State v. Patricia A.M., 91-0105-CR

• Decision Date: 17 March 1992
• Docket Number: No. 91-0105-CR,91-0105-CR
• Citation: 168 Wis.2d 724,484 N.W.2d 380
• Parties: STATE of Wisconsin, Plaintiff-Respondent, d v. PATRICIA A. M., Defendant-Appellant. . Oral Argument
• Court: Wisconsin Court of Appeals

Page 380

484 N.W.2d 380

168 Wis.2d 724

STATE of Wisconsin, Plaintiff-Respondent, ^d v. PATRICIA A. M., Defendant-Appellant.

No. 91-0105-CR.

Court of Appeals of Wisconsin.

Oral Argument March 17, 1992.

Opinion Released April 22, 1992.

Opinion Filed April 22, 1992.

On behalf of the defendant-appellant there were briefs and oral argument by Michael W. Tobin of Milwaukee.

On behalf of the plaintiff-respondent there were briefs by James E. Doyle, Atty. Gen., and Marguerite M. Moeller, Asst. Atty. Gen. There was oral argument by Marguerite M. Moeller.

Before BROWN, ANDERSON and SNYDER, JJ.

SNYDER, Judge.

At their joint trial, a jury found Patricia M. ¹ and her husband David guilty of ten counts of sexual assault and one count of incest with a child, all as party to a crime. ² The charges involved Patricia's eight-year-old son Jeremiah and Tony, an eleven-year-old neighbor boy. Patricia argues that the trial court erred by refusing to sever her trial from her husband's or, in the alternative, by failing to give the jury a limiting instruction, thus prejudicing her separate interest. In addition, Patricia raises two multiplicity issues.

We conclude that the joint trial was prejudicial because damaging evidence, irrelevant as to Patricia, was admitted and the limiting instruction required by State v. DiMaggio, 49 Wis.2d 565, 577, 182 N.W.2d 466, 473, cert. denied sub nom., Pipito v. Wisconsin, 404 U.S. 838, 92 S.Ct. 127, 30 L.Ed.2d 70 (1971), once severance is denied was not given. We therefore reverse on the severance issue and remand for a new trial. We are unpersuaded by Patricia's multiplicity arguments, however, and so affirm that determination.

Testimony at trial elicited the following facts. On August 25, 1989, Tony spent the night at Jeremiah's. The two boys were showering together when Patricia entered the bathroom, reached past the shower curtain, and fondled both boys' genitals for several minutes.

After their shower, the boys entered the living room on their way to their bedroom. The living room also served as Patricia's and David's bedroom. Patricia was sitting naked on an opened sofa bed; David was on a cot a few feet away. Patricia directed each boy to take turns engaging in various sex acts with her, both individually and simultaneously, while David watched. David did not get physically involved but occasionally verbally encouraged the boys' actions. The entire episode, bathroom to living room, took place over approximately one hour.

At trial, Jeremiah and Tony testified to all of the behavior alleged against Patricia. Jeremiah proved to be a reluctant witness, however, in testifying about any behavior involving David. ³ Both David's and Patricia's theory of defense was that the boys fabricated the entire scenario, gaining their knowledge of sexual matters from pornographic movies viewed at Tony's birthday party some months before.

The state then called as a witness Dr. Paul Gochis, a physician on the Sexual Assault Program team in the emergency department at a local hospital. Dr. Gochis had examined Jeremiah when the investigation first began. Dr. Gochis testified over defense counsel's objection that Jeremiah related to him conduct alleged in the complaint as well as uncharged instances of sodomy by David. Dr. Gochis stated that Jeremiah demonstrated this conduct for him by using anatomically correct dolls. Dr. Gochis also testified that upon physically Twice pretrial, Patricia unsuccessfully moved to sever her trial from David's, objecting to Dr. Gochis' testimony about evidence pertaining to the uncharged sexual abuse, asserting that it was relevant only to David. Subsequent motions for mistrial also were denied. Likewise, her sec. 809.30, Stats., motion seeking postconviction relief on the issues of severance and admission of "other acts" evidence was denied.

                examining Jeremiah, he found anal scarring and loss of anal sphincter[168 Wis.2d 731]  tone, and that such findings suggested repeated anal penetration.  Dr. Gochis opined that this physical evidence was consistent with Jeremiah's statement that David had sodomized him.  The medical report describing the physical evidence was admitted as "other acts" evidence under sec. 904.04(2), Stats.  Jeremiah's alleged statements about David's acts were admitted as a prior inconsistent statement under sec. 908.01(4)(a)1, Stats. 4  His alleged statements about Patricia's acts were admitted as a prior consistent statement under sec. 908.01(4)(a)2
                

SEVERANCE

Patricia first argues that admission of Dr. Gochis' medical testimony was relevant only to David and thus made the potential for jury confusion so great that severance was necessary to a fair trial. Specifically, she complains that admission of Dr. Gochis' testimony regarding anal contact could have been wrongly viewed by the jury as evidence of her guilt in the charged crimes. In the alternative, she argues that absent severance, the court should have cautioned the jury to disregard as to her the medical evidence relating to David. We agree that the court erred in not employing one of those options.

A trial court has the power to try defendants together when they are charged with the same offense arising out of the same transaction and provable by the same evidence. Section 971.12, Stats.; State v. Brown, 114 Wis.2d 554, 559, 338 N.W.2d 857, 860 (Ct.App.1983). Granting or denying severance is left to the sound discretion of the trial court. State v. Jennaro, 76 Wis.2d 499, 505, 251 N.W.2d 800, 803 (1977). Absent an abuse of discretion, we will not disturb the trial court's ruling. Brown, 114 Wis.2d at 559, 338 N.W.2d at 860. What constitutes an abuse of discretion depends upon the facts of each case. Id. Although a single trial may be desirable from the standpoint of economical or efficient criminal procedure, "the right of a defendant to a fair trial must be the overriding consideration." Id.

Severance generally is considered appropriate in "line of evidence" cases--cases where a body of evidence is relevant to the liability of only one of the co-defendants--because of the risk that the trier of fact may treat all of the evidence as evidence against both defendants. State v. Suits, 73 Wis.2d 352, 361-62, 243 N.W.2d 206, 211 (1976); see also sec. 971.12(3), Stats. Our supreme court has defined the trial court's role in line of evidence cases. In State v. DiMaggio, 49 Wis.2d 565, 182 N.W.2d 466, cert. denied sub nom., Pipito v. Wisconsin, 404 U.S. 838, 92 S.Ct. 127, 30 L.Ed.2d 70 (1971), the court held:

If it appears during the course of the trial that a good deal of evidence applicable to only one defendant is being developed, the trial [court] has an option. [It] may order a severance at that time or the court may elect to give the jury a cautionary instruction to the effect that evidence against one may not be treated as evidence against [both], simply because they are being tried together.

Id. at 577, 182 N.W.2d at 473 (citation omitted; emphasis added).

At oral argument, the state contended that the trial court's failure either to sever or to caution the jury was not error because, as a threshold matter, there did not develop a "good deal of evidence." Id.

                (emphasis added). 5  Not only do we disagree, but this position is contrary to the state's own brief.  In its brief, the state argued that the challenged evidence would have been admissible against Patricia in a separate trial.  The state then urged this court to "assign substantial probative value to the medical evidence" because Jeremiah was a poor witness on the stand and because the medical evidence was "the only physical evidence corroborating Jeremiah's statements to Dr. Gochis."
                

We fail to see how this evidence possesses "substantial probative value" yet does not constitute a "good deal" of evidence. We do not here decide if DiMaggio establishes that the trial court must determine as a threshold matter whether there exists a "good deal" of evidence. Whether or not it does, we conclude that a "good deal" of evidence existed here and agree with the state that this evidence possesses "substantial probative value," thus triggering the further requirement that the court either sever or issue an admonitory instruction.

The supreme court expressly noted that severance based on line of evidence grounds may not seem warranted prior to trial because at that stage it often is difficult for the trial court to ascertain "exactly what evidence [is] applicable to whom." Id. Furthermore, once a joint trial is underway, severance may prove to be a practical impossibility because of the time, resources and energy the parties and the court already have invested. If the trial court thus elects either before or during trial not to sever, the cautionary instruction option becomes critically important because realistically, it may remain the sole safeguard of a potentially prejudiced defendant's right to a fair trial.

Here, Patricia moved twice for severance, clearly stating the grounds. The trial court denied both motions, as was within its discretion to do. The challenged evidence was then presented at trial. When it became clear that a "good deal of evidence" pertaining only to David was developing, it became incumbent upon the court to instruct the jury as directed by DiMaggio. ⁶

A defendant has a due process right to a fair trial. See Brown, 114 Wis.2d at 559, 338 N.W.2d at 860. "[D]ue process is an exact synonym for fundamental fairness." In re D.M.D., 54 Wis.2d 313, 318, 195 N.W.2d 594, 597 (1972). Fundamental fairness demands that a jury receive proper instructions which fully and fairly inform it of the law it is to apply. See State v. Hurd, 135 Wis.2d 266, 275, 400 N.W.2d 42, 46 (Ct.App.1986). The instructions also must assist the jury in analyzing the evidence. State v. Waalen, 125 Wis.2d 272, 274, 371 N.W.2d 401, 402 (Ct.App.1985).

The state concedes no limiting instruction was given here and that the trial court...