State v. Anderson

Citation717 N.W.2d 74,2006 WI 77
Decision Date29 June 2006
Docket NumberNo. 2004AP2010-CR.,2004AP2010-CR.
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Lionel N. ANDERSON, Defendant-Appellant-Petitioner.
CourtUnited States State Supreme Court of Wisconsin

For the defendant-appellant-petitioner, there were briefs by Harry R. Hertel and Hertel & Gibbs, S.C., Eau Claire, and oral argument by Harry R. Hertel.

For the plaintiff-respondent, the cause was argued by Jeffrey J. Kassel, Assistant Attorney General, with whom on the brief was Peggy A. Lautenschlager, Attorney General.

¶ 1 SHIRLEY S. ABRAHAMSON, C.J

This is a review of a published opinion of the court of appeals1 affirming the judgment of conviction of defendant Lionel N. Anderson for first-degree sexual assault of a child in violation of Wis. Stat. § 948.02(1) (2003-04)2 by the circuit court for Milwaukee county, Richard J. Sankovitz, Judge.

¶ 2 Two issues are presented:

I. Did the circuit court err —

(A) by allowing the jury to see and hear the victim's videotaped interview in the jury room during deliberations rather than on the record in open court (B) by communicating with the jury during its deliberations outside the presence of the defendant and without notice to or consultation with the defendant;

(C) by communicating with the jury outside the presence of defense counsel and without notice to or consultation with defense counsel;

(D) by failing to make or preserve a record of its statements or comments to the jury relating to the case; and

(E) by refusing the jury's requests to have the defendant's and the victim's in-court testimony read to it while allowing the jury during deliberation to see and hear the victim's videotaped interview?

II. If so, were any of the errors prejudicial?

¶ 3 We conclude that the circuit court committed error in each respect and the defendant was prejudiced. Accordingly, the decision of the court of appeals is reversed, the judgment of conviction vacated, and the matter remanded to the circuit court for a new trial.

I

¶ 4 The relevant facts are not disputed. This case arises out of alleged sexual assaults the defendant committed against then-eight-year-old M.L. The defendant's wife is the legal guardian of M.L. Some time after the assault, the victim apparently told two cousins of the incidents. Some time later, the sister of the defendant's wife informed the defendant's wife of the incidents. When the defendant's wife confronted the victim, the victim initially denied the incidents but later said they had occurred. The assaults allegedly occurred in February or March 2001, and the defendant's wife informed the police of the assaults some time later. The specific allegations of sexual assault and the chain of events leading up to the defendant's arrest are not relevant to the matter before the court, so we do not discuss them in detail.

¶ 5 After the allegations were made, the victim was interviewed by a social worker and the entire interview was recorded on videotape. In the interview, the victim described the alleged sexual assault in detail.

¶ 6 At the jury trial, the State called six witnesses: the victim, the two cousins to whom she had described the assault, the defendant's wife, the social worker who had interviewed the victim, and an expert on delayed disclosure of sexual abuse who had not spoken to the victim.

¶ 7 Prior to the victim's taking the witness stand at trial, the State showed the jury in open court the victim's videotaped interview, without defense objection. The victim's direct testimony was presented at trial primarily through the victim's videotaped interview with a social worker.

¶ 8 When the victim testified on direct examination, she did not recite the allegations stated in the videotaped interview. Rather, her testimony on direct examination was brief; she reaffirmed the truth of the allegations made in the video. The victim was subject to cross-examination, minimal redirect examination, and recross-examination at which time she repeated the allegations in the videotape.

¶ 9 The defense called three witnesses: the defendant (who denied having engaged in sexual contact), his cousin who testified that the victim told him that the sexual assault never occurred, and the police officer who interviewed the defendant's wife when she and the victim reported the sexual assault.

¶ 10 The jury retired for deliberations on the afternoon of the second day of trial. Deliberations continued the next day. During deliberations, the jury requested in writing that all trial exhibits, including the victim's videotaped interview, be sent to the jury room and that a television and VCR be provided so that the jurors could watch the victim's videotaped interview. The jury's note is in the record. The jury was brought into the courtroom, and the circuit court's response to the jury's request was made on the record. Defense counsel objected to sending any of the exhibits into the jury room.

¶ 11 The circuit court granted the jury's request over the objections of defense counsel. In the presence of counsel and the defendant, however, the court stated that it was "going to instruct" the bailiff to instruct the jury to view the videotape only once; that it may stop the videotape at any time; and that it may not rewind or re-watch any part of the videotape. The actual instructions the circuit court gave the bailiff and the bailiff gave the jury are not in the record.3 Thus the jury's viewing of the victim's videotaped interview during deliberations occurred in the jury room, outside the presence of the defendant, defense counsel and the State's counsel, the circuit court judge, and the bailiff. No independent record was made of the replay proceedings.

¶ 12 During deliberations, the jury requested Exhibit 8, a police report that had not been received in evidence. The circuit court apparently discussed this request with counsel and the jury was advised that the exhibit had not been received into evidence. The record is silent whether the defendant was present during this discussion. The jury's note and the circuit court's response are in the record.

¶ 13 Once again during deliberations, the jury sent a note to the circuit court requesting evidence. This time the jury asked the circuit court to read the defendant's and the victim's in-court testimony to the jury. The circuit court, without consulting the State's counsel, the defendant, or defense counsel, apparently sent a note back to the jury stating that it would be "cumbersome" to read the entire testimony to the jury, and that the jury should be more specific about what it wanted to hear.

¶ 14 In response to the circuit court's note, the jury apparently sent yet another note to the circuit court, stating that it did not understand the defendant's testimony. In response to this note from the jury, the circuit court apparently sent another note to the jury, asking the jury to explain which parts of the defendant's testimony it did not understand so that those parts could be read to the jury. The jury apparently never responded to the circuit court's note. None of these last four notes (two from the jury and two from the circuit court) is in the record.

¶ 15 After the jury reached its verdict, but before the verdict was read, the circuit court advised the State's counsel, the defendant, and defense counsel in open court and on the record of the jury's communications with it and its "unilateral" response and reconstructed from memory its ex parte communications with the jury.

¶ 16 In its summary of what had transpired, the circuit court explained that it denied the jury's first request to read back all of the testimony, giving the jury the circuit court's "standard answer which I don't believe would be objectionable and, in fact, which I think is the only reasonable answer."

¶ 17 The circuit court explained that in its view, "it was cumbersome" to read back that amount of testimony, that "it may be unnecessary" to read back the testimony, and that the jury should advise the circuit court what parts of the testimony it could not remember.

¶ 18 As the circuit court explained, the jury followed up its question with another note stating that "the jury didn't understand all of [the defendant's] testimony." According to the circuit court, it responded to this note from the jury, stating that if there were any parts of the testimony that the jury didn't understand, the jury should list those parts and the circuit court would read back those parts to the jury.

¶ 19 The only record of the communications is the circuit court's oral rendition of the notes. The circuit court's responses to the jury took place without any input from or opportunity for the defendant or both counsel to be heard. The circuit court's description of its unilateral communications is as follows:

Since the last time we were on the record, I received two other requests from the jury for information which I answered unilaterally.

I gave a standard answer which I don't believe would be objectionable and, in fact, which I think is the only reasonable answer.

The jury asked for the entire testimony of [the defendant] and [the victim] to be read back. My standard answer and the one that I gave the jury was because it's cumbersome to read back that amount of testimony and because it may be unnecessary, please tell us what parts, if any, you can't remember and we would be happy to provide you with that information and I urged them to rely on their collective memory. Then I received a follow-up question saying that the jury didn't understand all of [the defendant's] testimony and to that response — and to that question I said if there's any parts that you can't understand, list them for us and we would be able to provide you with the testimony read back on those points.

Those questions were provided to the jury....

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