State v. Schaefer

• Decision Date: 02 April 2008
• Docket Number: No. 2006AP1826-CRAC.,2006AP1826-CRAC.
• Citation: 746 N.W.2d 457,2008 WI 25
• Parties: STATE of Wisconsin, Plaintiff-Respondent v. Ronald SCHAEFER, Defendant-Appellant.
• Court: Wisconsin Supreme Court

746 N.W.2d 457

2008 WI 25

STATE of Wisconsin, Plaintiff-Respondent v. Ronald SCHAEFER, Defendant-Appellant.

No. 2006AP1826-CRAC.

Supreme Court of Wisconsin.

Argued September 5, 2007.

Decided April 2, 2008.

For the defendant-appellant there were briefs by Kathleen B. Stilling, Jerome F.

Buting, and Buting & Williams, S.C., Brookfield and oral argument by Kathleen B. Stilling.

For the plaintiff-respondent the cause was argued by Daniel J. O'Brien, assistant attorney general with whom on the briefs was J.B. Van Hollen, attorney general.

An amicus curiae brief was filed by Nicholas Chiarkas, state public defender, and Marla J. Stephens, director, appellate division, Office of the State Public Defender, Milwaukee; and Keith A. Findley, John A. Pray, and Byron Lichstein, University of Wisconsin Law School Frank J. Remington Center, Madison; on behalf of the Wisconsin Innocence Project, Madison.

ON CERTIFICATION FROM THE COURT OF APPEALS

¶ 1 DAVID T. PROSSER, J

This case is before the court on certification by the court of appeals pursuant to Wis. Stat. § (Rule) 809.61 (2005-06).¹ It relates to an appeal from a nonfinal order of the Waukesha County Circuit Court, Ralph M. Ramirez, Judge. Judge Ramirez granted the State's (State) motion to quash a subpoena duces tecum from defendant Ronald Schaefer (Schaefer) that sought to obtain police investigation reports in Schaefer's case before his preliminary examination.

¶ 2 After permitting Schaefer's interlocutory appeal, the court of appeals certified the following question to this court: "Does a criminal defendant have a subpoena right to obtain and copy police investigation reports and nonprivileged materials prior to the preliminary hearing?" This question requires interpretation of several Wisconsin statutes as well as the constitutional rights to compulsory process and effective assistance of counsel.

¶ 3 We conclude that a criminal defendant does not have a statutory or constitutional right to compel production of police investigation reports and other nonprivileged materials by subpoena duces tecum prior to the preliminary examination. A criminal defendant who employs the subpoena power in this manner is attempting to engage in discovery without authority in either civil or criminal procedure statutes and in conflict with the criminal discovery statutes. Although a reasonable argument can be made for prosecutors to open their files to defendants at an early point in criminal prosecutions, this argument does not translate into an enforceable right to subpoena police investigation reports and nonprivileged materials before a preliminary examination. Consequently, we affirm the order of the circuit court granting the State's motion to quash Schaefer's subpoena duces tecum.

I. FACTS AND PROCEDURAL POSTURE

¶ 4 The criminal complaint charged Schaefer with two counts of second-degree sexual assault of a child, contrary to Wis. Stat. § 948.02(2), for conduct that allegedly occurred in 1990. The complaint was signed by Detective Jennifer Toepfer (Toepfer) of the Brookfield Police Department who asserted that she took a statement about the alleged assaults from Kerry M., DOB: 4/6/76, in March 2006 and then conducted an investigation into Kerry's claims.

¶ 5 The complaint makes the following allegations: Ronald Schaefer was a teacher and basketball coach at a parochial school in Menomonee Falls. Kerry was a student at the school. Schaefer was Kerry's basketball coach when she was in seventh grade. During the 1988-89 school year, Schaefer began to focus attention on Kerry, complementing her, telling her that she "looked nice," and giving her the nickname "Special K."

¶ 6 The next year, Schaefer became Kerry's eighth grade teacher. Following his usual practice of picking an eighth-grade student to serve as a babysitter for his children, Schaefer selected Kerry. Toward the end of her eighth grade year and continuing into the summer — between March 1990 and August 1990 — Kerry had a sexual relationship with Schaefer.

¶ 7 Kerry described both her social and sexual encounters with Schaefer over this time period. She reported that Schaefer wrote her notes and poems, which she saved (and subsequently turned over to Detective Toepfer). Schaefer kissed Kerry and told her that he loved her. When the two called each other at their respective homes, Kerry would hang up if Schaefer's wife answered the telephone, and Schaefer would hang up if one of Kerry's parents answered. Kerry considered Schaefer her first boyfriend. Kerry said that in May 1990 she and Schaefer discussed running away together to Kentucky or Tennessee because "it was ok to get married younger there."

¶ 8 Kerry recounted how Schaefer touched her physically and sexually on several occasions during this period. His touching included hugging, kissing, and performing oral sex on her. On one occasion, after swimming, Kerry and Schaefer had sexual intercourse on a bed at his parents' home in Brookfield. On another occasion, the pair had sexual intercourse in Schaefer's bed while Kerry was babysitting his two children. Kerry had not attained the age of 16 years at the time of any of these incidents and thus could not legally consent.

¶ 9 In August 1990, the relationship between Kerry and Schaefer ended when Schaefer told Kerry that they could not see each other anymore because Kerry was starting high school. Kerry later told the detective that she was devastated because she thought Schaefer was her boyfriend.

¶ 10 These allegations led the State to file a criminal complaint on May 25, 2006, charging Schaefer with two counts of second-degree sexual assault of a child. The defendant made his initial appearance on June 1. He posted bond and was advised to have no contact with the victim. He made a second appearance on June 19. At that time a preliminary hearing was scheduled for July 20, 2006, before Waukesha County Court Commissioner Martin O. Binn.

¶ 11 On July 10, Schaefer served a subpoena duces tecum on the "Chief of Brookfield Police Department or Designee," commanding the person to bring the following material before Commissioner Binn on July 13, 2006: "A complete copy of all reports, memorandums, witness interviews and any records related to the investigation and arrest of Ronald Schaefer on suspected criminal offenses relating to the alleged sexual assault of Kerry M. DOB 4/6/76 in 1990." The subpoena duces tecum characterized the "Type of Proceeding" before Commissioner Binn as a "Return of Records."

¶ 12 On July 11, the State moved to quash the subpoena. At a hearing on July 13, Commissioner Binn granted the State's motion, indicating that after he reviewed Chapters 805, 885, 970, 971, and 972 of the Wisconsin Statutes, he considered the defendant's subpoena a request for the circuit court to "re-write the discovery statute, [Wis. Stat. § ]971.23." He also noted that the preliminary examination is "not a mini-trial, and [ ] not a discovery proceeding."

¶ 13 The defendant sought de novo review in circuit court. On July 18 Judge Ramirez conducted a hearing and concluded that there is no mechanism under state statute or the Wisconsin or federal constitutions that specifies that "discovery materials" shall be produced before the preliminary hearing.

¶ 14 On July 19, 2006, Judge Ramirez entered an order granting the State's motion to quash Schaefer's subpoena duces tecum.

¶ 15 Schaefer filed a timely petition for leave to appeal, and the court of appeals stayed further proceedings pending appeal. See Wis. Stat. § 809.52.

¶ 16 On December 27, 2006, the court of appeals certified the appeal to this court. We accepted certification on February 12, 2007.

II. STANDARD OF REVIEW

¶ 17 This case involves questions of statutory interpretation and constitutional law. Statutory interpretation presents a question of law that we review de novo. State v. Floyd, 2000 WI 14, ¶ 11, 232 Wis.2d 767, 606 N.W.2d 155. Similarly, we review constitutional questions, both state and federal, de novo. Custodian of Records for the Legislative Technology Services Bureau v. State, 2004 WI 65, ¶ 6, 272 Wis.2d 208, 680 N.W.2d 792.

III. ANALYSIS

¶ 18 This is a discovery case, notwithstanding the defendant's protestations to the contrary. Schaefer's appeal asks this court to approve the subpoena power to effect discovery in a criminal case prior to the preliminary examination.

¶ 19 Schaefer does not claim to be seeking some specific piece of information missing from the complaint so that he can fully respond to the charges. Rather, he is trying to force the State to disclose the evidence against him before it has had an opportunity to present any of that evidence in court. In effect, Schaefer is asking this court to accommodate all felony defendants who wish to conduct discovery of the state's evidence before their preliminary examinations by vesting these criminal defendants with a new discovery tool. Schaefer's arguments that the state and federal constitutions compel this result unreasonably stretch the boundaries of compulsory process and misapprehend the requirements of effective assistance of counsel.

¶ 20 We acknowledge at the outset that the right of an accused to present a defense is fundamental. Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). It is embodied in the due process guarantees of the Fifth and Fourteenth Amendments and in the Sixth Amendment's command that the accused shall have compulsory process for obtaining witnesses in his favor.² Due process preserves an accused's right to challenge the prosecution's case by obtaining evidence tending to establish the accused's innocence or by casting doubt upon the persuasiveness of the prosecution's evidence.³

¶ 21 There are several ways for a criminal defendant to gather information and evidence that may be used in his defense. First, a defendant may request information from the state and other sources on a voluntary basis. A criminal d...