitted).  KAC’s remarks to Prineas, if deemed credible, would bear directly on the issue of consent.  Here, the issue of KAC’s willingness was never “established” to such a degree that additional evidence could not have further undermined her credibility and created further reasonable doubt as to her version of events.  See id., ¶79.  The jury’s verdicts indicate as much.  The jury’s finding as to consent turned on the credibility of Prineas and KAC.  Our supreme court’s decision in Thiel provides guidance on the importance of evidence bearing on credibility in a case such as this. …

¶32      When viewing the impact of the excluded statements as a whole, it is not clear beyond a reasonable doubt that a rational jury would have found Prineas guilty absent the evidentiary error.  See Harvey, 254 Wis. 2d 442, ¶49.  As to prejudice, we are satisfied that absent any error, there is a reasonable probability—one sufficient to undermine confidence in the outcome—that the result of the proceeding would have been different.  See Strickland, 466 U.S. at 694.  While our confidence in the outcome may be less easily undermined where the erroneously excluded evidence was peripheral or the outcome was strongly supported by evidence untainted by error, Martindale v. Ripp, 2001 WI 113, ¶¶30-32, 246 Wis. 2d 67, 629 N.W.2d 698, such was not the case here.  In this case of he said/she said, the only issue was whether the sexual encounter was consensual.  As the State acknowledges, the not guilty verdicts in Counts 1 through 4 suggest that the jury did not fully accept KAC’s testimony that it was not.  We conclude that the error was not harmless and it undermines our confidence in the outcome.

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