Allowing the defendant to withdraw her no contest pleas would cause substantial prejudice to the state because it would mean the defendant’s trial would occur after the child victim turned 16 and would thus preclude state from presenting video statements of child under § 908.08.
Lopez was charged with multiple counts of child abuse. (¶¶24, 26). The victim in the case, A.O., who was then 14 years old, gave two recorded audiovisual statements describing the conduct of Lopez and the co-defendant, Porfirio Olivas. (¶¶16-17, 25). The circuit court ruled the recordings would be admissible at trail. (¶¶36-38, 66-77). Lopez eventually entered no contest pleas to some of the charges and agreed to testify against Olivas. (¶¶39-40). After testifying against Olivas (who was convicted of most of the charges against him), but before being sentenced, Lopez moved to withdraw her pleas. (¶¶40-43).
While the circuit court concluded Lopez satisfied the “fair and just reason” standard for pre-sentence plea withdrawal, State v. Rushing, 2007 WI App 227, ¶16, 305 Wis. 2d 739, 740 N.W.2d 894, it denied her motion to withdraw her pleas because it concluded the state would be “substantially prejudiced” by the plea withdrawal. (¶¶53-54). The circuit court reached this conclusion because after Lopez’s entered her pleas, A.O. had turned 16, the audiovisual recordings were rendered inadmissible, and the state was therefore deprived of the opportunity to use that “compelling” evidence. (¶¶54, 78, 85, 91, 96-97).
The supreme court agrees with the circuit court’s conclusion:
¶86 The test for substantial prejudice that Lopez espouses is whether the State might still be able to prove guilt beyond a reasonable doubt without admitting the audiovisual recordings under Wis. Stat. § 908.08. The test, however, is not as Lopez wishes. The test is whether the State would be substantially prejudiced if Lopez were allowed to withdraw her pleas. The substantial prejudice that would result in this case is that the State would lose the ability to admit significant, persuasive, “compelling” evidence that would otherwise have been admissible under § 908.08 at trial. …
¶87 …. Lopez opines that the State has enough other evidence and that the State does not need the audiovisual recordings to prove her guilty beyond a reasonable doubt. Lopez concludes that the audiovisual recordings would otherwise be partially admissible and that, in that limited form, they are sufficient. … Lopez’s assertion that the State’s case is strong enough without the § 908.08 recordings is simply not the applicable legal standard.
The majority doesn’t deign to describe or define “substantial prejudice,” but concludes the standard is met in this case based on two grounds: 1) the state’s putative loss of the audiovisual evidence (¶¶88-98); and 2) the impact of the passage of time on A.O.’s memory (¶¶99-105). As to the first ground, the court cites to the clear admissibility of the entirely of the recordings under § 908.08, as opposed to the uncertainty of admission of the recordings under some other evidentiary avenue (¶88), and to the nature of the audiovisual evidence in this case:
¶98 …. The [circuit] court determined that these recordings were compelling and powerful. … Losing the ability to introduce the recordings under § 908.08 would not merely result in the same testimony being presented in a different form, but the State would be substantially prejudiced because, as the State put it: “central to this trial and central to the evidence in this case are the video recorded statements taken by detectives at Safe Harbor of [A.O.], the principal victim, . . . .” Without admitting the recordings as envisioned under § 908.08, the State was left with a completely different and less compelling presentation of its evidence.
As to the second ground, the court asserts the circuit court’s decision properly relied on Rushing, ¶¶8-9, 16, and State v. Bollig, 2000 WI 6, ¶¶43-46, 232 Wis. 2d 561, 605 N.W.2d 199, where plea withdrawal was denied because the state was prejudiced by the victim’s faded memory:
¶100 …. The substantial prejudice in Bollig and Rushing resulted from the fact that the victim’s memory would likely have faded given a delay. In the case at issue, not only does the State suffer the kind of prejudice which results from a delay impacting the victim’s memory, but here the State suffers the additional loss of significant, persuasive, “compelling,” audiovisual evidence that would otherwise have been admitted under Wis. Stat. § 908.08.
Justice Bradley, joined by Chief Justice Abrahamson, dissents, noting the majority’s conclusion is inconsistent with State v. Nelson, 2005 WI App 113, 282 Wis. 2d 502, 701 N.W.2d 32 (circuit court’s denial of pre-sentence plea withdrawal erroneous because it failed to consider the strength of the state’s case). (¶¶232-35). After all:
¶231 …. [I]f the State can still prove its case beyond a reasonable doubt [without A.O.’s audiovisual recordings], it is unclear how the State would be substantially prejudiced. The majority’s discussion does not indicate what State interest would be prejudiced and fails to clearly define substantial prejudice. Fashioning a circuitous test (the test for substantial prejudice is whether the State was substantially prejudiced) provides little illumination on the subject.
And as the dissent details, the state’s case is strong even without the recordings of A.O.: Lopez confessed much of the abuse to a detective the day after A.O. was rescued from her home, admitted the abuse again in another interview shortly after entering her plea, and then admitted the abuse yet one more time when she testified against Olivas. In addition, the state could introduce photographs of A.O.’s injuries and detailed medical reports. (¶234).
Moreover, even though A.O. had turned 16, there is no hearsay bar preventing the state from playing the visual (as opposed to audio) portion of the recordings to show A.O.’s injuries. (¶237). And the courts easily find other bases for admitting audiovisual recordings of a child victim’s statement that don’t otherwise meet the requirements of § 908.08–for example, admitting a recording after the victim testified because the victim’s testimony was significantly less detailed than the account she had previously given. State v. Snider, 2003 WI App 172, 266 Wis. 2d 830, 668 N.W.2d 784. (¶¶238-42). Finally, there is no evidence showing A.O. has had any memory loss, and this case is significantly different than Bollig and Rushing, which involved significantly younger children (ages 4 and 5) and, in Rushing, evidence of a difficult-to-interview victim. (¶¶223-28).
Think twice before printing this Brobdingnagian decision (246 paragraphs, 100-plus pages)–or even the long, repetitious majority opinion (107 paragraphs, 53 pages), which provides (as the dissent rightly notes) no illumination of the existing “substantial prejudice” standard, but merely applies that standard to correct what it obviously perceives to be the court of appeals’ erroneous result. Of course, even if the decision doesn’t illuminate or change the existing standard, as a practical matter it means that plea withdrawal will be all but impossible in any case where: 1) the circuit court has ruled a “compelling and powerful” recording of a child victim is admissible under § 908.08; and 2) allowing plea withdrawal will result in a trial after the victim turns 16.
Speaking of making pre-sentence plea withdrawals impossible, the concurrence (Justices Prosser and Gableman) agrees with the majority, but goes on (at length: 50-plus paragraphs, 20 pages) about why the “fair and just reason” standard is outmoded and should be replaced with the “manifest injustice” standard. (Some of the reasons are foreshadowed by Justice Prosser’s majority opinion in State v. Jenkins, 2007 WI 96, 303 Wis. 2d 157, 736 N.W.2d 24.) Chief Justice Abrahmson’s dissent (40-plus paragraphs, 19 pages; joined by Justice Bradley) explains why the fair and just reason standard should remain intact. Because the state conceded Lopez met the existing standard (¶62), neither the parties nor the majority addressed this issue, rendering the discussion academic–for now. Beware, though: The standard is obviously in the sights of two justices.