State v. Eichman
| Decision Date | 06 June 1990 |
| Docket Number | No. 88-1754-CR,88-1754-CR |
| Citation | 456 N.W.2d 143,155 Wis.2d 552 |
| Parties | STATE of Wisconsin, Plaintiff-Appellant, v. Raymond A. EICHMAN, Defendant-Respondent-Petitioner. |
| Court | Wisconsin Supreme Court |
Donna L. Hintze, Asst. State Public Defender, for defendant-respondent-petitioner.
Sharon Ruhly, Asst. Atty. Gen., argued, Donald J. Hanaway, Atty. Gen., Madison, on brief, for plaintiff-appellant.
This is a review of that part of the decision of the court of appeals that summarily reversed, pursuant to sec. (Rule) 809.21, Stats., 1985-86, the order of the circuit court for La Crosse county, the Honorable Michael J. Mulroy, Judge, which denied the State's second motion in limine to admit expert testimony by Andrew W. Kane, Ph.D. The first question is whether, as the court of appeals held, the State had the right to appeal, pursuant to sec. 974.05(1)(d)2, Stats., 1985-86. We conclude that the State has the right to appeal pre-trial orders that might normally determine the successful outcome of the prosecution. The second question is whether the circuit court abused its discretion when it denied the State's second pre-trial motion. We conclude that it did. Accordingly, we affirm the decision of the court of appeals and remand the cause to the circuit court for determination of the State's second motion.
Mr. Eichman is charged with four counts of sexual exploitation by a therapist, contrary to sec. 940.22, Stats., 1985-86. An additional count was dismissed by the circuit court for improper venue because the act upon which the count was based occurred in another county. The acts giving rise to the charges took place while Mr. Eichman was employed as "house manager" of H/Our House, an after-care facility of Lutheran Hospital in LaCrosse, Wisconsin for persons suffering from alcohol and drug dependency. Mr. Eichman's duties included supervising the house staff to ensure compliance with treatment goals and plans, coordinating activities of the residents, conducting group therapy sessions and counseling individual residents. At the time the acts occurred, Mr. Eichman had an Alcohol or Other Drug Abuse certification plan on file with the State.
The complaint alleges that Mr. Eichman took advantage of the counselor-patient relationship with one of the residents of H/Our House, A.E., to sexually exploit her on several occasions. Section 940.22, Stats., Sexual Exploitation by Therapist, in pertinent part, provides:
(1) ... In this section: ... (b) Physician' has the meaning designated in s. 448.01(5).
(c) 'Psychologist' means a person who practices psychology, as described in s. 455.01(5)....
(g) 'Sexual contact' has the meaning designated in s. 940.225(5)(b)....
(i) 'Therapist' means a physician, psychologist, social worker, nurse, chemical dependency counselor, member of the clergy or other person, whether or not licensed by the state, who performs or purports to perform psychotherapy.
(2) ... Any person who is or holds himself or herself out to be a therapist and who intentionally has sexual contact with a patient or client during any ongoing therapist-patient or therapist-client relationship, regardless of whether it occurs during any treatment, consultation, interview or examination, is guilty of a Class D felony. Consent is not an issue in an action under this subsection.
Section 455.01(6), Stats., 1985-86, defines "psychotherapy" as follows:
'Psychotherapy' means the use of learning, conditioning methods and emotional reactions in a professional relationship to assist persons to modify feelings, attitudes and behaviors which are intellectually, socially or emotionally maladjustive or ineffectual.
The complaint was filed against Mr. Eichman on February 17, 1988. On February 23, 1988, a preliminary examination was held and Mr. Eichman was bound over for trial. On June 17, 1988, the State moved for a continuance on the basis one of its expert witnesses, Dr. Kane, a psychologist, would be unavailable on the date scheduled for trial. The circuit court denied the motion, reasoning that the State failed to show that Dr. Kane's testimony would be relevant or material. The State requested that it be allowed to brief and argue those issues. On July 14, 1988, the State filed a motion in limine to admit Dr. Kane's testimony. The State requested that Dr. Kane be permitted to testify with respect to several issues. First, whether in Dr. Kane's opinion Mr. Eichman was acting as a "therapist" during the course of his counseling relationship with A.E., as that term is defined in sec. 940.22(1)(i), Stats. Second, whether in Dr. Kane's opinion Mr. Eichman was performing "psychotherapy," as that term is defined in sec. 455.01(6), Stats. The State also requested that Dr. Kane be permitted to testify without resort to a hypothetical question and to read his report regarding the case into evidence. Mr. Eichman contended in response that what constitutes "psychotherapy" was a question of law because the term was statutorily defined. If the definition of "psychotherapy" in sec. 455.01(6), could not be understood by the "average juror," Mr. Eichman asserted, then the statute was unconstitutionally vague. On August 5, 1988, the circuit court denied the State's motion, reasoning that expert testimony would "invade the province of the jury and court." The circuit court agreed with Mr. Eichman that what constitutes "psychotherapy" was a question of law, and held that the statutory definition of the term could be understood by the "average juror." The circuit court additionally excluded Dr. Kane's report because excerpts of it evinced his opinion that A.E. was telling the truth regarding the alleged sexual assaults.
On September 2, 1988, the State filed a second motion in limine to admit testimony by Dr. Kane. The State contended that the limited testimony it sought to admit in the second motion did not offend the grounds stated by the circuit court in denying the previous motion. The State requested that Dr. Kane be permitted to testify with respect to the significance of the counseling techniques employed by Mr. Eichman, based upon his review of Mr. Eichman's progress reports. The State also requested that Dr. Kane be permitted to testify that he had interviewed A.E. regarding her counseling sessions with Mr. Eichman, and that he recognized Mr. Eichman's use of methods which constituted "psychotherapy" as defined in sec. 455.01(6), Stats. In response to the State's second motion, Mr. Eichman filed a motion to quash, arguing that the second motion was identical to the first. On September 13, 1988, the circuit court granted the motion to quash on the grounds the State's motion raised no new arguments or law.
The State appealed the circuit court's orders of August 5, 1988, and September 13, 1988, pursuant to sec. 974.05(1)(d)2, Stats. The court of appeals summarily affirmed the circuit court's first order, but reversed the second and remanded the case for reconsideration of the State's second motion. The court of appeals held that the circuit court abused its discretion because it denied the State's second motion without a "factual basis" in the record. The court of appeals concluded the State's second motion was not, as the circuit court considered it, identical to the previous motion. Before reaching the merits, the court of appeals further held that the State could appeal the circuit court's orders as a matter of right pursuant to sec. 974.05(1)(d)2, and two previous decisions of the court of appeals, State v. Harris, 123 Wis.2d 231, 365 N.W.2d 922 (Ct.App.1985) and State v. Wild, 146 Wis.2d 18, 429 N.W.2d 105 (Ct.App.1988), which interpreted that statute. Judge Sundby, in concurrence, agreed that under the interpretation given sec. 974.05(1)(d)2, by Harris and Wild, the State could appeal from the circuit court's orders as a matter of right. Judge Sundby disagreed, however, that sec. 974.05(1)(d)2, should be interpreted in that manner, and argued that the issue of whether the State could appeal as a matter of right should be certified to this court.
Mr. Eichman petitioned this court for review of that part of the court of appeals' decision which held that the State could appeal as a matter of right and held that the circuit order abused its discretion in denying the State's second motion. We granted review. The State did not seek review of that part of the decision of the court of appeals which affirmed the circuit court's denial of the State's first motion.
We conclude that because the circuit court's orders had the "substantive effect" of suppressing evidence, the State could appeal as a matter of right pursuant to sec. 974.05(1)(d)2, Stats. We further conclude that the circuit court abused its discretion when it denied the State's second motion without a factual basis. Accordingly, we affirm the decision of the court of appeals and remand the cause for determination of the State's second motion.
The State's authority to appeal in criminal cases, as a matter of right, is governed by sec. 974.05, Stats. State v. Rabe, 96 Wis.2d 48, 54, 291 N.W.2d 809 (1980). Prior to the legislature's enacting the statute, the State had no right to appeal the types of orders delineated there. State v. Withers, 61 Wis.2d 37, 39, 211 N.W.2d 456 (1973). Section 974.05(1)(d) 2, Stats., in pertinent part, provides:
(1) Within the time period specified by s. 808.04(4) and in the manner provided for civil appeals under chs. 808 and 809, an appeal may be taken by the state from any: ... (d) Order or judgment the substantive effect of which results in:
... (2) Suppressing evidence....
The interpretation of a statute is a question of law which this court may review without deference to the lower courts. State v. Sher, 149 Wis.2d 1, 8, 437 N.W.2d 878 (1989). The objective in construing a statute is to discern the intent of the legislature, Green Bay Packaging, Inc. v. ILHR Dept., 72 Wis.2d 26, 35, 240...
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