State v. Munoz

• Decision Date: 27 February 1996
• Docket Number: No. 95-0922-CR,95-0922-CR
• Citation: 546 N.W.2d 570,200 Wis.2d 391
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Samuel M. MUNOZ, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 570

546 N.W.2d 570

200 Wis.2d 391

STATE of Wisconsin, Plaintiff-Respondent, v. Samuel M. MUNOZ, Defendant-Appellant. ^d

No. 95-0922-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Jan. 2, 1996.

Opinion Released Feb. 27, 1996.

Opinion Filed Feb. 27, 1996.

Appeal from a judgment of the Circuit Court for Milwaukee County; Maxine A. White, Judge.

For the defendant-appellant the cause was submitted on the briefs of Carlson & Huppertz, S.C., with Craig M. Kuhary, of Waukesha.

For the plaintiff-respondent the cause was submitted on the briefs of James E. Doyle, Attorney General, and Marguerite M. Moeller, Assistant Attorney General.

Before WEDEMEYER, P.J., and FINE and SCHUDSON, JJ.

SCHUDSON, Judge.

Samuel M. Munoz appeals from the judgment of conviction for two counts of second-degree sexual assault, following a jury trial. He argues that the trial court erred in denying his request for an in camera inspection of the victim's mental health treatment records. He also argues that the trial court improperly refused to allow him to cross-examine the victim regarding her "mother's attitude for babies born out of wedlock."

R.S. and Munoz were living together and had a consensual sexual relationship. R.S. testified that after living together for a few months their relationship changed and she wanted to move out. She testified that Munoz insisted that she stay and on several occasions forced her to have sex despite her refusal. The charges in this case relate to two such instances: on May 24, 1994, when Munoz tied up the victim with television cable; and on June 5, 1994, when Munoz held his hand over her mouth and nose, preventing her from breathing. Munoz testified and denied any nonconsensual sexual conduct. Although several other witnesses testified for each side, the trial primarily required the jury to make a credibility call between R.S. and Munoz.

Munoz first argues that the trial court erred by denying his request for an in camera inspection of R.S.'s mental health records, under State v. Shiffra, 175 Wis.2d 600, 499 N.W.2d 719 (Ct.App.1993). Defense counsel had reason to believe that R.S. had received psychiatric counseling for unrelated, prior sexual assaults. He advised the trial court:

[R.S.] made representations to people that she was seeing a psychiatrist dealing with prior assaults and I attempted to find out who that psychiatrist was so I could subpoena him, he could bring the records, the Court could examine them in camera.... Since I don't know who the psychiatrist is I couldn't do that.

....

... I believe [R.S.] has already indicated to my client that these psychological counseling sessions had to do with prior assaults, that it's probable or at least beyond the realm of possible that those records would be relevant in determining the credibility and ability of the victim to testify accurately.

....

... [S]he made a statement that she was being counseled in areas relative to the situation we have here. ¹ Whether or not those records are going to say she admitted to her counselor those allegations were false or whether she's going to be able to say she's able to accurately perceive these kinds of events I don't know, and I'll admit to the Court I don't know. Many of the reasons I'm not as sure as I would like to be in this case is that the victim has refused to give the defense even a basis to form an offer of proof beyond what I have so far performed.

Thus, unable to determine whether such treatment actually had taken place, Munoz asked the trial court to order the production of any such records for an in camera inspection.

The trial court denied the request, drawing a distinction between the "psychological records [that] relate to past abuse" sought by the defense in the instant case and records of a complaining witness's "psychological disorder" sought by the defense in Shiffra. The trial court concluded that Munoz had failed to make the sufficient preliminary showing required under Shiffra for an in camera inspection.

"To be entitled to an in camera inspection, the defendant must make a preliminary showing that the sought-after evidence is material to his or her defense. We review under the clearly erroneous standard the findings of fact made by the trial court in its materiality determination." Shiffra, 175 Wis.2d at 605, 499 N.W.2d at 721 (citation omitted). Whether a defendant has made the required preliminary showing presents a question of law. State v. Speese, 191 Wis.2d 205, 222, 528 N.W.2d 63, 70 (Ct.App.1995), (petition for review granted, March 21, 1995). In the instant case, no factual findings are in dispute; the trial court rendered its decision assuming that even "if there are records," Munoz had failed to make the required preliminary showing. ² Thus, we review the sufficiency of Munoz's showing without deference to the trial court's conclusion. Id.

In Shiffra, we concluded that a defendant may be entitled to have the trial court conduct an in camera inspection of a complaining witness's past mental health treatment records even though such records otherwise would be privileged under § 905.04, STATS. ³ Shiffra, 175 Wis.2d at 606-607, 499 N.W.2d at 722. We concluded "that the defendant's burden should be to make a preliminary showing that the sought-after evidence is relevant and may be helpful to the defense or is necessary to a fair determination of guilt or innocence." Id. at 608, 499 N.W.2d at 723. On appeal, Munoz argues:

Since the defendant was facing similar allegations [to those involved in R.S.'s prior assaults], one does not have to stretch too far to see how these records may be essential to Munoz's defense.... [T]hese records may demonstrate an inability of [R.S.] to accurately perceive events of this nature. In addition, the records may lay the basis for introduction of prior untruthful allegations of sexual assault by the victim, which would arguably be admissible under section 972.11(2)(b)(3), Wisconsin Statutes. ⁴

The State responds "that Munoz was on a fishing expedition to discover anything in [R.S.'s] putative psychiatric records which would affect her credibility," and argues that there is no authority for the trial court to require such discovery or disclosure. The State relies on State v. Lederer, 99 Wis.2d 430, 299 N.W.2d 457 (Ct.App.1980), where we upheld the trial court's denial of the defendant's request for discovery of the victim's past addresses, concluding that "the mere possibility that the past addresses might produce some evidence helpful to the defense is not enough to justify this intrusion into the victim's past." Id. at 442, 299 N.W.2d at 464 (emphasis in original).

Here, as in Lederer, the defense offered nothing more than "the mere possibility" that the records "might produce some evidence helpful to the defense." Lederer, however, was decided before Shiffra. The broad language of Shiffra--"that the sought-after evidence is relevant and may be helpful to the defense," Shiffra, 175 Wis.2d at 608, 499 N.W.2d at 723 (emphasis added)--certainly would seem to suggest a very low threshold for a defendant to establish the basis for an in camera inspection. A closer reading of Shiffra, however, reveals that a defendant must establish more than "the mere possibility" that psychiatric records "may be helpful" in order to justify disclosure for an in camera inspection.

First, we note that although Shiffra's reference to information that "is relevant and may be helpful to the defense " could cover almost anything the defense sought to discover, Shiffra did not repeat the "may be helpful" language elsewhere in the opinion but, instead, reiterated the standard: "may be necessary to a fair determination of guilt or innocence." Shiffra, 175 Wis.2d at 610, 499 N.W.2d at 723 (emphasis added).

Second, as the State argues on appeal:

The defense theory in Shiffra was that the sexual contact underlying the charges was consensual and that the victim's psychiatric condition caused her to misperceive the contact as a sexual assault. Specifically, the defense presented proof that the victim, Pamela, suffered from post-traumatic stress disorder stemming from repeated sexual assaults by her stepfather and that as a result, she might suffer flashbacks to the assaults which would then cause her to view consensual sexual conduct as nonconsensual.

Also in support of its theory that the victim was unable to perceive the difference between consensual and nonconsensual sexual contact, the defense cited a previous incident in which she had filed sexual assault charges that were later reduced to disorderly conduct. In that case, Pamela's sister had refused to testify on her behalf, in part because the sister felt Pamela could not " 'distinguish between what had occurred and what would be characterized as some dream effect.' "

For these reasons among others, we concluded that "the information might well serve as a confirmation of Pamela's reality problems in sexual matters." Shiffra, 175 Wis.2d at 611, 499 N.W.2d at 724 (emphasis in original). Here, by contrast, Munoz offered the trial court nothing to suggest that R.S. suffered from any psychological disorder rendering "reality problems in sexual matters." Munoz offered nothing except the assertion that R.S. had acknowledged receiving psychiatric counseling for prior assaults.

Although allegedly receiving psychiatric counseling for assaults may lead one to speculate about any number of "mere possibilities," standing alone it has no relevance. Indeed, to conclude otherwise would be to counter not only the confidentiality granted to patients under § 905.04(2), STATS., but also the very theme of Wisconsin's rape shield law that, with certain exceptions, precludes introduction of "any evidence concerning the complaining witness's prior sexual conduct." Section 972.11(2)(b), STATS. That the "prior sexual conduct" may have occurred during an assault, and that the assault may have led the...