Opinion
Case No. 99-2189-CR.
Opinion Released: August 2, 2000. Opinion Filed: August 2, 2000. Order Withdrawn: August 18, 2000.
APPEAL from a judgment and an order of the circuit court for Walworth County: JOHN R. RACE, Judge . Reversed and cause remanded.
Before Nettesheim, Anderson and Snyder, JJ.
.
Charles A. Dunlap appeals from a judgment of conviction for first-degree sexual assault of a child contrary to Wis. Stat. § 948.02(1) (1987-88) and an order denying his postconviction motion requesting a new trial. Dunlap argues that the State opened the door to cross-examination of its expert witness about the complainant's, Jamie F.'s, sexual behavior prior to the assault when the expert testified that Jamie's behavior was consistent with that of child sexual assault victims. Because the information about Jamie's behavior was in a report made by the expert using statements from an individual who is now deceased, the circuit court ruled that the evidence was inadmissible as hearsay and that the State had not opened the door to such evidence through the expert's testimony. Dunlap asserts that this evidentiary decision was erroneous and prejudicial.
All references to the Wisconsin Statutes are to the 1987-88 version unless otherwise noted.
¶ 2. Dunlap also posits an alternative argument. He claims that his trial counsel was ineffective for failing to request a pretrial hearing as required by Wis. Stat. § 972.11, the rape shield law, to attempt to get the evidence of Jamie's prior sexual behavior admitted.
¶ 3. Because we conclude that (1) Dunlap was erroneously precluded from cross-examining the expert about Jamie's sexual behavior prior to Dunlap's assault and (2) his trial counsel was ineffective for failing to make a pretrial motion seeking this evidence's admission, we reverse the conviction and order a new trial.
BACKGROUND
¶ 4. On November 7, 1989, Dunlap babysat six-year-old Jamie at the home of Susan Smith and Gary Cox. Two days later, Jamie informed her father that Dunlap had touched her private parts when he babysat her, and her father notified the police. When reporting the incident to the police, Jamie's mother stated that her daughter further revealed that Dunlap "had taken her to bed, laid on the [bed] with her, and placed his hand inside her underwear and played with her private parts." Jamie also told her mother that Dunlap told her that this was a secret just between the two of them and that she should not tell anyone about it.
¶ 5. At the time of the incident, Dunlap, a friend of Cox's from out of state, had been staying at Smith and Cox's home for two weeks. When Cox found out about Jamie's allegation against Dunlap, he kicked Dunlap out of his house. Eight years later, Dunlap was arrested in California and returned to Wisconsin to be tried on the charge. At his arraignment, Dunlap pled not guilty.
¶ 6. Prior to trial, Dunlap moved the court to permit an in camera inspection of Jamie's medical and therapy records. Dunlap argued that these records might contain exculpatory evidence. Supporting his claim, he referenced an interview the police conducted with Cox on March 10, 1998. In that interview, Cox stated that he had observed Jamie behave inappropriately for her age. Cox claimed, "She would rub up against people and when she sat on your lap she would rub against or move around on your private parts. . . ." Cox also stated that he had advised his son, Sean, to stay clear of her. Additionally, Cox informed the officer that Jamie had made untrue allegations against him while she was in therapy, which she later recanted and revealed that she had invented because she was mad at him. After a hearing, the court granted the motion. Once it had reviewed Jamie's records, the court determined that they contained no exculpatory evidence.
¶ 7. A three-day jury trial began. The State called Jamie, now fifteen years old, to testify about the incident. On the night of November 7, 1989, she remembered being dropped off at Smith and Cox's house while her mother attended an AA meeting. Smith left with Jamie's mother, and Jamie was left at the house with Dunlap and Sean. She claimed that the assault occurred after she went into Smith's bedroom to sleep. A little while later, Dunlap came into the bedroom. Jamie described what happened next:
He laid down beside me, and he started to rub my back, and he started to move down lower, and . . . he touched my ass, and then moved to the front and touched my vagina.
She averred that Dunlap rubbed but did not penetrate her vagina with his finger and that he told her not to tell anyone about the incident or he would kill her parents. The incident stopped when her mother returned to the house. She testified that on the way home from Smith's house she told her mother that "Charlie Dunlap sexually assaulted me." Two days later, she told her father about the incident.
¶ 8. On cross-examination, defense counsel questioned Jamie about inconsistencies in the details of the testimony that she gave to social worker Theresa Hanson shortly after the incident compared to the statements she made eight years later at the preliminary hearing and at the trial. At the preliminary hearing, Jamie testified that Sean was not present at Smith and Cox's home on the night of the assault and that she was alone with Dunlap. This statement was inconsistent with the statement she made to Hanson in 1989 and with her testimony at trial. Defense counsel also pointed out that in 1989 Jamie stated that Dunlap did not penetrate her vagina with his finger, but at the preliminary hearing she claimed that he did. When asked on cross-examination which statement was true, Jamie replied that Dunlap did insert his finger into her vagina. Jamie was asked about another discrepancy in her testimonies. In 1989, she claimed that Dunlap told her never to tell anyone about the incident but did not say what would happen to her if she did. At the preliminary hearing and at the trial, Jamie averred that Dunlap threatened to kill her parents if she revealed what had happened.
¶ 9. Attempting to explain the inconsistencies in Jamie's testimony, the State called Hanson as an expert witness on child sexual assault victims. Hanson informed the court that six-year-old children do not usually have a concept of "in and out" in reference to something being inserted into their genitalia. This concept is better understood once a child reaches puberty. She further testified that based on her twenty-four years of experience, six-year-olds often do not reveal the complete story to her the first time they meet with her. She stated that it is not uncommon for children to focus only on the central activity that happened to them rather than on the details of the peripheral information. She said that Jamie's disclosure of the assault was consistent with sexual assault victims because it occurred away from the scene of the assault and she revealed the information to someone whom she trusted.
¶ 10. During defense counsel's cross-examination of Hanson, counsel attempted to ask her whether a six-year-old with a detailed sexual knowledge was consistent with the child being a victim of sexual assault. The prosecutor objected to the question's relevancy. The court held a sidebar discussion, where the prosecutor explained that defense counsel's line of questioning was impermissible due to the rape shield law's prohibition on questioning about the victim's sexual conduct. Such evidence may only be admissible through a pretrial motion in limine, he argued. Defense counsel countered that the State had opened the door by questioning Hanson about whether Jamie's behavior was consistent with a child sexual assault victim. He continued arguing that he should be able to introduce evidence that suggested Jamie may have also exhibited such behaviors prior to the incident with Dunlap. He sought to elicit Hanson's opinion regarding a report she made in 1989 in which she stated that Smith was very concerned about Jamie because of Jamie's unusual behavior. Smith told Hanson that Jamie "touch[ed] men in the genital area," attempted to stimulate herself by writhing around on men's laps, "hump[ed] the family dog" and masturbated frequently. Smith observed this behavior prior to Dunlap's assault. Defense counsel argued that the evidence in Hanson's report was admissible because it was a report conducted in the regular course of business and the declarant, Smith, was now deceased. He asserted that it was imperative for the jury to be made aware that Jamie displayed conduct consistent with being a sexual assault victim before the incident with Dunlap happened. The court sustained the prosecution's objection.
¶ 11. The final witness to testify was Dunlap. He denied having any physical contact with Jamie. The jury returned a guilty verdict. Dunlap was sentenced to twenty years in prison.
¶ 12. Dunlap filed a motion for postconviction relief and requested a new trial. In the motion, he asserted, among other things, that Hanson should have been allowed to testify about the contents of her report and that his trial counsel was ineffective for failing to comply with the provisions of the rape shield law. In support of the motion, a report from Dr. Tom Daniels was submitted. Daniels, a psychologist, reviewed Hanson's 1989 report and Jamie's trial testimony. Using a rating scale, the Child Sexual Behavior Inventory, Daniels examined Jamie's unusual behaviors by analyzing the frequency of such behaviors occurring in abused and nonabused children according to the rating scale. Because each of the unusual behaviors Jamie exhibited was significantly more common in an abused child of her age, Daniels concluded that this fact "strongly suggests that she has been exposed to inappropriate sexual material or experiences." The circuit court denied the postconviction motion. Dunlap appeals.
DISCUSSION
¶ 13. Dunlap argues that the circuit court's evidentiary decision precluding him from cross-examining Hanson about Jamie's sexual behavior was in error. The basis for the testimony defense counsel sought from Hanson was found in her 1989 report in which she related information given to her by Smith about Jamie's conduct prior to the assault. Dunlap argues that because Hanson testified that, in her professional opinion, Jamie's behavior was consistent with child sexual assault victims, the door was open on cross-examination for opinion testimony regarding whether Jamie exhibited behavior consistent with being a sexual assault victim prior to the incident with Dunlap.
¶ 14. The State disagrees and construes Hanson's testimony as not opening the door to questioning about Jamie's prior sexual behavior. It also contends that the information contained in the 1989 report was inadmissible as hearsay and barred by the rape shield law.
¶ 15. The right to present a defense through the testimony of favorable witnesses and the effective cross-examination of adverse witnesses is grounded in the Confrontation and Compulsory Process Clauses of the Sixth Amendment to the United States Constitution and article I, section 7 of the Wisconsin Constitution. See State v. Pulizzano, 155 Wis.2d 633, 645, 456 N.W.2d 325 (1990). A defendant's right to present a defense may in some cases require the admission of testimony that would otherwise be excluded under applicable evidentiary rules. See id. at 648; see also State v. Jackson, 216 Wis.2d 646, 663, 575 N.W.2d 475 (1998). The right to present a defense is not absolute, but rather is limited to the presentation of relevant evidence whose probative value is not substantially outweighed by its potential prejudicial effect. See Pulizzano , 155 Wis.2d at 646.
¶ 16. The admission of evidence is a decision left to the discretion of the circuit court. See Michael R. B. v. State, 175 Wis.2d 713, 723, 499 N.W.2d 641 (1993). We will not find an erroneous exercise of discretion where the circuit court applies the facts of record to accepted legal standards. See State v. Kuntz, 160 Wis.2d 722, 745, 467 N.W.2d 531 (1991). However, a determination of whether the circuit court's actions violate the defendant's constitutional rights to confrontation and to present a defense is a question of constitutional fact. See State v. Heft, 185 Wis.2d 288, 296, 517 N.W.2d 494 (1994). For purposes of reviewing a question of constitutional fact, we adopt the circuit court's findings of fact unless clearly erroneous, but independently apply those facts to the constitutional standard. See State v. McMorris, 213 Wis.2d 156, 165, 570 N.W.2d 384 (1997).
¶ 17. While cross-examining Jamie at trial, defense counsel demonstrated that there were numerous discrepancies between her prior statements in 1989 and her testimonies at the preliminary hearing and on direct examination. In an effort to rebut inferences that might diminish the veracity of Jamie's testimony, the State called an expert witness, Hanson, to testify about the common behaviors of child sexual assault victims. On the basis of her education and experience, Hanson testified on direct examination that Jamie behaved consistently with someone who was a six-year-old sexual assault victim in the following ways: she was unable to understand the concept of something being put into the vagina; she was unable to relay all of the information and details of the assault when first questioned about them; and she divulged to a trusted person that she had been assaulted. During cross-examination of Hanson, defense counsel sought to elicit opinion testimony from her about whether there were also examples of Jamie's behavior consistent with child sexual assault victims, but that had occurred prior to Dunlap's alleged assault. The court precluded Dunlap from doing so. We determine that this decision was in error.
¶ 18. We conclude that the State opened the door for Dunlap to cross-examine the expert witness about examples of Jamie's behavior occurring prior to Dunlap's alleged assault that were consistent with child sexual assault victims. Having offered the expert's conclusions, explaining that the discrepancies in Jamie's testimony were not uncommon for child sexual assault victims, the State created an opportunity for Dunlap to explore other behaviors Jamie exhibited that were common for child sexual assault victims. This was a trial and conviction with no physical evidence. The State's evidence against Dunlap was Jamie's testimony about an incident that occurred eight years earlier. Jamie testified that Dunlap assaulted her. Dunlap testified that he never physically touched Jamie. The determining factor of this case was which party the jury believed was telling the truth. The expert's conclusions bolstered Jamie's testimony, and because Dunlap was denied the opportunity to fully cross-examine the expert about her conclusions, he was denied the right to properly defend himself.
¶ 19. The State contends that Dunlap's cross-examination of Hanson was correctly precluded because it would have been based on inadmissible hearsay evidence Hanson's 1989 report and was barred by the rape shield law. We first respond to the State's hearsay claim. On this point, it is clearly established that expert witnesses are permitted to base their opinions on hearsay evidence. Wisconsin Stat. § 907.03 provides:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him [or her] at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
¶ 20. Furthermore, in E. D. Wesley Co. v. City of New Berlin , 62 Wis.2d 668, 215 N.W.2d 657 (1974), a party argued that the circuit court's decision to allow an expert to testify based on written hearsay was erroneous. Concluding that the circuit court's evidentiary decision was correct, our supreme court noted:
Most expert opinions are based partly upon hearsay; the opinion of an expert is accepted because he [or she] is in a position to accept or reject the hearsay because of his [or her] expertise or knowledge. . . . Thus a physician's opinion or diagnosis is based in part upon facts given to him [or her] by nurses and medical reports, of which he [or she] has no personal knowledge.
Id. at 675.
¶ 21. Hanson's 1989 report was hearsay evidence. Hanson could base her opinions on this evidence, however, because she was testifying as an expert. See Wis. Stat. § 907.03. Dunlap's cross-examination of Hanson concerning her opinions derived from the 1989 report would not have been inadmissible hearsay.
¶ 22. The State also argues that the cross-examination testimony was prohibited by the rape shield law, Wis. Stat. § 972.11. Section 972.11(2)(b) precludes the admission of evidence regarding a complainant's prior sexual conduct or behavior absent application of a statutory or judicially created exception. See Pulizzano , 155 Wis.2d at 647. A pretrial motion is required to determine if the proffered evidence satisfies one of the exceptions. See Wis. Stat. § 971.31(11). In this case, defense counsel failed to make a pretrial motion seeking the admission of evidence of Jamie's prior sexual behavior, and Dunlap argues that his trial counsel was ineffective for failing to do so. We agree.
The decision about whether the contested evidence is not admissible per the rape shield law awaits the appropriate Wis. Stat. § 971.31(11) hearing on the issue. We reach no conclusion on this matter here.
¶ 23. The familiar two-pronged test for ineffective assistance of counsel claims requires defendants to prove (1) deficient performance and (2) prejudice. See State v. Sanchez, 201 Wis.2d 219, 236, 548 N.W.2d 69 (1996). The purpose of inquiring as to counsel's effectiveness is to ensure that the criminal defendant receives a fair trial. See State v. Johnson, 153 Wis.2d 121, 126, 449 N.W.2d 845 (1990).
¶ 24. Prior to trial, the circuit court granted Dunlap's motion for an in camera review of Jamie's medical and therapy records. In his motion seeking the review, Dunlap's trial counsel argued that Cox claimed to have observed Jamie exhibit unusual sexual behavior before Dunlap's alleged assault. When questioned at the postconviction hearing about whether he was aware of Jamie's unusual behavior, trial counsel stated that although he was aware that Cox and also Dunlap had observed these behaviors, he never considered bringing a Wis. Stat. § 971.31(11) pretrial motion arguing for this evidence's admission.
¶ 25. We conclude that trial counsel was deficient in not arguing that Dunlap had a constitutional right to present such evidence under the Confrontation and Compulsory Process Clauses of the United States and Wisconsin Constitutions. See Pulizzano, 155 Wis.2d at 645 (rights granted by the Confrontation and Compulsory Process Clauses essential to fair trial). In Pulizzano , the court held that evidence of a prior sexual assault showing an alternative source for sexual knowledge was admissible despite the rape shield law because the defendant's constitutional right to the evidence outweighed the State's interest underlying the rape shield law. See id. at 655. Although in this case trial counsel believed that the evidence of Jamie's sexual behavior was extremely important to Dunlap's defense and did not have a tactical reason for not making a pretrial motion for its admission, he nevertheless failed to move for its admittance. Deficient performance is limited to situations where the law or duty is clear such that reasonable counsel should know enough to raise the issue. See State v. McMahon, 186 Wis.2d 68, 85, 519 N.W.2d 621 (Ct.App. 1994). Reasonable counsel would have moved for the admission of this evidence, and trial counsel was deficient for not doing it.
¶ 26. Next we consider whether counsel's deficient performance prejudiced Dunlap's defense. A criminal defendant need not show that counsel's deficient performance was "outcome determinative" of his or her case. See Johnson, 153 Wis.2d at 129. Rather, there must be a reasonable probability that if counsel's performance had not been deficient, the result of the proceeding would have been different. See id.
¶ 27. We are satisfied that Dunlap's counsel's deficient performance had an adverse effect on his defense, creating a reasonable probability that the case's outcome might have been different. This trial was basically an eight-year-old "he said/she said" situation, and, as such, trial counsel's paramount consideration was weakening the veracity of the complaining witness. This was Dunlap's only defense. Evidence of Jamie's unusual sexual behavior prior to the alleged assault could have tipped the scales in Dunlap's favor. Even though the declarant in Hanson's 1989 report was deceased by the time of the trial, several persons remained who could have testified to observing Jamie's unusual sexual behavior. In addition to Hanson, Cox, Dunlap and Jamie all testified at trial and could have been questioned about this matter. Furthermore, an expert witness, Daniels, testified at the postconviction hearing that after reviewing Jamie's testimonies, he concluded that she had been exposed to inappropriate sexual material or experiences. Therefore, we know that an expert witness also could have been available for testimony on this matter. Counsel's deficient performance undermines the reliability of Dunlap's conviction and prejudiced his defense. Additionally, the court made an erroneous evidentiary decision during trial. Considering these circumstances, we reverse Dunlap's conviction and remand for a new trial.
¶ 28. Before concluding this opinion, we choose to address another argument of Dunlap's because the issue will likely recur at the new trial. This contention concerns evidence presented by the State about Jamie's nightmares. A circuit court's decision about whether to admit evidence is discretionary. See Michael R. B., 175 Wis.2d at 723. We will not overturn the court's decision unless it erroneously exercised its discretion by incorrectly applying the facts to accepted legal standards. See Kuntz, 160 Wis.2d at 745.
¶ 29. Jamie's father testified about the content of her nightmares based on information he received from his daughter. He claimed that Jamie's nightmares were about Dunlap returning to her home and killing her parents. Dunlap contested the admission of this evidence, claiming that it was hearsay. The circuit court disagreed, concluding that the evidence was not hearsay because it was not offered to prove the truth of the matter. The court determined that the evidence was admissible because it showed that Jamie's postassault behavior was consistent with being a child sexual assault victim. On appeal, Dunlap posits that the evidence's admission was an erroneous exercise of discretion because it is hearsay, irrelevant and prejudicial.
¶ 30. We do not find Dunlap's hearsay argument persuasive. Although we do agree that the nightmare evidence was in fact hearsay, it falls into the category of mental and emotional condition evidence, admissible as an exception to the hearsay rule pursuant to Wis. Stat. § 908.03(3). Admitting this evidence, therefore, was not in error.
¶ 31. Finally, we also find this evidence to be relevant. Jamie's father's testimony regarding her nightmares showed that his daughter was afraid of Dunlap and also supported her testimony that Dunlap threatened to kill her parents if she revealed to anyone that the assault had occurred. In sum, the nightmare evidence was properly admitted at trial.
By the Court. — Judgment and order reversed and cause remanded.