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11/01/83 STATE WISCONSIN v. HERBERT E. DROSTE

November 1, 1983

STATE OF WISCONSIN, PLAINTIFF-RESPONDENT,
v.
HERBERT E. DROSTE, DEFENDANT-APPELLANT



Appeal from a judgment of the Circuit Court for Adams County: Fred A. Fink, Judge. On certification from Court of Appeals.

Steinmetz, J.

The opinion of the court was delivered by: Steinmetz

The issue presented is whether the defendant had a constitutional right in this sexual assault case to confront and cross-examine the victim and witnesses regarding her prior sexual conduct in order to establish her alleged modus operandi or bias as an undercover police agent, and therefore discredit her credibility. The defendant attempted to cross-examine the victim regarding sexual conduct with another man and offered a witness to testify that he had prior sexual acts with the victim. The trial court refused to admit this evidence.

This action was commenced on August 25, 1980, when a criminal complaint was filed charging the defendant with first degree sexual assault contrary to sec. 940.225 (1) (b), Stats. *fn1 The preliminary hearing was held on September 4, 1980, at the Conclusion of which the defendant was bound over for trial. An information charging him with one count of first degree sexual assault was filed on October 3, 1980. On June 12, 1981, a hearing was held on the defendant's motion to admit evidence of sexual contact between the prosecutrix and a man other than the defendant, which motion was denied by the trial court. On June 16 and 17, 1981, the defendant was tried by a jury in circuit court for Adams county, the Honorable Fred A. Fink, circuit Judge for Wood county, presiding. A verdict of guilty was returned, and on July 21, 1981, a judgment of conviction was entered and a sentence of fifteen years was imposed. The defendant filed a notice of appeal on November 25, 1981. The court of appeals certified the case, and on March 25, 1983, this court accepted the certification.

The criminal complaint alleged that on July 12, 1980, the prosecutrix was the victim of a forcible sexual assault, fellatio, perpetrated by the defendant with the use of a leather strap which was held around her neck.

The victim was hired by the Sauk county sheriff's office on April 1, 1980, to work as an undercover narcotics officer. She first met the defendant on July 10, 1980, after she was assigned to investigate him and others as possible drug suspects. At that first meeting with the defendant, which occurred in a bar, the victim testified she purchased from him six amphetamines commonly referred to on the street as "black cadillacs." The defendant also mentioned that he knew of a source of pharmaceutical quaaludes.

She next met the defendant on July 11, 1980, at which time he told her that if she came to his work place the next day, she would be able to purchase some quaaludes.

On July 12, 1980, she met the defendant who informed her they would have to travel to a woman's house out in the country to get the drugs. Knowing the possible danger, she went with him but told the defendant that her friends knew whom she was going to see and where she was going to be, and that she had to get back quickly or they might worry and start looking for her. They then proceeded to drive into the countryside where he sexually assaulted her.

The defendant drove on to a logging road, stopped at a fire ditch and they exited the car. The victim saw something flash in front of her face and was dragged to the ground by something around her neck. According to the victim's testimony, the defendant jumped on top of her, holding a leather strap around her neck very tightly, and forced her to commit an act of fellatio on him. The defendant also attempted to have sexual intercourse with her but was unable to do so.

Upon returning to Wisconsin Dells, the defendant threatened her not to say anything to anyone since he could get much rougher. The victim then drove home, phoned her police supervisor and told him of the sexual assault. He testified that she was sobbing to the point that he did not recognize her voice. Her supervisor arranged for a medical examination.

Dr. Hansel, the examining physician, Detective Borski, her supervisor, and Deputy Manny Bolz of the Sauk county sheriff's department all testified to observing a red welt on the victim's neck. Detective Borski described it as running "from the right ear down around the Adams Apple; and it terminated at the left ear." Dr. Hansel testified these abrasions were quite evident at the time of his examination. The doctor described how when a strap is tightened around the neck of a person, the body's physical reaction is swelling and redness in the pressure area. He expressed his professional opinion that the mark on the victim's neck could have been caused by a leather strap. He also noted and described an elbow bruise and an abrasion on the skull that she had. Additionally, Detective Borski testified that the victim had pinch marks and a pronounced bruise on her elbow. He also testified she continued crying while he was present during the examination.

An employee of the state crime laboratory testified that throat swabs taken from the victim were positive for semen and that the vaginal swabs were negative.

The defendant presented to the court a list of proposed questions to be asked of the victim on cross-examination. *fn2 These questions in part concerned the victim's past sexual contact with one Eugene Cone, whom she was also investigating for drug usage. The trial court ruled that the proposed questions concerning her past sexual contact could not be asked.

At the motion in limine hearing the defendant called witnesses in an offer of proof. The proffered offer was that the victim had befriended targets of investigations, had used controlled substances with them, and had sexual relations with one of those persons in order to further her drug investigation. This testimony was ...


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