State v. Burns

332 N.W.2d 757, 112 Wis. 2d 131, 1983 Wisc. LEXIS 2869

• Court: Wisconsin Supreme Court
• Decided: April 26, 1983
• Docket: 82-210-CR
• Status: Published

Opinions

DAY, J.

This is an appeal from a judgment of conviction entered in the circuit court for Kenosha county, Thomas P. Corbett, Reserve Judge. The defendant, Charles R. Burns, appealed from the judgment. The court of appeals certified the case to this court pursuant to sec. (rule) 809.61, Stats. 1979-80. The certification request was granted on December 6,1982.

There are two issues on appeal. The first is: Did the testimony of a physician given three months before trial furnish a sufficient basis for the trial judge in the exercise of his discretion to declare a sexual-assault-victim witness unavailable for trial and to permit introduction into evidence of her testimony given at the preliminary hearing ?

The physician testified at a hearing on the unavailability issue that subsequent to the preliminary hearing the victim developed a severe mental illness as a result of the assault which illness would last for a minimum of two years and that requiring her to testify presented a high probability of causing a moderate to severe relapse.

The second issue is: Did the admission of such preliminary hearing testimony violate the confrontation clauses of the state or federal constitutions ?

We conclude the trial court did not abuse its discretion in ruling that the victim was unavailable to testify at trial. We also conclude that there was no violation of the confrontation clause of the state or federal constitution. Thus, the transcript of her preliminary hearing testimony was properly admitted into evidence and we affirm the judgment of the trial court.

On June 18, 1980, an information was filed against the defendant charging him with one count of first-degree sexual assault contrary to sec. 940.225 (1) (b), Stats. 1979-80,¹ one count of endangering safety by conduct regardless of life contrary to sec. 941.30,² one count of kidnapping contrary to sec. 940.31(1) (a),³ one of robbery contrary to sec. 943.32(1) (a),⁴ and one count of verbally threatening to injure another contrary to sec. 943.30(1).⁵

These charges arose from separate incidents which occurred on May 6, 1980, involving two women, M.S. and L.L. The kidnapping charge resulted from the abduction of M.S. from an apartment building parking lot in the township of Somers in Kenosha county early on the morning of May 6th. M.S. was forced at gunpoint to drive away from the parking area. The gunman directed her to. drive to another parking lot. In that lot, M.S. managed to escape from her abductor by ramming her car into a set of garbage cans, fleeing from her car and screaming for help. She later identified the defendant as her abductor.

The defendant challenged the conviction for the kidnapping of M.S. on the basis that the L.L. preliminary testimony “reinforced” M.S.’s identification testimony and if L.L.’s preliminary testimony was rejected by this court, a new trial should be granted defendant on the kidnapping conviction. Because we hold L.L.’s preliminary testimony was properly admitted, there is no basis for the defendant’s claim for a new trial on the kidnapping charge. The kidnapping conviction is therefore affirmed.

The incident giving rise to the other charges occurred on the evening of May 6. According to the preliminary hearing testimony of the victim, L.L., on that evening she had gone to a restaurant in the city of Kenosha. She had left the restaurant and went to her car in a parking lot when a person, who she later identified as the defendant, came up to her, pulled out a gun, and forced her into her car. He forced her to drive to a secluded area.

Once parked, the defendant forced L.L. into the back seat of the car where he beat her with the gun. He struck her at least three times in the face with the gun and ordered her to take her clothes off. He put the gun to her head and pulled the trigger. She heard the gun click. He told her she was “lucky” and cocked the gun again. She was bleeding from her face. She testified, “I realized ... I was going to die . . . and I started screaming out Jesus Christ, Jesus Christ, Jesus Christ because I was just totally . . . petrified.”

The defendant proceeded to force L.L. to remove her clothes. When she refused to do so, he ripped them off. He then began to touch her breasts and genital area with his hands and penis but penetration never occurred.

Following the sexual assault, the defendant demanded that L.L. turn over the money in her purse to him. She did so. The defendant then took out a wire and began to choke her. She passed out. She thought she was dead. She came to and the defendant began to choke her with the wire again. Again she lost consciousness.

When L.L. came to, she found the defendant was beating her on the head with the gun and she testified “blood started squirting out.” The defendant then picked her up and threw her against the car window. He then told her that he had looked in her wallet and knew who she was, and, if she said anything about the attack, he would get her. He then left the car.

L.L. realized she was bleeding profusely and needed medical attention. She walked from the car (the defendant had taken the car keys during the assault) and sought help. She ultimately made her way to a house and the sheriff’s department was called.

L.L. identified the defendant as her assailant. The defendant was arrested. A preliminary hearing was held on May 22, 1980, at which L.L. testified to the facts set out above. She was extensively cross-examined on her testimony at the preliminary hearing by counsel for the defendant.

As the trial date approached, the prosecutor attempted to produce L.L. for the purpose of complying with discovery demands and chemical testing. She refused stating that she had forgiven the defendant. The prosecutor then made arrangements to have her arrested and extradited as a material witness. This attempt was halted, however, when the prosecutor learned that L.L. was suffering from severe psychological problems and had been hospitalized because of them.

On December 5, 1980, the prosecutor made a motion to declare L.L. unavailable for trial. On December 9, 1980, a hearing was held on the motion. Doctor David F. Busby, a specialist in forensic psychiatry, testified at the hearing. He treated L.L. during her stay in the psychiatric ward of Lutheran General Hospital in Park Ridge, Illinois.

Dr. Busby testified that at the time of L.L.’s admission to the hospital, she was undernourished and in a “catatonic stupor with hallucinations and delusions.” She would “stand in one spot and talk to the wall, refuse to eat, refuse to dress or undress, refused all medication [and] refused all communication. . . .”

Because of a hospital policy allowing only a one month stay, she left the hospital a month later. Dr. Busby recommended transfer to another facility but L.L.’s parents believed they could care for her better at home. At the time L.L. left the hospital, Dr. Busby estimated that she was “ten to twenty percent improved.”

Dr. Busby testified that L.L. suffered from schizophrenia and might be expected to “improve over the X number of years, maybe two or three, maybe five or ten . . . .”⁶ It was Dr. Busby’s opinion that forcing L.L. to testify at trial had a “high probability [of causing] anywhere from a moderate to substantial relapse and return of [L.L.’s] symptoms. . . .”

Dr. Busby also testified that he had been involved in treating patients who had been traumatized by sexual assaults and that in none of the other cases had there been this “extreme degree of reaction.”

Dr. Busby’s testimony was based on his personal observations of L.L. up until her discharge from the hospital on October 18, 1980, and on subsequent conversations with her parents up until the time of the hearing. However, he noted at the hearing that his prognosis for future improvement was based in part on the condition L.L. was in when she left the hospital and on the lack of progress that had been reported to him by her parents since her discharge from the hospital. He also commented on the nature of schizophrenia and the fact that the disorder was “notable for its difficulty in recovery. . . .”

An additional hearing on the motion was held on January 16, 1981. At that hearing the defendant testified that L.L. had visited him in jail since the time of the last hearing. The defendant produced a letter from L.L. to the defendant in which she asked him to “accept the Lord Jesus into your life,” and urged him to read the Bible. She also expressed the hope that “we are friends in Jesus Christ.” The defense also had a note from L.L. to the defendant asking him to put her on a list of visitors permitted to visit him at the jail.

The judge, William Zievers, received the testimony and exhibits but made clear that he did not “see where they bear upon the issue before the court.” He stressed that the testimony and exhibits “neither adds nor detracts from the testimony offered by the professional who based his opinion and expressions of prognosis on his professional contacts with the witness. ...”

Following the hearing, the judge ruled that L.L. was unavailable to testify at trial within the meaning of sec. 908.04(1) (d), Stats. 1979-80.⁷

On February 23, 1981, the state filed a motion in li-mine to prohibit the defendant from offering evidence of any and all contact between L.L. and the defendant. For reasons not disclosed in the record, Reserve Judge Thomas Corbett, was substituted for Judge Zievers and held a hearing on the motion. At the hearing, Judge Corbett made the following statement summarizing his position on the availability question:

“Mr. Bramscher [the defense attorney] has indicated that it is his intention at this time to confer with the parents of this girl prior to making any determination as to whether or not he wishes her to be in attendance at the trial and that he will advise the Court and Counsel of his intention to present her at trial prior to doing so. The Court has indicated that if that situation comes up, it will conduct a hearing outside the presence of the jury for the purpose of determining the appropriateness of her testifying.”

Following'the hearing, the state’s motion was granted.

The defendant never attempted to produce L.L. at trial. At trial Judge Corbett reiterated that he had agreed to hold a hearing on the unavailability question if the defendant wished to challenge Judge Ziever’s ruling. However, Judge Corbett made it clear that the initial ruling was appropriate and would stand because the defendant had failed to demonstrate that the initial determination of unavailability should not continue to apply up to the time of trial. The defendant introduced no testimony from professionals to show L.L. no longer suffered from a severe mental illness but rather relied upon statements from the defendant and his father as to their impressions arising from contacts with L.L. Judge Corbett found this testimony to be insufficient to require a change in Judge Ziever’s determination that L.L. was unavailable for trial.

The defendant was tried and convicted on all five counts. The defendant appealed from the judgment.

The first issue is whether Judge Corbett abused his discretion in admitting L.L.’s preliminary hearing testimony into evidence at trial.

Under sec. 908.045(1), Stats. 1979-80, testimony given by a witness at a preliminary hearing may be admitted into evidence at trial under an exception to the hearsay rule if the declarant is unavailable as a witness. Section 908.04(1) (d) defines unavailability of a witness to include situations where the declarant is “unable to . . . testify at the hearing because of . . . then existing physical or mental illness or infirmity. . . .”

[13

Under the statutes, for L.L.’s preliminary hearing testimony to be admitted, the state had to demonstrate that she suffered from a “then existing . . . mental illness” which made her unavailable to testify at trial. The trial court’s decision on the admissibility of former testimony is a matter of discretion and will not be overturned unless an abuse of discretion is found. State v. La Fernier, 44 Wis. 2d 440, 446, 171 N.W.2d 408 (1969) ; La Barge v. State, 74 Wis. 2d 327, 338-339, 246 N.W.2d 794 (1976). We find no abuse of discretion here.

Judge Ziever’s initial ruling was well supported by the testimony of an expert in forensic psychiatry. Dr. Busby testified that L.L. presently suffered from schizophrenia, a severe mental illness, and would continue to suffer from the illness for two years or more. He also testified that requiring- L.L. to testify at trial had a moderate to high probability of causing her to suffer a relapse. The symptoms L.L. originally suffered included being in a “catatonic stupor with hallucinations and delusions.” He further testified that schizophrenia was known for the difficulty which patients experienced in recovering from it.

The defendant presented only his own testimony regarding his contacts with L.L. to support his position that she was available for trial. Based upon all of the testimony and exhibits taken at the motion hearing, a determination that L.L. presently suffered from a mental illness and would continue to so suffer through the trial date was amply supported by the evidence and did not constitute an abuse of discretion.

The defendant argues that, even if Judge Zievers did not abuse his discretion in determining L.L. to be unavailable, Judge Corbett erred because he never made an express finding that L.L. suffered from a then existing mental illness which made her unavailable for trial. The defendant contends that Judge Corbett should not have accepted Judge Ziever’s ruling but rather should have conducted another hearing. At that new hearing, the burden would once again be on the state to show L.L.’s unavailability.

We disagree with the defendant’s arguments. This situation arose solely because Judge Corbett was substituted for Judge Zievers at a mid-point in the process. Had Judge Zievers continued on through the trial, as we noted earlier, his ruling that L.L. was unavailable would not have constituted an abuse of discretion. Judge Zievers clearly ruled that L.L. would be unavailable as a witness at trial. Thus, a completely new determination of unavailability would not have to be made by Judge Zievers had he been the trial judge. Simply because Judge Cor-bett was substituted for Judge Zievers does not require that the entire procedure be repeated. Judge Corbett properly exercised his discretion in view of the record in upholding the ruling of Judge Zievers.

Under sec. 908.045(1), stats., L.L.’s preliminary hearing testimony was properly admitted at trial.

The second issue is whether the confrontation clauses of the state or federal constitutions were violated by the use of L.L.’s preliminary hearing testimony.

Even if the unavailability requirement is met so that the former testimony will not be excluded under the hearsay rule, for that testimony to be admitted it must also satisfy the requirements of both the federal⁸ and Wisconsin⁹ Constitutions. The defendant concedes in his brief that if the circumstances of this case demonstrate the unavailability of L.L. for trial, the use of the preliminary hearing testimony would not violate either-state or federal constitutional requirements. See, Ohio v. Roberts, 448 U.S. 56 (1980) ; Nabbelfeld v. State, 83 Wis. 2d 515, 552, 266 N.W.2d 292 (1978) ; State v. Bauer, 109 Wis. 2d 204, 222, 325 N.W.2d 857 (1982) ; State v. Dorcey, 103 Wis. 2d 352, 307 N.W.2d 612 (1981).

The United States Supreme Court has not considered the question of when, under the federal constitution, the mental illness of a person is such that it renders a de-clarant unavailable. However, the Court has noted that, “ ‘The lengths to which the prosecution must go to produce a witness ... is a question of reasonableness.’ ” Roberts, 448 U.S. at 74, citing California v. Green, 399 U.S. 149, 189, n. 22 (concurring opinion) (1970).

While the issue in Roberts concerned whether the state had made good-faith efforts to procure the physical presence of an out-of-state declarant, that does not diminish the standard of reasonableness which the Court set for state actions necessary to present witnesses for trial. The state must act reasonably in attempting to produce a witness for trial.

Here, it is not the effort of the state to produce the physical presence of the witness that is in question. Rather, it is a question of whether the state should be required to produce a witness for trial who suffers from a severe mental illness which may be worsened if she is forced to testify at trial. In answering this question, we may appropriately consider the effect such a requirement might have on the criminal justice system for the Supreme Court has stated that <;the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” Chambers v. Mississippi, 410 U.S. 284, 295 (1973).

The legislature has acted in Chapters 949 and 950 of the statutes to provide certain rights for victims of and witnesses to crimes. In sec. 950.01, Stats. 1981-82, the legislature declared its intent to “ensure that all victims ... of crime are treated with dignity, respect, . . . and sensitivity; and that the rights extended to victims . . . of crime are honored and protected by law enforcement agencies, prosecutors and judges in a manner no less vigorous than the protection afforded criminal defendants.”

The language quoted above is indicative of a widely held societal concern that the criminal justice system too often tramples upon the victims of crime in an effort to do “justice” for the perpetrators of such crimes. Such a perception would surely be reinforced if the system required a repetition of testimony from one who has already testified and been cross-examined even at the risk of doing substantial damage to her mental health.

For the criminal trial system to function efficiently and effectively, the cooperation of victims and witnesses is necessary. We conclude that it is a legitimate interest of the criminal trial process to protect a victim of crime from needlessly repeating testimony where the victim is presently diagnosed as being severely mentally ill and where the act of testifying again has a significant probability of worsening the condition. It was therefore reasonable for the state to seek to have L.L. declared unavailable for trial and the confrontation clause of the federal constitution was not violated by the court having done so.

Although we conclude the federal constitution does not bar the use of L.L.’s former testimony at trial, the next question is, does the state constitution require exclusion?

This court has had occasion to consider whether a physical or mental illness will cause a witness to be unavailable for trial so that the confrontation clause of the Wisconsin Constitution will not be violated by the use of former testimony. Spencer v. State, 132 Wis. 509, 112 N.W. 462 (1907); Sheehan v. State, 65 Wis. 2d 757, 223 N.W.2d 600 (1974).

In Spencer, the court determined that, under the Wisconsin Constitution, in order for former testimony to be admitted, it must be shown that the physical illness of the declarant was permanent. The case dealt with the admissibility of the preliminary hearing testimony of a witness who was suffering from rheumatoid arthritis and consumption with no hope of recovery and who was unable to appear at trial. The court there held the prior testimony admissible. The court in dicta stated that a mental disability must also be permanent for a declarant to be found unavailable for trial.

Relying upon the dicta in Spencer, the court in Sheehan determined that the deposition of the victim to a crime could not be admitted at trial because there was no showing that the victim was suffering from a permanent mental illness. Sheehan, 65 Wis. 2d at 765. In fact, all that was shown was that the victim would suffer from a mental illness on the day of trial and the following two days.

Although the holding in Spencer was based on an interpretation of the Wisconsin Constitution, except for the reference in Sheehan to Spencer, the opinion in Shee-han clearly relies upon the confrontation clause contained in the federal constitution. The court in Sheehan apparently recognized that the rights granted under the confrontation clauses of the state and federal constitutions were the same. We now make explicit what the court in Sheehan implicitly held; the confrontation rights under both constitutions are the same.¹⁰ °

Neither the state or federal constitutions prohibit the use of former testimony where it is demonstrated that the declarant is unavailable because she presently suffers from a severe mental illness of such duration as to make postponement of the trial impractical.

The defendant also relies on this court’s decision in State v. Gilbert, 109 Wis. 2d 501, 326 N.W.2d 744 (1982) in arguing that probable emotional harm to a witness is not grounds for a witness to refuse to testify. The defendant relies on the following language in Gilbert:

“We can find no precedent, and none has been cited, that a court may completely excuse a witness from his or her obligation to testify because of the witness’s claim of emotional harm .... This court has strictly construed the public policy in favor of having a witness testify when the witness claims emotional damage. The court refused to allow the use of a deposition in lieu of live testimony in a criminal case when the argument was made that the witness was unavailable because testifying would cause him psychiatric illness.” Gilbert, 109 Wis. 2d at 512.

But the defendant misreads the import of this court’s holding in Gilbert. In Gilbert, this court reversed the trial court’s quashing of a subpoena ad testificandum of the ten-year-old daughter of the defendant, her mother, charged with the murder of the witness’ younger sister and the abuse of the witness. The trial court had held that it was “in the best interest of the child” not to be subjected to testifying at a preliminary hearing because of the possibility of psychological harm to the child from confronting her mother at such hearing. This court reversed saying:

“Excusing BP from testifying might spare her stress now but might harm her in the long run by failing to allow the state to bring to trial and possible conviction the alleged abuser. BP should tell her story not because this court disbelieves her claim of terror but because she has been terrorized.” Gilbert, 109 Wis. 2d at 516.

This court pointed out that it is society’s interest in having the testimony of those on whom the state must rely that make the rule expressed a social imperative. This court said in Gilbert, 109 Wis. 2d 505-506:

“The well-accepted legal principle, a fundamental tenet of our modern legal system, is that the public has a right to every person’s evidence except for those persons protected by a constitutional, common-law, or statutory privilege. This principle applies to all of us — even to the President of the United States. . . .

“The principle and its corollary — that each person has a duty to testify — are basic to the adversary system. The integrity of the legal system depends on the court’s ability to compel full disclosure of all relevant facts under the rules of evidence. The theory of the adversary system is that examination of all persons who have relevant information will develop all relevant facts and will lead to justice. . . .

“In demanding the testimony the district attorney represents BP’s interest and the public’s interest in prosecuting an alleged child abuser and murderer.”

These are among the reasons why the case before us is distinguishable from Gilbert. In addition to the above, this court specifically noted that it was deciding no issues relating to the confrontation clause in either the federal or state constitutions. 109 Wis. 2d at 507, Fn. 6.

In this case society and the defendant have had the testimony of L.L. who described in detail the assault by the defendant. The defendant subjected her to extensive cross examination.

Thus, the reason to compel the child’s testimony in Gilbert is completely absent here. In this case the victim’s direct testimony and her testimony under cross examination are available and were properly put into evidence in this case.

The victim in this case became a catatonic schizophrenic, after her preliminary examination testimony, as a result of the vicious assault upon her. We are not capable of understanding all the mechanisms the mind uses to cope with the seemingly unbearable. Calling on Jesus Christ to save her during her struggle, she continued to call on him during her hospitalization as she apparently relived the horror of her brush with death. Following slight improvement in her situation, she now seeks refuge in her religion from the haunting shadows of her experience. She is trying to “convert” her attacker, hence her pitiable letter and visit to him in the jail and also her feeling she shouldn’t testify, treating this heinous crime as something between her and the defendant and outside the concern of the court. But, however one may admire or sympathize with her trying to cope by forgiving her attacker, the crime of which this defendant was convicted was also a crime against society and it is society which is also wronged by his actions. Prosecution and punishment of offenders cannot be made contingent on the willingness of their victims to forgive the wrongdoer. One cannot forget that her forgiveness here is the product of a mind rendered seriously ill due to the defendant’s assault upon her.

Of course, if the defendant could get this court to say the preliminary hearing testimony, given prior to her mental breakdown, was inadmissible and that she must be forced to take the stand, then the defendant sees the possibility that she will refuse to testify and then perhaps the charges would be dropped. The fact that her doctor testified there was a high probability of a relapse into her prior symptoms is a factor in this case that this court may not ignore.

Having concluded that the trial court did not abuse its discretion in admitting the preliminary hearing testimony of L.L. into evidence and having further concluded that neither the Wisconsin nor United States Constitutions bar such admission, we affirm the judgment of conviction.

By the Court. — Judgment of the trial court is affirmed.

1 “940.225 Sexual assault. (1) First degree sexual assault. Whoever does any of the following is guilty of a Class B felony: . . .

“(b) Has sexual contact or sexual intercourse with another person without consent of that person by use or threat of use of a dangerous weapon or any article used or fashioned in a manner to lead the victim reasonably to believe it to be a dangerous weapon.”

2 “941.30 Endangering safety by conduct regardless of life. Whoever endangers another’s safety by conduct imminently dangerous to another and evincing a depraved mind, regardless of human life, is guilty of a Class D felony.”

3 “940.31 Kidnapping. (1) Whoever does any of the following is guilty of a Class B felony:

“(a) By force of threat of imminent force carries another from one place to another without his consent and with intent to cause him to be secretly confined or imprisoned or to be carried out of this state or to be held to service against his will; or. . .”

4 943.32 Robbery. (1) Whoever, with intent to steal, takes property from the person or presence of the owner by either of the following means is guilty of a Class C felony:

“(a) By using force against the person of the owner with intent thereby to overcome his physical resistance or physical power of resistance to the taking or carrying away of the property; or. . .”

5 “943.30 Threats to injure or accuse of crime. (1) Whoever, either verbally or by any written or printed communication, maliciously threatens to accuse or accuses another of any crime or offense, or threatens or commits any injury to the person, property, business, profession, calling or trade, or the profits and income of any business, profession, calling or trade of another, with intent thereby to extort money or any pecuniary advantage whatever, or with intent to compel the person so threatened to do any act against the person’s will or omit to do any lawful act, is guilty of a Class D felony.”

6 In the record, Dr. Busby initially testified that L.L. suffered from schizophrenia. He later identified the disorder as an acute schizophreniform disorder. However, the record clearly shows that he expected the recovery period to last a minimum of two years and such a recovery period is consistent with a diagnosis of schizophrenia but not acute schizophreniform disorder. See Diagnostic and Statistical Manual of Mental Disorders (3rd Ed. 1980).

7 “908.04 Hearsay exceptions; declarant unavailable; definition of unavailability. (1) ‘Unavailability as a witness’ includes situations in which the declarant: . . .

“(d) Is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or . . .”

8 United States Constitution, Sixth Amendment. The confrontation was made applicable to the states in Pointer v. Texas, 380 U.S. 400 (1965).

9 Wisconsin Constitution, Article I, section 7: “[T]he accused shall enjoy the right ... to meet the witnesses face-to-face. . . .”

10 Also see, Bauer, 109 Wis. 2d at 204 and Dorcey, 103 Wis. 2d at 160, in which the confrontation rights under both constitutions are treated as the same.