State v. James

• Decision Date: 06 July 2005
• Docket Number: No. 2004AP2391-CR.,2004AP2391-CR.
• Citation: 285 Wis.2d 783,703 N.W.2d 727,2005 WI App 188
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Kevin D. JAMES, Defendant-Respondent.
• Court: Wisconsin Court of Appeals

285 Wis.2d 783

2005 WI App 188

703 N.W.2d 727

STATE of Wisconsin, Plaintiff-Appellant, v. Kevin D. JAMES, Defendant-Respondent.¹

No. 2004AP2391-CR.

Court of Appeals of Wisconsin.

Submitted on briefs May 16, 2005.

Decided July 6, 2005.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Peggy A. Lautenschlager, attorney general, and Jeffrey J. Kassel, assistant attorney general.

On behalf of the defendant-respondent, the cause was submitted on the brief of Terry W. Rose of Rose & Rose of Kenosha.

Before Brown, Nettesheim and Snyder, JJ.

¶ 1. BROWN, J.

This case arose when the State, pursuant to WIS. STAT. § 908.08 (2003-04),² sought to introduce the videotaped statements of two child witnesses in a sexual assault trial in lieu of full-blown live direct examination and to subsequently make the children available for questioning at the defendant's request. The trial court sustained the defendant's objection to this mode of testimonial presentation, observing that in its past experience, child witnesses sometimes refused to submit to cross-examination, thereby necessitating a mistrial in order to avert a violation of the defendant's Sixth Amendment right to confront adverse witnesses, now called a Crawford violation.³ Invoking WIS. STAT. §§ 904.03, 906.11 and 908.08(3), the court concluded that "the efficient operation of the court" and protecting the defendant's "legitimate expectation" of a single trial demanded that it preempt that possibility by requiring any live testimony to occur first. Although we understand and respect the trial court's concerns with applying fair and efficient procedures, we conclude that what is really at issue is the separation of legislative and judicial powers in the realm of admissibility and presentation of evidence. We hold that § 908.08 represents a proper exercise of legislative power and that the statute is not trumped by §§ 904.03 and 906.11. Thus, the trial court may not dictate alternative procedures based on the mere specter of a possible Crawford violation in the future. ¶ 2. From December 2001 to August 2002, Christina Q. and Natasha H. lived with their mother and grandmother in the grandmother's mobile home in the village of Pleasant Prairie in Kenosha county. At that time, Kevin D. James, the grandmother's boyfriend, also lived with them. Nearly two years later, Christina informed their mother that while they had lived at the mobile home, James had touched her sexually. The Child Advocacy Center arranged an interview with Christina shortly after this revelation. The interview took place on April 13, 2004. The CAC interviewed Natasha the same week. Natasha disclosed at her interview that James had made improper advances to her as well. The CAC videotaped both interviews. At the time of the interviews, Christina was ten years old, and Natasha was eight.

¶ 3. The State charged James with one count of sexual contact with a child under the age of thirteen, in violation of WIS. STAT. § 948.02(1) and one count of attempted sexual contact with a child under the age of thirteen, contrary to WIS. STAT. §§ 948.02(1) and 939.32. Prior to trial, the State gave notice of its intent to introduce the videotapes at trial, pursuant to WIS. STAT. § 908.08. It would play the videotapes, perhaps conduct an abbreviated direct examination, and then produce the children for cross-examination at James' request. James moved to exclude this evidence on the basis that introducing it would violate his constitutional rights as defined in Crawford v. Washington, 541 U.S. 36 (2004).

¶ 4. The trial court held a motion hearing on July 2, which it continued on July 12. The court ultimately ruled the State could not present the videotapes according to the statutory process; any live testimony on direct or cross-examination would have to come first. The trial court acknowledged that WIS. STAT. § 908.08(5) required presentation of videotapes prior to all in-court testimony. It also took as a given that no Crawford violation would occur so long as the girls submitted to cross-examination after the State introduced the videotapes. However, the court observed that the statutorily prescribed evidentiary sequence made it impossible for the court to avert the potential of a Crawford violation in the event that either child should later "clam up" on the witness stand. Moreover, the trial court stated that in such a case, "only a mistrial would ordinarily suffice to afford the protections guaranteed by the Confrontation Clause," the risk of which the court deemed "grossly unfair to impose ... on the defendant." The trial court further stated:

If ... one [of] the children when called to the witness stand should refuse to say anything—which has happened more than once with child witnesses—that child is not subject to cross-examination in truth and in fact, and the only—the only option left then to the Court—the only options would be to strike the tape, which has already been played, which is not an efficient or fair way to deal with the problem, or to declare a mistrial because it's an uncross-examined ... testimonial statement at that point. So there has to be some curative action taken, and neither of them is a desired one. We don't have enough time to be trying cases in here that are going to end up in mistrial.

¶ 5. The trial court invoked three statutes in support of its decision to depart from the WIS. STAT. § 908.08 procedures. First, it pointed out that § 908.08(3)(e) imposed a prerequisite to the court's admission of videotaped statements: it charged the court to determine that the statements, if admitted, would not "deprive any party of a fair opportunity to meet the allegations made in the statements." The court concluded that it could not make such a determination prior to live testimony because it would not know whether a Crawford violation would occur until meaningful cross-examination had taken place.

¶ 6. It also invoked WIS. STAT. §§ 904.03 and 906.11, which allow trial judges to control the receipt of evidence. In its initial oral pronouncement, the court expressed some doubt about whether these statutes allowed it to override the statutory procedures.

I have some personal reservations about the authority of the legislature to prescribe the method in which evidence is to be taken in the courts in this particular fashion. I don't question that they do have authority in this area, but ... I don't understand how the collision between Section 904.03 and this statute [WIS. STAT. § 908.08] are to be resolved, which gives the trial judge ultimate authority to exclude evidence when it's redundant and when the jury has a situation where they've got the preferred method of testimony, which is in-court testimony by the witness, and then ... a less desired form, which would be hearsay except for the statute. I guess I don't know how that collision is to be resolved.

The statute ... appears to be mandatory in nature, but I sure wish I knew the answer as to whether or not the Court has remaining authority left under 904.03 to supervise the reception of evidence and whether there's a constitutional issue there ....

¶ 7. The trial court resolved those doubts in favor of the courts, however, in its written decision. It first cited what it saw as the purpose of the statute: "I must admit that I can make sense of the statutory requirement for prior showing of the videotape only by assuming that it was deliberately designed to [e]nsure that in the event that the witness failed to deliver on the stand, the horse would already be out of the barn." It stated:

The bottom line is that the efficient operation of the court in avoiding needless mistrials, and the defendant's legitimate expectation of a trial free of the purposeless risk of mistrial, demand that the court be, at a minimum, at least reasonably certain that the declarant has been or will actually be subject to cross-examination before showing the videotape to the jury. This cannot be accomplished under the mandatory protocol demanded by the legislature.

If there were some legitimate legal purpose to the order prescribed in the law, it would be fine. But lacking any, it is a dangerous hindrance to the efficient and fair operation of the court, and is overridden by the provisions of §§ 904.03 and 906.11(1), Stats., and the requirements of the Confrontation Clause.

¶ 8. The State argues that the trial court exceeded its discretion when it refused to admit the videotapes pursuant to the process prescribed by WIS. STAT. § 908.08. The State correctly identifies our standard of review. Trial courts have broad discretion to admit or exclude evidence and to control the order and presentation of evidence at trial; we will upset their decisions only where they have erroneously exercised that discretion. State v. Smith, 2002 WI App 118, ¶¶ 7, 14, 15, 254 Wis. 2d 654, 648 N.W.2d 15; WIS. STAT. §§ 904.03 and 906.11. The trial court acts erroneously when its discretionary ruling contravenes nondiscretionary statutes or is based on an incorrect interpretation of the law. See Smith, 254 Wis. 2d 654, ¶ 15; State v. Sveum, 220 Wis. 2d 396, 405, 584 N.W.2d 137 (Ct. App. 1998). Whether the trial court properly interpreted the law presents a question of law that we review independently. See Cook v. Cook, 208 Wis. 2d 166, 172, 560 N.W.2d 246 (1997). In particular, we review de novo the constitutionality of a statute. State v. Horn, 226 Wis. 2d 637, 642, 594 N.W.2d 772 (1999).

¶ 9. We begin with the language of WIS. STAT. § 908.08. As the trial court acknowledged, § 908.08(5) is couched in mandatory terms and unambiguously requires the videotape to precede direct and cross-examination.

If the court ... admits a videotape statement ... the party who has offered the statement into evidence may nonetheless call the child to testify immediately after the videotape statement is shown to the trier of fact .... [I]f that party does not call the

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