State v. Sorenson

• Citation: 421 N.W.2d 77,143 Wis.2d 226
• Parties: , 56 USLW 2606 STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Ronald D. SORENSON, Defendant-Appellant. 86-0124-CR.
• Decision Date: 22 March 1988
• Court: United States State Supreme Court of Wisconsin

Page 77

421 N.W.2d 77

143 Wis.2d 226, 56 USLW 2606

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Ronald D. SORENSON, Defendant-Appellant.

86-0124-CR.

Supreme Court of Wisconsin.

Argued Oct. 7, 1987.

Decided March 22, 1988.

Teresa M. Elguezabal, Madison, argued for defendant-appellant; Robert J. Dreps and LaFollette & Sinykin, Madison, on brief.

Daniel J. O'Brien, Asst. Atty. General, argued for plaintiff-respondent-petitioner; Donald J. Hanaway, Atty. Gen., on brief.

DAY, Justice.

This is a review of a decision of the court of appeals, State v. Sorenson, 135 Wis.2d 468, 400 N.W.2d 508 (Ct.App.1986), which reversed the judgment of conviction for first degree sexual assault entered against Ronald D. Sorenson by Circuit Judge Wallace A. Brady for the circuit court of Juneau county. The court of appeals concluded that the circuit court had improperly admitted hearsay evidence at the defendant's preliminary hearing, and that the defendant's subsequent jury conviction must be reversed, since without this evidence probable cause would not have existed to bind the defendant over for trial. We conclude that the hearsay testimony concerning the minor victim's statements to a social worker about the sexual assault was admissible under the residual hearsay exception, sec. 908.045(6), Stats. We further conclude the other challenges raised by the defendant, alleging erroneous admission of hearsay testimony by an examining physician, lack of specificity of charging documents, failure of the state to establish a specific date of offense at trial, and concerning prosecutor's comments about the defendant's pre-trial silence after he elected to testify at trial on his own behalf, do not merit reversal. ¹ Accordingly, we reverse the court of appeals' decision and affirm the defendant's judgment of conviction.

On March 14, 1985, a Juneau County Department of Social Services social worker received a referral regarding possible sexual abuse of a seven year old girl, L.S. When interviewed by the social worker the day of the referral at her elementary school, L.S. would not discuss the matter, but asked the social worker to return the next day.

The following day, March 15, 1985, the social worker again met with L.S. Using "anatomically-correct" dolls, and crude, explicit language, L.S. reported that her uncle, Donald Sorenson, and her father, Ronald Sorenson, had sexual intercourse with her.

Based on this information, the social worker told a deputy sheriff that L.S. might have been sexually assaulted by her father and uncle. The deputy and the social worker then returned to the school and re-interviewed L.S., who again reported that Donald Sorenson had sexually assaulted her. The deputy asked L.S. if her father had done anything, but L.S., who had a limited attention span and an emotional age of approximately four years old, was "distracted" and did not answer.

The deputy advised Ronald Sorenson, when he came to pick his daughter up from school, that L.S. was being placed in a foster home because of Donald Sorenson's suspected sexual assault. Donald Sorenson was arrested on March 16, 1985. Three days later, on March 19, 1985, Ronald Sorenson was also arrested and charged with one count of first degree sexual intercourse with a child under the age of twelve years, sec. 940.225(1)(d), Stats. ² The charging documents stated that this assault occurred between February 1, 1985 and March 15, 1985, which encompassed the six week period immediately preceding the social worker's second meeting with L.S.

At his preliminary hearing, Ronald Sorenson was excluded from the courtroom when his daughter was called as a witness. L.S. admitted being assaulted by her uncle. She agreed that she had told the social worker a "secret about daddy," but did not answer any questions concerning the incidence of sexual contact by her father despite the district attorney's use of anatomically-correct dolls and leading questions. Over defense counsel's objection, L.S. was declared an unavailable witness pursuant to sec. 908.04(1)(b), Stats. ³ The court did not formally order L.S. to testify because the judge concluded it would have been "fruitless" and "inappropriate" because of her young age.

The court then permitted questioning of the social worker concerning L.S.'s statements under an expanded interpretation of the hearsay exception for former testimony, sec. 908.045(1), Stats. ⁴ The court found sufficient veracity to support the admission of L.S.'s statements because they were made by a young child who was the daughter of the alleged perpetrator, because of the seriousness of the sexual assault allegation, and further based upon the child's reaction on the stand.

The social worker then testified that, about an hour into their interview, L.S. was asked if "her grandfather, her brother or her little boyfriend" had done anything to her. L.S. said that, in addition to her uncle, her father, Ronald Sorenson, had sexually abused her and that her father's acts had occurred while her mother was at the doctor. L.S. distinguished between the acts committed by her uncle, "Donnie," whom she reported had assaulted her on the couch in the living room, and her father, "Ronnie," whom she reported had assaulted her in the bathroom. She further described that she had to wipe herself off after her father assaulted her and that her father told her to tell her mother that she had "wet her pants." The social worker also demonstrated L.S.'s use of anatomically-correct dolls to describe the act. The social worker further testified that earlier during Ronald Sorenson's preliminary hearing, L.S. had told her that she had not testified about her father because "she [L.S.] was not going to have Daddy go to jail, Mommy would be mad at her, she wouldn't get to go back home." The social worker also testified that during the period between L.S.'s removal from her home and Ronald Sorenson's arrest on March 19, 1985, Ronald had contacted her and inquired whether L.S. had said anything about him to her.

By stipulation of the parties, the testimony of a physician, who examined L.S. on March 18, 1985, was incorporated from the transcript of Donald Sorenson's preliminary hearing into the record of Ronald Sorenson's preliminary hearing. The physician testified that his examination of L.S. unquestionably revealed repeated sexual abuse. He further testified that, based on her physical condition, the most recent intercourse occurred between seven and ten days before his examination.

The testimony concerning L.S.'s statements to the social worker was the primary evidence linking Ronald Sorenson to the physical evidence of assault found by the physician who examined L.S. Based on this evidence, the circuit court found probable cause that the defendant, Ronald Sorenson, had committed a felony and bound him over for trial.

Before trial, the defendant moved to dismiss, arguing that the circuit court lacked jurisdiction over him because the probable cause determination was based on inadmissible hearsay. As an additional ground, he argued that the information failed to state with sufficient specificity the date of the alleged assault since it referred to a six week period, from February 1, 1985 to March 15, 1985, during which the assault allegedly occurred. Sorenson further moved to bar testimony at trial of the examining physician and social worker about L.S.'s statements to them, arguing this testimony was inadmissible hearsay. The circuit judge denied these motions.

At trial the physician who had examined L.S. again testified that her physical condition indicated multiple acts of sexual intercourse over a period of time, with the last act probably occurring seven to ten days before he examined her on March 18, 1985 (or approximately between March 8th and 11th which was four to seven days before L.S. spoke with the social worker). He further testified that, at the time he examined her, L.S. had volunteered that her father as well as her uncle had assaulted her, differentiating between the places in her house where these assaults occurred. He also testified she further spontaneously drew a picture for him of a man with an "enormously distorted," "erect" penis and identified this person as "daddy."

L.S. herself testified at trial, after first correctly answering questions concerning whether she knew the difference between the truth and a lie. Using anatomically-correct dolls, she described that sexual intercourse had occurred between herself and her father. A video of L.S.'s testimony at Ronald Sorenson's preliminary hearing was then seen by the jury. In addition, a second video, made for the purposes of a juvenile placement hearing, was shown. In it, L.S. first stated that "Donnie" had assaulted her. Though initially not answering because she said she was "scared," after leading questions and use of anatomically-correct dolls she stated that "daddy" had assaulted her. She said she didn't tell her mother about what her father did because "it was a secret." Finally, a third video, taken during Donald Sorenson's preliminary hearing, was shown to the jury. This hearing occurred shortly after L.S. was taken from her home and placed in foster care. In it L.S. changed her answers, first stating that "Ronnie," then that "Donnie," had assaulted her, and that this was a "secret." She answered "yes" when asked if she had lied to the social worker, and agreed that she had practiced her testimony with the social worker concerning the assaults. On cross examination in that video, L.S. answered "yes" when asked if she had been assaulted by the defense attorney. On redirect, she nodded her head "no" when asked the same question, and later nodded her head "yes" when asked if she was confused.

The social worker's trial testimony confirmed the statements L.S. had made in her initial interviews. She stated, however, that she had miscalculated in her preliminary hearing testimony when...