State v. Speese

• Decision Date: 20 March 1996
• Docket Number: No. 93-0443-CR,93-0443-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Robert M. SPEESE, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 510

545 N.W.2d 510

199 Wis.2d 597

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Robert M. SPEESE, Defendant-Appellant.

No. 93-0443-CR.

Supreme Court of Wisconsin.

Argued Nov. 29, 1995.

Decided March 20, 1996.

Appeal from the Circuit Court of Monroe County; James W. Rice, Judge.

For the plaintiff-respondent-petitioner the cause was argued by Marguerite M. Moeller, Assistant Attorney General, with whom on the briefs was Jerome S. Schmidt, Assistant Attorney General and James E. Doyle, Attorney General.

For the defendant-appellant there was a brief and oral argument by Michael J. Devanie, LaCrosse.

SHIRLEY S. ABRAHAMSON, Justice.

This is a review of a published decision of the court of appeals, State v. Speese, 191 Wis.2d 205, 528 N.W.2d 63 (Ct.App.1995), reversing 13 of the defendant's 22 convictions entered by the circuit court for Monroe County, James W. Rice, Judge. ¹ Of the 13 convictions reversed, 11 involved counts charging Robert M. Speese, the defendant, with sexual contact and sexual intercourse with his stepdaughter's 15-year-old friend Kari, the victim, contrary to Wis.Stat. § 948.02(2) (1993-94); ² one count charged the defendant with exposing the victim to harmful material, contrary to Wis.Stat. § 948.11(2); and one count charged the defendant with having sexual contact with the victim, contrary to Wis.Stat. § 940.225(3m). ³

The court of appeals remanded the cause to the circuit court to determine whether the victim had voluntarily consented to a court-ordered disclosure of her medical and psychiatric records. ⁴ The court of appeals concluded that a new trial was needed on the sexual assault charges involving the victim regardless of whether she had consented to the release of her medical and psychiatric records. The court of appeals determined that if the victim had consented to the release of her records, a new trial would be necessary on the sexual assault charges because the defendant's lack of access to those records was prejudicial error. The court of appeals further concluded that if the victim had not consented to the release of her records, the circuit court should have ordered her either to consent to the defendant's inspection of those records or not to testify at trial. Speese, 191 Wis.2d at 211, 528 N.W.2d 63.

The ultimate issue in this case--whether the convictions should be affirmed or reversed--can be resolved with a harmless error analysis. The court need only ask and answer the following question: Assuming arguendo that the circuit court, after an in camera review of the victim's medical and psychiatric records, erred in withholding these sealed records from the defendant, was any such error prejudicial? Having carefully reviewed the record and having conducted our own in camera review of the victim's sealed medical and psychiatric records, we conclude that any such error was harmless. We therefore reverse the decision of the court of appeals and affirm the convictions on the 13 reversed counts.

I.

For purposes of this review, the facts are not in dispute. The reversed counts all refer to incidents in the defendant's criminal conduct with the victim which occurred between January and March 1991 when the victim, a friend of the defendant's stepdaughter, was at the defendant's residence. In September 1991, the defendant's stepdaughter confided in her mother regarding the defendant's sexual activities with both girls. A 23-count criminal complaint was filed at the end of September 1991.

In a pretrial motion, the defendant sought access to medical and psychiatric records arising from the victim's stay at a mental health facility in February 1991 on the ground that they contained exculpatory information. The defendant reasoned that (1) questions about sexual abuse are routinely posed to an adolescent at a mental health facility; (2) had the victim revealed any sexual encounters with or abuse by the defendant, the mental health professionals would have been obliged by law to report the abuse; ⁵ and (3) because allegations of the defendant's abuse did not surface until seven months later, the victim's medical and psychiatric records must demonstrate that the victim had been either silent about any sexual abuse by the defendant or had denied it outright.

The defendant therefore contends that had he been given access to the victim's medical and psychiatric records, he might have been able to impeach her credibility, thereby allowing the jury to infer that the defendant had not engaged in any criminal conduct with the victim.

The State objected to the defendant's motion seeking access to the victim's medical and psychiatric records, contending that these records were privileged. The circuit court nevertheless ordered the State to obtain the victim's records and turn them over to the circuit court. Using a general medical release form signed by the victim and the victim's mother, the State complied, forwarding the medical and psychiatric records it received to the circuit court. ⁶ Having reviewed the medical and psychiatric records prior to trial, the circuit court concluded that they did not contain anything relevant to the criminal charges against the defendant and therefore refused to permit him to examine them. The circuit court confirmed, however, that the victim had received inpatient psychiatric care during February 1991.

On appeal, the defendant claimed that since the prosecution had been allowed access to the medical and psychiatric records while the defense had not, the circuit court's decision to withhold those records from him had impaired his constitutional right to present a defense. The court of appeals agreed. It concluded that if the information contained in the medical and psychiatric records had been disclosed, there was a reasonable probability that "the result of the trial would have been different...." Speese, 191 Wis.2d at 224, 528 N.W.2d 63.

In an effort to protect the victim from "unnecessary public disclosure of her records," Speese, 191 Wis.2d[199 Wis.2d 603] at 225, 528 N.W.2d 63, the court of appeals explicitly declined to reveal what information in the victim's psychiatric medical records had provided the basis for its decision. In a prior order, however, the court of appeals had noted that "[t]he records ... do not disclose whether [the victim] told the hospital staff about the alleged sexual contacts or intercourse with the defendant or whether she denied such contacts or intercourse." ⁷ And in its published opinion, the court of appeals noted that "[w]ithout an explanation for her silence, a jury might disbelieve [the victim's] testimony." Speese, 191 Wis.2d at 224, 528 N.W.2d 63.

Apparently, then, the court of appeals' conclusion that the defendant's lack of access to the victim's medical and psychiatric records was prejudicial is based on its reasoning that the jury could not fairly determine the defendant's guilt or innocence without knowing that the victim had failed to report the defendant's alleged abuse, even though her hospitalization took place when that abuse was allegedly at its height. We say "apparently" because our own in camera review of the records reveals no other basis for the court of appeals' conclusion. Moreover, the defendant himself could not recount any other reason why his access to the victim's medical and psychiatric records might have been exculpatory and could not, even under intensive questioning at oral argument, develop any other scenario persuading us that he might need access to the victim's records. Consequently, we will next address the question of whether it was prejudicial to the defendant to deny him access to information in the victim's medical and psychiatric records indicating that she did not reveal that she had been sexually abused.

II.

While we acknowledge that a victim's failure to report alleged incidents of sexual abuse to hospital personnel has the potential to discredit the victim's testimony, in this case the jury was well aware, even without this evidence, that the victim had repeatedly returned to the defendant's residence despite the ongoing assaults and had not, for a substantial time, told her parents about the defendant's criminal conduct. The victim had told only the defendant's stepdaughter and a classmate about the alleged abuse.

At trial, the defendant demonstrated that the victim had remained silent about the defendant's criminal conduct both while it was happening and for a prolonged period thereafter. An officer of the Tomah police department and a Monroe County social worker--both of whom interviewed the victim when the abuse was initially reported in September 1991--testified on cross examination that according to the victim the last alleged act of abuse had taken place months earlier. The defendant's stepdaughter testified that initially she and the victim did not even reveal to each other their respective sexual encounters with the defendant.

The victim herself testified that she had not disclosed the abuse to either her mother or her father, even though her mother had asked her pointedly why she was increasingly reluctant to spend time at the defendant's residence and even though her father was a law enforcement officer. The victim testified that she had repeatedly returned to the defendant's residence without being forced to do so. She also admitted that during February 1991--as the abuse was taking place--she had been questioned directly regarding whether she was being abused and had answered "no" because she feared that the defendant would physically harm her or kill himself, as he had threatened to do. ⁸

Hence evidence in the victim's medical and psychiatric records of her silence regarding the defendant's sexual abuse would have been redundant. Evidence demonstrating that the victim remained silent about the defendant's alleged abuse both while it was taking place and for a prolonged period thereafter was properly before the jury. When...