State v. Kirschbaum

• Decision Date: 25 May 1995
• Docket Number: No. 94-0899-CR,94-0899-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Lisa KIRSCHBAUM, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 462

535 N.W.2d 462

195 Wis.2d 11

STATE of Wisconsin, Plaintiff-Respondent, v. Lisa KIRSCHBAUM, Defendant-Appellant. ^d

No. 94-0899-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs March 8, 1995.

Opinion Released May 25, 1995.

Opinion Filed May 25, 1995.

For the defendant-appellant the cause was submitted on the briefs of Stephen R. Buggs of Karrmann, Buggs & Baxter, Platteville.

For the plaintiff-respondent the cause was submitted on the brief of James E. Doyle, Atty. Gen., and G.M. Posner-Weber, Asst. Atty. Gen.

Before DYKMAN, SUNDBY, and VERGERONT, JJ.

VERGERONT, Judge.

Lisa Kirschbaum appeals from a judgment convicting her of child neglect with death as a consequence, in violation of § 948.21(1), STATS. Kirschbaum raises two issues on appeal. First, she contends the trial court improperly denied her request for permission to hire two expert witnesses. Second, she contends her constitutional right to confrontation was violated by the admission of a videotaped deposition of a child witness taken prior to a previous trial on the same charge. We reject both contentions and affirm.

BACKGROUND

The relevant facts are undisputed. The criminal complaint alleged that on February 20, 1990, while providing day-care services for Peter Dolan, a fourteen-month-old infant, Kirschbaum tied a rag around the infant's head and mouth and left him unattended, resulting in the infant's death by suffocation.

A jury trial on the charge of child neglect with death as a consequence was conducted in September 1992. The State's principal witness was Amanda H., a child for whom Kirschbaum was also providing day-care services on the day of the infant's death. Amanda H. did not testify at trial, but her videotaped deposition was admitted pursuant to § 967.04, STATS. In her videotaped deposition, Amanda H. testified that she witnessed Kirschbaum tie a burp rag around the infant's head and face and lay the infant down next to her on the floor of a bedroom where she was taking a nap. She stated that she then fell asleep and, when she woke up, she observed Kirschbaum unsuccessfully attempting to wake the infant up. Amanda H. was five years old at the time the infant died and seven years old at the time the videotaped deposition was taken in July 1992. Following a five-day trial, the trial court declared a mistrial when the jury was unable to unanimously agree on a verdict.

A retrial on the same charge was conducted in January 1994. Kirschbaum was represented by a new attorney at the retrial. Prior to the retrial, Kirschbaum filed two motions: (1) a motion for permission to hire a child psychologist and a pediatrician, and (2) a motion asking the court to exclude Amanda H.'s videotaped deposition and to allow new testimony by Amanda H., either in person or by a second videotaped deposition. The trial court denied both motions after a hearing and Amanda H.'s videotaped deposition was admitted at the retrial. The jury convicted Kirschbaum of violating § 948.21(1), STATS., and this appeal followed.

REQUEST FOR PERMISSION TO HIRE EXPERTS

Kirschbaum challenges the trial court's denial of her request for permission to hire the child psychologist and the pediatrician as an erroneous exercise of discretion. ¹

An indigent defendant has a constitutional right to the state's assistance in securing the raw materials integral to the building of an effective defense. Ake v. Oklahoma, 470 U.S. 68, 77, 105 S.Ct. 1087, 1093, 84 L.Ed.2d 53 (1985). This right includes the trial court's assistance in compelling the attendance of witnesses and the right to put before a jury evidence that might influence the determination of guilt. Taylor v. Illinois, 484 U.S. 400, 408, 108 S.Ct. 646, 652, 98 L.Ed.2d 798 (1988). However, the right to the trial court's assistance is not "an unfettered right that requires the trial court to give an indigent defendant unlimited access to blank checks to hire all expert witnesses that he or she desires." State ex rel. Dressler v. Racine County Circuit Court, 163 Wis.2d 622, 639, 472 N.W.2d 532, 539 (Ct.App.1991). The trial court does not have an unequivocal duty to provide expert witness funds for indigent defendants upon a general request. Id. at 641, 472 N.W.2d at 540. Rather, in order to secure the assistance of the trial court, the defendant must make a plausible showing that the proposed expert witness will be both material and favorable to his or her defense, i.e., necessary. Id. at 640, 472 N.W.2d at 540.

The trial court's decision is discretionary. The question on appeal is not whether this court, ruling initially on the motion, would have granted it, but whether the trial court exercised its discretion in accordance with accepted legal standards and the facts of record. See State v. Friedrich, 135 Wis.2d 1, 16, 398 N.W.2d 763, 770 (1987). If a decision requires the exercise of discretion but fails to demonstrate on its face consideration of any factors on which the decision should be properly based, the decision constitutes an erroneous exercise of discretion. State v. Johnson, 118 Wis.2d 472, 480-81, 348 N.W.2d 196, 200-01 (Ct.App.1984). However, we are not required to reverse a discretionary decision if we can conclude ab initio that there are facts in the record that would support the trial court's decision had discretion been exercised on the basis of those facts under the correct legal standard. Id. at 481, 348 N.W.2d at 201.

A. Child Psychologist

According to the motion and affidavit filed with the trial court, the child psychologist would have testified on these issues:

(1) General concepts regarding memory, perception and distortion;

(2) Children not seeing things in adult perspectives and not perceiving things as an adult would perceive them;

(3) Bias and suggestion in interviewing child witnesses in general, both intentional and unintentional, and the bias or suggestion which occurred in the interviews of Amanda [H.] prior to her videotaped testimony;

(4) Amanda [H.'s] inconsistent statements regarding whether Peter Dolan was put in a closet or laid on the bedroom floor after the defendant allegedly tied a rag around his face.

The trial court denied Kirschbaum's request, relying primarily on State v. Friedrich, 135 Wis.2d 1, 398 N.W.2d 763 (1987):

[W]hat I have got here is the very thing that I had in Friedrich. I have a young girl. This isn't a sexual assault case. This is not a crime against the person of Amanda [H]. But I have got a young girl who testified as to what she saw and I have got a request for a psychologist to come in and not call her a liar. They weren't trying to call the victim in the Friedrichs case a liar. All they were trying to do is say it couldn't have happened. And as you can tell ... experience has shown in the past a psychologist did not know what he was talking about. What it would be used for would be to go towards the credibility of the child. Credibility of the child is a jury issue and for that reason, Mr. Buggs, I am going to deny your request as to the psychologist.

We conclude that the trial court's decision with respect to the issues of "general concepts regarding memory, perception and distortion" and "children not seeing things in adult perspectives and not perceiving things as an adult would perceive them" was within the scope of its discretion. The trial court could reasonably conclude that these are matters within the knowledge and general experience common to every member of the community, and that the jury's consideration of these issues would not be aided by the testimony of a psychologist. See, e.g., State v. Blair, 164 Wis.2d 64, 77, 473 N.W.2d 566, 572 (Ct.App.1991); cf. Hampton v. State, 92 Wis.2d 450, 459, 285 N.W.2d 868, 872 (1979) (trial court allowed psychologist "to inform the jury of the psychological principles underlying human observation and perception, but left to the jury itself the task of applying those principles to the specific facts of [the] case").

We also conclude that the trial court's decision with respect to the issue of "Amanda [H's] inconsistent statements" was within the scope of its discretion. It is well established that the credibility of witnesses, including child witnesses, and the weight assigned to their testimony are matters for the jury's judgment. Shawver v. Roberts Corp., 90 Wis.2d 672, 681, 280 N.W.2d 226, 230 (1979). The trial court could reasonably conclude that the jury could draw its own conclusions on Amanda H.'s allegedly inconsistent statements and that this was something the jury could knowledgeably determine without the help of expert testimony. See State v. Haseltine, 120 Wis.2d 92, 96, 352 N.W.2d 673, 676 (Ct.App.1984).

A different analysis is required with respect to the issue of improper interview techniques allegedly used with Amanda H. Friedrich did not address this issue. There, our supreme court held that the trial court did not erroneously exercise its discretion in excluding a psychologist's testimony that the accused did not fit the "psychological profile" of known incestuous sex offenders on the ground that the testimony would usurp the jury's role of assessing credibility. Friedrich, 135 Wis.2d at 16, 398 N.W.2d at 770.

While the issue has not been addressed in Wisconsin, many jurisdictions recognize that young children can be susceptible to suggestive interview techniques and that such techniques can undermine the reliability of a child's account of actual events. See, e.g., Idaho v. Wright, 497 U.S. 805, 812-13, 110 S.Ct. 3139, 3144-45, 111 L.Ed.2d 638 (1990); Maryland v. Craig, 497 U.S. 836, 868, 110 S.Ct. 3157, 3175, 111 L.Ed.2d 666 (1990) (Scalia, J., dissenting); State v. Michaels, 136 N.J. 299, 642 A.2d 1372, 1379 (1994); People v. Michael M., 162 Misc.2d 803, 618 N.Y.S.2d 171, 177 (N.Y.Sup.Ct.1994); Territory of Guam v. McGravey, 14 F.3d 1344, 1348-49 (9th Cir.1994). The concern is that persons conducting interviews with the child will, either inadvertently or...