Burns v. Clusen

• Decision Date: 04 August 1986
• Docket Number: No. 85-1126,85-1126
• Citation: 798 F.2d 931
• Parties: 21 Fed. R. Evid. Serv. 481 Charles R. BURNS, Petitioner-Appellant, v. Donald CLUSEN, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 931

798 F.2d 931

21 Fed. R. Evid. Serv. 481

Charles R. BURNS, Petitioner-Appellant, v. Donald CLUSEN, Respondent-Appellee.

No. 85-1126.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 18, 1985.

Decided Aug. 4, 1986.

Steven D. Phillips, Asst. State Public Defender, Madison, Wis., for petitioner-appellant.

Daniel J. O'Brien, Asst. Atty. Gen., Bronson C. LaFollette, Atty. Gen., Wisconsin Dept. of Justice, Madison, Wis., for respondent-appellee.

Before CUDAHY and RIPPLE, Circuit Judges, and SWYGERT, Senior Circuit Judge.

SWYGERT, Senior Circuit Judge.

The issue in this appeal from a denial of habeas corpus petition is whether the petitioner's sixth amendment right to confrontation was violated in his state court trial and, if so, whether the violation was harmless beyond a reasonable doubt. We hold that there was a violation, but that the application of the harmless error doctrine requires us to affirm the district court.

This case involves charges arising from two separate incidents, both of which occurred on the same day, and in which M.S. and L.L. were participants. ¹ The first took place about 1:00 a.m. on May 6, 1980, at which time M.S. was confronted outside her Kenosha, Wisconsin apartment by a man with a gun who forced her into her car and told her to drive to a parking lot, where she intentionally collided with garbage cans enabling her to escape. M.S. positively identified Burns, who was wearing an old Army jacket with a patch, as her assailant.

In the late evening of the same day, within the same vicinity, L.L. was a customer in a restaurant. Upon walking out to the parking lot, she was accosted by a man who drew a gun, forced her into a car, and ordered her to drive to a secluded area. There he put a gun to her head and pulled the trigger, proceeded to sexually assault her, and attempted to choke her with a wire. She called out the name "Jesus" to save her. Before the assailant left, he robbed L.L. of the money in her purse and beat her about the head with the butt end of his gun.

L.L. identified the petitioner as her assailant, picking out his photo from those offered her to view at the police station several days after the assault. Police recovered petitioner's jacket from his residence; the blood stains on it matched L.L.'s blood type (a rare AB found in only three percent of the population). Petitioner's face had been scratched; L.L. testified that she scratched her assailant while trying to escape.

On May 22, sixteen days later, L.L. testified on direct examination at the preliminary hearing. The hearing was continued to May 27, at which time she was cross-examined by defense counsel. Cross-examination on the issue of identity was exhaustive; L.L. adhered to her positive identification of petitioner as her assailant.

Following the events leading up to the preliminary hearing, this case involves attempts to bring L.L. to court to testify as a material witness. In August 1980 the prosecutor telephoned L.L. and asked her to appear in court; a defense investigator also contacted L.L., as did a Kenosha County Sheriff's Department officer. L.L. refused, stating that she had forgiven the petitioner and that the Bible required her to "turn the other cheek." The prosecutor made arrangements to have L.L. arrested and extradited from Illinois as a material witness, but she abandoned the effort after learning of L.L.'s hospitalization.

On September 17, 1980 L.L. was admitted to the psychiatric ward of a Niles, Illinois hospital. Her treating psychiatrist, Dr. David Busby, described her upon admission as

almost like a basket case ... catatonic stupor with hallucinations and delusions ... would stand in one spot and talk to the wall, refuse to eat.

* * *

Apparently part of the sickness was to stand in one place and call upon Christ Jesus to save her ... as she began to get better, we found that this was a flashback to her previous experience at the time of the alleged assault when she had also called out for Christ Jesus to save her.

She was given medical treatment, including intravenous feedings and drugs, and discharged October 18, 1980 pursuant to the hospital's policy limiting a patient's stay in the "acute treatment ward" to one month. Dr. Busby recommended transfer to another hospital for longer term care, but L.L.'s parents insisted on caring for their daughter at home.

At the time of L.L.'s discharge, the doctor estimated that her condition had improved ten to twenty percent: "much better physically, eating, dressing, communicating, probably not hallucinating, no longer merely standing in a room holding her Bible and crying or calling out for Jesus." She agreed to pursue outpatient treatment but did not abide by the agreement. The doctor characterized L.L.'s father as "disturbingly protective" and testified that the father refused the doctor's recommendation of long term hospitalization.

The doctor's last personal contact with L.L. was on October 18. During the month of October, however, L.L.'s parents consulted with the doctor by telephone almost every day, and during one of the conversations Dr. Busby spoke briefly with L.L. who said that she "did not need re-hospitalization." In December 1980 he spoke twice with the parents, the last call being the night before the hearing.

Given these events, on November 4, 1980, the State sought an order declaring L.L. unavailable to testify at trial. The motion was filed December 5; it was accompanied by the prosecutor's affidavit concerning her earlier telephone conversation with L.L. A hearing on this motion was held on December 9, at which Dr. Busby testified that he had had no direct personal contact with L.L. since October 18--or almost two months. Dr. Busby diagnosed L.L. as "schizophreniform disorder," and later referred to "schizophrenia." He was of the opinion that if L.L. was forced to testify at trial there was a "high probability that it would cause anywhere from a moderate to substantial relapse and return of symptoms." The defense counsel did not offer expert testimony to counter the doctor's testimony.

The state court judge did not immediately rule on the State's motion, but continued the matter until January 16, 1981. At the hearing Burns testified that on the preceding Sunday a Bible was delivered to him at the jail with a letter from L.L., in which L.L. requested that he place L.L.'s name on the visitor's list at the jail, write to her, and "accept the Lord into his life." She offered to visit him, and she did so on two occasions the following week.

At the conclusion of the continuation hearing, the judge ruled that L.L. was unavailable to testify within the meaning of Wisconsin Rule of Evidence Sec. 908.04(1)(d), stating that her "schizophreniform disorder" was extant at the time of his ruling. Although the originally-scheduled trial date was to be held within a few days, in fact the case was twice postponed and finally reassigned to Reserve Judge Corbett.

The trial was first set February 23, 1981. At that time, the State filed a motion in limine to prohibit defense counsel from offering evidence of any contact between L.L. and the defendant. The court granted the State's motion, stating that defense counsel had indicated he wished to confer with L.L.'s parents prior to making any determination about L.L.'s availability for appearance in court, and the court indicated it would await that determination. The court further stated that, if requested, it would conduct a hearing outside the presence of the jury for the purpose of determining the appropriateness of L.L.'s testifying and also indicated that it would be helpful to have the assistance of medical or psychiatric personnel to aid in the determination of L.L.'s physical and mental condition. The defendant did not attempt to have L.L. present at such a hearing or offer expert testimony.

When the trial began on March 2, 1981, Burns' counsel urged Reserve Judge Corbett to review Judge Zievers' decision with regard to the court appearance of L.L.; Judge Corbett refused. The next day Burns testified that L.L. had been visiting him at the jail twice a week, most recently 2 1/2 weeks prior to the trial, and defense counsel moved to exclude L.L.'s preliminary hearing testimony. Petitioner's father testified that he had been present during one of these meetings. He said L.L. told him she was working as a nurse's aide, was preparing to enter nursing school, and "felt good." He stated that L.L. did not appear to be mentally ill. The prosecutor also testified, indicating that after she learned of L.L.'s visits to the jail, she subpoenaed L.L. and actually served a subpoena upon her during one of those visits. However, a subsequent telephone conversation with L.L. convinced the prosecutor not to enforce the subpoena and to rely on the previous court ruling that L.L. was "unavailable."

The court denied petitioner's motion and noted that the defense counsel had not subpoenaed L.L. or her parents, or proved that she had actually entered nursing school. The judge reiterated that he had agreed to hold a hearing on the unavailability question if the defendant wished to challenge the judge's ruling. However, he emphasized that the petitioner had introduced no professional testimony to prove that L.L. no longer suffered from mental illness. L.L.'s preliminary hearing testimony was thereupon received into evidence by the trial court. M.S. was present in court during the trial and identified Burns as her assailant; she was subject to cross-examination by defense counsel.

At the close of trial, the petitioner was convicted of all five counts. An appeal was certified directly to the Wisconsin Supreme Court, which denied relief to the petitioner. The dissenting votes in that appeal argued that the doctor's testimony was "stale," that the burden of demonstrating L.L.'s unavailability had seemingly been placed on petitioner, and that the state had failed to prove that...