On Point

State v. William Nielsen, 2001 WI App 192, PFR filed
For Nielsen: Waring R. Fincke

Issue/Holding:

¶31. The privilege against self-incrimination is guaranteed by art. I, § 8, of the Wisconsin Constitution and by the Fifth Amendment to the United States Constitution. State v. Adams, 221 Wis. 2d 1, 7, 584 N.W.2d 695 (Ct. App. 1998). The use of a defendant’s silence for impeachment purposes has been long decided. It has been held improper for the State to comment upon a defendant’s choice to remain silent at or before trial. Id. at 7-8 (citing Miranda v. Arizona, 384 U.S. 436, 468 n.37 (1966) (defendant claiming privilege in face of accusation); Doyle v. Ohio, 426 U.S. 610, 619 (1976) (constitutional error to impeach a defendant with his or her post-arrest, post-Miranda silence)).

¶32. If, however, the defendant opens the door to government questioning by his own remarks about his post-arrest behavior or by defense counsel’s questioning, see Doyle, 426 U.S. at 619 n.11 (discussing prosecution’s permissible use of post-arrest silence to “challenge the defendant’s testimony as to his behavior following arrest”), the government may use the defendant’s silence for the limited purpose of impeaching his testimony. United States v. Gant, 17 F.3d 935, 941 (7th Cir. 1994). At the same time, it may not argue that the defendant’s silence is inconsistent with his claim of innocence. Id.

¶33. The test for determining if there has been an impermissible comment on a defendant’s right to remain silent is whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the defendant’s right to remain silent.United States v. Mora, 845 F.2d 233, 235 (10th Cir. 1988). The court must look at the context in which the statement was made in order to determine the manifest intention which prompted it and its natural and necessary impact on the jury. Id. Whether a defendant’s right to remain silent was violated is a question involving the application of constitutional principles to undisputed facts that we review de novo. See Adams, 221 Wis. 2d at 6.
…

¶36 … We conclude that Nielsen opened the door to government questioning by his counsel’s questioning, and the State was permitted to clarify that Nielsen had not answered all questions for the limited purpose of impeaching the inference that Nielsen had continued to actively deny the assault throughout the interview….

State v. Kevin S. Meehan, 2001 WI App 119
For Meehan: Pamela Moorshead, Buting & Williams

Issue: Whether the prosecutor properly cross-examined an alibi witness as to what the defendant had told him about his prior offense.

Holding:

¶21. Further, even if the 1992 conviction could have been properly admitted, using this evidence on cross-examination was improper. Other acts evidence is admitted for a specific purpose. Here, arguably, the evidence was admitted to show motive, intent, or plan. The evidence cannot be admitted or used to prove bad character or propensity to commit crimes. The cross-examination of Holmes regarding the 1992 conviction was clearly used to attack Meehan’s character-to show that he lied and concealed this information from his significant other. This was improper.

State v. Joseph F. Rizzo, 2002 WI 20, reversing and remanding 2001 WI App 57, 241 Wis. 2d 241, 624 N.W.2d 854
For Rizzo: Franklyn M. Gimbel

Issue¹: Whether testimony by a state’s expert amounted to “Jensen” testimony, i.e., expert opinion that the sexual assault complainant’s behavior was consistent with that of sexual assault victims in general.

Holding:

¶21. We agree with the court of appeals that Dr. Pucci’s testimony made the requisite comparison between D.F.’s behavior and the common behaviors of sexual assault victims. In arguing that it did not, the State is asking this court to hold that Dr. Pucci’s testimony would have been Jensen evidence only if she had used magic words such as ‘D.F.’s behaviors are consistent with that of persons known to be sexual assault victims.’ We decline to adopt such a mechanistic approach. Instead, we determine that a jury would interpret the prosecutor’s questions along with Dr. Pucci’s answer to provide the comparison that is the essence of Jensen evidence.¶22. The phrasing of the prosecutor’s questions and the substance of Dr. Pucci’s answer combined to send a clear message to the jury that D.F.’s behaviors were consistent with those of known sexual assault victims. The factual portion of Dr. Pucci’s testimony established that she knew D.F. to be a sexual assault victim. The prosecutor then solicited her expert opinion as to what someone would do ‘under these circumstances’ and ‘in this position.’ This made it apparent to the jury that a direct comparison was to be drawn between D.F. and others in her circumstances or position, which, according to the factual testimony of Dr. Pucci, were the circumstances or position of a sexual assault victim.

Issue²: Whether the defendant’s right to a psychological examination of the complainant, under State v. Maday, 179 Wis. 2d 346, 507 N.W.2d 365 (Ct. App. 1993), once the prosecution introduces “Jensen” testimony, is limited to instances where the “Jensen” witness has actually been retained by the prosecution.

Holding:

¶32. We must not lose sight of the fundamental fairness principle that drives the Maday decision. If the State is to introduce Jensen evidence through a psychological expert who has become familiar with the complainant through ongoing treatment, or through an intensive interview or examination focused on the alleged sexual assault, the defendant must have the opportunity to show a need to meet that evidence through a psychological expert of its own. As the Maday court explained in support of its holding, ‘a definitive opinion requires an extensive interview plus review of material on the victim’s life and behaviors.’ 179 Wis. 2d at 357.¶33. With these principles in mind, we conclude that it would strain logic and ignore fairness to determine that a psychological expert such as Dr. Pucci does not trigger Maday. Dr. Pucci was not just any professional who briefly encountered D.F. after a reported sexual assault. Dr. Pucci was a clinical psychologist who had an extensive, ongoing relationship with D.F. She interviewed, examined, and diagnosed D.F. Moreover, Dr. Pucci testified that the bulk of her treatment of D.F. in 1997 was directed at the sexual assault. In short, the extent and nature of Dr. Pucci’s contacts with D.F. bring her within the ambit of Maday.

¶34. In addition, we agree with Rizzo and the court of appeals that the State “retained” Dr. Pucci in the sense meant by David J.K. Although there is no assertion by Rizzo that Dr. Pucci received a specific witness fee, the State admitted that it “paid three times” for Dr. Pucci’s flights, hotel, rental cars, and meals in order to bring her from Tennessee, where she had relocated since treating D.F.

¶35. More to the point, however, we determine that even if the State had not compensated or reimbursed Dr. Pucci, she would still have been a Maday expert. A determination of whether the State ‘retains’ an expert for purposes of Maday cannot stand or fall on whether or how it has compensated its expert. Such a determination would thwart the fundamental principle underlying Maday and would allow the State to subvert Maday by, for example, obtaining an expert willing to volunteer her time. For the same reasons, we conclude that an expert’s status as the complainant’s treating therapist does not preclude that expert from being ‘retained’ by the State for purposes of Maday.

Issue/Holding³: Neither outright grant of new trial nor affirmance is an appropriate appellate response to denial of a “Maday” expert, where trial court never had the opportunity to exercise its discretion. Proper remedy is remand for trial court to apply “Maday” factors; if result is that Rizzo was entitled to pretrial psychological examination of complainant, then new trial should be ordered. ¶¶43-47.

State v. Larry J. Sprosty, 2001 WI App 231, PFR filed
For Sprosty: Jack E. Schairer, SPD, Madison Appellate

Issue: Whether the trial court erred in refusing to qualify a social worker as an expert in this Ch. 980 supervised release proceeding.

Holding: Because the witness had “expertise with respect to treating sex offenders … she was qualified to give her opinion on the ultimate issue.” ¶29. The error, however, was harmless: The witness was allowed to testify to all but the ultimate opinion, and another witness was allowed to give an ultimate opinion in Sprosty’s favor. ¶30.

The social worker’s qualifications are mentioned only in passing, namely that “she provides treatment for sexual offenders and prepared the treatment plan for Sprosty to be implemented upon his release.” ¶11. The harmless error analysis is wrong on its face: “because Sprosty has not demonstrated that there is a reasonable possibility that the error contributed to the circuit court’s decision, we conclude the error was harmless[.]” ¶30. This exactly inverts the burden, which is, instead, that the state show beyond reasonable doubt that the error didn’t contribute to the result.

State v. Kevin S. Meehan, 2001 WI App 119
For Meehan: Pamela Moorshead, Buting & Williams

Issue: Whether the alleged victim’s entire testimony at prior proceedings was properly admitted into evidence, under prior consistent statement or rule of completeness rationales.

Holding:

¶25. The trial court admitted the entire prior testimony under two theories: (1) the testimony constituted prior consistent statements under Wis. Stat. § 908.01(4)(a)2; and (2) the testimony could be admitted for the sake of completeness. We agree with Meehan that the trial court’s decision was erroneous under either theory. The general rule is that prior consistent statements are not admissible because they are hearsay. Section 908.01(4)(a)2 provides an exception to the general rule under certain circumstances. Here, the State failed to demonstrate that Nickolas’s entire testimony was an admissible prior consistent statement under § 908.01(4)(a)2. Some of Nickolas’s prior testimony was consistent with his trial testimony, some of it was inconsistent, and some of it covered material that Nickolas did not address during the trial. Moreover, prior consistent statements are admissible only when offered to rebut an express or implied claim of recent fabrication or improper influence or motive. See State v. Peters, 166 Wis. 2d 168, 176, 479 N.W.2d 198 (Ct. App. 1991). There was no such claim in this case.¶26. Similarly, the entire prior testimony cannot be admitted under the rule of completeness. The rule of completeness requires that a statement be admitted in its entirety “‘when this is necessary to explain the admitted portion, to place it in context, or to avoid misleading the trier of fact, or to ensure a fair and impartial understanding of the admitted portion.'” State v. Sharp, 180 Wis. 2d 640, 653-54, 511 N.W.2d 316 (Ct. App. 1993) (citation omitted). There is no indication that admitting Nickolas’s entire prior testimony somehow satisfies this standard. See United States v. Wright, 826 F.2d 938, 946 (10th Cir. 1987) (‘It would be puerile to suggest that if any part of a statement is [to] be admitted the entire statement must be admitted.’). The State needed to show how portions of the statement that have been admitted would tend to mislead the jury if additional portions of the statement were not admitted. Sharp, 180 Wis. 2d at 653. The State failed to do so.

State v. Ludwig Guzman, 2001 WI App 54, 241 Wis. 2d 310, 624 N.W.2d 717
For Guzman: Robert E. Haney

Issue: Whether the trial court properly excluded a defense witness who had not been timely named as a witness.

Holding:

¶22 The record supports the trial court’s discretionary decision to exclude Rosado’s testimony. Guzman was aware of this witness from the date of the incident. Counsel spoke with Rosado at least two weeks before notice of his testimony was provided to the State. Under these circumstances, it was reasonable for the trial court to exclude Rosado’s testimony based on the fact that he was not disclosed as a potential witness until the third day of the second trial. ‘Wisconsin has abandoned the concept of ‘trial by ambush’ where neither side of the lawsuit knows until the actual day of trial what the other side will reveal in the way of witnesses or facts.’ Carlson Heating, Inc. v. Onchuck, 104 Wis. 2d 175, 180, 311 N.W.2d 673 (Ct. App. 1981). The purpose of the rule is to avoid unfair surprise. A party who fails to timely disclose witnesses risks the consequence imposed here: exclusion of that witness’s testimony.

State v. Edward A. Murillo, 2001 WI App 11, 240 Wis. 2d 666, 623 N.W.2d 187, habeas relief granted, Edward A. Murillo v. Frank, 402 F3d 786 (7^th Cir. 2005)
For Murillo: Craig Albee

Issue: Whether a statement implicating defendant in a homicide and made by his brother and fellow gang member while in police custody satisfied the against-social-interest hearsay exception, § 908.045(4).

Holding: The against-social-interest exception is based on the assumption that a declarant will not make a personally damaging statement unless satisfied for good reason that it is true (¶11). The court must employ a test that is both objective and subjective: that a reasonable person in the declarant’s position would not have made the statement unless the person believed it to be true, and also that the declarant’s actual state of mind shows an awareness that the statement undermined his/her interest. ¶¶12-16. Both parts of the test are satisfied. Because the social-interest exception (§ 908.045(4)) is not firmly rooted, the state must show particularized guarantees of trustworthiness. That showing is met, the court relying largely on its hearsay discussion and in the process distinguishing Lilly v. Virginia, 527 U.S. 116 (1999) (in-custody statement against penal interest violated confrontation; suspect has natural motive to exculpate self and shift blame — court of appeals conveniently forgetting that declarant was in custody and that trial court actually premised admissibility at least in part on penal interest exception, ¶7). ¶¶20-25.

The result was overturned on habeas review. The state court holding, as the habeas court noted, citing Crawford v. Washington,

is contrary to clearly established federal law as it presently exists. This is because the United States Supreme Court has recently held that the Sixth Amendment Confrontation Clause bars the use against a defendant of statements made by a non-testifying witness in the course of an interview with the police….

To that should be added the qualifications that the witness is unavailable at trial and also that the defendant didn’t have a prior opportunity for cross-examination. Those conditions apply here, but Crawford was decided after Murillo’s appeal was over,  so he can’t take advantage of it. But he is nonetheless entitled to relief under applicable caselaw, namely Lilly. The grant of habeas relief casts severe doubt on the state-court result, in particular the habeas court’s derision of “Wisconsin’s ‘social interest’ exception to the hearsay rule is itself unsupported by any data of which we are aware.”