State v. Johnny L. Green
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2002 WI 68 SUPREME COURT CASE NO.: OF WISCONSIN 00-1392-CR COMPLETE TITLE: State of Wisconsin, Plaintiff-Respondent, v. Johnny L. Green, Defendant-Appellant-Petitioner. REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 246 Wis. 2d 669, 630 N.W.2d 275 (Ct. App. 2001-Unpublished) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: January 11, 2002 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Winnebago Bruce Schmidt JUSTICES: CONCURRED: June 25, 2002 ABRAHAMSON, C.J., concurs (opinion filed). CROOKS, J., joins concurrence. DISSENTED: NOT PARTICIPATING: ATTORNEYS: For the defendant-appellant-petitioner there were briefs by Nicolas G. Griswold, Muskego, and oral argument by Nicolas G. Griswold. For the plaintiff-respondent the cause was argued by Daniel J. O'Brien, assistant attorney general, with whom on the brief was James E. Doyle, attorney general. 2002 WI 68 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 00-1392-CR (L.C. No. 98 CF 430) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, FILED Plaintiff-Respondent, JUN 25, 2002 v. Johnny L. Green, Cornelia G. Clark Clerk of Supreme Court Defendant-Appellant-Petitioner. REVIEW of a decision of the Court of Appeals. Affirmed. ¶1 Johnny WILLIAM A. BABLITCH, J. Petitioner Green (Green) seeks review of a decision from the court of appeals that upheld his conviction for first-degree sexual assault as a repeat offender. two respects: Green argues that the circuit court erred in (1) by failing to conduct an in camera review of the victim's counseling records and (2) by concluding that the prosecutor did not violate a sequestration order. The court of appeals concluded that the circuit court did not err in either respect. We agree. Accordingly, we affirm the decision of the court of appeals. I. BACKGROUND No. ¶2 00-1392-CR Green was charged in Winnebago County Circuit Court with one count of first-degree sexual assault of a child as a repeat offender, in violation 939.62(1)(c)(1997-98).1 of Wis. Stat. §§ 948.02(1) and The State of Wisconsin (State) alleged that Green had sexual contact with N.W., a child under the age of 13 years, on or about November 1996. Green and his girlfriend, Lisa Russell, lived with N.W. and N.W.'s mother for a short period during this time. ¶3 N.W. did not inform anyone of the sexual assault until March 28, 1997, at which time she informed Russell. day, N.W. informed her mother. ¶4 of That same The police were contacted. On April 10, 1997, Detective Robert Quant of the City Oshkosh Police Department and Rod Schraufnagel of the Winnebago County Department of Social Services interviewed N.W. and her mother about the sexual assault. N.W. told them that, while she was lying on her bed, Green laid down beside her and proceeded to touch her breasts and vagina outside of her pajamas. N.W. alleged that this contact occurred around the time she was taken to the hospital because of vaginal bleeding. This hospital visit occurred on or about November 22, 1996, at which time N.W. was diagnosed with a urinary tract infection. During the interview with Quant and Schraufnagel, N.W. also reported that Green told her that he would kill her if she told anyone. N.W.'s mother told Quant and Schraufnagel that N.W. had 1 All subsequent references to the Wisconsin Statutes are to the 1997-98 version unless otherwise indicated. 2 No. 00-1392-CR not told her of many details surrounding the alleged assault and that N.W. was seeing a counselor, Jeanie Roberts, for the purpose of discussing the assault. ¶5 Quant More than a year later, on October 20, 1998, Detective again interviewed alleged the following. N.W. During this interview, N.W. On the day of the assault, she was home alone with Green, and Green called her into her bedroom to watch television with him. lying on the bed. him. When N.W. entered the room, Green was N.W. sat on the bed, and Green pulled her to Green then climbed on top of her and pulled her pajama bottoms down. his penis. Green then allegedly penetrated her vagina with Green did not stop until she told him that she had to go to the bathroom. Then, instead of going to the bathroom, she tried to run outside, but Green stopped her and told her that if she told anyone, he would kill her and her mom. Green then took her to a gas station to buy candy and a beanie baby. Soon after they arrived home, N.W.'s mother arrived home. A short time later, N.W. told her mother that she was urinating blood. ¶6 was Her mother then took her to the hospital. About two months later, on December 14, 1998, Green charged for having sexual intercourse with N.W. The complaint included the details, as discussed above, of N.W.'s April 10, 1997 and October 20, 1998 statements to the police. The complaint did not contain any information about N.W. seeing a counselor. ¶7 The complaint also included details from an interview that Quant conducted with Russell. 3 Russell told Quant that she No. 00-1392-CR remembered when Green had purchased the beanie baby for N.W. Russell stated that at that time she sensed N.W. was upset about something, but N.W. did not say anything. Russell also alleged that on one occasion Green admitted to her that he had "fondled" or "fiddled" N.W. Russell stated that, after telling Green that he was a "sick bastard," Green told her he was "only kidding to see how you would act." ¶8 On January 5, 1999, the circuit court, the Honorable Bruce K. Schmidt presiding, held a preliminary hearing on the charges against Green. alleged that Green through her N.W. testified during this hearing. did not clothes. touch She intercourse with her. her breasts maintained that or he She her vagina had sexual During her testimony, she stated that she went over to a friend's house immediately after the assault and that Green went over to get her. She stated that she did not go anywhere that else that evening and hospital until the following day. she did not go to the After hearing testimony from N.W. and N.W.'s mother, the court found probable cause and bound the matter over for further proceedings. ¶9 hearing, Green. recently On February 10, addressing in part a the court motion for held a discovery pretrial filed by Green's trial counsel informed the court that he had received a document April 10, 1997 interview. summary 1999, written by from the State summarizing the This document a three-page interview Schraufnagel made attending counseling with Roberts. reference to N.W. Based on this discovery, Green's trial counsel made an oral motion requesting the court 4 No. to issue a subpoena records. duces tecum to obtain N.W.'s 00-1392-CR counseling He alleged that the counseling records were important in light of the fact that N.W. did not tell anyone that sexual penetration had occurred until October 1998, almost two years after the alleged assault occurred. know what N.W. told Roberts. records "may contain Green therefore wanted to He argued that the counseling inconsistent statements." The State responded that it did not have any records from these counseling sessions and that it did not intend to introduce any testimony concerning these sessions at trial. Based on these arguments, the court denied the motion. ¶10 Green was tried before a jury over a three-day period on the sexual assault charge. Prior to trial, the court issued a sequestration order, which applied to "all prosecution and defense witnesses during the trial, apart from Det. Quant of the Oshkosh Police investigator Department, in the case the second who by should virtue remain of at being the the lead prosecution table." ¶11 Cheryl On Haack, testified on one of direct day of Green's trial, friends, examination that, the prosecutor statement on cross-examination. witness. Haack as a on November Green told her that he sexually assaulted N.W. this called 13, 1996, Haack reiterated Haack's testimony was inconsistent with a prior statement that she had provided to the police, which alleged that her conversation with Green occurred in January or February 1997. Haack admitted at trial that after giving this statement she later learned that Green had been in 5 No. jail during January and February 1997. later realized that the correct date 00-1392-CR She testified that she was November 13, 1996, after reviewing a calendar that she had kept during that time. Following cross-examination and redirect examination, Haack was excused as a witness. ¶12 The State then called another witness to testify. After this witness, the prosecutor recalled Haack to clarify the date on which Green confessed to her that he assaulted N.W. Green objected to Haack being recalled by the State, but the court allowed her to testify. During her testimony, Haack modified her previous testimony, asserting that Green confessed to her on November 19, 1996, not on November 13, 1996. Haack admitted that she had discussed the discrepancy of the date with the prosecutor in the hall during a break in trial proceedings after her testimony. with Haack, but The prosecutor admitted to a conversation stated that it occurred during a break in brought a Green's cross-examination of Haack. ¶13 After the State rested its case, Green motion to dismiss, alleging that the prosecutor had committed misconduct by violating the sequestration order by communicating with Haack during a break in trial and then recalling Haack as a witness to clarify her previous testimony. The court denied this motion. ¶14 The jury found Green guilty assault of a child as a repeat offender. years in prison. 6 of first-degree sexual He was sentenced to 42 No. ¶15 In a post-conviction motion, Green 00-1392-CR requested a new trial asserting that the circuit court should have conducted an in camera review of N.W.'s counseling records pursuant to State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993). He also argued that he was entitled to a new trial because the State had violated the sequestration order by communicating trial information to its witness during the course of the trial. ¶16 motion. After a hearing, the court denied the post-conviction The court ruled that Green never met his burden under Shiffra to compel the court to conduct an in camera review of N.W.'s counseling records. The court also determined that a violation of the sequestration order had not occurred. Green appealed. ¶17 The court of appeals, in an unpublished opinion, also held that Green failed to make a sufficient pretrial showing to entitle him to an in camera review of N.W.'s counseling records. The court, citing Shiffra, stated that Green was required to make a "relevant preliminary showing and necessary innocence." More to that the fair determination a specifically, Green evidence was sought of required was guilt to or show "specific facts which would bear upon the witness's ability to accurately perceive events, remember or testify." The court concluded that Green had failed to offer any factual showing that the counseling records could contain information that would show N.W.'s inability to perceive events, remember or testify. ¶18 had The court also rejected Green's claim that the State violated the sequestration 7 order by conversing with its No. 00-1392-CR witness in the hallway during a break in the trial proceedings. The court stated that the purpose of such an order was to prevent the shaping of testimony by one witness to match that of other witnesses. Green, however, failed to cite any authority that a general sequestration order requires witnesses to also be sequestered from the prosecutor. Green's appropriate remedy, the court noted, would have been to move to strike the witness's testimony or request a mistrial. that, even assuming that there Regardless, the court held had been a violation of the sequestration order, Green did not suffer any prejudice because Haack was a terrible witness for the State and because her lack of credibility had been amply demonstrated. II. QUESTIONS PRESENTED ¶19 Green We met circuit address his court counseling burden to two at issues. the conduct records. This First, pretrial an in hearing camera question we examine to review necessarily whether compel of the N.W.'s involves a determination of the standard to be applied when a defendant seeks an in camera review. We conclude that the standard to obtain an in camera review 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. Applying a de novo standard of review, we conclude that the circuit court did not err in failing to conduct such a review in this case because Green failed to meet his burden to compel 8 No. review. Second, we examine whether the 00-1392-CR sequestration order issued by the circuit court was violated when the prosecutor consulted with a recalled that witness testimony. We witness during to conclude a break clarify that the the in trial witness's consultation and later previous between the prosecutor and the witness in this case was not a violation of the sequestration order, and that, even if it was, Green has not shown any prejudice that circuit court and the finding error. court from this of appeals violation. both properly The denied We affirm the court of appeals' ruling. III. A. resulted IN CAMERA REVIEW Standard of Review ¶20 failing Green first alleges that the circuit court erred by to records.2 conduct an in camera review of N.W.'s counseling The defendant bears the burden of making a preliminary evidentiary showing before an in camera review is conducted by 2 Green argues that N.W. waived her privilege to her counseling records because her mother signed releases to these records. In the interview summary written by Schraufnagel, it stated that N.W.'s mother "signed releases of information so Mercy Medical Center and the counselor in Appleton could share the information that they have regarding [N.W.]." The record does not contain any other information on these releases. Green failed to raise any waiver of privilege argument on appeal prior to his reply brief to this court. For this reason, we conclude that Green effectively waived review of this issue. Ford Motor Co. v. Lyons, 137 Wis. 2d 397, 417, 405 N.W.2d 354 (Ct. App. 1986) ("[T]he failure to include alleged errors in the motions after verdict constitutes a waiver of the errors."). In seeking post-conviction relief, Green has proceeded with the understanding that these records are privileged. We proceed similarly. 9 No. the court. Shiffra, 175 Wis. 2d at 605. 00-1392-CR Factual findings made by the court in its determination are reviewed under the clearly erroneous standard. preliminary Id. evidentiary Whether showing the defendant sufficient for an submitted in a camera review implicates a defendant's constitutional right to a fair trial and raises a question of law that we review de novo. State v. Ballos, 230 Wis. 2d 495, 500, 602 N.W.2d 117 (Ct. App. 1999); State v. Munoz, 200 Wis. 2d 391, 395, 546 N.W.2d 570 (Ct. App. 1996).3 If we determine the requisite showing was made, the defendant is not automatically entitled to a remand for an in camera review. Ballos, 230 Wis. 2d at 501. harmless. B. The defendant still must show the error was not Shiffra ¶21 examine To determine whether Green met his burden, we first Shiffra, the case in 3 which the court of appeals We granted review in this case in part to determine this question on standard of review. The parties, however, no longer dispute that this preliminary showing is a question of law that we review de novo. 10 No. 00-1392-CR established that a defendant may obtain an in camera review of such privileged records upon a showing of materiality.4 ¶22 Shiffra was charged with second-degree sexual assault, and one day before trial, he received evidence from the state showing that the victim had a history of psychiatric problems. Shiffra, 175 Wis. 2d at 603. He therefore moved for an adjournment arguing that he had recently received information from the state "'which indicate[d] that . . . the complaining witness has a history of psychiatric problems which may affect her ability to perceive and relate truthful information.'" The court granted the adjournment, and subsequently, Id. Shiffra moved for an order requiring the state and the victim to provide him with the victim's psychiatric records and medical records. Id. At the hearing on the motion to compel, Shiffra argued that his theory of defense was that the sexual contact was consensual and that he sought review of the records only to obtain evidence 4 The State contends that the holding in State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993) was in error because it relied on Pennsylvania v. Ritchie, 480 U.S. 39 (1987). The State argues that Ritchie was distinguishable and therefore inapplicable because it involved a situation, unlike here, where the records were in the government's possession. The Shiffra court, however, specifically rejected this argument, concluding that it was bound by Wisconsin precedent, which clearly made Ritchie applicable in cases where the information sought by the defense is not in the possession of the state. Shiffra, 175 Wis. 2d at 606-07 (citing State v. S.H., 159 Wis. 2d 730, 736, 465 N.W.2d 238 (Ct. App. 1990), and In re K.K.C., 143 Wis. 2d 508, 511, 422 N.W.2d 142 (Ct. App. 1988)). This court recognized the validity of Shiffra in State v. Solberg, 211 Wis. 2d 372, 386-87, 564 N.W.2d 775 (1997), and in State v. Rizzo, 2002 WI 20, ¶53, 250 Wis. 2d 407, 640 N.W.2d 93. We will not depart from this precedent. 11 No. 00-1392-CR concerning whether the complainant may have suffered from "'some type of psychiatric disorder which causes her an inability to truthfully relate facts as she perceives them'" or from "'some disorder which causes her to have flashbacks to previous instances in her life and then they become sexual assaults of her because of her disorders.'" Id. adequate an showing and complainant's records. ¶23 On review, ordered Id. at 604. the court of The circuit court found an in camera review of the In its The state appealed. appeals affirmed. analysis, the court began by noting the competing rights and interests involved when a defendant seeks an in camera review of privileged records. On the one hand, a criminal defendant's right to due process, in particular the right to a meaningful opportunity to present a complete defense, is implicated. Id. at 605 and n.1. On the other hand, the state has an interest in protecting patients' § 905.04(2),5 5 a from being privileged disclosed. records, In Wis. Stat. balancing This statute provides: (2) General rule of privilege. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made or information obtained or disseminated for purposes of diagnosis or treatment of the patient's physical, mental or emotional condition, among the patient, the patient's physician, the patient's registered nurse, the patient's chiropractor, the patient's psychologist, the patient's social worker, the patient's marriage and family therapist, the patient's professional counselor or persons, including members of the patient's family, who are participating in the diagnosis or treatment under the direction of the physician, registered 12 these No. 00-1392-CR interests, the Shiffra court concluded that an in camera review was appropriate. Id. A defendant, however, is not automatically entitled to such an in camera review upon request. Instead, "[t]o be entitled to an in camera inspection, the defendant must make a preliminary showing that the sought-after evidence is material to his or her defense." Id. (citing State v. S.H., 159 Wis. 2d 730, 738, 465 N.W.2d 238 (Ct. App. 1990)). ¶24 In establishing the burden for this preliminary showing, the Shiffra court analogized to cases where a defendant seeks disclosure of a government informant's identity, which is also protected by privilege pursuant to statute.6 noted that, as in cases involving privileged The court psychiatric records, similar competing rights and interests are implicated in government informant cases. Shiffra, 175 Wis. 2d at 609. In government informant cases, a defendant may obtain an in camera review if he or she provides sufficient evidence to show "that an informer may be able to give testimony necessary to a fair determination of the issue of guilt or innocence in a criminal nurse, chiropractor, psychologist, social worker, marriage and family therapist or professional counselor. 6 Wisconsin Stat. § 905.10(1) states in relevant part: Identity of informer. (1) Rule of privilege. The federal government or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of law to a law enforcement officer . . . . 13 No. case . . . ." Id. at 609 n.3. 00-1392-CR This burden is reflected in Wis. Stat. § 905.10(3)(b).7 ¶25 The court adopted a similar standard for defendants seeking to compel an in camera review of a victim's privileged psychiatric records. some internal test. The Shiffra opinion, however, contained inconsistencies in setting forth the specific At one point in the opinion, the Shiffra court concluded "that the defendant's burden should be to make a preliminary showing 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. at 608 (emphasis added). However, in a later part of the opinion the court enumerated the test as "may be 7 necessary to a fair determination of guilt or Wisconsin Stat. § 905.10(3)(b) states: (3) Exceptions. . . . . (b) Testimony on merits. If it appears from the evidence in the case or from other showing by a party that an informer may be able to give testimony necessary to a fair determination of the issue of guilt or innocence in a criminal case . . . and . . . a state . . . invokes the privilege, the judge shall give the . . . state . . . an opportunity to show in camera facts relevant to determining whether the informer can, in fact, supply that testimony. We have stated that this burden "does not place a significant burden upon the party seeking disclosure." State v. Outlaw, 108 Wis. 2d 112, 125, 321 N.W.2d 145 (1982). "The showing need only be one of a possibility that the informer could supply testimony necessary to a fair determination." Id. at 126. 14 No. innocence." Id. at 610 (emphasis added). 00-1392-CR The Munoz court noted this inconsistency, but embraced the "may be necessary" language as the appropriate test, stating: The broad language of Shiffra--"that the sought-after evidence is relevant and may be helpful to the defense,"--certainly would seem to suggest a very low threshold for a defendant to establish the basis for an in camera inspection. A closer reading of Shiffra, however, reveals that a defendant must establish more than "the mere possibility" that psychiatric records "may be helpful" in order to justify disclosure for an in camera inspection. [A]lthough Shiffra's reference to information that "is relevant and may be helpful to the defense" could cover almost anything the defense sought to discover, Shiffra did not repeat the "may be helpful" language elsewhere in the opinion but, instead, reiterated the standard: "may be necessary to a fair determination of guilt or innocence." Munoz, 200 Wis. 2d at 397-98 (citations omitted).8 In cases subsequent to Munoz, the court of appeals has followed the Munoz court's necessary interpretation standard. to a fair of Shiffra determination and of applied guilt the or "may be innocence" See State v. Navarro, 2001 WI App 225, ¶11, 248 8 The "relevant and helpful" standard tracked language, which was quoted in Shiffra, from Roviario v. U.S., 353 U.S. 53, 60-61 (1957), a seminal case on a defendant's right to discover the identify of a government informant. See Shiffra, 175 Wis. 2d at 608. The "may be necessary" language tracked the language in Wis. Stat. § 905.10(3)(b). Because the Shiffra court appeared to rely more heavily on the statutory language than on Roviario in establishing its standard, it is reasonable to conclude that the court intended to adopt and apply the standard established in the statute. See Shiffra, 175 Wis. 2d at 609-10. Thus, the court of appeals was correct in relying on the "may be necessary" language. 15 No. 00-1392-CR Wis. 2d 396, 636 N.W.2d 481; State v. Walther, 2001 WI App 23, ¶10, 240 Wis. 2d 619, 623 N.W.2d 205 (Ct. App. 2000). ¶26 had met In the end, the Shiffra court concluded that Shiffra his materiality. burden in making a preliminary showing of The court noted that Shiffra had "presented ample evidence during the hearing on his discovery motion that [the victim's] psychiatric difficulties might affect both her ability to accurately perceive and her Shiffra, 175 Wis. 2d at 612. truth." court events reasoned, were relevant ability to relate the These difficulties, the because they affected the complainant's credibility and bore directly on Shiffra's defense of consensual sex. ¶27 state's Before argument Id. concluding, that the the Shiffra victim's court considered the psychiatric records may contain information that was "merely cumulative" to information that was already available to him. Id. at 610. The state described the significant amount of information that Shiffra had available to him on the victim's mental health history that was contained outside the records. showed the extensive history Id. at 610-11. of the victim's This evidence mental health problems and strongly suggested that Shiffra's specific concerns about the victim experiencing flashbacks and about her ability to relay truthful information were valid. The court recognized that some of the information contained in the records may be cumulative, but it nevertheless allowed for an in camera review, stating: 16 No. 00-1392-CR We disagree with the state. It may well be that the evidence contained in the psychiatric records will yield no information different from that available elsewhere. However, the probability is equally as great that the records contain independently probative information. It is also quite probable that the quality and the probative value of the information in the reports may be better than anything that can be gleaned from other sources. Finally, the information might well serve as a confirmation of Pamela's [the victim's] problems in sexual matters. It is the duty of the trial court to determine whether the records have any independent probative value after an in camera inspection of the records. Id. at 611. that an See also Navarro, 2001 WI App 225, ¶18 (concluding in camera review of confidential prison records was still warranted despite concerns that the information may be cumulative). C. Standard for a Preliminary Showing ¶28 standard Both parties seek to clarify and further define the for a preliminary established in Shiffra. showing for an in camera review Green argues that it is sufficient for a defendant to show, as Shiffra contemplated, that the evidence contained in the records "may be helpful to his or her defense." This showing is sufficient, he asserts, because the request is often made information without is the defendant's specifically knowledge contained in as the to what records. Therefore, a defendant should not be required to identify the exact information contained in the records that is material to his or her defense. In addition, the request is often made at the pretrial stage, when discovery is for the most part not yet completed and it is often impossible for the defendant to state that the information contained in the records will be necessary 17 No. to the outcome of the case. It is a preliminary request to have the court simply look at the documents. there is no real 00-1392-CR difference between Green also argues that a requirement that the counseling records "may be helpful" and one that the records "may be necessary" because they both require a mere possibility that the records will assist the defendant. Green also points to State v. Hoag, 749 A.2d 331 (N.H. 2000) as setting forth an appropriate standard. Hoag states in relevant part: The threshold showing necessary to trigger an in camera review is not unduly high. The defendant must meaningfully articulate how the information sought is relevant and material to his defense. To do so, he must present a plausible theory of relevance and materiality sufficient to justify review of the protected documents, but he is not required to prove that his theory is true. At a minimum, a defendant must present some specific concern, based on more than bare conjecture, that, in reasonable probability, will be explained by the information sought. Id. at 333 (emphasis added to show relevant language relied on by Green). provides This "plausible theory" standard, Green contends, the appropriate balance between maintaining the privileged nature of these records and affording a defendant his or her right to present a complete defense. ¶29 The State argues that it is clear from Shiffra and subsequent cases interpreting Shiffra that the court of appeals intended to adopt the "relevant and may be necessary to a fair determination of guilt or innocence" standard, similar to the standard required for cases involving government informants. The State argues that, under this standard, the defendant is required to clearly articulate what information he or she is 18 No. seeking and how this particular defense. insufficient. information ties in to 00-1392-CR his or her A vague proffer of need by the defendant is Further, the State contends that the mere assertion that information might be helpful or useful to the defendant's case is insufficient. The records must contain information that is likely exculpatory for the defendant. In reaching v. this conclusion, the State, 651 A.2d 866 (Md. 1995). State relies on Goldsmith It states in relevant part: We agree with the Supreme Court of Michigan that in assessing a defendant's right to privileged records, the required showing must be more than the fact that the records "may contain evidence useful for impeachment on cross-examination. This need might exist in every case involving an accusation of criminal sexual conduct." People v. Stanaway, 446 Mich. 643, 521 N.W.2d 557, 576 (1994) (footnotes omitted). . . . We therefore hold that in order to abrogate a privilege such as to require disclosure at trial of privileged records, a defendant must establish a reasonable likelihood that the privileged records contain exculpatory information necessary for a proper defense. Id. at 876-77 (emphasis added to show relevant language relied on by the State). Based on this standard in Goldsmith, the State require urges preliminary evidence us to showing that is that relevant a the to defendant counseling material to "make records issues in a specific will produce dispute and likely exculpatory of the defendant." ¶30 Before we set forth our standard, we note two things. First, we conclude that it is clear that the court of appeals has adopted the "may be necessary" standard as enumerated in 19 No. Shiffra. See Walther, 2001 WI App 23, ¶10 00-1392-CR (rejecting the argument that other court of appeals' cases imposed a heightened standard). Shiffra We conclude that this is a correct interpretation of and was certainly the standard that was in place, pursuant to Munoz, at the time of the motion hearing in Green's case. ¶31 Second, we emphasize that the defendant in this case is trying to make a preliminary showing to compel an in camera review by the required to circuit court circuit carry the when it court. same As such, burden conducts as its a defendant is not required of the that in camera determine whether to disclose the records. inspection to We discussed the circuit court's role during its in camera review in State v. Solberg, 211 Wis. 2d 372, 564 N.W.2d 775 (1997). In particular, we stated that, "[i]n conducting an in camera inspection of an alleged victim's privileged records, the circuit court must determine whether the records contain any relevant information that is '"material" to the defense of the accused.'" Id. at 386-87 (emphasis added) (quoting Pennsylvania v. Ritchie, 480 U.S. 39, 58, 107 S.Ct. 989, 1001-02, 94 L.Ed.2d 40 (1987)). The preliminary burden for seeking an in camera review must be less stringent than the standard applied by the court during its in camera inspection. ¶32 The Shiffra court appropriately rejected the materiality standard set forth in Pennsylvania v. Ritchie, 480 U.S. 39, 57 (1987) (asking whether the evidence would have had an effect on the proceeding), 20 as difficult to apply before No. trial. A.P., 00-1392-CR Shiffra, 175 Wis. 2d at 607; see also State v. Richard 223 Wis. 2d 777, 785, 589 N.W.2d 674 (Ct. App. 1999). Instead, the court appropriately looked to the standard for a defendant seeking to overcome the informant privilege. This standard requires that the defendant show that the informant's testimony "may innocence." be A necessary mere informant cases. to a possibility determination ("may be") of or enough is guilt in In light of the strong public policy favoring protection of the counseling records, however, we conclude that a slightly higher standard is required before the court must conduct an in camera review of privileged counseling records. For this reason, we conclude, consistent with other state standards, that a defendant must show a "reasonable likelihood" that the records will be necessary to a determination of guilt or innocence. must establish See Goldsmith, 651 A.2d at 133-34 ("a defendant a reasonable likelihood that the privileged records contain exculpatory information necessary for a proper defense"); People v. Stanaway, 521 N.W.2d 557, 574 (Mich. 1994) (a defendant must show "a good-faith belief, grounded in some demonstrable fact, that there is a reasonable probability that the records are likely to contain material information necessary to the defense"); State v. Pinder, 678 So. 2d 410, 417 (Fla. Dist. Ct. reasonable App. 1996) probability ("a that defendant the must first privileged establish matters a contain information necessary to his defense"); compare Commonwealth v. Fuller, 667 N.E.2d 847, 855 (Mass. 1997) (a defendant must show "a good faith, specific, and reasonable basis for believing that 21 No. 00-1392-CR the records will contain exculpatory evidence which is relevant and material to the issue of the defendant's guilt"). ¶33 Although we change this threshold showing requirement from Shiffra, we conclude that other requirements adopted by the court of appeals particular, evidentiary a in similar defendant showing, cases remain set forth must describing as applicable. In a precisely fact-specific as possible the information sought from the records and how it is relevant to See, e.g., Navarro, and supports his or her particular defense. 2001 WI App 225, ¶¶12, 17; Walther, 2001 WI App 23, ¶11. The mere contention that the victim has been involved in counseling related to prior sexual assaults or the current sexual assault is insufficient. defendant victim's before must undertake background the Munoz, records and 200 a Wis. 2d at reasonable counseling will be made 399. Further, investigation into through other available. a the means first From this investigation, the defendant, when seeking an in camera review, must then make a sufficient evidentiary showing that is not based on mere speculation or conjecture as to what information is in the records. See State v. Darcy N.K., 218 Wis. 2d 640, 645, 656, 581 N.W.2d 567 (Ct. App. 1998). In addition, the evidence sought from the records must not be merely cumulative to evidence already available to the defendant. A defendant must show more than a mere possibility that the records will contain evidence that may be helpful or useful to the defense. Munoz, 200 Wis. 2d at 397-98. 22 No. ¶34 Based on the above considerations, we set forth the following standard: review requires specific 00-1392-CR factual a the preliminary showing for an in camera defendant basis to set demonstrating forth, a in good reasonable faith, a 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. We conclude that the information will be "necessary to a determination of guilt or innocence" if it "tends to create a reasonable doubt that might not otherwise exist." See Fuller, 667 N.E.2d at 855. This test essentially requires the court to look at the existing evidence in light of the request and determine, as the Shiffra court did, whether the records will likely contain evidence that is independently probative to the defense. ¶35 In creating this standard, we intend to place the burden on the defendant to reasonably investigate information related to the victim before setting forth an offer of proof and to clearly articulate how the information sought corresponds to his or her theory of defense. A good faith request will often require support through motion and affidavit from the defendant. Our standard is not intended, however, to be unduly high for the defendant before an in camera review is ordered by the circuit court. The defendant, of course, will most often be unable to determine the specific information in the records. Therefore, in cases where it is a close call, the circuit court should generally provide an in camera review. at ¶14. See Walther, 2001 WI App We have confidence in the circuit courts to then make a 23 No. 00-1392-CR proper determination as to whether disclosure of the information is necessary based on the competing interests involved in such cases. See Shiffra, 175 Wis. 2d at 611. A circuit court may always defer ruling on such a request or require a defendant to bring a subsequent motion if the record has not had time to develop. A motion for seeking discovery for such privileged documents should be the last step in a defendant's pretrial discovery. D. Green's Preliminary Showing ¶36 We conclude that, under either the Shiffra standard or the slightly heightened standard set forth in this opinion, any showing by Green at the circuit court was insufficient to compel the court to conduct an in camera review of N.W.'s records. We therefore affirm the court of appeals' conclusion. ¶37 N.W.'s that At the counseling pretrial were records inconsistent hearing, could with Green contain her police and to social services. merely argued statements statements that from provided N.W. to the The mere assertion, however, that the sexual assault was discussed during counseling and that the counseling records may contain statements that are inconsistent with other reports is insufficient to compel an in camera review. Green was required to show that the evidence was independently probative, that is not cumulative, and to show that the evidence was material to his particular defense. established neither. Green Further, he failed to show any evidence to even remotely suggest that N.W. suffered from any psychological disorder that hindered her 24 ability to relay truthful No. information. 00-1392-CR See Jessica J.L. v. State, 223 Wis. 2d 622, 635, 589 N.W.2d 660 (Ct. App. 1998) (in seeking such records based on inconsistent statements, a defendant must show, through other evidence, that the records will "tend to prove that [the child] has a psychological disorder that would make her a poor reporter of events relating to sexual conduct or draw her credibility into question in any way"). Certainly, Green had access to other reports from the police and social services which showed that N.W. had changed her story over time; he could have attacked (and did attack at trial) her credibility with these inconsistent statements. We therefore conclude that Green did not meet his burden under any applicable standard for an in camera inspection by the court. This is, as the court of appeals noted, not even a close call.9 IV. ¶38 Green also SEQUESTRATION ORDER argues that the prosecutor violated the circuit court's sequestration order when she communicated with 9 Several assertions made by Green to this court to support a remand for an in camera review were never presented in his evidentiary showing to the circuit court. For example, Green argues that the evidence shows that N.W. may have started counseling earlier than the date on which she reported the assault to authorities. We find no evidence to support this assertion. Nevertheless, Green argues that, if this were true, it shows that N.W. delayed reporting for an even longer time, making the records an even greater source for inconsistent statements or otherwise exculpatory evidence. Green cannot now bolster his evidentiary showing for N.W.'s records by adding additional factors that may have been relevant at the circuit court to grant an in camera review but were never presented to the court. 25 No. 00-1392-CR Haack during a break in trial testimony about an alleged date on which Green confessed the assault to her. order, Green contends, resulted in This violation of the prejudice to him because Haack effectively altered her testimony to more closely match other evidence presented against Green at trial. Green argues that he is now entitled to a new trial based on this prejudicial testimony. ¶39 If the circuit court finds that a witness has violated the court's sequestration order, the court may still permit the witness to testify. The court should not allow such testimony, however, when the defendant has been prejudiced by the violation and the party calling the witness was a guilty participant in the violation. State v. Bembenek, 111 Wis. 2d 617, 637, 331 N.W.2d 616 (Ct. App. 1983). ¶40 Green contends that the prosecutor, not the witness, violated the sequestration order by conversing with the witness during trial. alleged Green fails to clearly indicate, however, how any conversation sequestration order. constituted a violation of the The only applicable order issued by the court limited the sequestration to "all prosecution and defense witnesses during the trial, apart from Det. Quant of the Oshkosh Police Department, who by virtue of being the lead investigator in the case should remain at the prosecution counsel table." Such orders are issued witnesses defendant. testimony, See to which Nyberg v. keep witnesses may lead State, 75 to from hearing prejudice Wis. 2d 400, N.W.2d 524 (1977); see also Wis. Stat. § 906.15(1). 26 other to the 407, 249 Green has No. 00-1392-CR not provided any support for the contention that a prosecutor violates a sequestration order by merely talking to his or her witnesses. There are no allegations that Haack heard testimony of other witnesses in the courtroom, that Haack discussed her testimony with other witnesses, or that the prosecutor discussed the testimony of other witnesses with Haack. We find no violation of the order in this case. ¶41 Further, even has if this not discussion shown any did constitute prejudice from a violation, Green this violation. This conversation between Haack and the prosecutor allegedly resulted in testimony from Haack where she corrected the date on which Green had confessed the assault to her. According to Green, Haack corrected this date (to November 19, 1996) to more closely align her testimony with the date of the alleged assault (November 22, 1996). this conversation and subsequent mere We cannot conclude that clarification testimony from Haack had any significant effect on the overall trial or resulted in prejudice to Green particularly considering that this was the third date that Haack had given for the alleged confession and Green's defense counsel showed the inconsistency in Haack's statements on cross-examination. As a result, we affirm the court of appeals' ruling on this issue, which upheld the circuit court's finding of no error. V. ¶42 upheld. CONCLUSION In sum, we conclude that Green's conviction should be Under any applicable standard, Green failed to show that he was entitled to an in camera review of N.W.'s counseling 27 No. records. Further, he failed to show any 00-1392-CR error of the sequestration order by the State in consulting with its witness during trial Accordingly, or the prejudice decision of from the any court alleged of violation. appeals must be appeals is affirmed. By the Court. The decision affirmed. 28 of the court of No. ¶43 In the SHIRLEY present S. ABRAHAMSON, case, the CHIEF defendant JUSTICE 00-1392-CR.ssa argues (concurring). that the State violated the circuit court's witness "sequestration" order when the prosecutor break in that communicated witness's with a State's witness testimony.10 trial If the during a attorney violated the court order, the error was harmless. ¶44 I separation write orders separately to be stated with Although the misunderstandings.11 urge that exclusion particularity practice of to and avoid limiting a witness's access to other witnesses can be traced to English and Germanic law,12 many open questions remain about the limitations a court may prescribe. ¶45 Wisconsin Stat. § 906.15 and the separation of witnesses. governs both the exclusion Although the statute uses the words "exclusion" and "separation" to mean different procedures, the two words are often used interchangeably in the cases. 10 The State moved the court for "[a]n Order sequestering all prosecution and defense witnesses during the trial, apart from Det. Quant of the Oshkosh Police Department, who by virtue of being the lead investigator in the case should remain at the prosecution counsel table." The circuit court stated "the Court will grant [the sequestration] motion. All witnesses will be sequestered. Detective Quant, who's the lead investigator, we'll allow him to remain at counsel table." 11 For discussions of exclusion and separation orders, see 6 Wigmore, Evidence ch. 63 (Chadbourn rev. 1976); Daniel Blinka, 7 Wisconsin Practice: Wisconsin Evidence § 615.1 at 456 (2d ed. 2001); John W. Strong, 1 McCormick on Evidence § 50 at 206-11 (1999). 12 Geders v. United States, 425 U.S. 80, 87 (1976). 1 No. 00-1392-CR.ssa Sequestration is also used to refer to exclusion or separation or both.13 ¶46 and, "Exclusion" means to remove witnesses from a courtroom according to § 906.15(1), is mandatory upon request. Section 906.15(1) provides that upon the request of a party, the judge or the court commissioner "shall order witnesses excluded so that they cannot hear the testimony of other witnesses." A judge or court commissioner may also make the order on his or her own motion.14 excluding certain Section 906.15(1), however, does not authorize individuals, such as a party or a victim, among others.15 13 See, e.g., Nyberg v. State, 75 Wis. 2d 400, 409, 249 N.W.2d 524 (1977), overruled on other grounds by State v. Ferron, 219 Wis. 2d 481, 579 N.W.2d 654 (1998). 14 Wis. Stat. § 906.15(1). 15 According to Wis. Stat. § 906.15(2), subsection (1) does not authorize exclusion of any of the following: (a) A party who is a natural person. (b) An officer or employee of a party which is not a natural person designated as its representative by its attorney. (c) A person whose presence is shown by a party to be essential to the presentation of the party's cause. (d) A victim, as defined in s. 950.02(4) in a criminal case or a victim, as defined in s. 938.02(20m) in a delinquency proceeding under ch. 938, unless the judge or circuit court commissioner finds that exclusion of the victim is necessary to provide a fair trial for the defendant or a fair fact-finding hearing for the juvenile. The presence of a victim during the testimony of other witnesses may not by itself be a basis for a finding that exclusion of the 2 No. ¶47 "Separation" courtroom to means separate Wis. Stat. § 906.15(3), direct that all to the excluded witnesses remove 00-1392-CR.ssa from areas. judge and or a According court to commissioner non-excluded witnesses be "may kept separate until called and may prevent them from communicating with one another until they have been examined or the hearing is ended." The decision to separate witnesses is within the discretion of a court.16 ¶48 exercise The aim restraint of on exclusion and separation witnesses tailoring their orders is to testimony to that of earlier witnesses; to detect testimony that is less than candid; and, when a witness's testimony is interrupted by a recess, to prevent improper attempts to influence the testimony in light of the testimony already given.17 ¶49 Courts imposing a separation or exclusion order and parties seeking such an order should specify the scope of the order so as to prevent potential misunderstandings, including whether the order limits communications between witnesses and attorneys. Thus, a circuit court might state, for example, which witnesses the order applies to, how long the order applies victim is necessary to provide a fair trial for the defendant or a fair fact-finding hearing for the juvenile. 16 Fletcher v. State, 68 Wis. 2d 381, 388, 228 N.W.2d 708 (1975); Abraham v. State, 47 Wis. 2d 44, 54, 176 N.W.2d 349 (1970); Ramer v. State, 40 Wis. 2d 79, 82-83, 161 N.W.2d 209 (1968). 17 Geders, 425 U.S. at 87; United States v. Strauss, 473 F.2d 1262, 1263 (3d Cir. 1973); Capital Cab Corp. v. Anderson, 85 N.Y.S.2d 767, 769 (N.Y. 1949); Nyberg, 75 Wis. 2d at 409. 3 No. with respect remain discuss to physically the case each witness, separate, or whether whether their the testimony the 00-1392-CR.ssa witnesses witnesses with should should another not witness, whether the witnesses should not be told directly or indirectly what other witnesses have said, whether the witnesses should not read a whether transcript of another a witness should not witness's confer trial with testimony, counsel witness's testimony, including during a recess.18 and during the Whether an order should limit or prohibit counsel in a criminal case from conferring with the defendant raises special issues.19 18 For a discussion of cases involving some of these orders, see, for example, John W. Strong, 1 McCormick on Evidence § 50, at 209, n.15 (1999). 19 Geders, 425 U.S. at 91 (preventing defendant from consulting his counsel about anything during a 17-hour overnight recess in the trial between his direct and cross-examination deprived defendant of his right to the assistance of counsel guaranteed by the Sixth Amendment); State v. James County, 41 So. 702, 704 (La. 1906) (order keeping witnesses where they could not hear testimony given at trial did not prevent district attorney from communicating with state witnesses); State v. Scott, 56 So.2d 839, 840 (Miss. 1952) (defense counsel allowed to conference with all defendant's witnesses, but not all together as a group); L. Williams v. State, 35 Tex. 355 (Tex. 1871) (placing the state's witnesses under a separation or exclusion order does "not deprive the district attorney of the right to confer with them in a proper manner; this is his privilege, and, moreover, may be regarded as his duty"). See also 6 Wigmore, Evidence ch. 63, § 1840 at 472 (Chadbourn rev. 1976) ("whether an attorney in the cause may consult with a sequestered witness has been the subject of some difference of opinion; the possibilities of abuse by unscrupulous persons . . . are certainly great") (reference to footnote omitted). 4 No. 00-1392-CR.ssa ¶50 For the reasons set forth, I write separately. ¶51 I am authorized to state that Justice N. PATRICK CROOKS joins this opinion. For cases stating that orders preventing defendants from consulting their attorneys during an overnight recess infringe upon the Sixth Amendment right to counsel, see United States v. Venuto, 182 F.2d 519 (3d Cir. 1950); People v. Nobble, 248 N.E.2d 96 (Ill. 1969); Commonwealth v. Werner, 214 A.2d 276 (Pa. 1965). But see People v. Prevost, 189 N.W. 92 (Mich. 1922). For cases discussing orders preventing defendants from consulting their attorneys during a brief routine recess during the trial day, see United States v. Schrimsher, 493 F.2d 848 (5th Cir. 1974); United States v. Crutcher, 405 F.2d 239 (2d Cir. 1968), cert. denied, 394 U.S. 908 (1969). 5 No. 1 00-1392-CR.ssa
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