State v. Mercado, Appeal No. 2018AP2419-CR

• Court: Court of Appeals of Wisconsin
• Writing for the Court: BRASH, P.J.
• Citation: 391 Wis.2d 304,2020 WI App 14,941 N.W.2d 835
• Decision Date: 04 February 2020
• Docket Number: Appeal No. 2018AP2419-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Angel MERCADO, Defendant-Appellant.

391 Wis.2d 304
941 N.W.2d 835
2020 WI App 14

STATE of Wisconsin, Plaintiff-Respondent,^†
v.
Angel MERCADO, Defendant-Appellant.

Appeal No. 2018AP2419-CR

Court of Appeals of Wisconsin.

Submitted on Briefs: September 9, 2019
Opinion Filed: February 4, 2020

On behalf of the defendant-appellant, the cause was submitted on the briefs of Esther Cohen Lee of Hall, Burce & Olson SC, Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Scott E. Rosenow, assistant attorney general, and Joshua L. Kaul, attorney general.

Before Brash, P.J., Kessler and Fitzpatrick, JJ.

BRASH, P.J.

391 Wis.2d 308

¶1 Angel Mercado appeals his judgment of conviction for two counts of first-degree sexual assault of a child for having sexual contact with

391 Wis.2d 309

a child under the age of thirteen, and one count of first-degree sexual assault of a child for having sexual intercourse with a child under the age of twelve. He also appeals the trial court’s denial of his postconviction motion for a new trial on the grounds that the trial court erred in admitting the videos of forensic interviews of the three children. Mercado argues that the court did not follow all of the statutory procedures for the admission of those videos, as set forth in Wis. Stat. § 908.08 (2017-18).¹ He further asserts that admission of the videos under alternative grounds—either pursuant to the residual hearsay exception, or, in the case of the youngest child, as a prior inconsistent statement—would have been in error as well.

¶2 The trial court rejected Mercado’s claims, stating that it "perceive[d] no error" in statutory procedure in its admission of the videos. The court also agreed with the State that in any event, all three videos were admissible under the residual hearsay exception, and that the video of the youngest child was admissible as a prior inconsistent statement.

¶3 We disagree. The record indicates that the statutory requirements for admission of all three of the videos were not fully met and further, that the requirements for admission under the residual hearsay exception or as a prior inconsistent statement likewise were not satisfied. We therefore reverse Mercado’s convictions on all three charges and remand this matter for a new trial.

Background

¶4 The charges against Mercado involve three children: O.E.G., born January 23, 2009; L.A.G., born

391 Wis.2d 310

August 2, 2011; and N.L.G., born July 25, 2012. The assaults on the children were alleged to have occurred between June 2016 and August 2016, when the three children and their mother, C.J.C., were living with Mercado at his residence on South 24th Street in Milwaukee.² C.J.C. stated that she had known

941 N.W.2d 838

Mercado since 2011, and that they had moved in with Mercado so that she could assist him with his daily care: his medication, his appointments, and some household duties.

¶5 C.J.C. found out about the sexual assaults in August 2016. She was in the car with N.L.G. after running errands and had started singing along to a song on the radio which included the lyrics "I want to lick you up and down." N.L.G. blurted out "[t]hat’s what he does." C.J.C. then asked her who did that, and N.L.G. answered "Viejo"—the children’s nickname for Mercado.

¶6 When they arrived at the residence, C.J.C. asked L.A.G. if anyone had been touching her, to which she responded "yes." C.J.C. asked her if it was "Viejo" who had been touching her, and she responded affirmatively. When O.E.G. returned home that evening, C.J.C. also asked her if "Viejo" had been touching her, and she responded that he had. She then took the girls to the hospital that night to be examined. A few days later, police officers conducted forensic interviews with each of the children, which were videotaped.

¶7 Mercado was subsequently charged with two counts of first-degree sexual assault of a child for having sexual intercourse with a child under the age of twelve, and one count of first-degree sexual assault of

391 Wis.2d 311

a child for having sexual contact with a child under the age of twelve. The matter proceeded to trial in November 2016; however, it resulted in a mistrial due to difficulties with accurately translating the videos of the children’s forensic interviews for Mercado. As a result, the trial court ordered that the videos be transcribed so that the transcriptions could be read to Mercado as the videos were being played at trial. Those transcripts, which were prepared by the district attorney’s office, were also to be provided to the jury at the time the videos were played to assist the jurors in understanding any portions of the videos that were difficult to hear.

¶8 The matter was then re-tried in January 2017. The video of L.A.G.’s forensic interview was introduced and played. At the time of the interview, L.A.G. had just turned five years old, but told the officer she was four—even after the officer asked about her birthday, which had occurred just two weeks prior to the interview. In the video, the officer conducting the interview tried to establish that L.A.G. understood the difference between the truth and a lie by discussing the color of the officer’s pants: her pants were black, and she asked L.A.G. that if someone said they were red, whether that was the truth or a lie; L.A.G. answered "I think that’s the truth." L.A.G. also stated that she did not know whether it was important to tell the truth, and would not promise to tell the truth during the interview. She subsequently told the officer that Mercado had carried her to the basement, pulled her skirt down, and put his tongue on her "pee-pee" and had "licked [her] butt too." She also stated that he had done the same thing to her sisters.

¶9 After the video was played, L.A.G. testified. During the trial court’s colloquy with her to establish

391 Wis.2d 312

her ability to understand the difference between the truth and a lie, L.A.G. first said that she did not know what it meant to tell the truth, but said that a lie was not telling the truth. The trial court then asked her questions regarding the color of his robe, and whether stating that it was pink was a lie, and she answered affirmatively. L.A.G. then testified that Mercado had done "nasty stuff" to her on the table in the basement, including licking her on the chest, below the waist, and on her butt. When asked if this happened over her clothes, under her

941 N.W.2d 839

clothes, or "something else," L.A.G. replied that it was "something else" but could not explain.

¶10 Next, the video of O.E.G.’s forensic interview was played. O.E.G.—who was seven years old at the time of the interview—was asked the same question by the officer about the color of her pants, and O.E.G. answered that saying they were red was a lie. O.E.G. also responded that "a kid who gets caught telling a lie" would get a "time-out." O.E.G. then told the officer that the man they live with was touching her in "the private part," and touching her two little sisters too.

¶11 After the video was played, O.E.G. testified. She refused to provide any information regarding her assaults while on the stand, but she did state that she had told the truth to the officer who conducted the forensic interview, and that she was mad at Mercado because of the things that she had talked about with the officer.

¶12 With regard to N.L.G., Mercado had previously requested at a pretrial motion hearing that the video of her forensic interview not be admitted based on her lack of understanding between telling the truth and a lie as observed in her video. The officer conducting

391 Wis.2d 313

the interview tried to establish her comprehension by asking N.L.G.—who had recently turned four years old at the time of the interview—if a pillow was called a wall; she said that was "not wrong." Additionally, she did not answer the officer’s questions regarding whether there are consequences for not telling the truth. In fact, the officer’s report regarding the interview stated that N.L.G. "was unable to articulate the difference between truth and lie" and that she "did not understand that there were consequences for telling lies and could not say whether it was important to tell the truth."

¶13 The trial court ruled that those concerns were an issue of credibility for the jury to determine, and that N.L.G. should be allowed to testify if there was even the "slightest" indication that she could testify as to what happened to her. However, the court was concerned that N.L.G. would "sit there and say nothing" when called to testify, which would not provide a meaningful opportunity for cross-examination. Thus, the court determined that the best course of action would be to have N.L.G. testify before her video was played, and then provide the defense with the opportunity to continue its cross-examination after the...