State v.

• Citation: 836 N.W.2d 840,349 Wis.2d 667,2013 WI App 97
• Decision Date: 17 July 2013
• Docket Number: Nos. 2012AP1769–CR, 2012AP1770–CR, 2012AP1863–CR.,s. 2012AP1769–CR, 2012AP1770–CR, 2012AP1863–CR.
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Martin P. O'BRIEN, Defendant–Appellant. State of Wisconsin, Plaintiff–Respondent, v. Kathleen M. O'Brien, Defendant–Appellant.<SUP>†</SUP> State of Wisconsin, Plaintiff–Respondent, v. Charles E. Butts, Defendant–Appellant.<SUP>†</SUP>
• Court: Court of Appeals of Wisconsin

349 Wis.2d 667

836 N.W.2d 840

2013 WI App 97

STATE of Wisconsin, Plaintiff–Respondent,

v.Martin P. O'BRIEN, Defendant–Appellant.^†

State of Wisconsin, Plaintiff–Respondent,

v.Kathleen M. O'Brien, Defendant–Appellant.^†

State of Wisconsin, Plaintiff–Respondent,

v.Charles E. Butts, Defendant–Appellant.^†

Nos. 2012AP1769–CR, 2012AP1770–CR, 2012AP1863–CR.

Court of Appeals of Wisconsin.

Submitted on Briefs May 2, 2013.

Opinion Filed July 17, 2013.

On behalf of the defendant-appellant Martin O'Brien, the cause was submitted on the joint briefs of Kathleen B. Stilling and Jerome F. Buting of Buting, Williams & Stilling, S.C. of Brookfield. On behalf of the defendant-appellant Kathleen O'Brien, the cause was submitted on the joint briefs of Pamela Moorshead of Pamela S. Moorshead, S.C. of Glendale.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Jeffrey J. Kassel, assistant attorney general, and J.B. Van Hollen, attorney general.

A nonparty brief was filed by Marcus J. Berghahn of Hurley, Burish & Stanton, S.C. of Madison for Wisconsin Association of Criminal Defense Lawyers, and Kelli S. Thompson, Marla J. Stephens, and Devon M. Lee for the Office of the State Public Defender.

Before BROWN, C.J., NEUBAUER, P.J., and REILLY, J.

BROWN, C.J.

[349 Wis.2d 673]¶ 1 The newly enacted Wis. Stat. § 970.038 (2011–12) ¹ makes hearsay evidence admissible at a criminal defendant's preliminary examination and permits the probable cause determination and bindover decision at a preliminary examination to be based “in whole or in part” on hearsay evidence. We accepted these consolidated interlocutory appeals to consider whether these provisions violate a criminal defendant's constitutional rights to confront adversary witnesses, compel testimony by favorable witnesses, and have the effective assistance of counsel.

¶ 2 Because the purpose of a preliminary examination is to test the plausibility of the State's case against the defendant, not to measure the strength of that case nor provide for pretrial discovery, we conclude that Wis. Stat. § 970.038 does not violate a criminal defendant's constitutional rights. It remains the duty of the trial court to consider the apparent reliability of the State's evidence at the preliminary examination in determining whether the State has made a plausible showing of probable cause to support binding over the defendant for trial. This determination is to be made on a case-by-case basis, and the hearsay nature of evidence may, in an appropriate case, undermine the plausibility of the State's case. But admitting hearsay evidence at the preliminary examination presents no blanket constitutional problems. We affirm.

Legislative and Factual Background

¶ 3 Law governing admissibility of hearsay in preliminary examinations in Wisconsin. Prior to the enactment of Wis. Stat. § 970.038 in 2011, hearsay was inadmissible at preliminary examinations in Wisconsin criminal proceedings, unless the hearsay fell within one of the statutory exceptions by which hearsay is admissible.²SeeWis. Stat. §§ 908.07 and 970.03(11) (2009–10) (repealed by 2011 Wis. Act 285); see also Mitchell v. State, 84 Wis.2d 325, 333, 267 N.W.2d 349 (1978).

¶ 4 In 2011, the legislature enacted 2011 Wis. Act 285, which repealed Wis. Stat. §§ 908.07 and 970.03(11) (2009–10), and created Wis. Stat. § 970.038, as follows:

970.038 Preliminary examination; hearsay exception. (1) Notwithstanding [Wis. Stat. § ] 908.02, hearsay is admissible in a preliminary examination....

(2) A court may base its finding of probable cause [at a preliminary examination] in whole or in part on hearsay admitted under sub. (1).

In other words, the law now provides that at a preliminary examination, the rules against hearsay are inapplicable. Under § 970.038, hearsay is to be admitted at a preliminary examination, unless it is objectionable upon some other ground. Furthermore, the court's probable cause determination at a preliminary examination may rest wholly upon hearsay evidence.

¶ 5 Charges and Preliminary Examination in Butts case. The criminal complaint against Butts was filed in April 2012. It charges that Butts committed child sexual assault and child enticement as a persistent repeater. In the complaint, probable cause for the charges is based upon statements made by two minors reporting that Butts sexually assaulted them. At Butts' preliminary examination,³ the State's sole witness was a police detective who testified that during her investigation one minor female identified Butts in a photo lineup as the man who sexually assaulted her. The detective further testified that she was aware of a statement made by a different minor female, and recorded in a police report prepared by a different investigator, that Butts sexually assaulted that girl as well. The detective admitted in testimony that she was not present when the second girl's statement was taken and was not certain which detective took that statement. The trial court overruled Butts' hearsay objection and held that the hearsay evidence established probable cause to bind over Butts for trial.

¶ 6 Charges and Preliminary Examination in the O'Brien Cases. The criminal complaints against the O'Briens were the product of an investigation that began in August 2011 when the O'Briens' adopted children reported to authorities that since their 2004 adoption they had been subjected to various abuses by the O'Briens. In May 2012, a criminal complaint was filed charging the O'Briens with multiple counts of felony child abuse against five of their adopted children. The O'Briens were released on signature bonds shortly thereafter. Before the preliminary examination, Martin O'Brien filed a motion seeking to preclude the State from using hearsay evidence at the preliminary examination,and the State filed a motion to quash Kathleen O'Brien's subpoena of one of the victims and to require an offer of proof as to what relevant testimony the victim could provide to defeat probable cause.

¶ 7 At the preliminary examination, the trial court denied the motion to preclude hearsay evidence and granted the motion to quash the subpoena and to preclude the defendants from calling the victim as a witness at the preliminary examination. In the evidentiary portion of the examination, the State's sole witness was a police investigator who conducted some, but not all, of the initial interviews with the alleged victims and the follow-up investigation. The court found the investigator's testimony established probable cause and bound both of the defendants over for trial.

Analysis

¶ 8 “Although a circuit court's decision to admit evidence is ordinarily a matter for the court's discretion, whether the admission of evidence violates a defendant's right to confrontation is a question of law subject to independent appellate review.” State v. Jensen, 2007 WI 26, ¶ 12, 299 Wis.2d 267, 727 N.W.2d 518. We observe a strong presumption that statutes are constitutional and will not hold a statute unconstitutional unless the statute's unconstitutionality is demonstrated beyond a reasonable doubt. State v. Tarantino, 157 Wis.2d 199, 212–13, 458 N.W.2d 582 (Ct.App.1990).

Confrontation Clause

¶ 9 The defendants' main argument—that by broadening the admissibility of and reliance upon hearsayevidence at preliminary examinations, Wis. Stat. § 970.038 violates their rights to confront the witnesses against them—conflates two related but distinct legal concepts, the confrontation clause and the hearsay doctrine. While the confrontation clause and hearsay rules “are generally designed to protect similar values,” California v. Green, 399 U.S. 149, 155, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), they do not serve precisely the same purposes. The confrontation clause is narrower than the hearsay rule; its “impetus ... was the practice of trying defendants on ‘evidence’ which consisted solely of ex parte affidavits or depositions secured by the examining magistrates, thus denying the defendant the opportunity to challenge his accuser in a face-to-face encounter in front of the trier of fact.” Id. at 156, 90 S.Ct. 1930. The confrontation clause bars that practice by guaranteeing that in criminal prosecutions defendants “shall enjoy the right ... to be confronted with the witnesses against” them. U.S. Const. amend. VI.

¶ 10 Consistent with this underlying purpose, the confrontation clause has been described as “basically a trial right.” Barber v. Page, 390 U.S. 719, 725, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); see also Pennsylvania v. Ritchie, 480 U.S. 39, 52, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987) ( “confrontation is a trial right”) and Green, 399 U.S. at 157, 90 S.Ct. 1930 (“this literal right to ‘confront’ the witness at the time of trial ... forms the core of the values furthered by the Confrontation Clause”). Generally speaking, the confrontation clause works by permitting the defendant to physically face and cross-examine the witnesses who testify against him or her at the trial. Ritchie, 480 U.S. at 51, 107 S.Ct. 989. It follows that in pretrial proceedings where the ultimate question of determining the defendant's guilt or innocence is not germane, the confrontation clause has limited application. See State v. Schaefer, 2008 WI 25, ¶ 37, 308 Wis.2d 279, 746 N.W.2d 457. The confrontation clause is decidedly not a “compelled rule of pretrial discovery.” Ritchie, 480 U.S. at 52, 107 S.Ct. 989. To the extent the preliminary examination affords the defense a chance to learn more about the State's case against the defendant, “this new information is a byproduct, not the objective, of the preliminary examination.” Schaefer, 308 Wis.2d 279, ¶ 24, 746 N.W.2d 457.

¶ 11 In short, there is no vested constitutional or statutory right of a defendant to use the preliminary examination to obtain discovery of the State's evidence or impeachment evidence against the State's witnesses. Instead, in the pretrial context, concerns about a defendant's...