State v. Mercado

• Decision Date: 20 January 2021
• Docket Number: No. 2018AP2419-CR,2018AP2419-CR
• Citation: 953 N.W.2d 337,2021 WI 2,395 Wis.2d 296
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Angel MERCADO, Defendant-Appellant.
• Court: Wisconsin Supreme Court

395 Wis.2d 296

953 N.W.2d 337

2021 WI 2

STATE of Wisconsin, Plaintiff-Respondent-Petitioner,

v.Angel MERCADO, Defendant-Appellant.

No. 2018AP2419-CR

Supreme Court of Wisconsin.

Oral Argument: October 26, 2020

Opinion Filed: January 20, 2021

For the plaintiff-respondent-petitioner, there were briefs filed by Scott E. Rosenow, assistant attorney general; with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Scott E. Rosenow.

For the defendant-appellant, there was a brief filed by Esther Cohen Lee, Milwaukee. There was an oral argument by Esther Cohen Lee.

An amicus curiae brief was filed on behalf of Wisconsin Association of Criminal Defense Lawyers by Robert R. Henak, Ellen Henak, and Henak Law Office, S.C., Milwaukee.

ROGGENSACK, C.J., delivered the majority opinion for a unanimous Court.

PATIENCE DRAKE ROGGENSACK, C.J.

¶1 We review the court of appeals’ decision¹ that reversed the circuit court's² conviction of Angel Mercado based on its determination that the video-recorded forensic interviews of Mercado's victims were inadmissible. On appeal, the State urges us to reverse the court of appeals arguing that the victims’ video-recorded forensic interviews were admissible under the normal procedures of Wis. Stat. §§ 908.08(1) - (6) (2017-18)³ or under the residual hearsay exception found in Wis. Stat. § 908.03(24) by way of Wis. Stat. § 908.08(7).

¶2 We conclude that Mercado forfeited several of his objections to the admissibility of the forensic interviews. Specifically, Mercado forfeited his contentions that: (1) the circuit court erred by not watching the victims’ forensic interviews in their entirety prior to admitting them and (2) the circuit court erred by permitting N.G. to testify prior to the jury watching her forensic interview. Additionally, although Mercado objected to the admissibility of N.G.’s video-recording under Wis. Stat. §§ 908.08(2) and (3), we conclude that her video-recording is admissible under § 908.08(7), based on the residual hearsay exception found in Wis. Stat. § 908.03(24). Therefore, we conclude that the circuit court did not erroneously exercise its discretion when it admitted the three video-recorded forensic interviews during Mercado's trial. Accordingly, the court of appeals’ decision is hereby reversed in full and has no precedential value.

I. BACKGROUND

A. Factual Background

¶3 Mercado was arrested in August of 2016 for sexually assaulting N.G., L.G. and O.G., who were ages four through seven at the time of the assaults. The victims and their mother, C.C., lived with Mercado during that time. C.C. had known Mercado since 2011 and she and her children moved in with him so that she could assist him with his day-to-day activities (e.g., banking, appointments, medication, etc.).

¶4 C.C. learned of the assaults on August 11, 2016, while she was driving with N.G., her youngest daughter. After hearing a song lyric that went "I want to lick you up and down," N.G. said from the backseat "[t]hat's what he does." C.C. asked N.G. who "he" was; N.G. told her "Viejo." Viejo is Spanish for "old man" and is a nickname the victims and others used for Mercado.

¶5 When C.C. and N.G. returned home, C.C. asked L.G. if anyone had been touching her. L.G. said yes. She too told her mother that Mercado was the person who touched her. Finally, C.C. waited for O.G., who at the time was out with Mercado, to return home. She asked O.G. "has [Mercado] been touching you?" O.G. said that "[y]es he does" and that the last time it happened was "[t]he day before yesterday."

¶6 C.C. asked N.G. and L.G. where Mercado had touched them. N.G. responded "down there" and pointed to "[h]er private area." L.G. said to C.C. that "he's been touching them in their private area and licking them." According to C.C., "private area" or "private part" are terms that the family uses to refer to the vagina area.

¶7 C.C. took all three girls to the hospital that night. The hospital staff did not find any physical evidence of the assaults; however, each victim individually repeated her allegations to the hospital staff. For example, N.G., without being prompted, said "Viejo keeps licking me on my butt. I hate him." When asked why she was at the hospital, L.G. responded "To see if I'm ok. Vie[j]o has been touching me everywhere."

¶8 On August 16, 2016, C.C. took N.G., L.G. and O.G. to the Sojourner Family Peace Center in Milwaukee where they underwent forensic interviews with Officers Patricia Klauser and Danillo Cardenas. Before asking about what happened to them, the officers took the time to ascertain whether N.G., L.G. and O.G. understood the difference between right and wrong or the truth and a lie.

¶9 N.G. and L.G. initially had difficulty articulating that difference. For example, Officer Cardenas asked N.G. "what happens when somebody says something that's wrong and an adult finds out about it?" N.G. said she did not know. N.G. also said it would be both wrong and "not wrong" to call a pillow a wall. Conversely, when asked if she thought it was important to tell what is right, N.G. nodded affirmatively.

¶10 Likewise, L.G. initially told Officer Klauser it would be the truth if someone said that Officer Klauser's black pants were red. L.G. also said that she did not know if it was important to "tell what really happened." However, she said it would be "wrong" if someone said that Klauser's pants were red when they were black.

¶11 O.G. told Officer Klauser that kids who lie at school get "put ... in time-out." She also stated that it would be a lie to say that Officer Klauser's black pants were red.

¶12 During N.G.’s forensic interview, she told Officer Cardenas that "[Viejo] ... always ... touch[ed] [them]" and that Mercado licked her and L.G. "on the butt."

Officer Cardenas showed N.G. a body diagram and had her point to where Mercado touched her. She pointed to the buttocks on the diagram, and Officer Cardenas circled the spot of the diagram that corresponded with N.G.’s response.

¶13 Officer Klauser interviewed L.G. and O.G. Similar to N.G., L.G. told Officer Klauser that "[Viejo] touched [her] in [her] butt and [her] ‘pee-pee’, and on [her] two ‘T-T's[’]." She told Officer Klauser that "[Viejo] comes in [her] room ... and then he walked [her] in the basement-then he pulled [her] pants down." Officer Klauser showed L.G. a similar body diagram and had L.G. put an ‘X’ wherever Mercado touched her. L.G. drew an ‘X’ on the chest, pubic area and buttocks of the diagram.

¶14 Finally, O.G. told Officer Klauser that Mercado "was touching [her] everywhere. And he did [it to] [her] two little sisters." Specifically, O.G. said that Mercado was "touching [her] in ... the private part" and that Mercado's hands were "[u]nder [her] clothes." As with L.G., O.G. told Klauser that the assaults happened in the basement of their home. Officer Klauser also had O.G. put an ‘X’ on the diagram. She drew an ‘X’ on the pubic area of the body diagram.

¶15 The State filed a criminal complaint against Mercado based upon the information obtained during the victims’ forensic interviews. After learning of the criminal complaint against him, Mercado surrendered to law enforcement.

B. Procedural Posture

¶16 The State charged Mercado with two counts of first degree sexual assault of a child, sexual intercourse with a child under 12 years old contrary to Wis. Stat. § 948.02(1)(b) and one count of first degree sexual assault of a child, sexual contact with a child under 16 years old contrary to Wis. Stat. § 948.02(1)(d).⁴

¶17 Before trial began, the State, pursuant to Wis. Stat. § 908.08(2)(a), informed Mercado and the circuit court of its intent to introduce the video-recordings of the victims’ forensic interviews into evidence. In a pretrial hearing regarding the video-recordings’ admissibility, Mercado objected to the introduction of N.G.’s and L.G.’s video-recordings. Specifically, Mercado alleged that N.G. "evinces in this interview ... zero ability to be able to tell the examiner the difference between truth and a lie." Mercado raised the same objection regarding L.G. The State disagreed. It acknowledged that "[N.G.] does have some trouble with the examples that she's given." Nonetheless, the State argued that the video-recording showed that she understood the importance of telling the truth. Mercado did not object to the introduction of O.G.’s forensic interview.

¶18 The court agreed to watch "the first few minutes of each of the videos" to determine whether N.G. and L.G. understood the difference between the truth and a lie as required by Wis. Stat. § 908.08(3)(c). The State also cited a portion of N.G.’s video-recording wherein N.G. corrects one of Officer Cardenas's statements as "important context" for her understanding. The court agreed to watch that portion of the video-recording as well.

¶19 After reviewing the "relevant portions" of the video-recordings, the court determined that N.G. had "some acknowledgement of knowing what it means to tell the truth and what it means to not tell the truth." Similarly, the court determined that "there's far more in [L.G.’s] interview that goes toward the importance of telling the truth." Therefore, the court allowed the State to introduce both video-recordings. Mercado again raised an objection to N.G.’s video-recording at this juncture; he did not renew his objection to L.G.’s video-recording. The court overruled Mercado's objection.

¶20 Mercado's case continued to trial in January of 2017.⁵ There, the State introduced the video-recordings of their forensic interviews which were admitted into evidence.⁶ The State also provided the jury with transcripts of the videos. Mercado did not object to either O.G.’s or L.G.’s video-recordings. After each video, the State called each victim to the stand to testify.

¶21 L.G. testified consistent with what she told her mother, what she told Nurse Susan Kanack at the hospital and with what she said during her forensic interview. Specifically she...