State v. Hanna

• Decision Date: 14 March 1991
• Docket Number: No. 90-1739-CR,90-1739-CR
• Citation: 471 N.W.2d 238,163 Wis.2d 193
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Tracy L. HANNA, Defendant-Appellant. . Oral Argument:
• Court: Wisconsin Court of Appeals

Page 238

471 N.W.2d 238

163 Wis.2d 193

STATE of Wisconsin, Plaintiff-Respondent, v. Tracy L. HANNA, Defendant-Appellant.

No. 90-1739-CR.

Court of Appeals of Wisconsin.

Oral Argument: March 14, 1991.

Opinion Released April 10, 1991.

Opinion Filed April 10, 1991.

[163 Wis.2d 195] John D. Lubarsky, Asst. State Public Defender, for defendant-appellant.

Donald J. Hanaway, Atty. Gen. and Paul Lundstent, argued, Asst. Atty. Gen., on briefs, for plaintiff-respondent.

Before NETTESHEIM, P.J., and BROWN and SCOTT, JJ.

NETTESHEIM, Presiding Justice.

Tracy L. Hanna appeals from a judgment of conviction for first-degree sexual assault pursuant to sec. 940.225(1)(d), Stats. (1985-86). ¹ She argues, in part, that the trial court erred when it ruled that the four-year-old victim was unavailable for constitutional confrontation purposes. The state does not defend the trial court's unavailability ruling on the merits. Instead, the

state contends that Hanna waived this issue. We conclude that Hanna preserved the issue. We also conclude that the witness was not unavailable for confrontation purposes. Therefore, we reverse the judgment of conviction and remand for a new trial.

FACTS

During January 1988, Hanna occasionally babysat for S.R., the niece of her live-in boyfriend. During February, while in the care of Jackie Flunker, S.R. attempted to touch Flunker's breasts and remove her bra. Under questioning from Flunker, S.R. refused to talk about the incident and hid her face in a pillow.

Some days later, Flunker related the incident to Sallie Jensen, S.R.'s grandmother. Jensen, in turn, questioned S.R. Initially, S.R. did not respond, but eventually she made statements implicating Hanna. Occasionally during this questioning, S.R. would run off to another room and again hide her face in a pillow. Jensen testified that S.R. was "very scared and really funny" during this conversation and that such conduct was unusual for her.

The following day, Jensen and S.R.'s mother, Robin, discussed the matter with a private attorney who assisted in bringing the matter to the attention of the authorities. On March 2, 1988, Plymouth Police Officer Jeffrey Tauschek and social worker Patricia Damon interviewed S.R. The grandmother, Jensen, was also present. During this questioning, S.R. gave verbal and nonverbal responses and would again occasionally hide her face in a pillow. However, through the use of anatomically correct dolls and her own teddy bear, S.R. demonstrated acts of sexual contact between herself and Hanna. This prosecution ensued.

PROCEDURAL HISTORY AND WAIVER

Because the state rests its case on waiver, we address the procedural history of this case in some detail.

The question of S.R.'s unavailability first arose at the preliminary hearing when the state called S.R. as a witness. ² The state asked S.R. thirteen questions. S.R. gave one verbal response, providing her mother's first name. In addition, she held up four fingers when asked her age. In response to the remaining questions, S.R. provided eight affirmative or negative nods of her head. To the state's remaining three questions, S.R. gave no response. The state then asked the magistrate to declare S.R. unavailable. Before the magistrate ruled, Hanna's counsel asked S.R. two additional questions. S.R. did not respond to either question. Without objection from Hanna, the magistrate declared S.R. unavailable.

The state then introduced S.R.'s hearsay statements regarding the incident through S.R.'s mother and grandmother.

At the conclusion of the preliminary hearing, Hanna challenged only the reliability of S.R.'s hearsay statements. Hanna did not quarrel with the magistrate's unavailability ruling. The magistrate rejected Hanna's argument and bound Hanna over for trial.

Apparently anticipating that S.R. would prove a difficult witness at trial, the state brought a pretrial motion asking the trial court to declare S.R. an unavailable witness. At the motion hearing on December 7, 1988, the state again produced S.R. as a witness. The state put thirty-six questions to S.R. S.R. gave one verbal response, answering "No" to a request that she point out Hanna in the courtroom. To twenty-six questions, S.R. gave affirmative or negative nods of her head. To the remaining nine questions, S.R. gave no response. Hanna did not ask S.R. any questions.

The trial court then dismissed S.R. as a witness, observing, "The record should indicate that while [S.R.] was on the stand there were no verbal responses, as the record shows, and [S.R.] was chewing on The state then introduced S.R.'s hearsay statements through the testimony of S.R.'s mother, grandmother, Officer Tauschek and social worker Damon. At the conclusion of the hearing, the trial court directed the parties to file briefs on the question of whether S.R.'s hearsay statements should be admitted at trial.

                the little finger of her left hand." 3  The state then advised the court that the parties wished to brief the issue of S.R.'s "being available or unavailable."   The court approved this procedure
                

The state's brief addressed both prongs of the well-accepted "two-step approach to be used in determining whether hearsay evidence satisfies the requirements of the confrontation clause." State v. Bauer, 109 Wis.2d 204, 210, 325 N.W.2d 857, 861 (1982). First, the witness must be unavailable. Second, the evidence must bear some indicia of reliability. Id. at 215, 325 N.W.2d at 863.

Hanna's brief also cited to this methodology. However, Hanna concentrated on the threshold inquiry to this determination--whether the evidence qualified in the first instance under an exception to the hearsay rule. See id. In addition, Hanna suggested that the state dismiss the complaint and refile the charge at some later date when S.R. was better able to testify. From this, the state argues that Hanna conceded S.R.'s unavailability.

We do not read Hanna's trial brief as abandoning the unavailability prong of a confrontation inquiry. Although concentrating on the hearsay aspects of the issue, Hanna correctly cited the methodology which requires that the court address both hearsay and unavailability. In addition, Hanna cited Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988), and its strong reaffirmation of face-to-face confrontation principles. ⁴

We think it significant that, at the trial level, neither the state nor the trial court appeared to share the "waiver" approach that the state now advances on appeal. As noted earlier, after the motion hearing, the state addressed both prongs of the confrontation issue in its trial brief. So did Hanna, albeit with more emphasis on the hearsay prong than on the confrontation prong. Most importantly, the trial court's decision substantively addressed the unavailability prong of the confrontation question. The court's decision does not even remotely suggest or imply that Hanna had conceded S.R.'s unavailability.

In addition, the record reveals that the trial court's unavailability ruling remained a prominent issue as the trial date drew near. The court rendered its initial ruling admitting S.R.'s hearsay statements on March 13, 1989, approximately six months before the case went to jury trial. On August 28, three days before the jury trial, Hanna filed an "Objection To Admission Of Hearsay." The opening language in this "objection" states:

Now comes the defendant, by counsel, objecting to the courts [sic] prior ruling that the juvenile victim is unavailable to testify and allowing the admission of hearsay statements made by the juvenile to others. [Emphasis added.]

In addition, Hanna complained at paragraph "2" of this "objection" that "[t]he defendant is being denied her State and Federal Constitutional Right to confront the witnesses against her."

The state argues that Hanna was only pursuing a new or "fresh" assessment of S.R.'s availability since the trial court's previous ruling was some six months old and was based upon S.R.'s court appearance some nine months before. True, Hanna also sought this fresh ruling in her moving papers. But the language of Hanna's "objection" clearly stated that she was objecting Hanna also filed a pretrial "Position Statement Regarding Hearsay And Confrontation By The Defense." In this document, Hanna based her objection upon "hearsay grounds, due process grounds, State Constitutional grounds allowing 'face to face' contact and United States Constitution grounds concerning confrontation." (Emphasis added.) Hanna argued:

to the court's earlier unavailability ruling. In our judgment, Hanna's quest for a fresh ruling on the unavailability question was consistent with--not antagonistic to--her objection to the earlier ruling.

The State bears the burden of proving unavailability both as to any hearsay exception and as to any analysis of the right to confront witnesses. [Emphasis added.]

While Hanna also opined as to other options available to the state (e.g., adjournment or videotaping), these did not undo the efficacy of her objection to the court's unavailability ruling. In short, Hanna's "objections" continued to press the trial court on the question of S.R.'s past and present unavailability. ⁵

The trial court's rulings and remarks at the proceedings during the days immediately preceding the jury trial also confirm that unavailability remained a paramount issue. For instance, the court acknowledged that Hanna's pretrial motions requested the court to reconsider its prior unavailability ruling. The court then addressed this request on the merits in a detailed bench decision. The court's remarks do not intimate or suggest that unavailability was not at issue or that Hanna had previously conceded S.R.'s unavailability. Instead, the court again addressed both prongs--hearsay and unavailability--of the confrontation issue.

In light of Hanna's renewed objections, the court expressly adopted its earlier opinion, concluding: "[T]he Court's ruling...