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Statute permitting closed circuit audiovisual testimony of a child is still constitutional

State v. Ryan L. Bessert, 2021AP1062-CR, District 3, 5/3/22 (not recommended for publication); case activity (including briefs)

The circuit court properly applied § 972.11(2m)(a) under the circumstances of this case when allowing the complaining child witness to testify via closed circuit television, so Bessert’s right to confrontation was not violated. In addition, assuming without deciding that Bessert’s right to a public trial was violated because the courthouse doors were locked when the circuit court issued its verdict, the court employed an appropriate remedy for the constitutional violation by timely re-announcing the verdicts in open court.

The complaining witness (“Alex”) was six years old when she alleged Bessert sexually assaulted her when she was three years old. During further investigation Bessert’s former girlfriend told police she saw him sexually assault Alex a few years earlier, when Alex was an infant. The state sought to allow Alex to testify via CCTV under § 972.11(2m)(a) on the grounds that Alex’s emotional state and fear of Bessert made her unable to adequately testify in the same room as him. The circuit court granted the motion based on testimony from Alex’s guardian. (¶¶3-9).

Bessert’s claims § 972.11(2m)(a) is unconstitutional on its face and as applied to him, but the court of appeals rejects both claims.

  • Bessert’s facial claim is that while the statute may have passed muster under the Confrontation Clause jurisprudence before Crawford v. Washington, 541 U.S. 36 (2004), it doesn’t fall into any of the exceptions recognized since Crawford. This argument was rejected in State v. Vogelsberg, 2006 WI App 228, ¶¶5-16, 297 Wis. 2d 519, 724 N.W.2d 649, which forecloses Bessert’s argument here. (¶¶22-30).
  • His as-applied claim is that the evidence was insufficient to support the circuit court’s findings  that Bessert’s presence during the child’s testimony will result in the child “suffering serious emotional distress such that the child cannot reasonably communicate.” § 972.11(2m)(a)1.a. The circuit court’s finding on that issue were not clearly erroneous in light of the testimony from Alex’s guardian that Alex was “scared”; that her fear manifested in “real bad” nightmares involving Bessert; and that Alex was scared of the entire trial process and of Bessert specifically, and she did not want to see Bessert again. (¶¶31-33).

As it happens, Alex’s testimony was “confused and inconsistent,” and the court found Bessert not guilty of the counts based solely on her testimony and guilty only of the counts based on his ex-girlfriend’s testimony. (¶¶11-12, 15). But this did not lead the court did not resolve the Confrontation Clause violation claim on harmless error grounds because the state didn’t prove Alex’s CCTV testimony did not affect the verdicts on the counts for which Bessert was found guilty. (¶33 n.12).

Bessert also argues his right to a public trial was violated because the courthouse doors were locked and closed to the public when the circuit court announced its verdicts. Testimony apparently ended around 4:30 p.m. The court then adjourned to deliberate and issued its verdict at 4:56 p.m. before adjourning again at 5 p.m. The closure was accidental, not at the request of any party, so the court made no findings to justify it, and defense counsel didn’t learn about it till after the trial was concluded. Counsel raised the issue before sentencing, and at a hearing the circuit court re-announced the verdicts in open court. (¶¶16-17, 37).

The court assumes Bessert’s right to a public trial was violated and that the violation was not “trivial” because it involved the announcement of the verdicts. State v. Vanness, 2007 WI App 195, ¶¶9, 12, 304 Wis. 2d 692, 738 N.W.2d 154 (an unjustified closure may be trivial based on the length of the closure and the parts of the trial that were closed, though closure to announce the verdict is a focal point of the trial). Nonetheless, “even in the event of an improper courtroom closure, courts must carefully fashion a remedy to avoid granting a ‘windfall’ to an opportunistic defendant.” State v. Pinno, 2014 WI 74, ¶46, 356 Wis. 2d 106, 850 N.W.2d 207. Here, the circuit court’s remedy of re-announcing the verdicts was sufficient to remedy the violation, particularly in view of the short time of the closure and the fact some members of the public were in the courtroom when the verdicts were announced.  (¶¶42-44).

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