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COURT OF APPEALS DECISION DATED AND RELEASED October 3, 1995 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-0156-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
MAURICE M. HARDY,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
JOHN A. FRANKE, Judge. Reversed.
Before Wedemeyer, P.J.,
Sullivan and Fine, JJ.
FINE, J. Maurice M. Hardy appeals from a judgment
convicting him of second-degree sexual assault, see § 940.225(2)(a),
Stats., on a jury's verdict of
guilty. He raises two issues on this
appeal. First, he argues that the trial
court improperly rejected his request for the health-care records of the
alleged victim. Second, he contends that he was denied his right to
cross-examine the alleged victim on a matter affecting her credibility. We reverse.
Hardy and the alleged
victim were acquaintances and had been drinking together in a tavern on the
evening of the alleged assault. The
alleged victim testified that she was “drunk” at the time. Later, they went to the alleged victim's
apartment where, according to her, Hardy raped her. Hardy denied any sexual contact, consensual or not.
During his
cross-examination of the alleged victim, Hardy's counsel attempted to impeach
her credibility by asking her if she had tried to persuade Colorado correction
officials to let her talk to an inmate who was allegedly the father of her
daughter by falsely telling them that the girl was dying. The trial court indicated in a pre-trial
ruling that it would not permit the inquiry, noting that in its opinion
“[s]pecific instance--instances of conduct, unless they relate directly to this
incident [i.e. the alleged rape], aren't generally permissible cross
examination.” Later, during the trial, the trial court sustained objections to
Hardy's cross-examination of the alleged victim on this subject. Unfortunately, the trial court heard
argument and explained its ruling at an unreported sidebar.[1]
A trial court's decision
to admit or exclude evidence is a discretionary determination and will not be
upset on appeal if it has “a reasonable basis” and was made “`in accordance
with accepted legal standards and in accordance with the facts of
record.'” State v. Pharr,
115 Wis.2d 334, 342, 340 N.W.2d 498, 501 (1983) (citation omitted). Contrary to the trial court's analysis, Rule 906.08(2), Stats., permits inquiry into collateral matters on
cross-examination if those matters are “probative of truthfulness or
untruthfulness and not remote in time.”[2] See also State v. Sonnenberg,
117 Wis.2d 159, 166–167, 344 N.W.2d 95, 98–99 (1984). The questions Hardy's counsel sought to ask satisfied these
criteria and, given the fact that this case boiled down to an issue of
credibility, we cannot say that the trial court's error was harmless beyond a
reasonable doubt. See State
v. Dyess, 124 Wis.2d 525, 540–547, 370 N.W.2d 222, 230–233 (1985).[3]
Although we have
concluded that reversal of Hardy's conviction is required because the trial
court erred in preventing the inquiry under Rule
906.08(2), Stats., we also
discuss the question of whether Hardy is entitled to receive access to the
health-care records of the alleged victim.
See State ex rel. Jackson v. Coffey, 18 Wis.2d 529,
533, 118 N.W.2d 939, 942 (1963) (issues briefed may be considered if they are
likely to recur on remand even though other issues are dispositive of
appeal). Hardy sought production of the
alleged victim's psychological-treatment records that “would tend to negate the
guilt of the defendant.” The trial
court denied the motion.
Access to an alleged victim's
mental-health records where those records have a bearing on an alleged victim's
credibility implicates, at the very least, a defendant's right to due
process. State v. Shiffra,
175 Wis.2d 600, 605 and 605 n.1, 499 N.W.2d 719, 721 and 721 n.1 (Ct. App.
1993) (declining to address the defendant's rights to confrontation and
compulsory process).[4] Prior to granting a defendant access to
those records, two hurdles must be cleared.
First, “the defendant must make a preliminary showing that the
sought-after evidence is material to his or her defense,” id.,
175 Wis.2d at 605, 499 N.W.2d at 721, or, phrased somewhat differently, “that
the sought-after evidence is relevant and may be helpful to the defense or is
necessary to a fair determination of guilt or innocence,” id.,
175 Wis.2d at 608, 499 N.W.2d at 723.
Second, if that showing is made, the trial court must examine the
records in camera to determine whether the records contain information
that “probably would” affect the trial's outcome. See Pennsylvania v. Ritchie, 480 U.S. 39, 58
(1987). The trial court rejected
Hardy's request for an in camera examination of the records. Our review of the trial court's findings of
fact in connection with that determination is “under the clearly erroneous
standard.” Shiffra, 175
Wis.2d at 605, 499 N.W.2d at 721.
Hardy's pre-trial
showing in support of his motion for an in camera review of the alleged victim's mental health
records was deficient. Although counsel
told the trial court that he believed that the alleged victim had been an in‑patient
at the Milwaukee County Mental Health Complex, he did not know when this
was. Further, he presented no evidence
to the trial court that anything in those records was material to his
defense. Although the prerequisite
showing under Shiffra is not high, id., 175 Wis.2d at
609, 499 N.W.2d at 723, the trial court was presented with nothing from which
it could make the findings to justify an in camera review.
During the trial, Hardy
renewed his request that the trial court review the alleged victim's
mental-health records in camera.
He based his renewed request on two grounds. First, he learned that the alleged victim had attempted suicide
some two months prior to the trial and some four months after the alleged
assault, and, as a result, had been taken to the Milwaukee County Mental Health
Complex for at least observation.
Second, during her testimony, the alleged victim admitted that she only
remembered “bits and pieces” of what had happened the night of the alleged
assault. The trial court rejected the renewed request, determining that the
requisite Shiffra showing had not been made because there was no
expert testimony connecting suicidal ideation or attempted suicide with an
impaired ability to “perceive the truth.” Although such expert testimony might
not be necessary under other circumstances, without it here Hardy's motion for
an in camera review was, unlike the situation in Shiffra,
175 Wis.2d at 610–611, 499 N.W.2d at 723–724, based on pure speculation and
supposition. Significantly, the alleged
victim did testify later that she had “blocked ... out” certain things
that happened the night of the alleged assault, and, as a result, “received
counseling to try to help me remember, to try and go through the facts about
what happened.” Hardy, however, never
renewed his request so as to encompass an in camera review of those
counseling records. Although the trial
court did not err when it rejected Hardy's requests for an in camera
review of the alleged victim's mental-health records when those requests were
made, it might very well be that this additional testimony by the alleged
victim will, together with other focussed material presented to the trial court
on remand, justify the requested in camera review. That determination must, however, be made in
the first instance by the trial court.[5]
By the Court.—Judgment
reversed.
Publication in the
official reports is not recommended.
[1] We again disapprove of unreported sidebars on matters of significance. See State v. Mainiero, 189 Wis.2d 80, 95 n.3, 525 N.W.2d 304, 310 n.3 (Ct. App. 1994).
[2] Rule 906.08(2), Stats., provides:
Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness's credibility, other than conviction of crimes as provided in s. 906.09, may not be proved by extrinsic evidence. They may, however, subject to s. 972.11 (2), if probative of truthfulness or untruthfulness and not remote in time, be inquired into on cross‑examination of the witness or on cross‑examination of a witness who testifies to his or her character for truthfulness or untruthfulness.
[3] The State has crafted an ingenious, but unpersuasive, argument from the trial court's later reconstruction of the unreported sidebar conference that the sole purpose of Hardy's attempted inquiry into the Colorado incident was to elicit testimony about prior false accusations against the inmate by the alleged victim in this case, and that Hardy had not made the requisite preliminary showing required by the rape-shield law, §§ 972.11(2) & 971.31(11), Stats. Although Hardy's argument before the trial court during the reconstruction colloquy was, as phrased by the State's brief, “all over the board,” it is clear that Hardy wanted to impeach the alleged victim's credibility by asking her whether she had previously lied. Rule 906.08(2), Stats., permits this inquiry on cross-examination. If the matters are collateral, however, the examiner is bound by the witness's answer. See McClelland v. State, 84 Wis.2d 145, 159–161, 267 N.W.2d 843, 849–850 (1978).
[4] Pennsylvania v. Ritchie, 480 U.S. 39, 51–56 (1987), held that the confrontation clause of the United States Constitution was inapplicable but did not decide whether the defendant's access to the files there at issue was required by the compulsory-process clause of the United States Constitution.