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COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED                                                   This opinion is subject to further editing.   If
published, the official version will appear in
the bound volume of the Official Reports.
November 2, 2005
A party may file with the Supreme Court a
Cornelia G. Clark                                                                                                    petition to review an adverse decision by the
Clerk of Court of Appeals                                                                                            Court of Appeals.   See WIS. STAT. § 808.10
                                                                                                                     and RULE 809.62.
                                                                                                                     Cir. Ct. No.   2003CM194
Appeal No.                                                        2005AP1429-CR
STATE OF WISCONSIN                                                                                                   IN COURT OF APPEALS
DISTRICT II
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
COLLEEN M. NOVAK,
DEFENDANT-APPELLANT.
APPEAL from a judgment of the circuit court for Ozaukee County:
JOSEPH D. MC CORMACK, Judge.  Reversed and cause remanded.




No.   2005AP1429-CR
¶1                                                                                           NETTESHEIM, J.1     A jury found Colleen M. Novak guilty of two
counts  of  obstructing  an  officer  pursuant  to  WIS.  STAT.  § 946.41(1).    Novak
appeals from the ensuing judgment of conviction.   She raises two issues:                    (1) the
trial  court  erred  by denying  her  motion  to  suppress  her  statement  which  she
contends was the product of custodial interrogation; and (2) the trial court erred
when it barred her proffered cross-examination of a State’s witness with regard to
a tape-recorded statement previously given by the witness.   We reject Novak’s
argument that her statement to the police should have been suppressed.   Instead,
we agree with the trial court’s ruling that Novak was not in custody at the time she
provided her statement.   However, we agree with Novak’s further argument that
the  trial  court  erroneously  restricted  her  cross-examination  of  a  key  State’s
witness.   We reverse and remand for a new trial.
BACKGROUND
¶2                                                                                           On  the  evening  of  October  4,  2002,  Novak’s  teenage  daughter,
Erica, and a friend, Cristiana Barbatelli, attended a high school football game.
Prior to attending the game, the girls had arranged for Cristiana to sleep over at the
Novak residence.   The girls had also arranged to “toilet paper” the neighboring
Weismueller residence during the sleepover.
¶3                                                                                           After the game, Novak picked up the girls from the football game
and drove them to the Novak residence.   A critical issue in this case is whether
Novak knew of the girls’ plan to toilet paper the Weismueller property.   Cristiana
testified that the girls spoke of the plan on the trip back from the football game and
1  This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(f) (2003-04).   All
references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.
2




No.   2005AP1429-CR
that Novak told them to be careful.   Novak testified that no such conversation took
place.
¶4                                                                                     Upon  arriving  at  the  Novak  home,  the  girls  changed  into  their
pajamas, watched some television, and ate some snacks.   After Novak retired for
the night, the girls changed their clothes, sneaked out of the house, and toilet-
papered the neighboring Weismueller property.   They then returned to the Novak
home, obtained some ketchup and eggs and more toilet paper, and returned to the
Weismueller property where they continued to toilet paper the property, “egged”
and  “ketchuped” the Weismueller mailbox, and pulled some plants from their
containers.
¶5                                                                                     The  Weismuellers  reported  the  incident  to  the  Mequon  Police
Department.    Officer Darin Selk inspected  the  Weismueller property the next
morning  and  noticed  footprints leading from the  Weismueller  property to the
Novak residence.   Selk then went to the Novak residence and made contact with
Novak.    Selk asked Novak if she knew anything about the matter and Novak
replied that she did not.   When Selk asked about other people in the home, Novak
responded that she had picked up Erica and Cristiana from the football game the
night before but she doubted that they were involved because they “could not have
left the residence without her knowing.”   Novak then allowed Selk to look around
the property.   Outside the garage service door, Selk discovered two pairs of muddy
tennis shoes with what appeared to be toilet paper embedded in the treads.
¶6                                                                                     Selk  then  questioned  the  girls,  both  of  whom  denied  any
involvement in the Weismueller incident.    They explained the toilet paper and
mud on their shoes by stating that a friend of theirs had been wrapped in toilet
paper at the football game and that the spectator area was muddy due to a recent
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No.   2005AP1429-CR
rain.    Before  leaving,  Selk  again  spoke  with  Novak,  who  indicated  that  the
Weismuellers                                                                             “were  a  problem  neighbor,  always  yelling  at  her  children  for
stepping foot on their property, causing too much noise, etc., and that they were a
problem neighbor for everyone in the neighborhood.”
¶7                                                                                       Several days later, Officer Mario Valdes, the juvenile officer at the
girls’ school, spoke with Cristiana.   This time Cristiana admitted her involvement
in the Weismueller incident.   She also told Valdes that the girls had told Novak
about the incident the following morning prior to Selk’s arrival.
¶8                                                                                       As a result of this information, Valdes telephoned Novak and asked
her to come to the police station to discuss the matter.   Novak complied and met
with Valdes on October 11, 2003.   This meeting serves as the basis for Novak’s
motion to suppress.    At this interview, which lasted approximately two hours,
Valdes advised Novak that based on his conversation with Cristiana, there was a
possibility  that  Erica  was  involved  and  that  Novak  knew  about  the  girls’
involvement prior to Novak speaking with Selk.   Novak denied this accusation
and, as a result, the conversation between the two became agitated and loud.
Although  Valdes  never  formally  arrested  Novak,  he  did                             “book”  her  at  the
conclusion of the interview by having her fingerprinted and photographed.   Novak
was then released.
¶9                                                                                       Based on Cristiana’s statement that Novak knew about the girls’
plan and Novak’s failure to so admit in her conversations with Selk and Valdes,
the State charged Novak with two counts of obstructing an officer pursuant to
WIS. STAT.  § 946.41(1).   Novak filed a motion to suppress the statements she
made to Valdes on the grounds that the interview was custodial interrogation and
she had not been advised of her rights under Miranda v. Arizona, 384 U.S. 436
4




No.   2005AP1429-CR
(1966).    The trial court ruled that Novak was not in custody and denied the
motion.
¶10    At the trial, the State’s first witness was Cristiana, who testified that
she and Erica told Novak about the plan to toilet paper the Weismueller property
on the way home from the football game and that they also told her about the
accomplished deed the following morning before the arrival of Selk.   Following
Cristiana’s direct testimony and outside the presence of the jury, Novak’s attorney
sought  permission  to  cross-examine  Cristiana  about  a  tape-recorded statement
Cristiana had made to Erica during a math class at the girls’ school.   Novak’s
attorney did not seek permission to play the tape during the cross-examination
since he could not authenticate the tape through Cristiana.   Instead, he wanted to
alert Cristiana to the existence of the tape.   Novak’s attorney stated, “But in it
[Cristiana] contradicts a great deal of the statements which she gave to the police.”
Later,  counsel  said,                                                                       “[I]f  I  raise  in  her  mind  the  specter  that  she’s  going  to
contradict something that’s on a tape and that causes her to give a slightly different
version  on  the  stand,  I  think  that’s  fair  game.    If  she’s  given  contradictory
statements at another place [and] time, taped notwithstanding authenticated on it.”
Still later, as part of an offer of proof, Novak’s counsel said that his questions to
Cristiana “would include the concept of whether or not she might alter her answers
if she knew that she had been tape recorded.”
¶11    The State did not dispute the existence of the tape and further stated
that it knew about the tape in advance of trial.   However, the State contended that
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No.   2005AP1429-CR
the tape was the product of Erica’s harassment and intimidation of Cristiana in an
effort to get Cristiana to change her story.2
¶12    The trial court denied Novak’s request to alert Cristiana about the
tape during the cross-examination.   Noting the State’s contention that Cristiana’s
statements on the tape had been coerced, the court ruled that any reference to the
tape put the admissibility of the tape at issue.   Thus, the court ruled that it would
first have to rule on the admissibility of the tape before it would allow Novak’s
counsel to refer to it.
¶13    The jury found Novak guilty of both counts.   Novak appeals.   We
will recite additional facts as we address the issues.
DISCUSSION
Motion to Suppress
¶14    Novak sought to suppress her statements made to Valdes on the
grounds that Valdes’ questioning of her was the functional equivalent of custodial
2  In fact, the State had previously alerted Erica’s social worker about the tape.    In
response, the social worker revised Erica’s supervision rules to bar any contact between Erica and
Cristiana.
6




No.   2005AP1429-CR
interrogation, which required the Miranda warnings.3   The trial court denied the
motion, ruling that Novak was not in custody.   We agree.
¶15    Novak initially argues that Valdes’ questioning of her constituted
interrogation under Miranda.    We need no persuasion on this point.    Valdes
clearly  suspected  that  Novak  had  not  been  forthright  with  Selk  about  her
knowledge of the girls’ plan to toilet paper the Weismueller property when Selk
initially investigated the matter.   In fact, during the course of the interview, Valdes
advised Novak of his suspicion that Novak had lied to Selk and that Novak might
be lying to him during the interview.   This clearly constituted interrogation under
Rhode Island v. Innis,  446 U.S.  291  (1980), and State v. Cunningham,  144
Wis. 2d 272, 276-82, 423 N.W.2d 862 (1988).   The trial court also appears to have
conceded this point since the court’s ruling denying Novak’s motion to suppress
was based solely on the court’s holding that Novak was not in custody.
¶16    We therefore turn to the custody question.4   It is the State’s burden
to show by a preponderance of the evidence that Novak was not in custody.   See
State v. Armstrong, 223 Wis. 2d 331, 344-46, 588 N.W.2d 606 (1999), modified
3  There is a potential additional issue of first impression raised by the facts of this case to
which the State briefly alludes but then does not develop.   Unlike the usual Miranda v. Arizona,
384 U.S. 436 (1966), situation where the defendant seeks to suppress a statement or confession
regarding  a  crime  previously  committed,  here  the  statement  that  Novak  seeks  to  suppress
constitutes the crime itself  (obstructing an officer).    As the State notes,  “The theory of the
prosecution was not that Novak confessed to a crime, but that she lied.”   However, the State does
not further develop this argument and, instead, responds to Novak’s argument on the basis that
Novak brings the issue to us—that she was in custody during the interview with Valdes and was
therefore entitled to the Miranda warnings.  Although we find the potential issue very interesting,
we do not venture into those uncharted waters since the State has not substantively briefed the
question.
4  In addressing this question, we properly consider the evidence presented at both the
motion to suppress hearing and the trial.   See State v. Gaines, 197 Wis. 2d 102, 106 n.1, 539
N.W.2d 723 (Ct. App. 1995).
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No.   2005AP1429-CR
on other grounds, and reconsideration denied, 225 Wis. 2d 121, 591 N.W.2d 604
(1999).    We review this question independent of the trial court’s ruling.    See
Armstrong, 223 Wis. 2d at 353.   In making this decision, we examine the totality
of the circumstances bearing on the custody question.   California v. Beheler, 463
U.S. 1121, 1125 (1983); see also State v. Gruen, 218 Wis. 2d 581, 594-96, 582
N.W.2d 728 (Ct. App. 1998).
¶17    The most compelling fact in support of the trial court’s ruling that
Novak  was  not  in  custody  is  that  Novak  was  not  under  arrest  at  the
commencement of the interview.   To the contrary, Novak voluntarily appeared at
the police station in response to Valdes’ request for an interview.   Other factors
also support the trial court’s ruling.   Valdes had known Novak and her family for
about three years.   The interview did not take place in an interrogation room, but
rather  in  Valdes’  office,  which  Valdes  described  as                              “kind  of  laid  out  very
informal,  very  casual.    Because  they  do  conduct  some  interviews  there  with
parents and children.”   The door to the office was open at the beginning of the
interview, but soon thereafter, Valdes closed the door so as not to disturb other
people  in  the  area  because  Novak  became  agitated  and  loud.                     Valdes
acknowledged that he also might have become loud in his exchanges with Novak
but that he did so in an attempt to control the situation.   At no time did Valdes
handcuff Novak or otherwise place any other physical restraint on her person.
Valdes was not armed, and he was wearing civilian attire with a police shield on
his belt and a pocket badge.   It was not until the end of the interview that Valdes
informed Novak that he would be referring the matter to the district attorney and
that he would “book” her.
¶18    A person is in custody for purposes of Miranda if the person has
suffered a restraint on freedom of  movement of the degree associated with a
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No.   2005AP1429-CR
formal arrest.   Beheler, 463 U.S. at 1125.   We ask whether a reasonable person in
the suspect’s position would have considered herself to be in custody.   See Gruen,
218 Wis. 2d at 594.   On this question we consider such factors as the suspect’s
freedom to leave, the purpose, place, and length of the interrogation and the degree
of restraint employed.   Id.
¶19    The facts recited above readily convince us that Novak was not in
custody during  her  interview  with  Valdes.    The  mere  fact  that  the  interview
became confrontational did not transform the event into a custodial situation.   The
trial court found that Novak’s agitated condition had “more to do with her than
anything Mr. Valdes did.   And I don’t think that that suddenly turns that into a
Miranda situation just because of that.”   We agree.   In summary, we hold that
none of the relevant facts demonstrate any restraint against Novak’s person, much
less any restraint of the degree associated with an arrest.   See Beheler, 463 U.S. at
1125.   We uphold the trial court’s ruling that Novak was not in custody.
Restriction on Cross-examination of Cristiana
¶20    Novak also argues that the trial court erred when it barred her from
cross-examining Cristiana about her tape-recorded statement made to Erica during
a math class at the girls’ school.   The trial court history of this issue is set out in
our recital of the factual history of this case, but we repeat it here with some
additional details.
¶21    During her direct testimony as the State’s first witness, Cristiana
stated that on the way home from the football game, the girls had told Novak
about their plans to toilet paper the Weismueller property.   Cristiana also testified
that the girls had told Novak the following morning, before Selk’s arrival, that
9




No.   2005AP1429-CR
they had carried out their plans.   Cristiana further stated that Novak told her not to
talk or brag about the matter at school.
¶22    Before cross-examining Cristiana and outside the presence of the
jury  and  Cristiana,  Novak’s  counsel  advised  the  trial  court  about  the  tape
recording and stated that it “contradicts a great deal of the statements which she
gave to the police.”   Counsel further stated that he did not intend to introduce the
tape into evidence “at this point” noting that Cristiana could not authenticate the
tape since “she didn’t have possession of the tape recorder.”   Nonetheless, counsel
contended that this did not bar him from alerting Cristiana to the existence of the
tape, which might “raise in her mind the specter that she’s going to contradict
something that’s on a tape and that causes her to give a slightly different version
on the stand.”
¶23    The State did not dispute that the tape existed and conceded that it
knew  of  the  existence  of  the  tape  in  advance  of  trial.    However,  the  State
contended that the tape was the product of “witness intimidation” and harassment
by Erica.   The State also said that Cristiana “may have said some things to get
them to go away so there’s the evidentiary issue about the presentation of the
tape.”
¶24    The trial court recognized that Novak was entitled, as a  general
matter, to impeach Cristiana with any prior inconsistent statements.   However, the
court was of the opinion that since Novak sought to specifically reference the tape,
the court was first required to rule on the admissibility of the tape, particularly in
light of  the State’s contention that Cristiana’s statements were, in the court’s
words,                                                                                     “coerced.”    Therefore,  the  court  barred  Novak  from  cross-examining
Cristiana about the tape recording or alerting her to the fact of its existence.
10




No.   2005AP1429-CR
Novak contends that the trial court’s ruling was contrary to the rules of evidence
and also violated her constitutional right to confront her accuser.
¶25    For openers, the State contends that Novak has waived the question
of the admissibility of the tape recording since she never sought to introduce the
tape.   But the State misperceives the thrust of Novak’s argument both in the trial
court and on appeal.   Novak did not seek to introduce the actual tape recording or
its contents through Cristiana.   Rather, Novak merely sought to alert Cristiana to
the fact that the tape recording existed in order to learn whether Cristiana would
adhere to, or disavow, any of her direct examination testimony.   Novak renews the
same argument on appeal.   We summarily reject the State’s waiver argument.
¶26    We therefore turn to the merits of the issue.   At the outset, we make
two very important threshold observations.   First, this case does not present the
question  of  whether  the  tape  recording  existed.    To  the  contrary,  the  State
conceded that the tape existed and that it had known about the tape in advance of
the trial.   Thus, this is not a case where Novak sought to test Cristiana’s direct
examination testimony based on a fictional event or without any foundation.
¶27    Second, Novak’s attorney made an adequate offer of proof regarding
the contents of  the tape, and we do not read the State to contend otherwise.
WISCONSIN  STAT.                                                                          § 901.03(1)(b),  entitled   “Offer  of  proof”  states  that  the
exclusion of evidence is not error unless, inter alia, “the substance of the evidence
was made known to the judge by offer or was apparent from the context within
which  questions  were  asked.”    In  Milenkovic  v.  State,  86  Wis. 2d  272,  272
N.W.2d 320 (Ct. App. 1978), the court said, “The offer of proof need not be stated
with complete precision or in unnecessary detail but it should state an evidentiary
hypothesis underpinned by a sufficient statement of facts to warrant the conclusion
11




No.   2005AP1429-CR
or inference that the trier of fact is urged to adopt.”   Id. at 284.   Although no
published Wisconsin case has addressed whether an attorney can make the offer of
proof, we observe that a respected evidentiary commentator has recognized such a
procedure.
A party may also make an informal offer of proof by means
of what is sometimes called a “lawyer offer,” as opposed to
a “witness offer.”   In a lawyer offer, the attorney simply
states the testimony that he expects the witness to give if
allowed to testify.   This lawyer offer, of course, can be very
detailed or can be very short and simple, consisting of a
general summary of the purport of the excluded evidence.
1 Wigmore, Evidence § 20a, p. 859 (Tillers rev. 1983).
¶28    In this case, Novak’s attorney stated that Cristiana’s statement on the
tape  contradicted  the  statement  she  gave  to  Valdes.    The  State  as  much  as
conceded this point when it argued that Cristiana’s taped statements were the
product of Erica’s “witness harassment” and intimidation.   Finally, the trial court’s
ruling appears to accept Novak’s contention that the tape recording might impeach
Cristiana’s direct testimony.   But the court instead ruled that it first had to rule on
the admissibility of the tape recording.   We hold that Novak made an adequate
offer of proof.
¶29    With those two threshold observations in place, we now move to the
ultimate question as to whether the trial court’s restriction on Novak’s cross-
examination of Cristiana was correct.
¶30    Novak couches her argument in terms of two constitutional rights.
First,  she  cites  to  her  right  to  meaningful  confrontation  via  effective  cross-
examination  under  Davis  v.  Alaska,  415  U.S.  308,  318  (1974),  and  State  v.
Thomas, 144 Wis. 2d 876, 893, 425 N.W.2d 641 (1988).   The primary objective
12




No.   2005AP1429-CR
of the confrontation clause is to promote the reliability of the evidence against a
criminal defendant by rigorously testing it  in an adversarial proceeding.    See
Maryland v. Craig, 497 U.S. 836, 845 (1990).   Thus, the defendant must have
meaningful cross-examination.    State v. Knighten,  212 Wis. 2d  833,  847,  569
N.W.2d 770 (Ct. App. 1997).
¶31    Second, Novak cites to her right to present favorable evidence under
Chambers v. Mississippi, 410 U.S. 284, 302 (1973), and State v. Pulizzano, 155
Wis. 2d 633, 645, 456 N.W.2d 325 (1990).   Few rights are more fundamental than
that of an accused to present evidence on his or her behalf.   Chambers, 410 U.S. at
302.5   Due process prohibits a trial court from applying the evidentiary rules so
that critical defense evidence is excluded.   State v. Smith, 2002 WI App 118, ¶6,
254 Wis. 2d 654, 648 N.W.2d 15.
¶32    We  review  the  constitutional  right  of  a  defendant  to  confront
witnesses and to present evidence as a question of constitutional fact.   See id., ¶7.6
Under  that  standard  of  review,  we  must  accept  the  trial  court’s  findings  of
evidentiary or historical facts unless they are clearly erroneous.   Id., ¶8.   But the
application of those facts presents a question of constitutional law, a matter that
we  review  independent of  the  trial court’s  ruling.    See  id.    In  this case, the
5  Chambers v. Mississippi, 410 U.S. 284 (1973), dealt with the right of a defendant to
present witnesses in his own defense.   We see no reason why the same would not apply to the
right of meaningful cross-examination.
6  We appreciate that State v. Smith, 2002 WI App 118, 254 Wis. 2d 654, 648 N.W.2d
15, makes this standard of review pronouncement in a “right of confrontation” context, not a
“right to present witnesses” context.   However, we see no reason why the standard should be any
different in a “right to present witnesses” setting.
13




No.   2005AP1429-CR
historical facts are not in dispute.   Thus, the only question remaining is whether
the trial court’s ultimate ruling was constitutionally correct.
¶33    While Smith is not directly controlling on the question before us, we
find it highly informative.   There, the defendant sought to introduce evidence of a
victim’s prior inconsistent statement through a police officer after the victim had
already testified.   Id., ¶10.   The trial court rejected the proffered evidence under
WIS. STAT. § 906.13(1), which allows for a witness to be examined regarding a
prior  inconsistent  statement.    Smith,                                                 254  Wis. 2d  654,  ¶10.    The  trial  court
reasoned that the defendant should have cross-examined the witness about the
statement during the witness’s testimony.   Id.   However, the court of appeals took
note of § 906.13(2)(a) of the statute, which holds that extrinsic evidence of a prior
inconsistent statement of a witness is not admissible unless:                             (1) the witness was
examined while testifying so as to give the witness an opportunity to explain or
deny the statement,  (2) the witness has not been excused from giving further
testimony in the action, or (3) the interests of justice otherwise require.  See Smith,
254 Wis. 2d 654, ¶5, n.2.   The court of appeals disagreed with the trial court’s
ruling, noting that the witness had not been excused from giving further testimony
under § 906.13(2)(a)1.   Smith, 254 Wis. 2d 654, ¶13.   In so ruling, the court of
appeals  noted  the  right  to  confront  witnesses  conferred  by  the  Sixth  and
Fourteenth Amendments to the United States Constitution and Article I, §7 of the
Wisconsin Constitution.   Smith, 254 Wis. 2d 654, ¶9.
¶34    Here, unlike Smith, Novak did not seek to introduce Cristiana’s
prior tape-recorded statement through a third party.   Instead, she sought to alert
Cristiana to the existence of the tape via cross-examination in order to learn if
Cristiana would adhere to, or deviate from, her testimony on direct examination.
Despite these procedural differences, we nonetheless conclude that the underlying
14




No.   2005AP1429-CR
principles  and  teachings  of  Smith  are  relevant  to  this  case.    Novak  had  a
fundamental constitutional right to confront Cristiana as to whether she had ever
given  a  prior  inconsistent  statement.    The  fact  that  Novak  might  be  able  to
introduce such a statement by other means did not trump her right to confront
Cristiana with the fact of the tape in an effort to test Cristiana’s direct examination
testimony.   We also observe that, as with the witness in Smith, Cristiana had not
yet been excused from further testimony since she had only completed her direct
testimony when Novak sought the trial court’s permission to alert Cristiana to the
existence of the tape via cross-examination.
¶35    In the trial court, the State also argued that the debate about the tape
would  take  the  trial  into  collateral  matters  involving  the  circumstances under
which the tape was obtained and the ongoing strained relationship between the
Novaks and the Weismuellers.    But, as we have explained, this issue directly
implicated Novak’s fundamental constitutional rights to present evidence and to
confront Cristiana by meaningful cross-examination—hardly collateral matters.
¶36    We also hold that the trial court erred in its belief that it was required
to first rule on the admissibility of the tape before it would allow Novak to cross-
examine Cristiana about the matter.   As we have explained, Novak’s offer of proof
contended that the tape contradicted Cristiana’s direct examination testimony, and
the State conceded as much, saying that Cristiana’s statements on the tape were
the product of witness harassment and intimidation.   As such, the question went to
the  weight  to  be  accorded  the  evidence,  not  to  the  admissibility  of  the  tape
recording.
¶37    In Thomas v. State, 92 Wis. 2d 372, 284 N.W.2d 917 (1979), the
supreme court held that a victim’s prior statement to the sheriff, which was made
15




No.   2005AP1429-CR
prior to her having any contact with the prosecutor, was properly admitted for the
limited purpose of rebutting the defendant’s charge of improper influence by the
prosecutor.   Id. at 389-90.   This was so even in the face of the allegation that the
victim’s  statement  may  have  been  the  result  of  undue  influence  exerted  by
another.   Id.   The court held that the allegation of undue influence went to the
weight, not the admissibility, of the statement.   Id. at 390.
¶38    Inconsistencies and contradictions in a witness’ testimony are for the
jury to consider in judging the credibility of the witness.   Kohlhoff v. State, 85
Wis. 2d 148, 154, 270 N.W.2d 63 (1978).                                                  “The question of credibility between
witnesses or in respect to the same witness is a matter for the jury to determine and
not for a trial judge or for this court, unless it can be said that the testimony is
incredible as a matter of law.”   Id.  (citation omitted).   Surely there is nothing
incredible about the fact that Cristiana had made a tape-recorded statement and
that  it  contained  statements  contrary  to  her  direct  examination  testimony—
particularly where the State conceded as much.
¶39    The State also argues that since the trial court indicated that Novak
could ask Cristiana general questions as to any statements she had previously
given, Novak should have followed up on this suggestion.   For instance, the State
suggests that Novak could have asked Cristiana, “Ms. Barbatelli, today you told
this jury X.   Isn’t it a fact that several months after you spoke to the police you
told Erica Novak Y.”   Undoubtedly, Novak could have asked this question, but it
begs the issue before us as to whether the specific territory Novak sought to pursue
on  cross-examination  regarding  the  tape  was  improper.    In  suggesting  this
hypothetical question, the State also says this would have then allowed the trial
court to consider the admissibility of the tape.    But as we have indicated, the
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No.   2005AP1429-CR
admissibility of the tape was not a condition precedent to Novak probing this topic
on Cristiana’s cross-examination.
¶40    WISCONSIN   STAT.                                                                  § 901.03(1)   provides   that   an   erroneous
evidentiary ruling cannot be the basis for a reversal unless a substantial right of the
party is affected.   Here, Cristiana was the State’s “smoking gun” witness since she
was the only witness who testified that Novak had knowledge of the girls’ toilet
papering of the Weismueller property prior to Novak’s encounters with Selk and
Valdes.7   Thus, the trial court’s restriction on Novak’s cross-examination affected
Novak’s substantial right, since it precluded meaningful cross-examination and the
right to present evidence.
CONCLUSION
¶41    We  uphold  the  trial  court’s  ruling  denying  Novak’s  motion  to
suppress.   We reverse the trial court’s ruling restricting the cross-examination of
Cristiana.   We remand for a new trial.
By the Court.—Judgment reversed and cause remanded.
                                                                                          This opinion will not be published.  See WIS. STAT. RULE
809.23(1)                                                                                 (b)4.
7  Thus, the State understandably does not make a harmless error argument.
17

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