State v. Nelson

• Decision Date: 01 June 1987
• Docket Number: No. 85-1125-CR,85-1125-CR
• Citation: 138 Wis.2d 418,406 N.W.2d 385
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Brian NELSON, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 385

406 N.W.2d 385

138 Wis.2d 418

STATE of Wisconsin, Plaintiff-Respondent, v. Brian NELSON, Defendant-Appellant-Petitioner.

No. 85-1125-CR.

Supreme Court of Wisconsin.

Argued Feb. 9, 1987.

Opinion Filed June 1, 1987.

Martin I. Hanson, Racine, argued, for defendant-appellant-petitioner; Michael J. Fitzgerald and Hanson, Gasiorkiewicz and Becker, S.C., Racine, on brief.

Michael R. Klos, Asst. Atty. Gen., argued, for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., on brief.

CALLOW, Justice.

This is a review of an unpublished decision of the court of appeals affirming a conviction of the circuit court for Racine county, Judge Emmanuel J. Vuvunas, which found Brian Nelson guilty of first-degree sexual assault.

This review presents a number of issues related to the admission of hearsay statements. First, did the trial court err in admitting the out-of-court statements of the alleged victim to two psychologists, Dr. McLean and Dr. Silberglitt? Second, if the out-of-court statements were properly admitted as exceptions to the hearsay rule, did the admittance of these statements violate the defendant's right of confrontation under the United States and Wisconsin Constitutions? Third, did the trial court err in admitting into evidence drawings made by the alleged victim after the prosecutor in the opening statement told the jury that the drawings depicted the defendant as an erect penis? We agree with the court of appeals that the out-of-court statements were admissible as exceptions to the hearsay rule under sec. 908.03(4), Stats.--statements made for the purposes of medical diagnosis or treatment. Furthermore, we agree with the court of appeals that there was no violation of the confrontation clause of the State or Federal Constitution. Finally, we find that the admittance into evidence of the drawings constituted harmless error.

In April of 1984 the defendant, Brian Nelson, was charged with one count of intentionally and feloniously having sexual contact with a person twelve years or younger. The alleged victim of the sexual assault was his daughter, T.N., who was born June 7, 1980. At trial the state presented no eyewitness testimony and did not call T.N. to testify. Instead, the evidence of sexual assault and the evidence linking Brian Nelson to the sexual assault were presented primarily through the testimony of T.N.'s mother, Susan Nelson, T.N.'s treating psychologist, Dr. McLean, and a second psychologist, Dr. Silberglitt.

In April of 1982, Brian and Susan Nelson were divorced. Susan Nelson was granted custody of their daughter, T.N., and the defendant was granted reasonable visitation rights. Shortly after the divorce was finalized, Mitchell Blada moved in with Susan Nelson and T.N. Susan Nelson testified at trial that beginning in August, 1983, T.N. became apprehensive and at times hysterical when the defendant came to pick her up for visitation. According to Susan Nelson, after a visit with the defendant in early August, 1983, T.N. begged not to return to her father's residence. Susan Nelson testified that by October, when she would inform T.N. that T.N. was going to her father's house, T.N. would go "berserk." She would cry and scream, and beg not to go. At this point visitations essentially stopped.

At Christmas, visitation was resumed without incident. However, Susan Nelson testified that shortly thereafter T.N. attempted to pull her mother's pants down while playing a game of tag. According to Susan Nelson, T.N. indicated that daddy had taught her to play tag in this manner. Susan Nelson also testified that on January 20, 1984, T.N. insisted that a picture of Michael Jackson be brought into the bathroom to watch her. T.N. pointed at her vagina and said that Michael Jackson doesn't look like this and "daddy doesn't look like this either." Susan Nelson testified that, when she asked T.N. how she knew this, T.N. responded, "I pulled his underpants down." When Susan Nelson told T.N. that it must have been an accident, T.N. insisted that daddy told her to pull down his underpants and that it was alright because Cheryl, the defendant's second wife, was not at home.

Susan Nelson became suspicious of possible sexual abuse and contacted Dr. McLean to discuss whether there was a possibility of sexual abuse. Susan had previously been given Dr. McLean's name when she called the court to find out if she "had to force" T.N. to visit the defendant.

Dr. Donald McLean, a clinical psychologist, was called by the state and was qualified by the court as an expert witness in the field of psychology. Dr. McLean's notes had been provided to the defense prior to trial. Defense counsel, outside the presence of the jury, objected on hearsay grounds to Dr. McLean's anticipated testimony concerning statements made by T.N. In explaining the objection, defense counsel stated: "Now, the basic problem with this, as I see it, is that there is a witness then to whom we are denied a right of confrontation." The trial court ruled that the statements made by T.N. were admissible under sec. 907.03, Stats., ¹ since they formed the basis of an expert opinion. The trial court did not rule on the confrontation issue, and defense counsel did not repeat the objection.

Dr. McLean testified to a series of fifty-nine evaluation and treatment sessions with T.N. from January 25, 1984, to September 11, 1984. The treatment sessions were generally conducted in Dr. McLean's play therapy room, although Dr. McLean occasionally spoke with T.N. in his regular office. The play therapy room was set up with games, puzzles, coloring books, dolls, and other toys which allow a child to express oneself through play.

Dr. McLean testified that T.N. had revealed at a number of sessions that she had touched daddy where he went to the bathroom. According to Dr. McLean, he placed anatomically correct male and female dolls in the play therapy room on February 27, 1984. Dr. McLean testified that at the February 28 session, T.N. placed the female doll's face against the genital area of the male doll and said, "she gets mud on her face." Upon being asked what she meant, T.N. replied, "its white and sticky." Dr. McLean testified that in a subsequent session T.N. told him that her father warned her not to talk about the incident and also told her to say that Susan's boyfriend, Mitch, did it.

Dr. McLean related the following conversation with T.N. "Do you pull someone's underpants down and touch him where he goes to the bathroom, and the child said yes ... and I said, well, who is it that you touch where he goes to the bathroom, and the child answered Mitch. And I said you told me it was Daddy. Was it Mitch or Daddy, and the child said Daddy. And I said then why did you say Mitch, and she said it was Mitch, and I said then it was not Daddy. She said it was Daddy, then Mitch, then Daddy, and she answered with he told me to say it was Mitch. I said who told you to say it was Mitch. She said Daddy." Dr. McLean further testified that, when he asked T.N. if she would only tell the truth to anyone who talks to her, she responded, "I don't have to tell the truth."

Dr. McLean also testified that throughout the treatment T.N. was extremely anxious and reluctant to talk about the incident and that at times T.N. would appear depressed and emotionally drained.

Dr. Burton Silberglitt, a clinical psychologist, was also called by the state as an expert witness. The defense raised no objection to his testimony which was based on one session conducted on March 27, 1984. Dr. Silberglitt testified that T.N. tried to ignore discussing her father because it was "discomforting to her and frightening to her and traumatic to her to get into this." According to Dr. Silberglitt, when he brought up T.N.'s father, the child stated that she "played with his thing that he put in the toilet." Dr. Silberglitt further testified that T.N. was very agitated and that it was his recommendation that T.N. engage in therapy with a qualified therapist.

Mary Anne Jensen, a social worker for Racine county, was also called to testify. She testified that on January 29, 1984, T.N. drew a picture which depicted herself and her father. The pictures were marked as exhibits and shown to the jury. Mary Anne Jensen offered no explanation of the drawing's significance. However, in the opening statement to the jury, the state told the jury that the picture drawn by T.N. depicted the defendant as an erect penis. The defense raised no objection to this statement.

At the close of the state's case, the defense made a motion to dismiss, and argued, first, that the hearsay statements of T.N. as related by the psychologists were inadmissible because no expert opinion had been offered and, second, that defendant's right of confrontation had been violated because the state had not shown that T.N. was unavailable as a witness. The state responded that the testimony of the two psychologists demonstrated that T.N. had suffered a severe trauma because of her sexual experiences with her father, that the trauma had not been cured, and that T.N. was "effectively unavailable" to testify at trial. Defense counsel also argued that the defendant's right to confrontation had been violated because the state did not suggest or consider the possibility of videotaping the child in her home, the psychologist's play room, or in some other noncourtroom setting.

The trial court, in denying the motion to dismiss, ruled that the testimony of Dr. McLean as to what T.N. said during the therapy sessions was admissible hearsay. The trial court also ruled that the testimony made it patently clear that T.N. could not have testified due to her age and the potential trauma. Based on the testimony at trial, the court stated: "I don't think the child would have been available in any sense for what we would determine to be examination or appearance in court or even by videotape or any other electronic means."

The defense...