State v. Sonnenberg

344 N.W.2d 95, 117 Wis. 2d 159, 1984 Wisc. LEXIS 2305
CourtWisconsin Supreme Court
DecidedFebruary 28, 1984
Docket82-1081-CR
StatusPublished
Cited by68 cases

This text of 344 N.W.2d 95 (State v. Sonnenberg) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Sonnenberg, 344 N.W.2d 95, 117 Wis. 2d 159, 1984 Wisc. LEXIS 2305 (Wis. 1984).

Opinions

HEFFERNAN, C.J.

This is a review of a court of appeals per curiam order dated February 15, 1983, which affirmed the defendant’s conviction on September 4, 1981, in the circuit court for Brown county, Charles E. Kuehn, Circuit Judge, of the violation of sec. 940.225(2) (e), Stats., second-degree sexual assault.

The defendant petitioned this court for review, which was granted May 3,1983.

We conclude that the trial court erred when it permitted the state to contradict the defendant’s direct-testimony statement — that he never had need to seek sexual satis[161]*161faction from any woman other than his wife — by producing a female witness who testified that, a few days before trial, defendant Sonnenberg had asked her to go to bed with him and offered to “make a deal” with her if she would do so. We hold that such testimony was inadmissible because it was evidence of “other conduct” which only tended to contradict Sonnenberg and was not admissible for any recognized purpose. The testimony violated the generalized rule of evidence recently reaffirmed by this court in McClelland v. State, 84 Wis. 2d 145, 267 N.W.2d 848 (1978), that it is error to introduce extrinsic rebuttal evidence on a collateral matter in an effort to impeach the testimony of a witness. We conclude, however, that the statement, though error, was not prejudicial. The error was not “plain,” but harmless. We affirm.

On July 10, 1981, the defendant, Walter Sonnenberg, was charged with second-degree sexual assault in violation of sec. 940.225(2) (e), Stats., sexual contact with a person over twelve and under eighteen years of age, his fourteen-year-old niece, T. L., on or about July 5 or 6, 1980.

During the jury trial, the niece testified that she and her half-sister, both of whom were in a foster home, until the weekend of June 12, 1981, spent weekends during the summer and school year with the defendant, her uncle, and his wife. The niece testified that the defendant touched her breast and pubic area on the weekend of July 4, 1980, and that he touched her during every visit thereafter until June 12,1981. She did not tell her aunt or anyone else about these incidents until she told her social worker in June of 1981.

The defendant denied all his niece’s allegations and claimed that she made up the story to get even with him after they had had a disagreement. The defendant testified at trial. On direct examination the defendant stated that he had been happily married for twenty-one years [162]*162and had no problems with his sexual relationship with his wife. The defendant stated that, during the course of his marriage, he did not go to any other female for his sexual needs.

On cross-examination the prosecutor asked the defendant whether he knew a Cathy Herman and whether it was not true that, about ten days before trial, he had propositioned her to go to bed with him in exchange for drugs. The defendant admitted that he knew Cathy Herman but denied that he propositioned her to go to bed with him in exchange for drugs. No immediate objection was made by defense counsel. After similar questions by the prosecutor, defense counsel asked to approach the bench and objected. The district attorney responded, asserting that Sonnenberg opened the door to the cross-examination about sexual contact, because he stated that he never sought sexual satisfaction from women other than his wife. Defense counsel objected that the question about Cathy Herman, made without any factual foundation, was highly prejudicial and inflammatory. He stated that, unless there was shown to be a basis in fact, he objected to the questioning. The prosecutor stated that he would only ask questions for which he could establish a foundation by rebuttal testimony. The trial judge ruled that the defendant had opened the door to sexually related questions and permitted the cross-examination to continue. In response to further cross-examination, Sonnenberg denied he had sexual contact or intercourse with either of his nieces.

After the defense rested, the state called Cathy Herman as a rebuttal witness. Herman testified that she was twenty-five years old and had been convicted of crimes twice in the past. Herman testified that, about a week and a half before the trial, Sonnenberg asked her to have sex with him. Defense counsel interposed two objections to this line of questioning: One, that the answer called for hearsay; and, two, that the answer called for a conclusion [163]*163on the part of the witness. These objections were overruled. Herman testified that Sonnenberg said he wanted to have sex with her because “he likes sex a lot and that he needed to relieve some tension because he was depressed because he was going to Court and he just said he likes sex a lot.”

On September 29, 1981, after the jury found Sonnen-berg guilty of second-degree sexual assault, he was sentenced to an indeterminate term of not more than thirty months imprisonment. On March 19, 1982, he filed a post-conviction motion asking for a new trial. Sonnen-berg for the first time asserted that the testimony of Cathy Herman constituted improper impeachment, in violation of sec. 906.08(2), Stats.,1 and the general rule against impeachment on collateral matters by extrinsic evidence. The defendant, relying on McClelland v. State, 84 Wis. 2d 145, 267 N.W.2d 843 (1978), further contended that the admission of extrinsic evidence on a collateral matter was prejudicial error requiring that the conviction be set aside and a new trial granted. The state contended that testimony on rebuttal was proper impeachment and was admissible under sec. 904.04 (2)2 as [164]*164“Whitty” evidence to show motive, opportunity, and intent. Whitty v. State, 34 Wis. 2d 278, 149 N.W.2d 557 (1967), cert. den., 390 U.S. 959 (1968). The postconviction motion was denied by the trial court.

On June 4, 1982, the defendant filed an appeal challenging the original judgment of conviction and the order denying the postconviction motion. By a summary order dated February 15, 1983, the court of appeals affirmed the judgment and order of the trial court. The court of appeals concluded that McClelland was distinguishable, because the court in McClelland found the admission of extrinsic-evidence testimony on a collateral matter on rebuttal to be plain error which, under the facts of that case, caused great prejudice to the defendant. The court of appeals stated that the circumstances surrounding the charged offense and the Herman incident were dissimilar and the collateral extrinsic evidence was remote in time (hence, not highly probative). Furthermore, the court said, the collateral-occurrence testimony was not in itself highly prejudicial or likely to cause a jury to want to punish the defendant or to unduly focus on the collateral matter. It was held that the defendant was not “entitled to relief on appeal because he has not established a plain error affecting a substantial right. . . .”

This court granted the defendant’s petition to review the order of the court of appeals.

The above facts furnish the underpinning for Sonnen-berg’s argument that he is entitled to a new trial. The argument is that the testimony of Cathy Herman was prejudicial error, because she testified as a rebuttal wit[165]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. James Travaras Jones
Court of Appeals of Wisconsin, 2025
State v. Kerry C. Jenkins
Court of Appeals of Wisconsin, 2025
State v. Johnny Ray Martin
Court of Appeals of Wisconsin, 2025
State v. Alexander T. McGee
Court of Appeals of Wisconsin, 2024
State v. Robert L. Dorgay
Court of Appeals of Wisconsin, 2024
State v. Troy Allen Shaw
Court of Appeals of Wisconsin, 2024
State v. Michael J. Koenig
Court of Appeals of Wisconsin, 2023
State v. Cullen Joel Horne
Court of Appeals of Wisconsin, 2023
State v. Dennis C. Strong, Jr.
Court of Appeals of Wisconsin, 2022
Rock County v. H. V.
Court of Appeals of Wisconsin, 2022
State v. Michael D. Martin
Court of Appeals of Wisconsin, 2021
State v. Angel Mercado
2021 WI 2 (Wisconsin Supreme Court, 2021)
State v. Thomas A. Nelson
Court of Appeals of Wisconsin, 2020
State v. Antonio Scarbrough
Court of Appeals of Wisconsin, 2020
State v. Donahue
2018 WI App 66 (Court of Appeals of Wisconsin, 2018)
State v. Jackson
2011 WI App 63 (Court of Appeals of Wisconsin, 2011)
State v. Marinez
2011 WI 12 (Court of Appeals of Wisconsin, 2011)
State v. Lammers
2009 WI App 136 (Court of Appeals of Wisconsin, 2009)
State v. Jorgensen
2008 WI 60 (Wisconsin Supreme Court, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
344 N.W.2d 95, 117 Wis. 2d 159, 1984 Wisc. LEXIS 2305, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-sonnenberg-wis-1984.