State v. Nelson

Decision Date23 April 1986
Citation131 Wis.2d 591,393 N.W.2d 798
PartiesNOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE OF WISCONSIN, Plaintiff-Respondent, v. BRIAN NELSON, Defendant-Appellant. 85-1125-CR.
CourtWisconsin Court of Appeals

Circuit Court, Racine County

Affirmed

Appeal from a judgment of the circuit court for Rachine county: Emmanuel J. Vuvunas, Judge.

Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.

PER CURIAM.

Brian Nelson appeals a judgment convicting him of first-degree sexual assault against his three-year-old daughter, T.N. Nelson challenges the trial court's admission into evidence of testimony by two clinical psychologists who treated T.N. We conclude that the testimony was properly admitted. Nelson also challenges the propriety of a post-conviction hearing on T.N.'s unavailability. We find this proceeding proper and uphold the trial court's unavailability finding. Finally, Nelson contends that the trial court should not have admitted two prosecution exhibits and should have declared a mistrial in response to an improper comment by the prosecutor made during the opening statement. We conclude that the error, if any, was harmless and affirm the judgment of conviction.

The prosecution called as witnesses clinical psychologists Drs. Donald McLean and Burton Silberglitt. Dr. McLean had been contacted by T.N.'s mother to examine and if necessary treat T.N. for possible sexual abuse. Dr. McLean's testimony described the fifty-nine evaluation and treatment sessions he had conducted with T.N. over the eight-month period immediately prior to trial. Nelson's counsel objected to this testimony prior to its commencement on the grounds that it was hearsay and denied him his right to confrontation. The trial court ruled that Dr. McLean's testimony as to T.N.'s statements was admissible under sec. 907.03, Stats., because it formed the basis of an expert opinion. Dr. Silberglitt testified to his evaluation of T.N. without defense objection.

On appeal, Nelson challenges the admissibility of the doctors' testimony. He argues that it was inadmissible as expert testimony because neither doctor rendered an opinion. This court concludes that the testimony was admissible under the hearsay exception, sec. 908.03(4), Stats., statements made for purposes of medical diagnosis or treatment. This subsection permits a doctor to relate a patient's statements of past or present symptoms or history, including statements of the character or external source of the cause insofar as reasofnably pertinent to diagnosis or treatment. See Judicial Council Committee's Note--1974 following Wis. Stat. Ann. § 908.03 (West 1975).

Having concluded that the doctors' testimony comes within a recognized exception to the hearsay rule, we must now consider whether Nelson's constitutional right to confront T.N. was violated. See State v. Gollon, 115 Wis.2d 592, 597, 599-600, 340 N.W.2d 912, 914, 915-16 (Ct.App. 1983). To satisfy the confrontation clause of the sixth amendment, the prosecution must both demonstrate the unavailability of the declarant whose statement it wishes to use against a defendant and demonstrate that the statement bears indicia of reliability which afford the trier of fact a satisfactory basis for evaluating its truth. See Ohio v. Roberts, 448 U.S. 56, 65-66 (1980); State v. Bauer, 109 Wis.2d 204, 210-11, 325 N.W.2d 857, 860-61 (1982). We conclude that both prongs of this test have been satisfied in this case.

Nelson argues that the trial court made no finding that T.N. was unavailable and that it was error to conduct a post-conviction hearing on unavailability. We first note that in response to Nelson's motion to dismiss at the close of the prosecution's case, the trial court ruled that T.N. could not have testified, both because of her age and because of the trauma that would have been involved. We construe this as a finding of unavailability. Since Nelson did not have the opportunity to be heard on the question of T.N.'s unavailability at this juncture, however, we do not rely on this finding to uphold the trial court's conclusions that T.N. was an unavailable witness. Nonetheless, we are satisfied that the trial court's post-judgment hearing on unavailability was proper and uphold the finding made by the trial court at that hearing that T.N. was unavailable to testify.

First, this court concludes that the trial court's post-conviction hearing on unavailability was proper. The state supported its request for this hearing by citing cases in which the cause was remanded for a hearing on the question of whether a defendant's right not to incriminate himself was complied with when he made a statement to the police. See Upchurch v. State, 64 Wis.2d 553, 219 N.W.2d 363 (1974); Renner v. State, 39 Wis.2d 631, 159 N.W.2d 618 (1968...

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1 cases
  • Nelson v. Ferrey
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • June 10, 1988
    ...his conviction in the Wisconsin Court of Appeals which affirmed the trial court in an unpublished decision. See State v. Nelson, 131 Wis.2d 591, 393 N.W.2d 798 (Ct.App. 1986), aff'd, 138 Wis.2d 418, 406 N.W.2d 385 (1987). The Wisconsin Supreme Court then granted review and confirmed the con......

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