*1 Wisconsin, STATE Plaintiff-Appellant, EICHMAN, Raymond A. Defendant-Respondent-
Petitioner. Supreme Court 28, Argued No. 88-1754-CR. March 1990.—Decided June 1990.
(Also 143.) reported in 455 N.W.2d *3 For the defendant-respondent-petitioner there were argument by Hintze, briefs and oral Donna L. assistant public state defender. by
For plaintiff-appellant argued the cause was Ruhly, Sharon attorney general, assistant with whom on Hanaway, attorney general. the brief was Donald J. DAY, part J. This is a review of that of the deci- appeals reversed, sion of the court of summarily (Rule) 809.21, 1985-86, pursuant to sec. the order county, of the circuit court for La Crosse the Honorable Mulroy, J. Judge, Michael which denied the State's sec- ond motion in limine expert testimony by admit Kane, whether, Ph.D. question Andrew W. The first is held, as the court of the State right had the 974.05(1)(d)2, appeal, pursuant Stats., to sec. 1985-86. appeal pre- We conclude that the State has the might normally trial orders that determine the successful prosecution. question outcome of the second whether court the circuit abused its discretion when it pre-trial denied the State's second motion. We conclude Accordingly, it did. we affirm the decision of the court of and remand the cause to the circuit court for determination of the State's second motion. charged
Mr. Eichman is with four counts of sexual 940.22, by therapist, contrary to exploitation Stats., An 1985-86. additional count was dismissed act improper the circuit court for venue because the in another upon which the count was based occurred county. *4 giving charges place The acts rise to the took employed manager" while Mr. Eichman was as "house House, facility Hospital an after-care of Lutheran H/Our in Crosse, persons suffering La Wisconsin for from alco- drug dependency. hol and Mr. Eichman's duties included compliance ensure supervising the house staff to with plans, coordinating activities of the goals treatment and residents, sessions and coun- conducting group therapy occurred, individual residents. At the time acts seling Mr. Eichman had an Alcohol or Other certi- Drug Abuse plan fication on file with the State. complaint alleges that Mr. took Eichman counselor-patient of the
advantage relationship one with House, A.E., of the residents of sexually H/Our exploit 940.22, on Stats., her several occasions. Section Exploitation by Therapist, pertinent Sexual part, provides:
(1) (b) In 'Physician' ... this section: . . . has the meaning 448.01(5). designated in s.
(c) 'Psychologist' person practices means a who psychology, 455.01(5) in s. .. described . . (g) meaning 'Sexual contact' designated has 940.225(5)(b) s. . . ..
(1) 'Therapist' physician, psychologist, means a worker, nurse, counselor, social dependency chemical clergy person, member of the or other whether or not state, performs licensed purports who or perform psychotherapy.
(2) Any person ... who is or holds or himself her- self therapist out to be intentionally a and who has patient during sexual contact with any or client ongoing therapist-patient therapist-client or rela- tionship, regardless of during any whether it occurs treatment, consultation, examination, interview is guilty felony. D of Class Consent not an issue in an action under this subsection. 1985-86,
Section "psychother- defines apy" as follows:
'Psychotherapy' learning, means the use of condi- tioning profes- methods emotional reactions in a relationship persons modify sional to assist feel- *5 ings, attitudes intellectually, and behaviors which are socially emotionally maladjustive or ineffectual. complaint The against was filed Mr. Eichman on February 23, 1988, February 1988. On preliminary examination was held and Mr. Eichman was bound over 17,1988, for trial. On June the State moved for a contin- uance on the expert witnesses, Kane, basis one of its Dr. a psychologist, would be on unavailable the date sched- motion, uled for trial. The circuit court denied the rea- soning that the State failed to show that Dr. Kane's testimony would be relevant or material. The State requested that it be argue allowed to brief and those the State filed a motion in 14, 1988, July issues. On limine Dr. testimony. to admit Kane's The State requested that Dr. permitted testify Kane be with First, respect to several issues. in Dr. whether Kane's opinion Mr. Eichman was acting "therapist" during as a A.E., his counseling relationship course of with 940.22(l)(i), Second, that term is in defined sec. Stats. in opinion whether Dr. Kane's per- Mr. Eichman was "psychotherapy," as forming that term defined requested State also that Dr. Kane permitted testify hypothetical be without resort to a question report regarding and to read his the case into response Mr. evidence. Eichman contended what "psychotherapy" question constitutes was a of law If statutorily because the term was defined. the defini- 455.01(6) "psychotherapy" tion of could not be juror," understood Mr. Eichman "average asserted, unconstitutionally vague. then the statute was 5, 1988, August On the circuit court denied the State's motion, reasoning expert testimony would "invade province jury of the and court." The circuit court agreed "psy- with Mr. Eichman that what constitutes law, chotherapy" question was a and held that *6 statutory by definition of the term could be understood "average additionally juror." the The circuit court report excerpts Dr. Kane's excluded because it evinced opinion telling regarding A.E. his that was the truth the alleged sexual assaults. September 2, 1988,
On
the State filed a second
testimony by
motion in limine to admit
Dr.
The
Kane.
testimony
sought
contended that the limited
State
it
to
grounds
admit
the second motion did not offend the
denying
previous
the
stated
circuit court
requested
permitted
The
motion.
State
that Dr.
be
Kane
testify
respect
significance
to
with
to the
of the counsel-
ing techniques employed by
upon
Eichman,
Mr.
based
progress reports.
his review Mr.
Eichman's
The State
requested
permitted
testify
also
that Dr. Kane
be
that
regarding
counseling
he had interviewed A.E.
her
ses-
recognized
Eichman,
sions with Mr.
and that he
Mr.
"psycho-
Eichman's use of methods which constituted
therapy"
response
as defined
In
motion,
to the State's second
Mr. Eichman filed
quash, arguing
motion
second motion was
September 13,1988,
to the first.
identical
On
the circuit
granted
quash
grounds
court
the motion to
on the
arguments
State's motion raised no new
or law.
appealed
The State
the circuit court's orders of
August
September
pursuant
5,1988,
13,1988,
and
to sec.
974.05(1) (d)2,
appeals summarily
Stats. The court of
order,
affirmed the circuit court's first
but reversed the
second and remanded
for
the case
reconsideration of the
appeals
State's second motion. The court of
held that
the circuit court
its
abused
discretion because it denied
the State's second motion without a "factual basis" in
record.
court of
concluded the State's
not,
it,
second motion was
as the circuit court considered
previous
reaching
identical
motion. Before
merits,
court of
further held that
the State
could
the circuit court's orders as a matter of
right, pursuant
974.05(1)(d)2
to sec.
and
previous
two
Harris,
decisions of the
State v.
appeals,
court of
Wis.
(Ct.
2d
and 1985)
Mr. petitioned Eichman this court for review of that part appeals' of the court of decision which held that the appeal State could right as a matter of and held that the circuit order abused its in denying discretion the State's granted second motion. We review. The State did not seek review of part of the decision of the court of appeals which affirmed the circuit court's denial State's first motion.
We conclude that because the circuit court's orders evidence, had the "substantive effect" of suppressing right pursuant State could as a matter of to sec. 974.05(l)(d)2, Stats. We further conclude that the cir- cuit court its discretion when it abused denied the State's second motion without a factual basis. Accord- ingly, we affirm the decision of the court of and of the remand cause for determination State's second motion. cases, authority
The
in criminal
State's
974.05,
by
right,
governed
a matter of
is
Rabe,
(1980).
v.
48, 54,
809
Prior
96 Wis. 2d
291 N.W.2d
statute,
legislature's enacting
to the
the State had no
559
types
of orders
there. State
delineated
Withers,
37, 39,
v.
(1973).
61 Wis. 2d
which
may
this court
review without deference to the
Sher,
lower courts. State
1, 8,
149 Wis. 2d
437 N.W.2d
(1989).
878
The objective in construing a statute is to
discern the
legislature,
intent
Bay Packag
Green
ing, Inc.
Dept.,
v. ILHR
26, 35,
72 Wis. 2d
240 N.W.2d
(1976),
primary
and the
source to be
used
language of
Wittrock,
the statute itself. State v.
119 Wis.
664, 670,
2d
(1984).
Though not previously court, by considered this the appeals court of has twice part construed that of sec. 974.05(1)(d)2, Stats., Harris, at issue here. In the court appeals of held that the appeal State could as a matter of right from an order excluding from evidence "other wrong by acts" committed the defendant because the order had the "substantive effect" of suppressing evi- Wild, dence. Id. at In 232. the appeals court of held that the State could right as a matter of from an order excluding from reports evidence medical which the State timely failed to provide to the Id. defendant. at 24-25. In 974.05(l)(d)2 construing sec. in appeals the court of Wild concluded that phrase "suppressing evidence" interpreted liberally phrase was to be because the had previously permit been held to the State to as a of right excluding matter orders allegedly evidence constitution, in statutory obtained violation of the pro- cedures, or, citing Harris for support, the rules of evi- Wild, dence. 146 Wis. at 24-25. The of appeals 2d court in Wild reasoned that the order at "suppressed issue appealed evidence" and could be as a right matter of because it was intended to a imposed act as sanction State, upon suppressing similar to an order as a result of a constitutional violation. Id: at 25. of phrase court further held that "the sub- 974.05(1)(d)2 permitted stantive effect" sec. the State to appeal orders on proce- entered either substantive or grounds. Id. dural
Mr. pursuant Eichman concedes that to the court 974.05(1)(d)2, appeals' Stats., interpretations Wild, Harris and the State properly could contends, however, of right. matter Mr. Eichman Harris and Wild interpreted 974.05(1)(d)2 too broadly because both cases the court of was on briefing without the benefit of the issue argues plain defendants. Mr. Eichman that the language 974.05(1)(d)2 history legislative support of sec. its and restrictive construction statute. Section 974.05(1)(d)2 was grant rights intended "complementary" granted to those defendants in sec. 1985-86, asserts, Mr. Eichman grants because the latter statute defendants the orders, appeal only suppression the former should be similarly 971.31(10), Stats., provides: Section limited. denying suppress
An order a motion to evidence or a challenging admissibility motion of a statement
561 may upon appeal of a be defendant reviewed from a judgment notwithstanding of conviction fact that judgment upon plea guilty. such was entered a Mr. Eichman interpreting contends the case law Stats., 974.05(1)(d)2, Stats., secs. has statutes to grant construed the two the same rights. Mr. argues Eichman that to construe the statute as the State plethora insignificant would a appeals does result discretionary involving rulings. Mr. Eichman asserts proper remedy permissive that the State's seek was to (Rule) 809.50(1), appeal, pursuant Stats. 1985-86. We disagree Mr. with Eichman's contention that the decisions in Harris and Wild unconvincing were on the issue of whether State could as a matter because the court of without was the bene- of full fit the issue briefing on the defendants in those It is of the duty authority cases. court to ensure its 586, review an appeal. Percy, 578, Coleman Wis. 2d 96 (1980). 292 N.W.2d 615 explicitly court of recognized duty this in Wild and extensive consideration issue, given irrespective was to the of whether the defen- fully dant briefed the issue. Id. 24. Although at discus- Harris, of the sion issue was more see limited id. at 232, we find no reason to conclude court of appeals did give not issue full consideration there as well. Wild,
Contrary however, agree we with Mr. Eich- distinction, one, man that there is a a fine albeit between "suppressing" "excluding" evidence and evidence. See 119, 124-28, State v. 112 Riekkoff, Wis. 2d 332 N.W.2d (1983). generally 744 The former bars admission of evi- misconduct, dence at trial as result of governmental Nelson, as a such constitutional violation. State v. See 702, (Ct. App. 1982). N.W.2d 292 *10 only a generally The latter involves violation of rules the Id. of disagree appeals evidence. We with the court of in Wild phrase the "suppressing that evidence" 974.05(1)(d)2, Stats., liberally should be to construed See encompass merely orders that exclude evidence. Wild, at 24-25. in Wild appeals The court of Wild, Harris to upon support relied its reasoning. 146 Harris, however, Wis. 2d 25. at does not stand for that Harris, proposition. In the court of held the appeal State could from excluding an order "other wrong only acts" evidence because the order had the "substan- evidence. Id. at 232. The order tive of suppressing effect" in Harris was not, Wild the as court of it, characterized to suppress an order evidence. Eichman, however, disagree We with Mr. the that suppressing excluding distinction between evidence and prohibits the from evidence State here appealing right. 974.05(1)(d)2, Stats., by plain matter Section its language, broader than Stats. The lat- on permits only ter statute its face a defendant to to denying suppress orders a motion denying challenging admissibility a motion the aof statute, however, statement defendant. The former broadly permits more the State to from orders "the substantive in suppressing effect of which results together evidence." Considered with committee com- statute, to phrase ment we construe to mean may appeal any right pre-trial as a matter of order might that bars the admission of "nor- evidence which mally" prosecu- determine the successful outcome of the tion. See Comment 974.05, Stats., to sec. 1969 Wis. 255, Laws ch. 63. disagree sec. We with Mr. Eichman proper remedy State's in these circumstances is (Rule) 809.50(1), a permissive appeal, pursuant to sec. 563 the State the legislature granting types pre-trial orders leaves decision appeal these prosecutor, to the discretion of whether position" "in the best to make the determina- party Withers, 39-40; See 61 at of their effect.1 Wis. 2d tion 501, Young, 82 Ill. 2d N.E.2d People (1980). 974.05(1)(d)2, Stats., recognize that sec. was
We rights "complementary" the State grant intended to *11 in See defendants sec. granted those 971.31, 255, Laws. ch. sec. to sec. 1969 Wis. Comment If "complementary" But does not mean identical. 63. 974.05(1)(d)2 intended sec. to afford the State legislature that because we leave the decision 1 Theconcurrence asserts prosecutor, ruling our of whether to to the discretion of granting power pre is to the State the to all tantamount disagree excluding our has trial orders evidence. We that decision dispute that effect. We do not the concurrence's assertion that may excluding "may orders not be outcome-determi true, however, respect sup native." The same is with to orders pressing right appeal, evidence. Yet a defendant retains the to at discretion, her in his or even those circumstances where the evi suppressed dence which is is not outcome-determinative. Our only grant right decision extends so far as to the State the to excluding might normally orders evidence that determine instance, prosecution. In an the successful outcome of the excluding recog order effect of a final evidence has the order. We case, may particular nize that the circumstances of a that line be a difficult one for the State to draw. But the State is in the best determination, position contrary to make that and to the concur belief, apparent rence's we find no reason to conclude the State good right will not act in faith and limit the exercise of its to appeal accordingly. require To the State such circumstances to asserts, permissive appeal, inap seek a as the concurrence would propriately shift to the discretion of the court that determination appeals. of
precisely 971.31(10) the same rights as sec. grants defendants, legislature would have used the same 974.05(1)(d)2 language Construing both statutes. sec. argues phrase Mr. Eichman would render the "the of in" suppressing substantive effect which results evi- superfluous.2 dence 974.05(1)
The underlying
(d)2, Stats.,
purpose
expense
to avoid the
of a
"hollow" trial caused
circuit
excluding
court's
evidence which the State sub-
stantially
upon in
to
deciding
prosecute.
relied
See Com-
974.05(1)(d)2,1969
ment to sec.
Wis. Laws ch.
974.05(1)(d)2
63. Construing sec.
to grant the
right
appeal pre-trial
orders that exclude evidence
might
"normally
determine
successful outcome
prosecutions"
comports
fully
with the legislature's
See
intent.
id. The legislature's
granting
State the
appeal pre-trial
orders that bar the
admission
substantial
evidence achieves an appropriate balance
prosecution
defense,
between the
and fulfills the
legislature's
grant
intent
"complementary"
each
Withers,
See
rights.
generally
2 The concurrence likewise suppressing in" "the substantive effect of which results evidence. 565 may suppressing evidence, so weaken the certain like prosecution is ill-advised. that continued State's case support that conclusion sec. for our Further 974.05(1)(d)2, grant Stats., intended to broader was rights Stats., in the is found fact sec. than response legislature acted in to the has not that the given former statute Harris construction broader following judicial Legislative Wild. inaction con- legis- conclusive, statute, evinces of a while not struction Bay approval interpretation.3 Green Pack- lative aging, 2dWis. at 35. 72 jurisdictions have construed statutes with
Other
substantially
pros-
language
grant
similar
likewise
excluding
from orders
evi-
ecution
e.g.,
See,
W.,
State v. T.
220 Mont.
715 P.2d
dence.
(1986); Young,
W.,
566 grounds on evidence "other than that the evidence was as an obtained the result of unlawful search and seizure involuntary or an at confession." Id. 502. granting
Mr. Eichman's claim that
the State the
excluding
orders
in
will result
a
insignificant appeals
already
proven
flood of
has
been
goes
unfounded.
in
The decision
this case
no further
holding
Harris,
than the
Harris. Yet
decided over five
years ago,
onslaught
has not resulted
of
an
meritless
appeals.
safeguard preventing
An additional
meritless
panel appeal
fact
that a full
be
cannot
Attorney
taken without authorization from the
Gen-
165.25,
eral's Office. See secs. 59.47 and
Stats. 1985-86.
Having
properly appeal
concluded the State could
right
pursuant
974.05(1)(d)2,
a
Stats.,
matter
to sec.
we
next consider
merits of the
and whether
the circuit court erred when it denied the State's second
expert
testimony
motion
admit
Dr. Kane.
question
of whether to admit or exclude testi
mony by
expert
largely
an
witness is
a matter of the
Friedrich,
circuit court's
discretion.
v.
135 Wis. 2d
(1987).
1, 15,
We conclude the circuit court abused its discretion when it denied the State's second motion. The circuit court's conclusion that State's two motions were identical is without a factual basis the record. The State's second motion was different in it did not any testimony by offer Dr. Kane which could be grounds excluded on the for which the circuit court denied the State's first motion. The State's second testimony by motion did not seek to admit Dr. Kane attempted by which to redefine terms defined statute. excerpts report it Nor did seek to admit of Dr. Kane's opinion telling which A.E. evinced his was truth.
Moreover, the
court
circuit
erred as a matter of law
expert
testimony
when it concluded that
was not
required
"psychotherapy,"
because
constituted
what
as
by
"average
statute,
defined
could be understood
juror."
applied
determining
The standard
when
whether
unconstitutionally vague
equated
statute
is not to be
expert
with the test to determine whether to admit
testi-
mony.
challenge
vague-
To defeat a constitutional
to sufficiently
give per-
ness, a statute must be
definite to
ordinary intelligence
sons of
who seek to avoid its
penalties
required
prohib-
fair notice of the conduct
or
provide
must
ited and
standards for those who enforce
City
Oak Creek King,
adjudicate
guilt.
laws
532, 546,
(1989).
2dWis.
We conclude type this of particularly case is appropriate expert for the admission of testimony. While statutory the language Stats., may well be within the understanding ordinary person, of the the necessarily same is not respect true with to the evidence establishing that "psychotherapy" being practiced. was This is case establishing illustrative. counseling techniques employed by Mr. Eichman was not of statutory stated terms "psy- definition of chotherapy," appeared facially but rather neutral an Expert could, untrained observer. Dr. testimony Kane if the admissible, circuit court finds it otherwise assist of in understanding the trier fact whether those tech- niques learning, conditioning constituted "use of methods and emotional assist A.E. reactions" "to modify feelings, attitudes and behaviors which are intel- socially lectually, emotionally maladjustive or ineffec- probable tual." A more scenario is that the evidence which establishes the of "psychotherapy" methods uti- lized, usually therapist's reports, is progress frequently in professional terminology beyond couched under- ordinary of the standing person. proof Because of that offense, is expert fact an element of the testimony should be admitted if given the of the circumstances case it trier of Revenue v. Dept.
would assist
fact. Cf.
602, 610-11,
Bailey-Bohrman
Corp.,
Steel
2dWis.
Johnson,
(1980);
561, 564-65,
SHIRLEY S. J. I (concurring). agree that the cause must be remanded to the circuit court for determination of pre-trial the state's motion to not, however, admit I join majority evidence.1 do opinion's interpretation 974.05(1)(d)2 granting pre-trial State am orders exclud- ing "might normally evidence that determine the suc- *16 cessful outcome of the prosecution." Majority op. pp. 555, 563, 974.05(l)(d)2 564. Section expressly grants an appeal only of right when the circuit suppresses court evidence, not when the circuit court excludes evidence.2
1 The state moved in limine to admit evidence. Section 971.31(1) provides: "Any capable motion which is of determina general tion without the trial of a issue must be made before trial."
I
conclude that
jurisdiction
the court of
had
to hear
appeal
in this case. I
appeal
would treat the state's notice of
meeting
requirements
permissive
of a
under sec.
808.03(2)
(Rule) 809.50(1),
and sec.
Stats. 1987-88. See also sec.
(Rule) 809.82(2),
1987-88;
State ex rel. A.E. v. Green Lake
Stats.
Court,
County
Circuit
98, 105e,
94 Wis. 2d
2 Section as follows: I conclude that permissive appeal State has a excluding orders evidence.
I agree with the majority insofar itas concludes that 974.05(l)(d)2 the legislature intended sec. limit appeal of right State’s to orders excluding normally out- come-determinative evidence.
The language 974.05(1)(d)2 uses the word suppress limit the State's as a matter of to those situations where exclusion is outcome-determi- An native. order suppressing evidence is a subset category broader excluding orders evidence. Orders excluding may may evidence not be outcome- determinative. interpretation by
This is buttressed legislative his- tory 974.05(l)(d)2. surrounding enactment of sec. Judicial clearly Council Committee's notes demonstrate the legislature suppress evi- phrase intended the dence in sec. 974.05(1) (d)2 along to be read with the phrase 971.31(10)3 same and to be read as less (1) period specified by 808.04(4) Within the time s. and in the provided manner for civil under an chs. 808 and may any: be taken the state from (d) judgment Order or the substantive effect of results which in: Quashing warrant; 1. an arrest evidence; Suppressing 2. Suppressing
3. a confession or admission. 1987-88, provides 3 Section as follows: (10) suppress denying An order a motion or a *17 admissibility challenging motion of a statement of a defendant may upon appeal judgment be reviewed from a of conviction notwith- standing upon plea judgment such fact that was entered guilty.
571
evidence.4 The courts
phrase exclude
inclusive than the
suppress evidence
interpreted
phrase
have
ability
971.31(10)
limit
the defendant's
narrowly to
Riekoff, 112
appeal. State v.
Wis. 2d
review on
obtain
Nelson,
(1983);
v.
119,
State
108 Wis.
prosecutions, be able to take it is believed that state should an wasting than the time of the court with immediate rather preordained by ruling the result on the hollow trial where area, suppression question. For defendant's this see s. 971.31(10). added.) (Emphasis (West 1985). Wis. Stat. Ann. sec. 974.05 971.31(10) The Judicial Council's comment to sec. states part: . . . reduce the of contested
This subsection should number trials situations, many suppress really since in the motion to evidence is determinative of the result of the trial. (West 1985). Ann. sec. 971.31
Wis. Stat. *18 A permissive appeal may be taken from an interloc- utory order. On State's petition the for leave to excluding an order appeals evidence the court of should exercise its discretion grant whether to the appeal. grant interlocutory It would when the order excluding evidence was outcome-determinative to protect "from irreparable the State substantial 808.03(2)(b), injury," sec. Stats. 1987-88. majority opinion disregards
The its own outcome standard, legisla- determinative the clear language and history 974.05(l)(d)2, tive of sec. as appellate well structure established chs. 808 and 809. majority opinion permits State,
The and the alone, to determine whether an order excluding "might normally evidence determine the successful out- prosecution." absolute, come of the The State thus has unreviewable discretion to determine whether it will appeal. If the State excluding an order appeal. court must hear the effect of The opinion 974.05(1)(d)2 majority interpret grant pre-trial the state an as of from all excluding orders evidence. majority opinion equates statutory effect
phrase suppress exclude evi- evidence with words dence. an lan- equation comports Such neither with the context, scope, history, guage, legislative subject matter 974.05(l)(d)2 purpose nor with the rules for appellate review set forth chs. 808 and 809. forth, I
For the set concur. reasons I am authorized state Chief Justice Nathan S. joins Heffernan this concurrence.