01-1916 State of Wisconsin v. Walters

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Defendant appeals from his convictions on three counts of first-degree sexual assault on a child, arguing that the trial court wrongly excluded testimony from two defense experts.

No error occurred in excluding the testimony of the expert who said he would address the quality of the investigative techniques used in this case; the trial court found (1) the majority of this testimony would cover matters within the knowledge and general experience of the community; (2) the testimony would not have highlighted specific examples of improper techniques used by the police nor explained how these techniques could have affected the children’s statements; and (3) because the State was planning on using live witnesses and would not rely on the children’s statements to police, evidence regarding the interviewing techniques would be, at best, minimally relevant.

Even though the district attorney argued, and the trial court implicitly agreed, that Richard A.P. was “obviously” wrongly decided, it is a decision of this court and may not be ignored; further, it has been affirmed by our supreme court in Davis.

Here, the defense expert would have testified (1) that she had administered several psychological evaluations and an intelligence test to the defendant; (2) that there are personality characteristics that are found more often in people who sexually offend than in the normal population; (3) about those personality characteristics; and finally, (4) that she had assessed defendant’s personality, and she could testify regarding defendant’s personality characteristics and those of known sex offenders.

This profile testimony was relevant in that whether or not defendant possessed traits indicating a propensity to commit sexual assaults relates to a consequential fact, i.e., whether defendant committed sexual misconduct with a child.

We reverse the conviction and remand for a new trial where defendant is allowed to present his Richard A.P. evidence.

Affirmed in part, reversed in part, remanded with directions.

Recommended for publication in the official reports.

Dist II, Walworth County, Carlson, J., Snyder, J.

Attorneys:

For Appellant: David A. Danz, Elkhorn; Jenelle L. Glasbrenner, Delavan

For Respondent: Phillip A. Koss, Elkhorn; Marguerite M. Moeller, Madison