State v. Richard A.P.

• Decision Date: 06 November 1998
• Docket Number: No. 97-2737-CR,97-2737-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, d v. RICHARD A.P., Defendant-Appellant. . Oral Argument
• Court: Wisconsin Court of Appeals

Page 674

589 N.W.2d 674

223 Wis.2d 777

STATE of Wisconsin, Plaintiff-Respondent, ^d v. RICHARD A.P., Defendant-Appellant.

No. 97-2737-CR.

Court of Appeals of Wisconsin.

Oral Argument Nov. 6, 1998.

Opinion Released Dec. 30, 1998.

Opinion Filed Dec. 30, 1998.

On behalf of the defendant-appellant, the cause was submitted on the briefs and oral argument of Robert R. Henak of Shellow, Shellow Glynn, S.C. of Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Marguerite M. Moeller, assistant attorney general, and oral argument by Marguerite M. Moeller.

Before SNYDER, P.J., BROWN and NETTESHEIM, JJ.

NETTESHEIM, J.

Richard A.P. appeals from a judgment of conviction for sexual contact with a person under thirteen years of age and intimidation of a victim contrary to §§ 948.02(1) and 940.44(1), STATS. Richard additionally appeals from the trial court order denying his motion for postconviction relief.

On appeal, Richard challenges various evidentiary rulings by the trial court. ¹ Richard contends that the court erred when it: (1) restricted the use of the mental health records of the victim's mother; (2) precluded other evidence of the mother's mental health history; and (3) excluded exculpatory expert testimony contending that Richard did not present the profile of a person with a sexual disorder. We conclude that the trial court properly exercised its discretion in restricting the use of the mother's mental health records and in refusing to otherwise permit evidence of her mental health history. However, we conclude that the court erred in barring the expert testimony and that this ruling was not harmless error. We reverse the judgment of conviction and remand for a new trial.

BACKGROUND

Richard is the husband of Joanna P. and the stepfather of Joanna's daughter, Kathleen F. The relevant facts at the jury trial revealed that on January 2, 1996, Richard and Joanna were caring for Kathleen's five-year-old son, Stephen. When Kathleen returned and picked up Stephen, he told her, as they were walking to Kathleen's car, that he and Richard had a secret. When asked about the secret, Stephen told Kathleen that he was sitting on Richard's lap under an electric blanket when Richard unzipped and put his hand in Stephen's pants and rubbed his private area. After some time passed, Richard told Stephen that he was going to walk the dog and that Stephen should continue rubbing his privates.

Richard denied touching Stephen. However, he remembered that when Stephen had come out of the bathroom he had assisted Stephen in zipping his pants. In doing so, Richard stated that he may have touched Stephen's penis but that he was not sure. Richard stated that Stephen told him he had been rubbing himself while in the bathroom. Richard told Stephen that he would not tell his mother and that it would be a secret.

On January 9, 1996, the State charged Richard with having sexual contact with a person who has not attained the age of thirteen The matter proceeded to a jury trial on October 14, 1996. After a four-day trial, the jury found Richard guilty on both counts. On December 20, 1996, Richard was sentenced to ten years' probation for the sexual contact charge and two years' concurrent probation for intimidating a victim. As conditions of probation, Richard was ordered in part to spend six months in jail with work release, perform 500 hours of community service, register as a sex offender and have no contact with Stephen. The court entered a judgment of conviction on December 26, 1996.

years contrary to § 948.02(1), STATS. In the information filed on January 19, 1996, Richard was additionally charged with unlawfully attempting to knowingly and maliciously prevent or dissuade Stephen, who has been the victim of a crime, from making a report contrary to § 940.44(1), STATS.

On July 22, 1997, Richard filed an amended motion for a new trial on various grounds, including the appellate issues we have identified. The trial court denied Richard's motion. Richard renews these challenges on appeal.

DISCUSSION

Kathleen's Mental Health History ²

Richard presents two claims regarding Kathleen's mental health history. He contends that the trial court erred when it restricted the use of Kathleen's mental health records and precluded any further evidence of her mental health history. We address these issues in separate discussions.

1. Kathleen's Mental Health Records

In a pretrial discovery motion, Richard moved for an order compelling the State to produce all records relating to any psychiatric, psychological or other mental health records of Kathleen, whom the State had identified as a witness. Pursuant to Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), Richard requested that the court conduct an in camera inspection of the records to determine whether any portions of those records should be admitted at trial for purposes of examining and challenging Kathleen's credibility as a witness and her ability to perceive events and accurately report them.

At the hearing on the motion, Joanna testified that Kathleen has had psychological problems for most of her life and that the problems had worsened since Kathleen's last marriage to a man who was convicted of molesting her eldest child. At that point, Kathleen attempted suicide. According to Joanna, Kathleen was diagnosed with a multiple personality disorder, has received social security disability as a result of her mental illness, and has been hospitalized. Joanna testified that Kathleen is "very, very paranoid when it comes to anything sexual" and has problems being truthful and relating past events accurately.

The trial court found the testimony to show "more than a mere possibility that [Kathleen] might be unable to perceive reality." Given that finding, the court directed the State to produce Kathleen's mental health records for in camera inspection. With respect to its review, the court stated:

I will be looking at these records myself with the idea of determining if there is any medical confirmation that she is unable to perceive reality. And I'll test that by either medical opinions to that effect or information in the medical records that indicate that she has falsely given information, and then the medical records confirm that the information was false and there is a suggestion that it was false because she did not understand the difference between truth and falseness.

If I don't find any of that, then I will conclude that there is no exculpatory evidence and will not reveal any portion of it. If I do find that, then I will convene both parties to talk about what I find and even let them look at it independently.

At the opening of the jury trial, the trial court reported the results of its in camera inspection of the records. The court stated that it would permit the parties to use the following information as evidence if they saw fit: (1) that Kathleen was the victim of childhood sexual abuse perpetrated by family members and others; (2) that Kathleen was physically and verbally abused by her mother during her childhood; (3) that two weeks prior to the alleged offense Kathleen had called her mother to tell her that she wanted her parents to suffer; and (4) that Kathleen had expressed anger about her parents' unjust behavior. ³

Richard contends that the trial court's ruling deprived him of his rights to confrontation and due process and his right to present a defense. ⁴ When the trial court conducts an in camera inspection, it determines whether the records contain information that is material to the defense of the accused. See Ritchie, 480 U.S. at 58-60, 107 S.Ct. 989. Before we can review the trial court's determination of materiality, we must also conduct an independent review of Kathleen's sealed mental health records. See State v. Darcy N. K., 218 Wis.2d 640, 655, 581 N.W.2d 567, 574 (Ct.App.1998). We have done so in this case.

However, our review of a trial court's materiality determination is measured from the standpoint of the result of the proceedings in the trial court. "[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." State v. Mainiero, 189 Wis.2d 80, 88, 525 N.W.2d 304, 307 (Ct.App.1994) (quoting Ritchie, 480 U.S. at 57, 107 S.Ct. 989). Thus, while materiality is the core issue both in the trial court and on appellate review, the trial and appellate court decisions are measured from markedly different circumstances. The trial court looks forward and determines whether the records are material to a case yet to be tried. The appellate court looks backward and determines whether the records would have had a probable bearing on the outcome of the trial.

Having recited the test which we apply, we next look to our standard of review. The parties agree that the case law on this question is in some conflict and turmoil. Relying on the supreme court's decision in State v. Solberg, 211 Wis.2d 372, 564 N.W.2d 775 (1997), this court in Darcy N.K. stated that a materiality review presented a mixed fact and discretion question; the former is reviewed under the clearly erroneous standard and the latter is reviewed under the misuse of discretion standard. See Darcy N. K., 218 Wis.2d at 655, 581 N.W.2d at 574. Yet, in the earlier case, Mainiero, this court stated that the issue presented a mixed fact and law question. See Mainiero, 189 Wis.2d at 88, 525 N.W.2d at 307. We reviewed the former under the clearly erroneous standard and the latter as a de novo question of law. See id.

[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable...