State v. Sorenson

Citation449 N.W.2d 280,152 Wis.2d 471
Decision Date07 September 1989
Docket NumberNo. 87-0245-CR,87-0245-CR
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Donald R. SORENSON, Defendant-Appellant.
CourtCourt of Appeals of Wisconsin

Donald J. Hanaway, Atty. Gen. by Sharon Ruhly, for plaintiff-respondent.

Before EICH, C.J., GARTZKE, P.J., and DYKMAN, J.

GARTZKE, Presiding Judge.

Donald Sorenson appeals from a judgment of conviction for first-degree sexual assault, sec. 940.225(1)(d), Stats.1985, sexual contact or intercourse with a person twelve years of age or younger, and from denial of his postconviction motion. The child, L.S., was born February 5, 1978, and is defendant's niece.

The issues are whether: (1) the evidence at the preliminary examination was sufficient to bind defendant over for trial; (2) using a videotape at trial of the child's testimony at the preliminary hearing (which the state concedes was not a deposition or the equivalent of in-court testimony) as a substitute for her testimony at the trial violated the hearsay rules; (3) using the videotape at the trial violated defendant's federal and state constitutional right of confrontation; (4) using the videotape violated defendant's statutory right to be present at trial; (5) denying defendant's motion for permission to subpoena the child violated his federal and state constitutional rights to compel the attendance of witnesses on his behalf; (6) the trial court should have excluded the testimony of certain prosecution witnesses regarding what the child said to them about the incidents of intercourse; and (7) the admission of hearsay testimony as to the display of fear by the child was plain error. If defendant's constitutional rights were violated, we must also decide what actions are required on remand.

We conclude that the evidence at the preliminary justified the bindover. Use of the videotaped testimony at the trial violated the hearsay rules of evidence and defendant's right to confrontation. The trial court violated defendant's constitutional right to compel the attendance of witnesses. The testimony by certain prosecution witnesses regarding what the child told them was properly admitted under the hearsay rules but violated defendant's confrontation right.

The constitutional violations resulted from the prosecution's failure to demonstrate a factual basis for the conclusion that, because of the risk of psychological trauma to her, the child was unavailable to testify. After weighing various factors, we remand for a determination whether a hearing on retrospective findings regarding availability can be meaningfully held and, if so, for such findings to be made, and we otherwise direct that a new trial be held.

1. BACKGROUND

Both defendant and his brother, the father of L.S., were charged with first-degree sexual assault upon her. The charges arose out of information a Juneau county department of social services social worker obtained from L.S. The history of the charges is partly related in the appellate reports involving the father, State v. Sorenson, 135 Wis.2d 468, 400 N.W.2d 508 (Ct.App.1986) (Sorenson I ) and State v. Sorenson, 143 Wis.2d 226, 421 N.W.2d 77 (1988) (Sorenson II ). As stated in Sorenson II, defendant and the father were arrested and charged in March 1985.

Defendant's preliminary hearing was held on March 21, 1985. On March 26, 1985, the father's preliminary hearing was held. Both preliminaries were videotaped, and at both hearings the same social worker, deputy sheriff, and examining physician testified. The father was excluded from the courtroom when L.S. testified at his preliminary hearing and defendant agreed to being excluded from the courtroom during L.S.'s testimony after she had identified him.

L.S. testified at her father's jury trial held on September 10, 1985. That jury saw and heard the videotape of her testimony at her father's preliminary hearing, a second videotape of her testimony at a juvenile placement hearing, and a third videotape, the one taken at defendant's preliminary. The physician's testimony at the preliminary was incorporated by stipulation.

L.S. did not testify at defendant's trial, held on May 7, 1986. The court ruled that L.S.'s videotaped testimony at defendant's preliminary hearing could be substituted for her testimony at his trial. In addition to seeing the videotape, the jury had a transcript of her prior testimony and heard the testimony of the social worker, the deputy sheriff, and the examining physician. The child's mother and paternal grandmother testified at defendant's trial, as did defendant's stepmother. Defendant took the stand. The jury found him guilty, the court denied a postconviction motion to dismiss or grant a new trial, and this appeal resulted.

The same judge presided at both preliminary hearings and both jury trials.

2. SUFFICIENCY OF EVIDENCE AT THE PRELIMINARY

A preliminary examination is held to determine whether "there is probable cause to believe a felony has been committed by the defendant." Sec. 970.03(1), Stats. If probable cause has been shown, the court must bind the defendant over for trial. If not, the court must discharge the defendant. Sec. 970.03(7) and (9).

Even after a trial and conviction, a defendant is entitled to appellate review of the bindover for trial. State v. Olson, 75 Wis.2d 575, 584-85, 250 N.W.2d 12, 17 (1977); State ex rel. McCaffrey v. Shanks, 124 Wis.2d 216, 224, 369 N.W.2d 743, 748 (Ct.App.1985). We reached the same conclusion in Sorenson I, 135 Wis.2d at 471, 400 N.W.2d at 510, which Sorenson II reversed on other grounds.

Defendant concedes that someone had sexually abused the child but denies that it was he. The issue is whether the evidence at the preliminary examination supports the conclusion that defendant probably did abuse the child. The issue is one of law. State v. Dunn, 121 Wis.2d 389, 398-99, 359 N.W.2d 151, 155 (1984).

At the time of the preliminary examination, the child was about seven years old. Medical testimony established that she had a mental age of three or four. During her testimony at the preliminary, she referred to defendant as "Donnie." Using anatomically correct dolls, she identified the girl doll as herself and the boy doll first as Ronnie (her father) and then as Donnie. When asked what the dolls were doing, she replied that they were "humping" in Donnie's house on his couch. Using the dolls, she showed what happened. She took the pants off the boy doll, identified Donnie's "wiener" and testified as follows:

Q: L., did you show me a minute ago him putting that wiener somewhere on the girl doll?

A: NOD HEAD YES.

Q: Where was that?

A: In the hole.

Q: Whose hole?

A: There is a hole.

Q: Whose hole is that?

A: Mine.

On cross-examination, when asked whether many people had done this to her and whether defense counsel had done it, she answered yes. When asked whether Donnie did it, she said no.

The trial court concluded that probable cause existed to believe that the defendant had committed a felony. At the postconviction hearing, the court elaborated on that conclusion, saying that taking into account the nature of the crime, the mental age of the child, and the need to protect child witnesses, "the most narrow application of the believable and plausible test is appropriate, lest all assailants of young, unstable, difficult witnesses be freed from facing trial." Defendant contends that the trial court applied an impermissibly low burden of proof.

Whether the trial court applied the wrong burden of proof is immaterial. An appellate court must search the record made at the preliminary for any substantial ground to support the bindover. Sorenson II, 143 Wis.2d at 251, 421 N.W.2d at 87. That ground is a "believable or plausible account." Dunn, 121 Wis.2d at 398, 359 N.W.2d at 155. If it exists, then the defendant must be bound over for trial, even if a contrary but believable or plausible account also exists. Id. at 400, 359 N.W.2d at 156.

Believable and plausible evidence produced at the preliminary examination supports the conclusion that defendant probably sexually assaulted the child. No narrow application of the believable and plausible test is necessary for that conclusion. Her graphic use of the dolls, the names she gave to them and her description of what happened are enough, notwithstanding later contradictions in her testimony. The trial court properly bound defendant over for trial.

3. USE OF VIDEOTAPED TESTIMONY--HEARSAY AND CONFRONTATION

The state's pretrial motion requested that the court admit the videotape of L.S.'s prior testimony at defendant's preliminary hearing as evidence at the trial, but the purpose of the motion was to substitute the videotape for her trial testimony. The prosecutor presented no evidence to support the motion but asked the trial court to recall that, although the child was about eight years old, she had less than normal intelligence and had difficulties (which the prosecutor did not describe) when testifying in her father's case. The prosecutor asserted that it would be detrimental to L.S. to require her to testify. Defendant responded that to allow use of the videotape at the trial would violate the hearsay rules and his right of confrontation.

The trial court treated the videotape as a deposition. For that reason, the court held that the videotape was not hearsay evidence and had no occasion to decide whether an exception to the hearsay rule applied. The court said that it was familiar with the child, having seen her on a number of occasions, and noted her chronological age and her lower mental age. The court said that this was "a type of matter in which it is extremely difficult for a child of that age to be ... testifying ... [and that] the court has to use its discretion, exercise the broad latitude it can in protecting the interest of the child." The court found that "the child...

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