The circuit court allowed the state to admit testimony that Gutierrez’s DNA wasn’t found after testing of relevant evidence state as well as testimony about why his DNA might not be found; it did not, however, allow Gutierrez to admit evidence that the DNA of other men had been found. This was error.
The state had DNA evidence from clothing and a buccal swab of 12-year-old A.R., who alleged Gutierrez sexually assaulted her. The clothing had DNA from five males, and the buccal swab from three—but none of them were Gutierrez. The state objected to the admission of the evidence on rape shield grounds, see § 972.11(2), saying it would invite the jury to speculate that A.R. had sexual contact with other males (though none of the DNA was from saliva or semen). (¶¶2-3).
The circuit court correctly ruled that the absence of Gutierrez’s DNA was relevant, as was evidence that washing or cleaning may have removed DNA from the body or clothing. But:
¶9 …. Where we disagree with the circuit court is its ruling that allowed testimony pertaining to why Gutierrez’s DNA may have been absent (washed off) but denied Gutierrez the right to rebut the State’s evidence by showing that the DNA of several individuals was not washed off. By allowing the State to present evidence that DNA can be easily washed off but not allowing Gutierrez to rebut that theory, the jury was incorrectly led to believe that the underwear and mouth swabs contained no DNA evidence. Testimony at trial indicated that the evening before A.R. reported the assault, Gutierrez removed A.R.’s underwear twice, put his mouth on her vagina, and put his penis in her mouth. Based on this testimony, the presence or lack thereof of Gutierrez’s DNA on the underwear or mouth swab was clearly relevant, and especially relevant in rebuttal, to the State’s offer that Gutierrez’s DNA was not there because it was washed off.
As to the rape-shield argument, well, that’s wrong: “The offer of the DNA evidence was to counter the State’s argument that Gutierrez’s DNA was washed off, rather than evidence concerning her ‘prior sexual conduct.’” (¶10).
And the error in excluding the evidence wasn’t harmless:
¶12 ….[T]his case was largely a case involving competing testimony: A.R.’s testimony versus Gutierrez’s testimony. Without corroboration of A.R.’s allegations, the DNA evidence, both the presence and lack thereof, was a critical piece of evidence. As previously discussed, the lack of Gutierrez’s DNA was central to his defense. The State’s case was improperly bolstered when the jury was indirectly presented with a fact not in evidence, i.e., that no DNA was present as it had been washed off. Allowing the State’s proffer that Gutierrez’s DNA had been washed off while denying Gutierrez his right to rebut that evidence was error and
undermines our confidence in the trial’s outcome….
Because it reverses and remands for a new trial, the court also addresses Gutierrez’s challenge to other-acts evidence that he had sexual contact with A.R. six years earlier and holds the circuit court properly exercised its discretion in admitting the evidence under State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998). (¶¶13-15).
Setting this up for no doubt hostile review in the supreme court, a dissenting judge (Hagedorn) asserts that, under the “extraordinarily deferential” (¶18) standard of review for circuit court evidentiary decisions, Gutierrez should lose. The dissent says the circuit court engaged in a demonstrated rational process and was rightly wary of the uncertainty of the nature and sources of the DNA and inviting speculation by the jury about the DNA that was found. (¶¶21-37). Thus, the dissent concludes, the majority doesn’t show the trial judge made an “irrational, thoughtless” decision, and its conclusion shows it is “more offended by the unfairness of the trial court’s decision” than it is making “a considered effort to apply the standard of review.” (¶20).