State v. Hull

• Citation: 867 N.W.2d 419,363 Wis.2d 603
• Decision Date: 19 May 2015
• Docket Number: No. 2014AP365–CR.,2014AP365–CR.
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. David E. HULL, Defendant–Appellant.
• Court: Court of Appeals of Wisconsin

363 Wis.2d 603

867 N.W.2d 419

STATE of Wisconsin, Plaintiff–Respondent

v.David E. HULL, Defendant–Appellant.

No. 2014AP365–CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Dec. 2, 2014.

Opinion Filed May 19, 2015.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Rick B. Meier of Ellis Street Law Office, Kewaunee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of J.B. Van Hollen, attorney general, and Aaron R. O'Neil, assistant attorney general.

Before HOOVER, P.J., STARK and HRUZ, JJ.

Opinion

HRUZ, J.

¶ 1 David Hull appeals a nonfinal order denying his motion to dismiss charges arising from an alleged sexual assault of a minor.¹ At the preliminary hearing, the alleged victim's statements were introduced through the testimony of an investigating detective. The testimony was offered pursuant to Wis. Stat. § 970.038, a recently enacted statute that authorizes the admission of hearsay evidence at preliminary hearings.²

¶ 2 Hull contends Wis. Stat. § 970.038 is an unconstitutional ex post facto law, and he also argues the preliminary hearing was improperly terminated without Hull being allowed to call the alleged victim as a witness. We conclude § 970.038 is not an ex post facto law because it affects only the evidence that may be admitted at the preliminary hearing and does not alter the quantum or nature of evidence necessary to convict the defendant. We further conclude the court commissioner properly refused to allow Hull to call the alleged victim to testify at the preliminary hearing because the anticipated testimony was not relevant to the probable cause inquiry. Accordingly, we affirm, and we remand to the circuit court for further proceedings.

BACKGROUND

¶ 3 On February 8, 2013, the State charged Hull with one count of first-degree sexual assault of a child under age sixteen by use or threat of force or violence, and one count of second-degree sexual assault of a child under age sixteen. The alleged victim, S.H., and her mother approached police on January 11, 2012, alleging Hull had sexually assaulted S.H. in a hotel room on the weekend of February 25–27, 2011.

¶ 4 S.H. made the following allegations during a recorded forensic interview. S.H. and her father attended a taxidermy conference at which Hull was also present. S.H. was fourteen years old at the time. After dinner one night, S.H. returned to her hotel room while her father and Hull went out to drink. S.H. stated her father was an alcoholic. Her father and Hull returned to the hotel room at approximately 11:00 p.m. S.H. said her father was drunk and fell between a bed and the wall before passing out next to S.H. on one of the beds in the room.

¶ 5 S.H. further alleged that after her father fell asleep, Hull sexually propositioned S.H. several times before taking off nearly all his clothes and kneeling next to her bed. Hull rubbed her back and leg and asked, “So when do you want to hook up?” S.H. resisted Hull's advances, but Hull threw her on the room's other bed and raped her. S.H. screamed for her father during the assault, but he did not wake up until the next morning. The following day, S.H. told her father that Hull touched her the night before, but S.H. did not think her father believed her.

¶ 6 In 2011, at the time of the alleged offense, most hearsay was prohibited at preliminary hearings. See Wis. Stat. ¶¶ 908.07, 970.03(11) (2009–10) (hearsay admissible only for limited, specific purposes, such as proving ownership of property). On April 12, 2012, the legislature repealed section 908.07 and subsection 970.03(11) and enacted Wis. Stat. § 970.038. See 2011 Wis. Act 285. Section 970.038 made hearsay admissible at preliminary hearings and authorized courts to find probable cause based on hearsay evidence. By the time Hull was charged, in February 2013, § 970.038 was in effect.³

¶ 7 Hull subpoenaed the alleged victim to testify at the first scheduled preliminary hearing on May 1, 2013. The hearing was rescheduled for June 12, 2013, because the alleged victim was hospitalized following a suicide attempt. In the interim, the State filed a motion to quash the subpoena. The State argued the alleged victim's testimony was not relevant to the probable cause determination and was solicited for the improper purpose of discovery. The State also expressed concern for the alleged victim's mental state should she be compelled to testify.

¶ 8 Hull's counsel responded that, since the State opposed requiring the alleged victim to testify, it appeared the State would be relying on hearsay under the recently enacted Wis. Stat. § 970.038 to show probable cause. Counsel noted that constitutional challenges to the statute were then pending before this court. Hull also asserted the statute, as applied to his case, constituted an ex post facto violation, because the statute first became effective after the date of the alleged offense.

¶ 9 The court commissioner decided to bifurcate the preliminary hearing. The State's presentation of evidence would occur during the first portion of the hearing. The commissioner determined hearsay was admissible under Wis. Stat. § 970.038, but he agreed to revisit his ruling if Hull filed a brief providing a legal basis for his ex post facto argument, or if this court invalidated the statute in the meantime. The commissioner then stated he would proceed as follows: after the State's presentation of evidence, he would entertain any defense requests for an adjournment to subpoena witnesses; then, the second portion of the hearing would be held if he determined additional evidence was necessary.

¶ 10 On July 17, 2013, this court decided State v. O'Brien, 2013 WI App 97, 349 Wis.2d 667, 836 N.W.2d 840, aff'd, 2014 WI 54, 354 Wis.2d 753, 850 N.W.2d 8, cert. denied, ––– U.S. ––––, 135 S.Ct. 494, 190 L.Ed.2d 362 (2014), in which we concluded that

nothing in the State or federal constitutions prohibits allowing the finder of fact at a preliminary examination to consider hearsay evidence and to rely upon hearsay evidence to determine that the State has presented a “believable account of the defendant's commission of a felony.” ... Wisconsin Stat. § 970.038 is consistent with the federal and state constitutions and is now the law of Wisconsin.

Id., ¶ 26 (no quoted source provided, but apparently quoting State v. Dunn, 121 Wis.2d 389, 397, 359 N.W.2d 151 (1984) ). Specifically, we determined Wis. Stat. § 970.038 did not: (1) violate the defendants' fair trial rights, including the right to due process and the right to confront adverse witnesses; (2) limit the defendants' ability to call or cross-examine witnesses to any greater extent than that ability was already limited by the purpose of the preliminary hearing; or (3) violate the defendants' right to effective assistance of counsel. See O'Brien, 349 Wis.2d 667, ¶¶ 10–11, 17, 21–22, 25, 836 N.W.2d 840.

¶ 11 Two days after our O'Brien decision, the parties attended the next scheduled hearing in this matter. Hull's counsel agreed the only issue left undecided by O'Brien was whether Wis. Stat. § 970.038 was an ex post facto law. Hull relied on Calder v. Bull, 3 U.S. 386, 3 Dall. 386, 1 L.Ed. 648 (1798), which interpreted the United States Constitution's Ex Post Facto Clause⁴ as prohibiting, among other things, any law that “alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.” Id. at 390. Hull reasoned that the purpose of the preliminary hearing was “to convict the defendant” because “[i]f there's no bind over, there can be no conviction.”

¶ 12 The court commissioner disagreed and denied Hull's motion claiming an ex post facto violation. He held that Calder was “specifically talking about what is necessary to convict [at trial] as opposed to getting a bind over decision....” The State then called its only witness, police detective Brad Linzmeier, who had investigated the allegations against Hull. Linzmeier testified another officer had taken a written statement from S.H., marked as Exhibit 1, that was consistent with S.H.'s statements during the recorded forensic interview.

¶ 13 Hull objected to Exhibit 1's admissibility on foundation grounds. Specifically, counsel argued:

I object to any statements that she makes about the condition of another person, particularly her father, and the fact that he is passed out or that he's drunk. There's no foundation for those hearsay statements.

And it doesn't appear that she had personal knowledge of whether he was sleeping or not.

The court commissioner sustained the objection regarding the alleged victim's observations of the father.

¶ 14 After the State concluded its presentation, Hull requested an adjournment to subpoena S.H. and her parents. The State opposed the motion, arguing their testimony was not germane to the purpose of the preliminary hearing because it did not go to the plausibility of the State's witnesses' account. Instead, the State claimed the request was either an attempt to “destroy the credibility of the complaining witness” or a “fishing expedition for discovery.”

¶ 15 The court commissioner agreed to allow Hull to subpoena the father. He determined a plausibility issue was raised by S.H.'s statement that she was screaming for her father, who was in the same room but did not wake up at the time. The commissioner deferred a decision on making the alleged victim testify until after the father's testimony, and he rejected Hull's request to require the mother to testify.

¶ 16 The alleged victim's father testified on August 16, 2013. He acknowledged he had limited memory of the events on the night in question due to the passage of time and his alcohol consumption that night. The father stated he started drinking beer in the afternoon and switched to mixed drinks during the evening. He acknowledged being intoxicated on the date in question. When he returned to the hotel...