STATE of Wisconsin, Plaintiff-Respondent, v. Brian NELSON, Defendant-Appellant-Petitioner.
No. 85-1125-CR
Supreme Court
June 1, 1987
Argued February 9, 1987.
406 N.W.2d 385
(Also reported in 406 N.W.2d 385.)
For the plaintiff-respondent the cause was argued by Michael R. Klos, assistant attorney general, with whom on the brief was Bronson C. La Follette, attorney general.
WILLIAM G. CALLOW, J. This is a review of an unpublished decision of the court of appeals affirming a conviction of the circuit court for Racine county, Judge Emmanuel J. Vuvunas, which found Brian Nelson guilty of first-degree sexual assault.
In April of 1984 the defendant, Brian Nelson, was charged with one count of intentionally and feloniously having sexual contact with a person twelve years or younger. The alleged victim of the sexual assault was his daughter, T.N., who was born June 7, 1980. At trial the state presented no eyewitness testimony and did not call T.N. to testify. Instead, the evidence of sexual assault and the evidence linking Brian Nelson to the sexual assault were presented primarily through the testimony of T.N.‘s mother, Susan Nelson, T.N.‘s treating psychologist, Dr. McLean, and a second psychologist, Dr. Silberglitt.
At Christmas, visitation was resumed without incident. However, Susan Nelson testified that shortly thereafter T.N. attempted to pull her mother‘s pants down while playing a game of tag. According to Susan Nelson, T.N. indicated that daddy had taught her to play tag in this manner. Susan Nelson also testified that on January 20, 1984, T.N. insisted that a picture of Michael Jackson be brought into the bathroom to watch her. T.N. pointed at her vagina and said that Michael Jackson doesn‘t look like this and “daddy doesn‘t look like this either.” Susan Nelson testified that, when she asked T.N. how she knew this, T.N. responded, “I pulled his underpants down.” When Susan Nelson told T.N. that it must have been an accident, T.N. insisted that daddy told her to pull down his underpants and that it was alright because Cheryl, the defendant‘s second wife, was not at home.
Susan Nelson became suspicious of possible sexual abuse and contacted Dr. McLean to discuss whether
Dr. Donald McLean, a clinical psychologist, was called by the state and was qualified by the court as an expert witness in the field of psychology. Dr. McLean‘s notes had been provided to the defense prior to trial. Defense counsel, outside the presence of the jury, objected on hearsay grounds to Dr. McLean‘s anticipated testimony concerning statements made by T.N. In explaining the objection, defense counsel stated: “Now, the basic problem with this, as I see it, is that there is a witness then to whom we are denied a right of confrontation.” The trial court ruled that the statements made by T.N. were admissible under
Dr. McLean testified to a series of fifty-nine evaluation and treatment sessions with T.N. from January 25, 1984, to September 11, 1984. The treatment sessions were generally conducted in Dr. McLean‘s play therapy room, although Dr. McLean occasionally spoke with T.N. in his regular office. The play therapy room was set up with games, puzzles, coloring
Dr. McLean testified that T.N. had revealed at a number of sessions that she had touched daddy where he went to the bathroom. According to Dr. McLean, he placed anatomically correct male and female dolls in the play therapy room on February 27, 1984. Dr. McLean testified that at the February 28 session, T.N. placed the female doll‘s face against the genital area of the male doll and said, “she gets mud on her face.” Upon being asked what she meant, T.N. replied, “its white and sticky.” Dr. McLean testified that in a subsequent session T.N. told him that her father warned her not to talk about the incident and also told her to say that Susan‘s boyfriend, Mitch, did it.
Dr. McLean related the following conversation with T.N. “Do you pull someone‘s underpants down and touch him where he goes to the bathroom, and the child said yes ... and I said, well, who is it that you touch where he goes to the bathroom, and the child answered Mitch. And I said you told me it was Daddy. Was it Mitch or Daddy, and the child said Daddy. And I said then why did you say Mitch, and she said it was Mitch, and I said then it was not Daddy. She said it was Daddy, then Mitch, then Daddy, and she answered with he told me to say it was Mitch. I said who told you to say it was Mitch. She said Daddy.” Dr. McLean further testified that, when he asked T.N. if she would only tell the truth to anyone who talks to her, she responded, “I don‘t have to tell the truth.”
Dr. McLean also testified that throughout the treatment T.N. was extremely anxious and reluctant to talk about the incident and that at times T.N. would appear depressed and emotionally drained.
Mary Anne Jensen, a social worker for Racine county, was also called to testify. She testified that on January 29, 1984, T.N. drew a picture which depicted herself and her father. The pictures were marked as exhibits and shown to the jury. Mary Anne Jensen offered no explanation of the drawing‘s significance. However, in the opening statement to the jury, the state told the jury that the picture drawn by T.N. depicted the defendant as an erect penis. The defense raised no objection to this statement.
At the close of the state‘s case, the defense made a motion to dismiss, and argued, first, that the hearsay statements of T.N. as related by the psychologists were inadmissible because no expert opinion had been offered and, second, that defendant‘s right of confrontation had been violated because the state had not shown that T.N. was unavailable as a witness. The state responded that the testimony of the two psychologists demonstrated that T.N. had suffered a severe trauma because of her sexual experiences with her father, that the trauma had not been cured, and that T.N. was “effectively unavailable” to testify at trial.
The trial court, in denying the motion to dismiss, ruled that the testimony of Dr. McLean as to what T.N. said during the therapy sessions was admissible hearsay. The trial court also ruled that the testimony made it patently clear that T.N. could not have testified due to her age and the potential trauma. Based on the testimony at trial, the court stated: “I don‘t think the child would have been available in any sense for what we would determine to be examination or appearance in court or even by videotape or any other electronic means.”
The defense then presented its case, including the testimony of two psychologists, Dr. David Nichols and Dr. Walter McDonald. Dr. Nichols testified that at the defendant‘s request he interviewed T.N. on March 16, 1984. Although Dr. Nichols testified that the interview revealed very little concerning the facts of the alleged sexual assault, Dr. Nichols later testified that T.N. told him that she did not like to visit her father and that she gets white mud on her face. According to Dr. Nichols, T.N. repeatedly either denied sexual contact or stated that she did not want to talk about it. Dr. Nichols concluded that some sexual abuse had occurred and testified that he had made a recommendation to the court that there should be no further visits with the defendant.
Dr. McDonald testified that he had examined the clinical notes of Dr. McLean concerning the treatment of T.N. to determine if there was an alternative explanation for T.N.‘s behavior in therapy. According
On September 21, 1984, the defendant was found guilty of first-degree sexual assault. A judgment of conviction was entered, and the defendant was sentenced to five years in the Wisconsin State Prison.
On January 28, 1985, the defendant filed post-conviction motions requesting that the verdict be set aside and a new trial ordered. The motions alleged numerous errors, including that the court erred in admitting into evidence the hearsay statements of T.N. through the testimony of Dr. McLean and Dr. Silberglitt and that the use of such evidence denied him his right of confrontation under the sixth and fourteenth amendments of the United States Constitution and Article I, sec. 7 of the Wisconsin Constitution. On March 6, 1985, the trial court heard oral argument on these motions and expressed concern that the defendant‘s right to confront his accuser had been violated at trial by the court‘s failure to make a ruling about the unavailability of T.N. No ruling was made, but another hearing was set.
In response to the trial court‘s comments, the state moved to supplement the record by means of an evidentiary hearing to establish that, at the time of trial, T.N. was an unavailable witness. The defendant objected to this procedure, the issue was briefed, and on April 18, 1985, the trial court granted the state‘s motion.
The court of appeals, in a per curiam opinion, affirmed the judgment of the trial court. According to the court of appeals, the testimony of Dr. McLean was properly admitted under
We must first determine whether the out-of-court statements of T.N. were properly admitted into evidence through the testimony of Dr. McLean and Dr. Silberglitt. There is no doubt that the statements
Under
In the present case we are concerned with the admissibility of statements made by T.N. to two psychologists, Dr. McLean and Dr. Silberglitt. We begin by noting that the defendant did not object to the hearsay testimony of Dr. Silberglitt. The failure of the defendant to object at trial to the hearsay testimony of Dr. Silberglitt constitutes a waiver of any objection on hearsay grounds. Caccitolo v. State, 69 Wis. 2d 102, 113, 230 N.W.2d 139 (1975). Thus our analysis will focus on the admissibility of the hearsay testimony of Dr. McLean.
Although
In the present case a number of factors support a finding that T.N. was aware that her statements were being used as a basis for medical diagnosis or treatment. T.N.‘s sessions with Dr. McLean, although mainly conducted in a play therapy room, were scheduled and conducted in a manner consistent with the provision of diagnosis and treatment. Dr. McLean had a waiting room in which T.N. and her mother would await their regularly scheduled appointments.
Furthermore, there is nothing in the record to indicate that T.N.‘s motive in making the statements to Dr. McLean and Dr. Silberglitt was other than as a patient seeking treatment. It is always difficult for a court to determine whether a very young child completely understands the context in which information is sought from that child. However, we do not believe that, because a child is only three or four years of age at the time he or she goes to a doctor, the child is unable to comprehend that the child is involved in the process of receiving diagnosis or treatment. A child is no less aware of the existence of emotional or mental pain than physical pain and, thus, is equally aware of the necessity and beneficial nature of therapy.
Just as a child three or four years of age understands that statements made to a physician will be used by that physician to ease the physical pain of the child, we conclude that such a child also understands that statements made to a psychologist will be used by the psychologist to ease the emotional or psychological injuries of the child. Cf. United States v. Nick, 604 F.2d 1199, 1201-02 (9th Cir. 1979) (court admitted,
Having concluded that T.N.‘s statements were made with the knowledge that they were to be used as a basis for diagnosis or treatment, we must now determine whether it was proper for the court to admit T.N.‘s statements as to whom her abuser was instead of admitting only her statements that she was abused. The general rule is that statements as to who was at fault are ordinarily inadmissible under the exception for statements made for purposes of diagnosis or treatment. Federal Advisory Committee‘s Note, Wis. R. Evid., 59 Wis. 2d R266 (1974); United States v. Iron Shell, 633 F.2d 77, 84 n. 10 (8th Cir. 1980), cert. denied 450 U.S. 1001 (1981); United States v. Renville, 779 F.2d 430, 436 (8th Cir. 1985). The reason behind this rule is that statements identifying the assailant seldom are made to promote effective treatment. Id.
However, while treatment of a physical injury would rarely require disclosure of the identity of the assailant, it is recognized that disclosure of the
In the present case T.N. was alleged to have been sexually abused by her father. Proper psychological treatment necessitates a determination of the relationship of the abuser to the abused child. We can safely assume that the trauma arising from an assault by someone in as close and as trusting a relationship as one‘s father would be different from the trauma associated with an assault by someone who was in a less trusted position. For a psychologist to treat such a trauma most effectively, the psychologist needs to know the exact relationship of the assailant to the victim. Furthermore, complete treatment often involves separation of the assailant from the victim. Where the assailant has a legal right to be with the victim, proper treatment could necessitate the cessation of this right. We therefore conclude that T.N.‘s identification of the defendant as the assailant was a necessary element for those charged with determining appropriate diagnosis or treatment. Accordingly, we hold that Dr. McLean‘s testimony as to the hearsay statements made by T.N. was properly admitted into evidence.
The defendant argues that under Klingman v. Kruschke, 115 Wis. 2d 124, 339 N.W.2d 603 (Ct. App. 1983), statements made for the purpose of medical
It is well recognized that statements made for the purposes of medical diagnosis or treatment are admissible because the patient‘s strong motivation to have improved health guarantees the statements’ trustworthiness. Although the absence of this strong motivation for trustworthiness (where the doctor is consulted solely for the purpose of testimony) may necessitate separate or additional evidence of trustworthiness, we hold that statements made for the purposes of medical diagnosis or treatment are sufficiently reliable to be admissible without any additional indicia of trustworthiness. Accordingly, we reject the defendant‘s contention that statements made for purposes of medical diagnosis or treatment are only admissible if used as basis to form an expert opinion.
The second issue is whether the admission into evidence of the hearsay statements by T.N. to Dr. McLean violated the defendant‘s right to confront the witnesses against him.3 The right to confront wit-
It has long been recognized that the confrontation clause is not absolute. A literal reading would require, upon objection, the exclusion of any statement made by a declarant not present at trial. However, such an application would abrogate virtually every hearsay exception, a result rejected as unintended and too extreme. Ohio v. Roberts, 448 U.S. at 63. The United States Supreme Court has recognized that the right to confrontation “may, in appropriate cases, bow to accommodate other legitimate interests in the crimi-
The primary purpose of the confrontation clause is to assist the accuracy of the truth-determining process in criminal trials by assuring that the trier of fact has a satisfactory basis for evaluating the truthfulness of admitted evidence. State v. Bauer, 109 Wis. 2d 204, 208, 325 N.W.2d 857 (1982); Dutton v. Evans, 400 U.S. 74, 89 (1970). Thus a statement‘s indicia of reliability is determinative of whether a statement may be placed before the jury though there is no confrontation of the declarant. Hagenkord v. State, 100 Wis. 2d 452, 472, 302 N.W.2d 421 (1981); Dutton, 400 U.S. at 89.
In Ohio v. Roberts, 448 U.S. at 65-66, the Supreme Court set forth a two-step test approach to determine whether the use of hearsay evidence is consistent with the requirements of the confrontation clause. The first step is to inquire whether the prosecution has either produced or demonstrated the unavailability of the declarant whose statement it wishes to use against the defendant. Generally, a witness‘s unavailability is not demonstrated unless the prosecution has shown that it “made a good-faith effort to obtain his presence at trial.” Barber v. Page, 390 U.S. 719, 724-25 (1968). Notwithstanding this obligation, if there is no possibility of procuring the witness, the “good-faith” requirement disappears. The length to which the prosecution must go to produce a witness is a question of reasonableness. Ohio v. Roberts, 448 U.S. at 74. However, as this court noted in Bauer, there are limited exceptions to the requirement that available witnesses be produced. Thus, available witnesses need not be produced
where production would be unduly inconvenient and of small utility to the defendant. 109 Wis. 2d at 212-13.Once a witness is shown to be unavailable, the next step is to inquire whether the hearsay statement bears adequate indicia of reliability.5 Ohio v. Roberts, 448 U.S. at 66. In determining whether the hearsay statement bears adequate indicia of reliability, the Court noted that “certain hearsay exceptions rest upon such solid foundations that admission of virtually any evidence within them comports with the ‘substance of the constitutional protection.‘” Id. Thus, if the evidence falls within a firmly rooted hearsay exception, reliability can be inferred and the evidence is generally admissible. In Bauer, however, we noted that this does not mean that the evidence is admissible per se. “The trial court must still examine each case to determine whether there are unusual circumstances which may warrant exclusion of the evidence.” 109 Wis. 2d at 213-14. The existence of unusual circumstances does not mean that a statement is inadmissible. Notwithstanding the existence of unusual circumstances, the statement may be admitted where “the trier of fact has a reasonable basis for evaluating the truthfulness of the prior statement.” Id. at 214. Furthermore, if the evidence does not fall within a firmly rooted hearsay exception, it may still be admissible if there is a showing of
In this case the defendant argues that the trial court‘s failure to rule, in a timely manner, on his objection to the admission of T.N.‘s hearsay statements to Dr. McLean violated his right to confrontation. Specifically, the defendant contends that his objection, prior to Dr. McLean testifying, that the admission of T.N.‘s statements through Dr. McLean violated his right to confrontation, required the trial court to determine whether T.N. was available and, if so, whether her statements were reliable. It is apparent from the trial court‘s ruling that it was not aware that the defendant‘s initial challenge was based upon anything other than a question of hearsay. We have previously stated that an objection on the grounds of hearsay does not serve to preserve an objection based on the constitutional right to confrontation. See State v. Marshall, 113 Wis. 2d 643, 653, 335 N.W.2d 612 (1983). Regardless of whether the defendant properly raised his objection based on the right of confrontation, we conclude that the trial court correctly determined in the post-conviction hearing on unavailability that the confrontation clause guarantees were satisfied.6
In the present case the post-conviction determination of T.N.‘s availability at the time of trial was held approximately eight months after the trial ended. Only one witness, Dr. McLean, the treating psychologist, testified at the availability hearing. However, the state and the defendant both had an opportunity to examine Dr. McLean and to bring in additional experts to analyze T.N.‘s availability based on the testimony of Dr. Silberglitt and Dr. McLean‘s notes and testimony at trial. Moreover, Dr. McDonald, a psychologist retained by the defendant, who had prior to trial reviewed reports and evaluations written by Dr. McLean was not called to testify. Dr. McDonald testified at trial concerning the treatment sessions and could have been called to testify at the availabili
Our conclusion that the trial court was correct in holding a retrospective hearing on availability does not condone deliberately delaying a determination of availability until after trial. The appropriate procedure is for the trial court, either upon objection raised by the defense or upon motion of the prosecutor, to hold a separate availability hearing prior to the admission of the disputed testimony.
Having determined that the use of a retrospective post-conviction hearing was acceptable in the present case, we now turn to review the conclusion of the trial court that T.N. was in fact unavailable. We agree with the court of appeals that the trial court‘s finding that T.N. was unavailable to testify is amply supported by evidence in the record. This case is not concerned with the typical question of analyzing the effort of the state to produce the physical presence of a witness. Rather, we are concerned with whether the state should be required to produce a four-year-old (at the time of trial) child who was diagnosed as suffering considerable emotional trauma.
At the post-conviction availability hearing, Dr. McLean testified at great length about T.N.‘s inability to testify at trial and the effect that such an experi
It is apparent from Dr. McLean‘s testimony that to require T.N. to testify in court would exact a considerable toll on T.N.‘s well-being. Although we recognized in State v. Gilbert, 109 Wis. 2d 501, 326 N.W.2d 744 (1982), that there exists a strong policy in favor of having a witness testify, there also exists a point at which we will not force a potential witness to testify. One commentator has noted that “[i]t is generally agreed by child psychiatrists that the degree of psychic trauma is as much, or perhaps more, dependent on the way that the child victim is treated after discovery than at the time of the offense itself.” Libai, The Protection of the Child Victim of a Sexual Offense in the Criminal Justice System, 15 Wayne L. Rev. 977, 980-81 (1969). Several components of the legal system, including repeated interrogations and cross-examination, facing the accused again, and the official atmosphere of the court, have been identified
As we have previously noted, the right to confront and cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process. Society‘s increased awareness of incest and child abuse have spurred both judicial and legislative efforts to protect child victims. The likelihood that any questioning of T.N. would cause severe trauma, as well as the uncertain efficacy of such questioning, leads us to conclude that T.N. was unavailable to testify at trial.
Moreover, we are not convinced that the possibility of using videotaped therapy sessions requires a finding that T.N. was available to testify. At the time of trial, our statutes sanctioned the use of videotaped depositions in lieu of testimony only where the defendant was able to cross-examine the witness at the time of the taking of the videotaped deposition. See
Our determination that T.N. was unavailable to testify at trial does not end our analysis. Once a witness is shown to be unavailable, the final step is to
We conclude that the hearsay statements in the present case meet the standards for reliability set forth in prior confrontation clause cases. This court recently held that statements admitted under
Although the application of
We note that T.N.‘s statements, that she did not have to tell the truth, and her conflicting statements about whether it was daddy or Mitch that she touched, do not diminish the admissibility of those statements. The testimony was admitted and then subjected to considerable cross-examination. Because of the availability of a means (notes and testimony of Dr. McLean) to cross-examine the statements, we are satisfied that the jury had the opportunity to evaluate the truthfulness of the statements.
In addition, we find that the age of the declarant and the nature of the allegations manifest indicia of trustworthiness. Although there exists considerable debate as to whether out-of-court statements by children which allege sexual abuse are intrinsically reliable, there is significant support for the proposi
We conclude that the admission into evidence of the out-of-court statements by T.N. to Dr. McLean did not violate the confrontation clause of either the State or Federal Constitution.
We now turn to the defendant‘s contention that the trial court erred in admitting into evidence the two drawings made by T.N. The defendant argues that the drawings should not have been admitted into evidence because they did not have a proper sponsoring witness. The state concedes that the drawings are hearsay and that there was an inadequate foundation for their admission. However, because there was no objection to the admission of the drawings, we limit our review to whether the admission of the drawings constituted plain error.
The drawings admitted into evidence contain sketches which are clearly not recognizable. Even considering the assertion by the state that one of the drawings depicted T.N.‘s father as an erect penis, we conclude that the drawings could have had little, if
By the Court.—The decision of the court of appeals is affirmed.
HEFFERNAN, CHIEF JUSTICE (dissenting).
The rationale of the court‘s opinion rests upon a misunderstanding of the exception to the hearsay rule that is permitted by
“STATEMENTS FOR PURPOSES OF MEDICAL DIAGNOSIS OR TREATMENT. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.”
The exception is founded upon the perception that a person who is being attended by a physician will accurately and truthfully state a condition or recount a symptom, because only by so doing can the condition be properly treated and the malady alleviated. As McCormick Evidence (hornbook series 1954), sec. 266, p. 563 (the authority relied upon by our Code of Evidence, 59 Wis. 2d R1 (1973)), states, such statements are reliable because “the patient knows that
This opinion warps the rules of evidence to allow the admission of evidence that is not reliable enough to qualify as an exception to the rule against hearsay. The admission of the evidence was erroneous and was prejudicial. I would reverse the conviction and order a new trial.
In addition, it appears that, from the outset of this case, the state has taken the position that T.N. must either testify as a conventional courtroom witness or
Both the Judicial Council and the legislature of this state have demonstrated an awareness of the potential problems of requiring child witnesses to testify in a conventional manner. The Judicial Council studied the matter for approximately one year and ultimately made recommendations regarding the use of videotaped depositions for child witnesses. Minutes of the Judicial Council 5/18/84-4/30/85. These recommendations led to the adoption by the legislature of
It is obviously of great importance that the testimony of the child be available if reliability can be reasonably assured. That is the goal this court should strive for. It can, I believe, be reached by utilizing the techniques explored by recent research. It cannot be reached by the shortcut method approved herein by the majority.
The state‘s failure to explore or seriously consider alternatives to conventional courtroom testimony in the present case is disturbing. The majority‘s acceptance of the state‘s failure, in view of our own past precedents, is inexplicable.
I dissent.
I am authorized to state that JUSTICES ABRAHAMSON and BABLITCH join in this dissent.
Notes
“The following [is] not excluded by the hearsay rule, even though the declarant is available as a witness:
“....
“(4) STATEMENTS FOR PURPOSES OF MEDICAL DIAGNOSIS OR TREATMENT. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.”
Nor do the ABA Guidelines for the Fair Treatment of Child Witnesses in Cases Where Child Abuse is Alleged (approved July 10, 1985) go so far as to suggest that a child victim/witness should be completely excused from testifying at trial. These guidelines do not even approve of the use of videotaped depositions in criminal proceedings.