State v. Green

• Decision Date: 25 June 2002
• Docket Number: No. 00-1392-CR.,00-1392-CR.
• Citation: 646 N.W.2d 298,2002 WI 68,253 Wis.2d 356
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Johnny L. GREEN, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

253 Wis.2d 356

2002 WI 68

646 N.W.2d 298

STATE of Wisconsin, Plaintiff-Respondent, v. Johnny L. GREEN, Defendant-Appellant-Petitioner.

No. 00-1392-CR.

Supreme Court of Wisconsin.

Oral argument January 11, 2002.

Decided June 25, 2002.

For the defendant-appellant-petitioner there were briefs by Nicolas G. Griswold, Muskego, and oral argument by Nicolas G. Griswold.

For the plaintiff-respondent the cause was argued by Daniel J. O'Brien, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

¶ 1. WILLIAM A. BABLITCH, J.

Petitioner Johnny Green (Green) seeks review of a decision from the court of appeals that upheld his conviction for first-degree sexual assault as a repeat offender. Green argues that the circuit court erred in two respects: (1) by failing to conduct an in camera review of the victim's counseling records and (2) by concluding that the prosecutor did not violate a sequestration order. The court of appeals concluded that the circuit court did not err in either respect. We agree. Accordingly, we affirm the decision of the court of appeals.

I. BACKGROUND

¶ 2. Green was charged in Winnebago County Circuit Court with one count of first-degree sexual assault of a child as a repeat offender, in violation of Wis. Stat. §§ 948.02(1) and 939.62(1)(c) (1997-98).¹ The State of Wisconsin (State) alleged that Green had sexual contact with N.W., a child under the age of 13 years, on or about November 1996. Green and his girlfriend, Lisa Russell, lived with N.W. and N.W.'s mother for a short period during this time.

¶ 3. N.W. did not inform anyone of the sexual assault until March 28, 1997, at which time she informed Russell. That same day, N.W. informed her mother. The police were contacted.

¶ 4. On April 10, 1997, Detective Robert Quant of the City of Oshkosh Police Department and Rod Schraufnagel of the Winnebago County Department of Social Services interviewed N.W. and her mother about the sexual assault. N.W. told them that, while she was lying on her bed, Green laid down beside her and proceeded to touch her breasts and vagina outside of her pajamas. N.W. alleged that this contact occurred around the time she was taken to the hospital because of vaginal bleeding. This hospital visit occurred on or about November 22, 1996, at which time N.W. was diagnosed with a urinary tract infection. During the interview with Quant and Schraufnagel, N.W. also reported that Green told her that he would kill her if she told anyone. N.W.'s mother told Quant and Schraufnagel that N.W. had not told her of many details surrounding the alleged assault and that N.W. was seeing a counselor, Jeanie Roberts, for the purpose of discussing the assault.

¶ 5. More than a year later, on October 20, 1998, Detective Quant again interviewed N.W. During this interview, N.W. alleged the following. On the day of the assault, she was home alone with Green, and Green called her into her bedroom to watch television with him. When N.W. entered the room, Green was lying on the bed. N.W. sat on the bed, and Green pulled her to him. Green then climbed on top of her and pulled her pajama bottoms down. Green then allegedly penetrated her vagina with his penis. Green did not stop until she told him that she had to go to the bathroom. Then, instead of going to the bathroom, she tried to run outside, but Green stopped her and told her that if she told anyone, he would kill her and her mom. Green then took her to a gas station to buy candy and a beanie baby. Soon after they arrived home, N.W.'s mother arrived home. A short time later, N.W. told her mother that she was urinating blood. Her mother then took her to the hospital.

¶ 6. About two months later, on December 14, 1998, Green was charged for having sexual intercourse with N.W. The complaint included the details, as discussed above, of N.W.'s April 10, 1997 and October 20, 1998 statements to the police. The complaint did not contain any information about N.W. seeing a counselor. ¶ 7. The complaint also included details from an interview that Quant conducted with Russell. Russell told Quant that she remembered when Green had purchased the beanie baby for N.W. Russell stated that at that time she sensed N.W. was upset about something, but N.W. did not say anything. Russell also alleged that on one occasion Green admitted to her that he had "fondled" or "fiddled" N.W. Russell stated that, after telling Green that he was a "sick bastard," Green told her he was "only kidding to see how you would act."

¶ 8. On January 5, 1999, the circuit court, the Honorable Bruce K. Schmidt presiding, held a preliminary hearing on the charges against Green. N.W. testified during this hearing. She alleged that Green did not touch her breasts or her vagina through her clothes. She maintained that he had sexual intercourse with her. During her testimony, she stated that she went over to a friend's house immediately after the assault and that Green went over to get her. She stated that she did not go anywhere else that evening and that she did not go to the hospital until the following day. After hearing testimony from N.W. and N.W.'s mother, the court found probable cause and bound the matter over for further proceedings.

¶ 9. On February 10, 1999, the court held a pretrial hearing, addressing in part a motion for discovery filed by Green. Green's trial counsel informed the court that he had recently received a document from the State summarizing the April 10, 1997 interview. This document—a three-page interview summary written by Schraufnagel—made reference to N.W. attending counseling with Roberts. Based on this discovery, Green's trial counsel made an oral motion requesting the court to issue a subpoena duces tecum to obtain N.W.'s counseling records. He alleged that the counseling records were important in light of the fact that N.W. did not tell anyone that sexual penetration had occurred until October 1998, almost two years after the alleged assault occurred. Green therefore wanted to know what N.W. told Roberts. He argued that the counseling records "may contain inconsistent statements." The State responded that it did not have any records from these counseling sessions and that it did not intend to introduce any testimony concerning these sessions at trial. Based on these arguments, the court denied the motion.

¶ 10. Green was tried before a jury over a three-day period on the sexual assault charge. Prior to trial, the court issued a sequestration order, which applied to "all prosecution and defense witnesses during the trial, apart from Det. Quant of the Oshkosh Police Department, who by virtue of being the lead investigator in the case should remain at the prosecution table."

¶ 11. On the second day of trial, the prosecutor called Cheryl Haack, one of Green's friends, as a witness. Haack testified on direct examination that, on November 13, 1996, Green told her that he sexually assaulted N.W. Haack reiterated this statement on cross-examination. Haack's testimony was inconsistent with a prior statement that she had provided to the police, which alleged that her conversation with Green occurred in January or February 1997. Haack admitted at trial that after giving this statement she later learned that Green had been in jail during January and February 1997. She testified that she later realized that the correct date was November 13, 1996, after reviewing a calendar that she had kept during that time. Following cross-examination and redirect examination, Haack was excused as a witness. ¶ 12. The State then called another witness to testify. After this witness, the prosecutor recalled Haack to clarify the date on which Green confessed to her that he assaulted N.W. Green objected to Haack being recalled by the State, but the court allowed her to testify. During her testimony, Haack modified her previous testimony, asserting that Green confessed to her on November 19, 1996, not on November 13, 1996. Haack admitted that she had discussed the discrepancy of the date with the prosecutor in the hall during a break in trial proceedings after her testimony. The prosecutor admitted to a conversation with Haack, but stated that it occurred during a break in Green's cross-examination of Haack.

¶ 13. After the State rested its case, Green brought a motion to dismiss, alleging that the prosecutor had committed misconduct by violating the sequestration order by communicating with Haack during a break in trial and then recalling Haack as a witness to clarify her previous testimony. The court denied this motion.

¶ 14. The jury found Green guilty of first-degree sexual assault of a child as a repeat offender. He was sentenced to 42 years in prison.

¶ 15. In a post-conviction motion, Green requested a new trial asserting that the circuit court should have conducted an in camera review of N.W.'s counseling records pursuant to State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993). He also argued that he was entitled to a new trial because the State had violated the sequestration order by communicating trial information to its witness during the course of the trial.

¶ 16. After a hearing, the court denied the post-conviction motion. The court ruled that Green never met his burden under Shiffra to compel the court to conduct an in camera review of N.W.'s counseling records. The court also determined that a violation of the sequestration order had not occurred. Green appealed.

¶ 17. The court of appeals, in an unpublished opinion, also held that Green failed to make a sufficient pretrial showing to entitle him to an in camera review of N.W.'s counseling records. The court, citing Shiffra, stated that Green was required to make a preliminary showing that the evidence sought was "relevant and necessary to a fair determination of guilt or innocence." More specifically, Green was required to show "specific facts which would bear upon the witness's ability to accurately...