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Harmless Error; Hearsay – Medical Treatment/Diagnosis

State v. Jimmie Lee Higgins, 2010AP861-CR, District 1, 2/1/11

court of appeals decision (3-judge, not recommended for publication); for Higgins: Ellen Henak, SPD, Milwaukee Appellate; case activity; Higgins BiC; State Resp.; Reply

Any error with respect to exclusion of the victim’s pretrial statement to the police in one instance, and admissibility of her statements to a nurse, would be harmless. Information contained in the excluded statement “was elicited otherwise,” hence the excluded information was merely cumulative, ¶¶17-19. The statements admitted into evidence, even if inadmissible, were harmless because “there was sample evidence on which to otherwise convict Higgins,” ¶44.

In addition, the challenged statements were admissible under the hearsay exception for medical diagnosis or treatment.

¶33      In other words, Destiny was at a hospital, answering questions posed to her by a nurse who was going to physically examine her, and Destiny was experiencing at least some physical discomfort.  Destiny had “a substantial self-interest in being truthful.”  See Huntington, 216 Wis. 2d at 693. …

¶34      Higgins’ argument—that the trial court was required to make a finding that Destiny appreciated the need to be truthful—requires the court to go above and beyond what the statutory exception for statements made for purposes of medical diagnosis or treatment requires.  See WIS. STAT. § 908.03(4).  Section 908.03(4) merely dictates that a court find that a statement was made “for purposes of medical diagnosis or treatment” before the statement is admissible. ….

¶38      Destiny’s second statement to Nurse Wieland, identifying Higgins as her attacker, is also admissible under the medical diagnosis exception.  While it is true “that statements as to who was at fault are ordinarily inadmissible under the exception for statements made for purposes of [medical] diagnosis or treatment,” the Wisconsin Supreme Court has carved out an exception for cases involving child abuse.  Nelson, 138 Wis. 2d at 433….

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