COURT OF APPEALS
DECISION
DATED AND FILED
June 29, 2010
David
R. Schanker
Clerk of Court of Appeals
|
|
NOTICE
|
|
|
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
|
|
Appeal No.
|
|
|
STATE OF WISCONSIN
|
IN COURT OF
APPEALS
|
|
DISTRICT I
|
|
|
|
|
State of Wisconsin,
Plaintiff-Respondent,
v.
Alan Edward Sparks,
Defendant-Appellant.
|
|
|
|
|
|
|
|
APPEAL
from a judgment and an order of the circuit court for Milwaukee County: John
Franke and Jeffrey A. Conen,
Judges. Affirmed.
Before Curley, P.J., Fine and Kessler, JJ.
¶1 PER CURIAM. Alan Edward Sparks appeals from
a judgment of conviction, entered upon a jury’s verdict, on one count of
first-degree sexual assault of a child under thirteen years of age. Sparks also appeals from an order partially
denying his postconviction motion. The fundamental question in this appeal is
whether Sparks
has made a sufficient showing to justify the circuit court’s in camera inspection of the victim’s
counseling records. We conclude he has
not and, therefore, affirm the judgment and order.
background
¶2 On May 18, 2008, Sparks
and his daughter, Morgan, picked up her friend, then-twelve-year-old Bryanna
C., who was planning to spend the night.
After watching movies, baking cookies, and cleaning up, the girls put on
their pajamas and got ready to go to bed.
They were going to sleep in Sparks’s
bed because, although there was another bedroom in the house, the bed there was
too small for both girls. The girls got
into bed with Sparks
sitting on the edge, watching television.
According to Bryanna, Sparks
began rubbing her lower leg, then her thigh, then her vaginal area and
buttocks. Bryanna tried various things
to stop Sparks—including changing her position, attempting to wake Morgan, and
kicking Sparks—but ultimately, she jumped out of bed, grabbed her cell phone,
and sent a text message to her sister; Bryanna’s sister called their mother,
who called 911.
¶3 Shortly before trial, Sparks
moved to adjourn so that he could retain an expert. The motion was heard on the first day of
trial, at which point counsel also advised, “some information … came up that I
think I need to explore a little bit in terms of possibly filing a Shiffra
motion.” The circuit court denied the motion to
adjourn. At trial, Bryanna’s testimony
was not wholly consistent with statements she gave to police. For instance, Bryanna did not tell the
interviewing officer that she had tried to wake up Morgan. The jury ultimately convicted Sparks. He was sentenced to four years’ initial
confinement and three years’ extended supervision, imposed and stayed in favor
of five years’ probation.
¶4 Sparks
moved for postconviction relief. As
relevant to the appeal, Sparks
alleged that the victim was in counseling and, thus, there was a question as to
whether he was entitled to her treatment records. If so, Sparks
argued, the adjournment should have been granted. The court directed the State to respond
regarding the counseling records. After
the State filed its response and Sparks replied,
the court denied the motion, explaining that Sparks had failed to make the necessary
evidentiary showing. Sparks
appeals.
DISCUSSION
¶5 Due process requires that defendants “be given a meaningful
opportunity to present a complete defense.”
State v. Shiffra, 175 Wis. 2d
600, 605, 499 N.W.2d 719, 721 (Ct. App.
1993). This may mean a defendant is
entitled to review a victim’s mental health treatment records. See ibid. However, the State has a competing interest
in protecting citizens’ privileged information.
State v. Green, 2002 WI 68, ¶23, 253 Wis. 2d 356, 371, 646 N.W.2d 298,
305. To balance these interests, Shiffra
concluded that a defendant’s access to treatment records could be had by in camera review. See Shiffra, 175 Wis. 2d
at 605, 499 N.W.2d at 721; see also Green, 2002 WI 68, ¶23, 253 Wis. 2d at 371–372,
646 N.W.2d at 305.
¶6 The preliminary showing necessary for a defendant to be
entitled to in camera review of a
victim’s mental health treatment records “requires a defendant to set forth, in
good faith, a specific factual basis demonstrating a reasonable likelihood that
the records contain relevant information necessary to a determination of guilt
or innocence and is not merely cumulative to other evidence available to the
defendant.” Green, 2002 WI 68, ¶34, 253
Wis. 2d
at 381, 646 N.W.2d at 310. Information
is necessary to the determination of guilt or innocence “if it ‘tends to create
a reasonable doubt that might not otherwise exist.’” Ibid. (citation omitted). In essence, the court must look at existing
evidence in light of the request and determine whether the treatment records
“will likely contain evidence that is independently probative to the
defense.” Ibid. This standard also applies in a
postconviction setting. See State v. Robertson, 2003 WI App 84, ¶22,
263 Wis. 2d
349, 362–363, 661 N.W.2d 105, 111.
¶7 In his postconviction motion, Sparks alleged that it was “clear from the
testimony of the victim that she was in counseling. Therefore, the question is whether or not the
Defendant was entitled to these records and if so, the Defendant asserts that
the jury trial in this case should have been adjourned[.]” Attached to the motion was an affidavit from
counsel “in support of the information that was learned on this issue and how
the information is obviously relevant to the relationship to the crime, the
focus of the treatment and the fact that this information supports the basis
for an in camera inspection of the
counseling record.” Counsel’s affidavit,
in turn, alleged:
4.
That this affiant has spoken to Jeanie Sparks, the
mother of Morgan[.] Morgan [] is the
daughter of Alan Sparks who was friends with the victim and was present in the
bed on the date in question. This
affiant learned that Morgan [] was made aware of the fact that the victim was
going to see the school counselor in regards to the alleged actions of the
Defendant. Morgan [] indicated that she
is aware of this fact because the victim requested that she go with her to see
the counselor.
5.
That the undersigned believes that this information
would allow for a request for an in
camera inspection of her counseling records because it was counseling that
was received based upon the allegations against Mr. Sparks.
¶8 The State countered that Sparks
was claiming only “that because the victim was in counseling and the counseling
may have related to the sexual assault, he is entitled to an in camera
inspection of those records[,]” but such a claim is “legally wrong,” and Sparks failed to meet the
necessary burden under Green. Sparks
responded, in part:
[T]he information is relevant to his theory of
defense. The Defendant believes that the
victim could have made this claim for the purpose of attention. If that is the case, [counsel] has learned
that the victim asked the defendant’s daughter to attend these counseling
sessions with her in because it was fun or enjoyable to get out of class to
attend these sessions which would confirm that the victim was claiming this for
attention.
¶9 The circuit court rejected Sparks’s motion as insufficient. We agree.
“The mere contention that the victim has been involved in counseling
related to … the current sexual assault is insufficient.” Green, 2002 WI 68, ¶33, 253 Wis. 2d at 380, 646
N.W.2d at 310. Further, evidence sought from
treatment records must not merely be cumulative. Id., 2002 WI
68, ¶33, 253 Wis. 2d at 381, 640 N.W.2d at 310. To the extent Sparks believes that Bryanna’s treatment
records will show she enjoys getting out of class for therapy, it appears this
information may be available elsewhere. It
is also not evident, if it exists, that Bryanna’s derivation of some small
psychic value from leaving class to attend counseling is probative of, or even
relevant to, a theory that she fabricated her allegations against Sparks.
¶10 A defendant must “make a sufficient evidentiary showing that is
not based on mere speculation or conjecture as to what information is in the
records.” Id.,
2002 WI 68, ¶33, 253 Wis. 2d
at 380–381, 646 N.W.2d at 310. Sparks’s motion is not
even based on speculation. The circuit
court properly rejected the postconviction motion; adjournment for pursuit of a
Shiffra
motion could not have been had on the facts as alleged.
By the Court.—Judgment and order affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.