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COA offers unconvincing confrontation analysis in published case

State v. Antonio G. Ramirez, Jr., 2021AP1590, 11/15/23, District 2 (recommended for publication); case activity (including briefs)

There are some serious unresolved confrontation questions around statements alleged victims make in settings involving both medical treatment and criminal investigation: often, during a police-instigated physical examination after an alleged physical or sexual assault. Here, despite turning out a 52-page, recommended-for-publication opinion, the court of appeals fails meaningfully to address any.

In 1999, an officer responding to a reported sexual assault encountered Ramirez’s mother-in-law, wife, and 8-year-old stepdaughter at the mother-in-law’s house. The officer told Ramirez’s wife that she and her daughter “had to go” to the hospital for a SANE examination, and he took them there in his squad. At the hospital, the stepdaughter and her mother spoke with a nurse and also with the officer, who was sometimes in the same room. The stepdaughter accused Ramirez of sexually assaulting her that day. She also said that her 1998 trip to the emergency room had been the result of another assault by Ramirez, not the result of a fall in the bathtub as she’d said at the time.

The statements the stepdaughter made at the hospital underlie most of the dispute between the parties. Neither the stepdaughter nor her younger brother testified at Ramirez’s trial. Also, though both she and the brother would also be interviewed at the police station the following day; the state did not make much of an effort to argue that these later statements were not testimonial. Instead, it relies on a claim that these latter statements were largely duplicative of the ones the stepdaughter made at the hospital. So, the state says, if those earlier statements weren’t testimonial, they properly came in, and the later statements, though their introduction violated Ramirez’s confrontation right, amounted only to harmless error.

The court of appeals devotes over 30 pages to an exhausting blow-by-blow recitation of virtually all the evidence introduced at trial. When it finally gets around to legal analysis, it relies heavily on our supreme court’s decision in State v. Mattox, 2017 WI 9, 373 Wis.2d 122, 890 N.W.2d 256.

This is a head-scratching choice. As Ramirez pointed, out, courts in other jurisdictions have faced cases involving children’s statements in joint medical/investigative situations and, considering the guidance the Supreme Court has given, found them testimonial: see Bobadilla v. Carlson, 575 F.3d 785, 793 (8th Cir. 2009); State v. Arnold, 933 N.E.2d 775, 784 (Ohio 2010); Hartsfield v. Com., 277 S.W.3d 239, 245 (Ky. 2009); State v. Hooper, 176 P.3d 911, 917 (Idaho 2007). Why does our court, then, rely chiefly on a case about a forensic toxicology report? The court’s reasoning doesn’t bolster one’s confidence in this analytical move: for example, the decision relies heavily on the fact that the stepdaughter’s accusations–which were made orally, in the presence of and to a police officer–were not notarized. (¶77). If this seems of questionable relevance, consider also that statements made in response to police interrogation–also usually oral and typically not notarized–are the platonic ideal of testimonial statements. See Crawford v. Washington, 541 U.S. 36 (2004).

At the conclusion of this ill-fitting analysis, the court declares the stepdaughter’s initial statements nontestimonial, and finds the rest harmless. (¶¶81-93). It also finds harmless Ramirez’s claim that the court erred in not letting him ask one of the state’s witnesses–a doctor who had treated the stepdaughter in the 1998 incident–about the grant of immunity he’d received in exchange for his testimony. (¶¶94-99).

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