State v. Herndon

426 N.W.2d 347 (1988)

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Nature of the Case

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Facts

M.L.P. testified that on March 24, 1986, at about 2 a.m., while she was walking to her mother's home, D sexually assaulted her in the 2400 block of North Martin Luther King Drive. M.L.P. testified that D forced her into his automobile, drove her to a parking lot located near the intersection of Martin Luther King Drive and West Vine Street in the city of Milwaukee, and forced her to commit several acts of oral and vaginal intercourse. M.L.P. further testified that D struck her in the eye and that he later drove his automobile to North 4th Street and West Clark Street and let her out. Based on this evidence, the court found that there was probable cause to believe that a sexual assault had occurred and that D had committed it. D was bound over for trial. On the trial date, the trial court entertained D's motion to have the rape shield law declared unconstitutional. D gave a statement to the police where he admitted picking up M.L.P. after she flagged him down while he was driving his car in the 2400 block of North Martin Luther King Drive at the time in question. He told the police that she told him that she was working and asked him if he had any money. He admitted driving her to another location where they engaged in the acts of intercourse she described. He admitted slapping her after she attacked him and bit him on the finger. He will testify that he believed that she was working as a prostitute and that the acts of sexual intercourse were consensual as acts of prostitution. M.L.P. told the police that she had left her home about 1:45-2:00 a.m. to walk to her aunt's home to borrow some money because she was hungry and out of cigarettes. Her aunt was not home, so she decided to walk back home and was accosted by D as mentioned above. After the alleged assault, M.L.P. went home to her mother's apartment and told her mother that she had been assaulted by D. D intended to offer as evidence at the trial of this case that M.L.P. was arrested on two prior occasions for engaging in acts of prostitution under circumstances similar to those described by D to the police on the day of his arrest and the alleged offense, before he could have known of her prior activities. D intended to introduce evidence that M.L.P.'s mother was aware of those prostitution arrests and strongly disapproved of her daughter's prostitution activities. The evidence will also show that the mother had communicated her displeasure over such activities to her daughter before March 24, 1986. Finally, Mr. Herndon intends to introduce evidence that M.L.P. had in the past testified, under oath that the police officers who arrested her for these prior acts of prostitution are lying about her activities under oath. The trial court, relying on sec. 972.11(2)(c), Stats., refused to allow any testimony or reference to M.L.P.'s prior sexual conduct. After being advised of his rights, D agreed to go ahead with the trial to the court and to allow the court to use the preliminary hearing evidence as the basis for its findings of fact and conclusions of law. Upon reading the preliminary hearing transcript, the court found D guilty of second-degree sexual assault. D was sentenced to an indeterminate term of four years incarceration to be served consecutively to the term he was then serving as a result of a parole revocation. D appealed.