State v. Hungerford
| Decision Date | 30 June 1978 |
| Docket Number | No. 76-529-CR,76-529-CR |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Elmer Charles HUNGERFORD, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
The defendant, Elmer Charles Hungerford, was convicted in the circuit court for Milwaukee County of indecent behavior with a child contrary to sec. 944.11, Stats. (1969) on August 2, 1971. He was committed to the Department of Health and Social Services under the Sex Crimes Act, under whose continuous custody he has been variously placed at Central State Hospital and at the Winnebago Mental Health Institute.
On July 28, 1976, the department entered an order extending the defendant's commitment under the Act, and applied to the Milwaukee County Circuit Court for an order confirming the extension. The defendant requested a hearing. Prior to the hearing, the defendant moved the court to exclude from evidence the testimony of two therapists from Central State Hospital as being privileged. The court denied the motion. Hungerford also objected to the admission into evidence of his criminal record as being irrelevant to the proceedings. The court ruled that this evidence was admissible. Finally, the defendant submitted to the court a set of requested jury instructions. They were rejected by the court.
The matter was then tried to a jury of six on November 29 and 30, 1976. The state called as witnesses Dr. Ingeborg Casey, a consultant psychologist who worked with the defendant during his confinement at Central State Hospital; Dr. William J. Crowley, a psychiatrist who examined the defendant at the defendant's request; and Mr. David Warner, a clinical psychologist at Central State Hospital. Both Dr. Casey and Mr. Warner testified as to the defendant's behavior during his confinement at Central State. Drs. Casey and Crowley, relying on the defendant's criminal record as well as their observation of the defendant, stated their opinions concerning the defendant's current mental condition and the danger he presented to the public. The defendant called Dr. Bernard Verrill, another clinical psychologist who most recently had been treating the defendant, and two correctional officers from Central State Hospital as witnesses. All three testified as to the defendant's behavior, and Dr. Verrill also stated his professional opinion of the defendant's mental condition and the danger posed by his release.
The court, having rejected the defendant's requested instructions, instructed the jury essentially as requested by the state. The jury returned a verdict finding that the defendant's discharge from custody would be dangerous to the public because of his mental or physical deficiency or abnormality. The court thereupon entered an order confirming the extension of the defendant's confinement under the Sex Crimes Act. The defendant appeals.
Additional facts will be stated in the opinion.
Howard B. Eisenberg, State Public Defender, argued and on brief, for defendant-appellant.
Pamela Magee-Heilprin, Asst. Atty. Gen. (argued), with whom on brief was Bronson C. La Follette, Atty. Gen., for plaintiff-respondent.
Three issues are raised on this appeal:
1. Are statements made by a person in the course of treatment pursuant to his commitment under the Sex Crimes Act privileged and not admissible at a proceeding to determine the necessity of continued confinement under the Act?
2. Is evidence of a person's criminal record admissible at a hearing to determine the necessity of extending that person's confinement under the Sex Crimes Act?
3. Did the trial court err in instructing the jury?
Prior to the trial, the defendant sought an order from the trial court prohibiting the testimony of Dr. Casey and Mr. Warner to be admitted on the grounds that their testimony was subject to the physician-patient privilege of sec. 905.04(2), Stats. The trial court denied the defendant's request and the witnesses were allowed to testify.
The privilege which the defendant claims was violated by this ruling is set forth in sec. 905.04(2), Stats. This subsection provides:
Neither party to this appeal is concerned with the initial applicability of this section to the communications disclosed by these witnesses; rather, they direct their arguments primarily to whether the privilege was inoperative with respect to the type of hearing here in question by reason of sec. 905.04(4)(a), Stats. There it is provided:
If the defendant's Sex Crimes Act recommitment hearing was a "proceeding for hospitalization" within the meaning of this provision, his communications to these therapists would not be inadmissible by reason of the privilege.
The defendant argues that this exemption was intended to suspend the privilege only with respect to an initial commitment proceeding, not with respect to subsequent proceedings to determine the necessity of continued hospitalization. In support of this argument, he notes that the Wisconsin rule was modeled on the corresponding Proposed Federal Rule of Evidence 504(d)(1), and that the Federal Advisory Committee Note to this section indicates that it was intended to exempt from the privilege disclosures made to a "person in whom the patient has already manifested confidence." Wisconsin Rules of Evidence, 59 Wis.2d R128-29 (1973). Those who are treating a patient who has been committed under the Act are not, the defendant claims, such persons in whom the patient has manifested confidence. See, Goldstein and Katz, "Psychiatrist-Patient Privilege: The GAP Proposal and the Connecticut Statute," 36 Conn.B.J. 175, 186-87 (1962).
Assuming that this was the intent of the proposed Federal Rule, we are not convinced that the Wisconsin privilege exemption was intended to be applied in the same narrow manner. First, we note that the Wisconsin exemption is not expressly dependent on the type of relationship between the physician and patient, but rather is directed to a particular proceeding. Second, we do not think that the various Committee notes to this provision unambiguously support the defendant's claim that the privilege is suspended only with respect to a proceeding for initial commitment. The Wisconsin Judicial Council Committee's Note to sub. (4)(a) specifically cites former sec. 885.21(1)(b), Stats., to support the statement that "Wisconsin is in accord" with the Proposed Federal Rule as expanded to physicians generally. Wisconsin Rules of Evidence, 59 Wis.2d R128 (1973). Under this section, a physician was not permitted to disclose information obtained in the course of treating a patient, except "(i)n all lunacy inquiries." See, sec. 885.21(1)(b), Stats. (1971). Finally, with respect to determining what is meant by "proceedings for hospitalization," we note that the initial Sex Crimes Act Commitment procedure is similar to the recommitment procedure in two significant respects. Both proceedings are designed to protect the public from the danger posed by the sexual deviate. Buchanan v. State, 41 Wis.2d 460, 472, 164 N.W.2d 253 (1969); see also, State ex rel. Farrell v. Stovall, 59 Wis.2d 148, 162, 207 N.W.2d 809 (1973). In both, the hearing is held in order to determine whether the department's conclusion that commitment is necessary, is itself justified. See, secs. 975.06(1)(a) and 975.14, Stats.
This court has consistently strictly interpreted privileges and confidentialities granted by statute. Davidson v. St. Paul Fire & Marine Insurance Co., 75 Wis.2d 190, 197, 248 N.W.2d 433 (1977), and cases cited therein; Alexander v. Farmer's Mutual Automobile Insurance Co., 25 Wis.2d 623, 628, 131 N.W.2d 373 (1964). In light of the above, we conclude that sec. 905.04(4)(a), Stats., which permits the admission of "communications and information relevant to an issue in proceedings to hospitalize the patient for mental illness;" is not so narrow as to be applicable only to the proceeding which may result in the patient's initial institutionalization. Therefore, the trial court did not err in admitting the testimony of therapists who had treated the defendant at Central State Hospital.
The defendant also contends that the trial court erred when, in a pretrial ruling, it held that evidence relating to the defendant's criminal record would be admissible.
This issue concerns the testimony of two of the state's witnesses, Dr. Casey and Dr. Crowley. After relating certain events which occurred during her supervision of the defendant's treatment at Central State Hospital, Dr. Casey stated that the defendant was suffering from a personality disorder and that he had a poor ability to tolerate any frustrations. In Dr. Casey's opinion, the defendant was impulsive and lacked control over his behavior. She concluded that the defendant was a sex deviate and based this conclusion, in part, on the defendant's criminal history. Dr. Casey then testified as follows:
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