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April 26, 1983


Appeal from a judgment of the Circuit Court for Kenosha County. On certification from Court of Appeals.

Day, J. Heffernan, J. (minority OPINION(S)ing). Shirley S. Abrahamson, J. (dissenting).

The opinion of the court was delivered by: Day

This is an appeal from a judgment of conviction entered in the circuit court for Kenosha county, Thomas P. Corbett, Reserve Judge. The defendant, Charles R. Burns, appealed from the judgment. The court of appeals certified the case to this court pursuant to sec. (rule) 809.61, Stats. 1979-80. The certification request was granted on December 6, 1982.

There are two issues on appeal. The first is: Did the testimony of a physician given three months before trial furnish a sufficient basis for the trial Judge in the exercise of his discretion to declare a sexual-assault-victim witness unavailable for trial and to permit introduction into evidence of her testimony given at the preliminary hearing?

The physician testified at a hearing on the unavailability issue that subsequent to the preliminary hearing the victim developed a severe mental illness as a result of the assault which illness would last for a minimum of two years and that requiring her to testify presented a high probability of causing a moderate to severe relapse.

The second issue is: Did the admission of such preliminary hearing testimony violate the confrontation clauses of the state or federal constitutions?

We conclude the trial court did not abuse its discretion in ruling that the victim was unavailable to testify at trial. We also conclude that there was no violation of the confrontation clause of the state or federal constitution. Thus, the transcript of her preliminary hearing testimony was properly admitted into evidence and we affirm the judgment of the trial court.

On June 18, 1980, an information was filed against the defendant charging him with one count of first-degree sexual assault contrary to sec. 940.225(1) (b), Stats. 1979-80, *fn1 one count of endangering safety by conduct regardless of life contrary to sec. 941.30, *fn2 one count of kidnapping contrary to sec. 940.31(1) (a), *fn3 one of robbery contrary to sec. 943.32(1) (a), *fn4 and one count of verbally threatening to injure another contrary to sec. 943.30(1). *fn5

These charges arose from separate incidents which occurred on May 6, 1980, involving two women, M.S. and L.L. The kidnapping charge resulted from the abduction of M.S. from an apartment building parking lot in the township of Somers in Kenosha county early on the morning of May 6th. M.S. was forced at gunpoint to drive away from the parking area. The gunman directed her to drive to another parking lot. In that lot, M.S. managed to escape from her abductor by ramming her car into a set of garbage cans, fleeing from her car and screaming for help. She later identified the defendant as her abductor.

The defendant challenged the conviction for the kidnapping of M.S. on the basis that the L.L. preliminary testimony "reinforced" M.S.'s identification testimony and if L.L.'s preliminary testimony was rejected by this court, a new trial should be granted defendant on the kidnapping conviction. Because we hold L.L.'s preliminary testimony was properly admitted, there is no basis for the defendant's claim for a new trial on the kidnapping charge. The kidnapping conviction is therefore affirmed.

The incident giving rise to the other charges occurred on the evening of May 6. According to the preliminary hearing testimony of the victim, L.L., on that evening she had gone to a restaurant in the city of Kenosha. She had left the restaurant and went to her car in a parking lot when a person, who she later identified as the defendant, came up to her, pulled out a gun, and forced her into her car. He forced her to drive to a secluded area.

Once parked, the defendant forced L.L. into the back seat of the car where he beat her with the gun. He struck her at least three times in the face with the gun and ordered her to take her clothes off. He put the gun to her head and pulled the trigger. She heard the gun click. He told her she was "lucky" and cocked the gun again. She was bleeding from her face. She testified, "I realized . . . I was going to die . . . and I started screaming out Jesus Christ, Jesus Christ, Jesus Christ because I was just totally . . . petrified."

The defendant proceeded to force L.L. to remove her clothes. When she refused to do so, he ripped them off. He then began to touch her breasts and genital area with his hands and penis but penetration never occurred.

Following the sexual assault, the defendant demanded that L.L. turn over the money in her purse to him. She did so. The defendant then took out a wire and began to choke her. She passed out. She thought she was dead. She came to and the defendant began to choke her with the wire again. Again she lost consciousness.

When L.L. came to, she found the defendant was beating her on the head with the gun and she testified "blood started squirting out." The defendant then picked her up and threw her against the car window. He then told her that he had looked in her wallet and knew who she was, and, if she said anything about the attack, he would get her. He then left the car.

L.L. realized she was bleeding profusely and needed medical attention. She walked from the car (the defendant had taken the car keys during the assault) and sought help. She ultimately made her way to a house and the sheriff's department was called.

L.L. identified the defendant as her assailant. The defendant was arrested. A preliminary hearing was held on May 22, 1980, at which L.L. testified to the facts set out above. She was extensively cross-examined on her testimony at the preliminary hearing by counsel for the defendant.

As the trial date approached, the prosecutor attempted to produce L.L. for the purpose of complying with discovery demands and chemical testing. She refused stating that she had forgiven the defendant. The prosecutor then made arrangements to have her arrested and extradited as a material witness. This attempt was halted, however, when the prosecutor learned that L.L. was suffering from severe psychological problems and had been hospitalized because of them.

On December 5, 1980, the prosecutor made a motion to declare L.L. unavailable for trial. On December 9, 1980, a hearing was held on the motion. Doctor David F. Busby, a specialist in forensic psychiatry, testified at the hearing. He treated L.L. during her stay in the psychiatric ward of Lutheran General Hospital in Park Ridge, Illinois.

Dr. Busby testified that at the time of L.L.'s admission to the hospital, she was undernourished and in a "catatonic stupor with hallucinations and delusions." She would "stand in one spot and talk to the wall, refuse to eat, refuse to dress or undress, refused all medication refused all communication. . . ."

Because of a hospital policy allowing only a one month stay, she left the hospital a month later. Dr. Busby recommended transfer to another facility but L.L.'s parents believed they could care for her better at home. At the time L.L. left the hospital, Dr. Busby estimated that she was "ten to twenty percent improved."

Dr. Busby testified that L.L. suffered from schizophrenia and might be expected to "improve over the X number of years, maybe two or three, maybe five or ten . . . ." *fn6 It was Dr. Busby's opinion that forcing L.L. to testify at trial had a "high probability [of causing] anywhere from a moderate to substantial relapse and return of [L.L.'s] symptoms. . . ."

Dr. Busby also testified that he had been involved in treating patients who had been traumatized by sexual assaults and that in none of the other cases had there been this "extreme degree of reaction."

Dr. Busby's testimony was based on his personal observations of L.L. up until her discharge from the hospital on October 18, 1980, and on subsequent conversations with her parents up until the time of the hearing. However, he noted at the hearing that his prognosis for future improvement was based in part on the condition L.L. was in when she left the hospital and on the lack of progress that had been reported to him by her parents since her discharge from the hospital. He also commented on the nature of schizophrenia and the fact that the disorder was "notable for its difficulty in recovery. . . ."

An additional hearing on the motion was held on January 16, 1981. At that hearing the defendant testified that L.L. had visited him in jail since the time of the last hearing. The defendant produced a letter from L.L. to the defendant in which she asked him to "accept the Lord Jesus into your life," and urged him to read the Bible. She also expressed the hope that "we are friends in Jesus Christ." The defense also had a note from L.L. to the defendant asking him to put her on a list of visitors permitted to visit him at the jail.

The Judge, William Zievers, received the testimony and exhibits but made clear that he did not "see where they bear upon the issue before the court." He stressed that the testimony and exhibits "neither adds nor detracts from the testimony offered by the professional who based his opinion and expressions of prognosis on his professional contacts with the witness. . . ."

Following the hearing, the Judge ruled that L.L. was unavailable to testify at trial within the meaning of sec. 908.04(1) (d), Stats. 1979-80. *fn7

On February 23, 1981, the state filed a motion in limine to prohibit the defendant from offering evidence of any and all contact between L.L. and the defendant. For reasons not disclosed in the record, Reserve Judge Thomas Corbett, was substituted for Judge Zievers and held a hearing on the motion. At the hearing, Judge Corbett made the following statement summarizing his position on the availability question:

"Mr. Bramscher [the defense attorney] has indicated that it is his intention at this time to confer with the parents of this girl prior to making any determination as to whether or not he wishes her to be in attendance at the trial and that he will advise the Court and Counsel of his intention to present her at trial prior to doing so. The Court has indicated that if that situation comes up, it will conduct a hearing outside the presence of the jury for the purpose of determining the appropriateness of her testifying."

Following the hearing, the state's motion was granted.

The defendant never attempted to produce L.L. at trial. At trial Judge Corbett reiterated that he had agreed to hold a hearing on the unavailability question if the defendant wished to challenge Judge Ziever's ruling. However, Judge Corbett made it clear that the initial ruling was appropriate and would stand because the defendant had failed to demonstrate that the initial determination of unavailability should not continue to apply up to the time of trial. The defendant introduced no testimony from professionals to show L.L. no longer suffered from a severe mental illness but rather relied upon statements from the defendant and his father as to their impressions arising from contacts with L.L. Judge Corbett found this testimony to be insufficient to require a change in Judge Ziever's determination that L.L. was unavailable for trial.

The defendant was tried and convicted on all five counts. The defendant appealed from the judgment.

The first issue is whether Judge Corbett abused his discretion in admitting L.L.'s preliminary hearing testimony into evidence at trial.

Under sec. 908.045(1), Stats. 1979-80, testimony given by a witness at a preliminary hearing may be admitted into evidence at trial under an exception to the hearsay rule if the declarant is unavailable as a witness. Section 908.04(1) (d) defines unavailability of a witness to include situations where the declarant is "unable to . . . testify at the hearing because of . . . then existing physical or mental illness or infirmity. . . ."

Under the statutes, for L.L.'s preliminary hearing testimony to be admitted, the state had to demonstrate that she suffered from a "then existing . . . mental illness" which made her unavailable to testify at trial. The trial court's decision on the admissibility of former testimony is a matter of discretion and will not be overturned unless an abuse of discretion is found. State v. La Fernier, 44 Wis. 2d 440, 446, 171 N.W.2d 408 (1969); La Barge v. State, 74 Wis. 2d 327, 338-339, 246 N.W.2d 794 (1976). We find no abuse of discretion here.

Judge Ziever's initial ruling was well supported by the testimony of an expert in forensic psychiatry. Dr. Busby testified that L.L. presently suffered from schizophrenia, a severe mental illness, and would continue to suffer from the illness for two years or more. He also testified that requiring L.L. to testify at trial had a moderate to high probability of causing her to suffer a relapse. The symptoms L.L. originally suffered included being in a "catatonic stupor with hallucinations and delusions." He further testified that schizophrenia was known for the difficulty which patients experienced in recovering from it.

The defendant presented only his own testimony regarding his contacts with L.L. to support his position that she was available for trial. Based upon all of the testimony and exhibits taken at the motion hearing, a determination that L.L. presently suffered from a mental illness and would continue to so suffer through the trial ...

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