State v. O'Brien

CourtUnited States State Supreme Court of Wisconsin
Citation354 Wis.2d 753,850 N.W.2d 8,2014 WI 54
Docket NumberNos. 2012AP1769–CR, 2012AP1770–CR, 2012AP1863–CR.,s. 2012AP1769–CR, 2012AP1770–CR, 2012AP1863–CR.
PartiesSTATE of Wisconsin, Plaintiff–Respondent, v. Martin P. O'BRIEN, Defendant–Appellant–Petitioner. State of Wisconsin, Plaintiff–Respondent, v. Kathleen M. O'Brien, Defendant–Appellant–Petitioner. State of Wisconsin, Plaintiff–Respondent, v. Charles E. Butts, Defendant–Appellant–Petitioner.
Decision Date09 July 2014


For the defendant-appellant-petitioner Charles E. Butts, there were briefs by Terry W. Rose and Rose & Rose, Kenosha, and oral argument by Terry W. Rose.

For the defendants-appellants-petitioners Martin P. O'Brien and Kathleen M. O'Brien, there were briefs by Jerome F. Buting and Buting, Williams & Stilling, S.C., Brookfield; and Kathleen M. Quinn, Milwaukee. Oral argument by Jerome F. Buting.

For the plaintiff-respondent, the cause was argued by Jeffrey J. Kassel, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.

An amicus curiae brief was filed by Marcus J. Berghahn and Hurley, Burish & Stanton, S.C., Madison; and Devon M. Lee, assistant state public defender, on behalf of the Wisconsin Association of Criminal Defense Lawyers and Wisconsin Office of the State Public Defender.


¶ 1 The petitioners, Martin and Kathleen O'Brien and Charles Butts, seek review of a published court of appeals decision that affirmed the circuit courts' determinations that the use of hearsay at the petitioners' preliminary examinations was constitutionally permissible. 1

¶ 2 On review, petitioners assert that the newly enacted Wis. Stat. § 970.038 (2011–12),2 which permits hearsay evidence at preliminary examinations, violates their constitutional rights. Specifically, they argue that the rights to confrontation, compulsory process, effective assistance of counsel, and due process are violated by the application of Wis. Stat. § 970.038 in preliminary examinations.

¶ 3 We determine that petitioners have failed to meet the heavy burden of showing beyond a reasonable doubt that Wis. Stat. § 970.038 is unconstitutional. The scope of preliminary examinations is limited to determining whether there is probable cause to believe that a defendant has committed a felony. Following precedent, we conclude that there is no constitutional right to confrontation at a preliminary examination. Further, due to the limited scope of preliminary examinations, we determine that the admission of hearsay evidence does not violate petitioners' rights to compulsory process, effective assistance of counsel, or due process.

¶ 4 Finally, we decline petitioners' invitation to impose new rules limiting the admissibility of hearsay at preliminary examinations. Wisconsin Stat. § 970.038 does not set forth a blanket rule that all hearsay be admitted. Circuit courts remain the evidentiary gatekeepers. They must still consider, on a case-by-case basis, the reliability of the State's hearsay evidence in determining whether it is admissible and assessing whether the State has made a plausible showing of probable cause. Accordingly, we affirm the decision of the court of appeals.


¶ 5 The facts and history in these consolidated cases differ, but they share common issues.

¶ 6 The complaint against the O'Briens alleges ten counts of child abuse and seven counts of disorderly conduct. It identifies six adopted children, four of whom were siblings the O'Briens adopted from Russia. According to the complaint the allegations were based on the children's reports of various incidents with the O'Briens. The complaint further indicates that some of the allegations were corroborated by statements in Kathleen O'Brien's journal and others were corroborated by the O'Briens' biological daughter.

¶ 7 Martin O'Brien filed a motion to preclude hearsay evidence at the preliminary examination and Kathleen O'Brien joined in the motion. It challenged the constitutionality of Wis. Stat. § 970.038, which permits hearsay at a preliminary examination. The circuit court denied the motion.

¶ 8 At the O'Briens' preliminary examination the State presented the testimony of Investigator Domino, who had signed the complaint next to a statement that she was swearing to its accuracy. She had no personal knowledge of the allegations in the complaint. According to her testimony, Domino reviewed the complaint and compared it with police reports and her memory before signing it. She stated that she was present while Ms. Hocking, a social worker from the Walworth County Department of Health and Human Services, interviewed some of the children and that she viewed the other interviews on videotape. Domino also had the opportunity to speak directly with one of the children, S.M.O., in a follow-up interview. After she testified to the basis for the statements in the complaint, the court received the complaint into evidence.

¶ 9 On cross-examination, Domino clarified that one of the children named in the complaint was not interviewed at all. She acknowledged that the complaint did not contain the complete statement from S.M.O. that provided the factual basis for count one, but was a summary. The other counts were based on the interviews she reviewed. Domino stated that she also reviewed Kathleen O'Brien's journal before testifying in order to determine the dates of various incidents. Although she provided some additional detail during cross-examination, Domino could not rememberenough about the interviews to respond to many of counsels' questions.

¶ 10 After the State rested, the O'Briens sought to present the testimony of S.M.O., whom they had subpoenaed as a witness. The State objected, arguing that the O'Briens needed to provide an offer of proof before introducing the witness. The O'Briens responded that S.M.O.'s testimony was relevant because it would fill in the gaps in Investigator Domino's story. They explained that if the complete story was disclosed, it may appear that the actions were accidental as opposed to intentional. However, they were not sure what S.M.O. would actually say. The circuit court determined that a claim of accident is a defense, and thus not relevant to a preliminary examination. Accordingly, it sustained the objection. The O'Briens were bound over for trial.

¶ 11 The complaint against Butts contains four counts of sexual assault of a child as a persistent repeater and two counts of child enticement as a persistent repeater. The first four counts involved two incidents with A.V. The complaint indicates that the probable cause for those counts was provided by statements from A.V., her mother, and Butts regarding the incident. Counts four and five involved incidents with A.R.E. and her brother. The complaint indicates that the probable cause for those counts was based on statements from A.R.E., her stepmother, A.R.E.'s mother, and A.R.E.'s stepfather.

¶ 12 Butts submitted a motion to preclude hearsay at his preliminary examination, arguing that Wis. Stat. § 908.038 violated his constitutional rights. At the motion hearing, the State acknowledged that it intended to rely on the statute and to present a police officer at the preliminary examination who would testify about the children's statements. The children would not be present. The circuit court denied Butts' motion.

¶ 13 At Butts' preliminary examination the State moved into evidence a transcript from a prior preliminary hearing regarding A.R.E.'s allegations. The State also presented the testimony of Detective Barfoth. She testified that she had been assigned to investigate the case involving A.R.E. Barfoth spoke with A.R.E. who told her about the alleged incident. After Barfoth presented her with a photo lineup, A.R.E. identified Butts. Barfoth also identified a statement given by A.V. and then read it into the record. On cross-examination, Barfoth testified that she was not sure who took the statement from A.V. and that she was not present when the statement was taken.

¶ 14 The State then moved A.V.'s statement into evidence, rested its case, and asked that Butts be bound over for trial. In response, Butts moved for a dismissal. The court determined that there was probable cause to believe that a felony or felonies were committed and that Butts committed a felony and bound Butts over for trial.

¶ 15 The court of appeals accepted and consolidated interlocutory appeals from Butts and the O'Briens challenging the constitutionality of Wis. Stat. § 970.038 on various grounds. In its decision, the court of appeals emphasized the circuit court's duty “to consider the apparent reliability of the State's evidence.” State v. O'Brien, 2013 WI App 97, ¶ 2, 349 Wis.2d 667, 836 N.W.2d 840. Observing that the probable cause determination is made on a case-by-case basis, it acknowledged that “the hearsay nature of evidence may, in an appropriate case, undermine the plausibility of the State's case.” Id. Ultimately, however, it concluded that the admission of hearsay evidence pursuant to Wis. Stat. § 970.038presents no blanket constitutional problems.


¶ 16 In this case we are asked to review the constitutionality of newly enacted Wis. Stat. § 970.038 which permits the use of hearsay evidence at a preliminary examination. Although evidentiary rulings are generally deemed a matter for the circuit court's discretion, a constitutional challenge presents a question of law which we review independently of the decisions rendered by the circuit court and the court of appeals. State v. Muckerheide, 2007 WI 5, ¶ 17, 298 Wis.2d 553, 725 N.W.2d 930; State v. Quintana, 2008 WI 33, ¶ 12, 308 Wis.2d 615, 748 N.W.2d 447.

¶ 17 A party challenging the constitutionality of a statute bears the burden of showing beyond a reasonable doubt that the statute violates the constitution. State v. Williams, 2012 WI 59, ¶ 11, 341 Wis.2d 191, 814 N.W.2d 460. This is a heavy burden as statutes are presumed constitutional and we resolve any reasonable doubt in...

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