State v. Nelson

• Decision Date: 09 December 2020
• Docket Number: Appeal No. 2019AP194-CR
• Citation: 954 N.W.2d 11,2021 WI App 2,395 Wis.2d 585
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Thomas A. NELSON, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

395 Wis.2d 585

954 N.W.2d 11

2021 WI App 2

STATE of Wisconsin, Plaintiff-Respondent,

v.Thomas A. NELSON, Defendant-Appellant.^†

Appeal No. 2019AP194-CR

Court of Appeals of Wisconsin.

Submitted on Briefs: December 20, 2019

Opinion Filed: December 9, 2020

On behalf of the defendant-appellant, the cause was submitted on the briefs of Steven W. Zaleski of Zaleski Law Firm, Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Anne C. Murphy, assistant attorney general, and Joshua L. Kaul, attorney general.

Before Reilly, P.J., Gundrum and Davis, JJ.

GUNDRUM, J.

¶1 Thomas A. Nelson appeals a judgment of conviction for second-degree sexual assault, false imprisonment, and four counts of felony bail jumping. He claims his constitutional Confrontation Clause right was violated at trial by the State's use of nurse practitioner Rita Kadamian's report of her examination of the victim without Kadamian herself testifying. Nelson made no objection to this use during the trial, but now claims it was "plain error." Nelson also contends the prosecutor committed misconduct during her closing argument and the court failed to take sufficient steps to address it, resulting in a denial of due process and plain error. Nelson fails to convince us that any errors occurred, but even if there were errors, they were not "plain errors," and they were harmless.

Background

Use of Kadamian's report

¶2 The State charged thirty-year-old Nelson with nine felony counts, including second-degree sexual assault, strangulation, and false imprisonment, in connection with his violent assault of seventeen-year-old J.T.¹ on January 21, 2017. Nelson initially denied having sexual contact with J.T., but following the return of incriminating DNA testing, he took the position at trial that he did have sex with her but that it was consensual "rough" sex. The following relevant evidence was presented at trial.

¶3 Hours after the assault, J.T. was examined by Gillian Lackey, a Sexual Assault Nurse Examiner (SANE) at Wheaton Franciscan Hospital in Racine. Lackey testified that during a SANE examination, she "listen[s] to the history of the assault," conducts "a physical assessment for any kind of illness or injury," and then collects evidence. The "biggest difference" between a SANE examination and "just a physical that you would give somebody," Lackey stated, is that during a SANE examination, "we actually collect evidence, DNA." When Lackey listens to an alleged victim's "history of the assault," there is a "victim[’]s advocate" present and "usually ... a police officer ... as well." In this case, an advocate and a detective were present when J.T. provided Lackey the history of the assault by Nelson.

¶4 Because there was concern about the possible involvement of drugs or alcohol in connection with the assault, Lackey procured a sample of J.T.’s urine and blood for testing. Lackey then prepared her "specialty forensic exam room" and set up an evidence collection kit from the Department of Justice "based on what [J.T.’s] history of [the] assault was and where [Lackey felt] the most evidence and DNA c[ould] be collected off of her body."

¶5 During a SANE examination, if the alleged victim is wearing the same clothing as during the assault, as J.T. was, Lackey collects the clothing. She lays out a sheet with paper pads that the alleged victim stands on, and he or she then removes his or her clothing. The alleged victim puts on a gown, and Lackey places the sheet and clothing into a bag that she seals. Lackey followed this procedure with J.T., and on the witness stand, Lackey identified the various articles of clothing she collected from J.T.

¶6 Consistent with standard procedure, Lackey next performed and documented a "head to toe" assessment of J.T. Lackey noted and photographed "red marks" on J.T.’s ears and left cheek, "markings" on her inner thigh, and bruising on her breasts and left arm. The State showed the photographs to the jury, and Lackey testified that the injuries to J.T.’s arm and thigh were consistent with J.T.’s report that Nelson had bit her in those areas during the assault. After the head-to-toe assessment, Lackey collected evidence from J.T.’s mouth, hands, arm, breasts, thigh, and neck, collecting the latter because J.T. had indicated that Nelson had "placed his hands around her neck" during the assault.

¶7 Lackey next examined, photographed, and collected evidence from J.T.’s vaginal area. She observed injury to J.T.’s vagina, but because it was "very swollen," J.T. was "extremely uncomfortable," and she was bleeding due to her menstrual cycle, Lackey was not certain if the injury was a tear or an abrasion. When asked if J.T. had "any injury to her hymen," Lackey responded, "[n]ot that I was able to see." Lackey did observe "swelling and inflammation" on J.T.’s labia majora and what "look[ed] like an abrasion" on her labia minora.

¶8 Lackey explained that the evidence she collects during a SANE examination is sealed in an "evidence collection box" that is "handed off to a police officer" and ultimately "goes to the crime lab." Lackey testified that she also collected evidence from Nelson and that Nelson and J.T. were kept in separate rooms "to avoid any kind of cross contamination."

¶9 Through cross-examination and redirect examination, Lackey agreed that "part of [her] job is to collect evidence for criminal prosecution purposes." She acknowledged that while she observed J.T.’s injuries, she did not "personally ... know how they got there," and it was possible they "could have been part of a consensual action as opposed to a[ ] [non]consensual action." She acknowledged that she observed no injuries to J.T.’s neck, but testified that with a strangulation victim, she might or might not find such injuries depending on the amount of pressure applied and length of time. Lackey further acknowledged that "some women on their menstrual cycle can be swollen" in the vaginal area where J.T. was swollen. She added, however, that J.T. had reported that she was at the end of her cycle and "it's not usually common to have that intense of inflammation and swelling" at the end of a menstrual cycle.

¶10 On February 2, 2017, eleven days after the assault and SANE examination, J.T. was seen by nurse practitioner Rita Kadamian at the Racine County Child Advocacy Center at Children's Hospital of Wisconsin [CHW] in Racine. Kadamian prepared a report in relation to her examination of J.T.; however, Kadamian did not testify at Nelson's trial because she was on medical leave at the time. Instead, Michael Cahill, a nurse practitioner in the Milwaukee County Child Advocacy Center at CHW in Milwaukee, testified for the State. Cahill explained that he is on a team of medical providers who evaluate children and adolescents referred to the center because of physical, sexual, or other abuse and that Kadamian works in a similar role at the center in Racine. Cahill testified regarding portions of Kadamian's "medical report" related to her "medical examination" of J.T.

¶11 When asked why J.T. would have been seen at the Racine center on February 2 when she had previously been examined by a SANE nurse on the day of the assault eleven days earlier, Cahill responded that it is "routine standard protocol to medically follow up in about two weeks to do some further testing" for infections, sexually transmitted diseases, and pregnancy. Referring to Kadamian's report, Cahill testified that it indicated Kadamian observed bruising and a healed tear on J.T.’s hymen. He agreed that the report further indicated that these injuries "were consistent with penetrating blunt force trauma." Cahill testified that it is not possible to "date" the bruising or tear that Kadamian observed and confirmed that tissue "down there ... heal[s] rather quickly."

¶12 Nelson did not object to the admission of Kadamian's report into evidence or to Cahill's testimony regarding the report. Instead, counsel for Nelson cross-examined Cahill, and in doing so, got Cahill to confirm that he was "not saying whether penetration was forced or consensual" and that the report indicated that J.T. "bruises bleeds easily."

¶13 Although Cahill testified to very little of Kadamian's report, and the report was never provided to the jury during its deliberations, in order to later analyze the testimonial versus nontestimonial nature of the report—in relation to Nelson's Confrontation Clause challenge—we note many of its details.

¶14 On page one, the report is titled "Child Advocacy and Protection Services Sexual Abuse Evaluation" and identified as "Progress Notes" of Kadamian. The "Service" is identified as "Child Advocacy-Protection," and there is an indication that the report relates to a "Consultation/evaluation requested by: Caledonia PD [Matthew] Vannucci [and] Racine County Human Services Department Darcy Knutson." The "Chief Complaint" is noted as "Concern for Sexual Abuse." According to the report, J.T. was brought to the Center "by [her] mother" for "consultation/evaluation of possible child maltreatment." The report details the history of the assault as provided by "mother, medical records and patient," including that J.T. reported that Nelson ejaculated during the assault and "did not use a condom."

¶15 Page two of the report indicates that J.T. was being evaluated "for follow up of injuries." It states that J.T. "denies pain or discharge on this date. She reports a small amount of bleeding has continued since the incident." The report details J.T.’s medications and prescriptions as well as prescribed dosages, and indicates "No Known Allergies," "Headache" for "Past Medical History," and "No pertinent past surgical history." It identifies the "Family History" of J.T.’s mother, father, and paternal and maternal grandparents and notes that "[t]here is second hand smoke exposure and there are pets in the home (dog)." The report states that since the assault, J.T. "wakes during night and feels...