State v. Drusch
| Decision Date | 23 April 1987 |
| Docket Number | No. 86-1580-CR,86-1580-CR |
| Citation | 139 Wis.2d 312,407 N.W.2d 328 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Thomas V. DRUSCH, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Patricia M. Heim, La Crosse, for defendant-appellant.
Bronson C. La Follette, Atty. Gen., and Sally L. Wellman, Asst. Atty. Gen., for plaintiff-respondent.
Before DYKMAN, EICH and SUNDBY, JJ.
Thomas Drusch appeals from a judgment convicting him of two counts of first degree sexual assault in violation of sec. 940.225(1)(d) Stats., and from an order denying his motions for postconviction relief. The issues are: (1) whether the trial court erred in allowing a transcript of the preliminary hearing testimony of one of the child victims to be read to the jury; (2) whether the evidence was sufficient to prove beyond a reasonable doubt that Drusch had sexual contact with the victims with the intent to become sexually aroused or gratified; (3) whether Drusch's six-year sentence was so excessive and harsh as to constitute an abuse of the trial court's discretion; and (4) whether we should order a new trial in the interest of justice. We resolve all issues against Drusch and affirm.
Both child victims, E., age five, and S., age eight, testified at the preliminary hearing. At trial, when S. was called to the witness stand, she began to cry and was unable to respond to questions. The court recessed to allow the prosecutor and a victim/witness coordinator to talk with her. The prosecutor reported to the court that S. had begun to cry each time he raised the possibility of further testimony and that she told the coordinator she could not testify. The prosecutor also stated that S.'s inability to testify was due to the presence of people in the courtroom--including the jurors--and also because the defense attorney frightened her. The prosecutor then asked the court to rule that S. was unavailable to testify within the meaning of sec. 908.04, Stats., so that her testimony at the preliminary hearing could be read into the record pursuant to sec. 908.045(1). The latter statute provides an exception to the hearsay rule for a declarant's former testimony where he or she is "unavailable as a witness." Insofar as may be relevant to this case, sec. 908.04(1)(d) defines the quoted phrase as "unable to ... testify at the hearing because of ... then existing physical or mental illness or infirmity."
After hearing arguments of counsel, but before ruling on the prosecutor's motion, the court had S. brought back into the courtroom for questioning outside the presence of the jury. After answering a few questions, she again began to cry, eventually burying her head in her hands and sobbing. The court then ruled:
The Court is well satisfied that the witness is certainly unavailable and cannot testify today. The record has been made as to the efforts that have been made to attempt to get her to testify including an attempt to get her to testify out of the presence of the jury to see what her demeanor was. This is a child of ... very tender years. I think that it is entirely possible that she might well at some time in the future be able to take the stand and testify although how long this condition will last or how long the fear she has of testifying or her recall of the incident which would cause her to have that apprehension and inability to testify will last. The Court believes that because of the peculiar circumstances of her age and the nature of the offense which is involved, and that within the near future we would have a repetition of her conduct, and accordingly I am going to declare that for the purposes of ... 908.04(1)(d), that she is unable to be present and testify at this hearing because of her emotional condition.
S.'s preliminary hearing testimony is hearsay. When the defendant in a criminal case claims denial of his or her right to confront witnesses, the propriety of admitting hearsay evidence involves a two-step analysis. The threshold question is whether the evidence fits within a recognized hearsay exception under state law. If not, it is excluded; if it does, the defendant's constitutional right to confrontation must be considered. In order to satisfy the confrontation clause, it must be established that the witness was unavailable and that the evidence sought to be admitted bears some indicia of reliability. State v. Bauer, 109 Wis.2d 204, 215, 325 N.W.2d 857, 863 (1982).
A witness's former testimony is not excluded by the hearsay rule if the declarant is "unavailable as a witness." Sec. 908.045(1), Stats. The quoted phrase is defined in sec. 908.04(1)(d) to include situations in which the declarant "is unable to ... testify at the hearing because of ... then existing ... mental illness or infirmity." Drusch argues first that the transcript was not admissible under state law because S. was not "unavailable" within the meaning of sec. 908.04(1)(d). He bases the argument on the absence of expert medical testimony that she was permanently disabled from testifying. Second, he maintains that his constitutional right to confront the state's witnesses was violated because: (1) the prosecution did not make a reasonable effort to elicit S.'s testimony; and (2) her prior testimony did not have adequate "indicia of reliability."
The admissibility of former testimony is discretionary with the trial court, and its decision will not be overturned unless it has abused that discretion. La Barge v. State, 74 Wis.2d 327, 338, 246 N.W.2d 794, 799 (1976). If the record shows that discretion was in fact exercised, and if we can perceive a rational basis for the court's action, we will sustain it. Howard v. Duersten, 81 Wis.2d 301, 305, 260 N.W.2d 274, 276 (1977).
Section 908.04(1)(d), Stats., does not require permanent testimonial incapacity in order for prior testimony to be admitted into evidence. Under sec. 908.04(1)(d), a witness who is unable to testify at trial because of a "then existing" infirmity is deemed unavailable within the meaning of the Wisconsin Rules of Evidence.
S. had testified at the preliminary hearing, and her inability to testify at trial was a surprise to both court and counsel. A continuance was not practical, for the problem arose in mid-trial, after several witnesses had already testified. The jury had been advised that the trial was expected to last only one day and juror availability for a longer period of time was not ascertained. The court had observed the child on the stand both in and outside the jury's presence and had the benefit of observations of the child's behavior and demeanor made by the victim/witness coordinator and the prosecuting attorney. The court's findings of historical fact are not clearly erroneous, sec. 805.17(2), Stats., and the circumstances surrounding the witness's inability to testify, including the impracticality of adjournment and the undesirability of a mistrial, lead us to conclude that the court did not abuse its discretion in declaring that S.'s then existing condition rendered her unavailable within the meaning of sec. 908.04(1)(d), Stats.
Nor do we believe expert medical testimony is essential to the determination. While some of the cases cited by Drusch involved medical testimony as to the witnesses' incapacity, none held that such testimony is required, and all are distinguishable. In State v. Burns, 112 Wis.2d 131, 332 N.W.2d 757 (1983), Sheehan v. State, 65 Wis.2d 757, 223 N.W.2d 600 (1974), and Markowitz v. Milwaukee E.R. & L. Co., 230 Wis. 312, 284 N.W. 31 (1939), the witnesses never appeared at trial; the prosecution simply made a pretestimonial request that they be declared unavailable, and the experts were prepared to offer their opinions in lieu of the witnesses' appearance. Similarly, in State v. Gollon, 115 Wis.2d 592, 340 N.W.2d 912 (Ct.App.1983), the only evidence of the child's unavailability was her mother's statement that she was too frightened to testify. The state made no effort to produce the witness, she was not examined by the court, and the court made no finding that the child was unavailable. Id. at 600-01, 340 N.W.2d at 916.
In this case, the opposite is true. S. was called to the stand and began to testify. She soon became distraught and could not continue. Later, she was questioned in court before any ruling was made. Under the circumstances, the trial court could judge the witness's condition for itself, and Drusch has not offered any authority establishing a per se requirement of expert medical testimony in such situations. The court balanced the interests of S., the prosecution and the defense, and arrived at a reasoned, legally supportable conclusion that S. was unavailable within the meaning of sec. 908.04(1)(d), Stats. Again, there was no abuse of discretion.
Drusch also contends that the "test" for unavailability is whether the witness "suffers from a severe mental illness which may be worsened if she is forced to testify at trial," citing State v. Burns, 112 Wis.2d at 142, 332 N.W.2d at 763. He contends that S.'s disability, as found by the trial court, does not rise to the level of a "severe mental illness." The quoted statement, however, is not a test at all but merely the Burns court's reference to the particular facts of the case. The test for unavailability is found in sec. 908.04(1)(d), Stats., and it is simply that the witness is "unable to ... testify at the hearing because of ... then existing physical or mental illness or infirmity." The trial court, after considering the information discussed above and observing S. before the jury and in private, determined that she was so frightened and emotionally upset by the presence of the jury, the trial setting and the offense itself that she was unable to testify and would continue in that inability in the near...
To continue reading
Request your trial
-
State v. Chandler
...definition of unavailability does not require a showing that the witness is permanently disabled from testifying. See State v. Drusch, 139 Wis.2d 312, 407 N.W.2d 328, disc. rev. denied, 140 Wis.2d 874, 416 N.W.2d 66 (1987) (no abuse of discretion where trial judge determined, in the absence......
-
State v. Monahan, 2014AP2187-CR
...strength of the prosecution's case.’ "); State v. Fishnick, 127 Wis. 2d 247, 267, 378 N.W.2d 272 (1985) ; State v. Drusch, 139 Wis. 2d 312, 324 n.1, 407 N.W.2d 328 (Ct. App. 1987). Second, we understand that courts cannot properly answer the core question—whether the State proved "beyond a ......
-
State v. Norman, 01-3303-CR.
...48 n.14, 647 N.W.2d 189. 34. See, e.g., State v. Billings, 110 Wis. 2d 661, 668-70, 329 N.W.2d 192 (1983); State v. Drusch, 139 Wis. 2d 312, 324 n.1, 407 N.W.2d 328 (Ct. App. 1987). 35. Chapman, 386 U.S. at 36. Wis. Stat. § 943.39(1) (emphasis added). 37.Id. (emphasis added). The statute wa......
-
People v. Coleman
...e.g., State v. Jones (1989), 112 Wash.2d 488, 772 P.2d 496; State v. Chandler (1989), 324 N.C. 172, 376 S.E.2d 728; State v. Drusch (1987), 139 Wis.2d 312, 407 N.W.2d 328). We find the analysis in Rocha persuasive and adopt its conclusion as our It is clear in the present case that C.S. cea......