State v. Kleser

ANN WALSH BRADLEY, J.

¶ 132. (concurring in part, dissenting in part). I agree with the majority that the juvenile must be given reasonable latitude to offer admissible evidence for the purpose of meeting his burden to prove the three elements for reverse waiver. Majority op., ¶ 84. I also agree with the majority that the juvenile may offer evidence at the reverse waiver hearing that contradicts the offense charged as long as the proffered evidence is relevant to any of the three elements for reverse waiver under Wis. Stat. § 970.032. Id.

¶ 133. Although the majority correctly sets forth the law in much of its discussion, I disagree with the majority in its application of the law. Specifically, I part ways with the majority when it concludes that the circuit court erroneously exercised its discretion in its evidentiary rulings. Additionally, I disagree with the majority when it substitutes its judgment for that of the circuit court on the discretionary determination of *101whether a transfer to juvenile court would unduly depreciate the seriousness of the offense. Accordingly, I respectfully concur in part and dissent in part.

I

¶ 134. The majority concludes that the circuit court erred by (1) relying on inadmissible hearsay testimony from Dr. Beyer describing the events of the offense; (2) permitting Dr. Beyer to vouch for Kleser's credibility; and (3) prohibiting the State's psychologist from interviewing Kleser about the facts of the offense. It further concludes that the circuit court erroneously exercised its discretion because, as a matter of law, Kleser failed to prove that transferring the case to juvenile court would not unduly depreciate the seriousness of the offense. Id., ¶ 124.

¶ 135. Unlike the majority, I determine that the circuit court did not erroneously exercise its discretion: (1) even if the circuit court erroneously relied on hearsay testimony presented by Dr. Beyer, such reliance was not harmful because essentially the same information was presented through the testimony of another witness; (2) the record does not support the majority's conclusion that Dr. Beyer impermissibly vouched for Kleser's credibility; (3) the majority erroneously limits the flexibility of the circuit court to balance the competing interests of protecting the juvenile's Fifth Amendment privilege against self-incrimination and the need of the State to present rebuttal testimony; and (4) the majority improperly substitutes its judgment for that of the circuit court when it concludes that the transfer would unduly depreciate the seriousness of the offense.

¶ 136. I conclude that this case should be remanded to the circuit court for a determination of *102whether, given the current age of the "juvenile," reverse waiver is appropriate or even feasible. If not, I agree with the majority that jurisdiction should remain in adult criminal court.

II

¶ 137. The majority correctly states that the court was permitted to consider Dr. Beyer's opinion and that Dr. Beyer's opinion could be based on inadmissible evidence. Id., ¶ 91, n.9. Further, it explains that Wis. Stat. § 907.03 is not a hearsay exception, and an expert's reliance on inadmissible evidence to form an opinion does not render that evidence admissible. Id. These statements accurately describe the law.

¶ 138. However, in applying the law to these facts, the majority determines that "without Dr. Beyer's hearsay testimony, Kleser would not have sustained his burden of proving that transferring jurisdiction would not depreciate the seriousness of the offense." Id., ¶ 97. I do not necessarily agree with the majority's conclusion that Dr. Beyer's opinion contained inadmissible hearsay.1 However, even if it did, I conclude that the error was harmless and that without this evidence, Kleser would have sustained his burden.

*103¶ 139. The majority takes issue with the circuit court's reliance on facts presented by Dr. Beyer. It concludes that Dr. Beyer's hearsay testimony and report "were the principal bases for the circuit court's finding that Kleser acted out of fear and rage." Id., ¶ 96. This assertion is not supported by the record.

¶ 140. As the majority sets forth, Dr. Beyer testified that Kleser related the following facts about the night of the incident: Kleser drank a lot of alcohol that night. He received a phone call from Adams, who offered to pay him to pose nude, as he had done before. Kleser agreed. The "usual scenario" unfolded when he got to the apartment. Kleser was surprised when Adams wanted to have sex, and he told Adams no. Adams attacked him and tried to rape him. Kleser's pants were around his ankles, and he could not really move. Adams was on top of Kleser as they struggled. Adams was choking Kleser, who could not breathe. Kleser felt powerless and felt like he was going to pass out. Kleser grabbed a hammer and hit Adams until he could escape. Id., ¶ 28.

¶ 141. These facts closely parallel the facts that Kleser provided to Detective Johnson during a custodial interview. Both parties deemed Johnson's testimony admissible evidence. He testified that Kleser related the following facts: Kleser had met Adams several months before and had gone to Adams' apartment five or six times previously. Kleser would disrobe and "pose nude basically for Mr. Adams[.]".

¶ 142. Johnson testified that the night of the incident, "upon coming over to Mr. Adams' apartment, [] Mr. Adams wanted to engage in some type of sexual intercourse with him." Kleser "did not want to engage in having any type of sex with Mr. Adams." Kleser said *104that Adams "tried to force himself in him and he actually put his hands on Corey[.]" Adams "approached him and tried to stick his dick in his ass[.]" "[I]t was a physical altercation and struggle and somethingL]" "[T]here was a point in time when Mr. Adams had grabbed him and tried to choke at him[.]" Kleser "said he grabbed a hammer" and that he was able to "fend [him] off."

¶ 143. The facts of the offense, as testified to by Dr. Beyer, are nearly identical to the facts later testified to by Detective Johnson. If the circuit court erred by permitting Dr. Beyer to testify about Kleser's account of the incident, I conclude that error was harmless.

¶ 144. The majority also takes issue with the circuit court's conclusion that Kleser killed Adams out of fear and rage. Id., ¶ 96. Yet, there is no reason that the circuit court should not have relied on Dr. Beyer's expert opinion that Kleser acted out of fear and rage. An expert is allowed to base an opinion on inadmissible evidence, and that expert can testify as to her opinion in court.2 The conclusion that Kleser acted out of fear and rage is an expert opinion. The majority acknowledges that the court was permitted to rely on Dr. Beyer's expert opinion. Therefore, the circuit court did not err by relying on Dr. Beyer's expert opinion that Kleser acted out of fear and rage.

*105III

¶ 145. The majority also accurately explains that an expert cannot vouch for the credibility of a witness and that the expert need not explicitly state that she believes a person is telling the truth for the opinion to constitute improper vouching testimony. Id., ¶ 102. However, the majority errs in its application of these rules.

¶ 146. As the majority reports, Dr. Beyer never explicitly testified about the credibility of Kleser's account. Unlike the majority, I conclude that there was no implicit vouching, either. In fact, the majority treads on dangerous territory when it concludes as a matter of law that this type of expert testimony is a violation of the longstanding rule that prohibits a witness from testifying about the veracity of another witness. See State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984).

¶ 147. The majority acknowledges that Dr. Beyer prefaced many of her statements with the phrase, "Kleser reported." Majority op., ¶ 101. The only phrase the majority points to as improper vouching is actually a statement from Kleser's attorney, who requested that Dr. Beyer "explain what happened that night as far as you understand it." Id. It this context, it is clear that the attorney was asking Dr. Beyer to relate the events that Kleser had described, rather than asking her to offer an opinion about Kleser's truthfulness. The majority has not pointed to any portion of Dr. Beyer's testimony that offered an opinion on Kleser's credibility.

¶ 148. The questions asked by Kleser's attorney and the responses provided by Dr. Beyer are similar to questions and answers routinely made in courtrooms around the state. To elevate a question prefaced with *106"as you understand it" and the response "Kleser reported" to the height of a Haseltine violation sets up an unworkable evidentiary standard for litigants, attorneys, and the circuit courts.

IV

¶ 149. The majority concludes that the circuit court erroneously exercised its discretion by refusing to allow the State's psychologist to interview Kleser about the facts of the offense. Id., ¶ 109. It explains that "Kleser waived his privilege against self-incrimination by putting his account of the offense into issue through his expert." Id.

¶ 150. The United States Supreme Court has explained "if a defendant requests [a psychiatric] evaluation or presents psychiatric evidence, then, at the very least, the prosecution may rebut this presentation with evidence from the reports of the examination that the defendant requested." Buchanan v. Kentucky, 483 U.S. 402, 422-23 (1987). "The defendant would have no Fifth Amendment privilege against the introduction of this psychiatric testimony by the prosecution." Id. at 423.

¶ 151. Here, the primary purpose of expert testimony from both psychologists was to assess whether Kleser's treatment needs could be met in adult court. The record reflects that the circuit court was cognizant of the need to balance the State's right to present rebutted testimony and Kleser's privilege against self-incrimination. It fashioned a solution where the State's psychologist could interview Kleser, without an attorney present, and ask him questions about any subject except for the facts of the offense.

¶ 152. Courts need the flexibility to fashion a solution to address these competing interests given the facts and procedure of the individual case. Here, I *107applaud the efforts of the circuit court judge in fashioning a solution to address the competing interests. The majority, instead, finds as a matter of law that it was an erroneous exercise of discretion.

¶ 153. The State's psychologist had access to the interview conducted by Detective Johnson and the interview conducted by Dr. Beyer. She was also permitted to examine Kleser, without an attorney present, about any subject except the facts of the offense. Based on her examination of Kleser and other sources, the State's psychologist was able to provide diagnoses "to a reasonable degree of professional certainty."

¶ 154. Given the competing interests of the State's right to rebut Dr. Beyer's conclusions and Kleser's privilege against self-incrimination, courts should be permitted flexibility to use their discretion and fashion a reasonable solution. I conclude that the balance struck by the circuit court was not an erroneous exercise of discretion.

V

¶ 155. Finally, the majority concludes— apparently as a matter of law — that transferring the case to juvenile court would unduly depreciate the seriousness of the offense. Majority op., ¶ 127. In so concluding, it substitutes its own judgment for the circuit court's exercise of discretion.

¶ 156. There are some determinations that seem quintessentially within the province of the circuit court's sound exercise of discretion, and a circuit court should be accorded great latitude when making these discretionary determinations. I conclude that the determination of whether transfer to juvenile court would unduly depreciate the seriousness of the offense is one *108such determination. "A decision to retain or transfer jurisdiction in a reverse waiver situation [under Wis. Stat. § 970.032] is a discretionary decision for the trial court." State v. Dominic E.W., 218 Wis. 2d 52, 56, 579 N.W.2d 282 (Ct. App. 1998).

¶ 157. Each day, courts around this state make a similar determination. During sentencing, a court must consider probation as the first alternative, but may reject probation if it finds that it would "unduly depreciate the seriousness of the offense." State v. Gallion, 2004 WI 42, ¶ 44, 270 Wis. 2d 535, 678 N.W.2d 197. I find no principled distinction between the degree of latitude that should be accorded to these discretionary determinations. If an appellate court can substitute its judgment for that of the circuit court and determine as a matter of law that transfer to juvenile court would unduly depreciate the seriousness of the offense, an appellate court can do likewise when assessing whether probation unduly depreciates the seriousness of the offense. This could invite countless appeals.

¶ 158. An appellate court should sustain a discretionary decision if the circuit court examined the relevant facts, applied a proper standard of law, and using a demonstrated rational process, reached a decision that a reasonable judge could reach. Loy v. Bunderson, 107 Wis. 2d 400, 414-15, 320 N.W.2d 175 (1982). I conclude that is what the circuit court did here. Absent an erroneous exercise of discretion, an appellate court should not substitute its own judgment for that of the circuit court — even if it would have decided the issue differently. See Kolupar v. Wilde Pontiac Cadillac, Inc., 2004 WI 112, ¶ 22, 275 Wis. 2d 1, 683 N.W.2d 58.

¶ 159. Because I conclude that the circuit court did not erroneously exercise its discretion, I would affirm its reverse waiver determination. However, given *109the passage of time and the current age of the "juvenile," I recognize that reverse waiver may no longer be appropriate or even feasible. On remand, I would instruct the circuit court to determine if reverse waiver is still appropriate. If the circuit court determines that it is not, jurisdiction should remain in adult criminal court. For the reasons set forth above, I respectfully concur in part and dissent in part.

¶ 160. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this concurrence/ dissent.

See Daniel D. Blinka, Wisconsin Practice Series: Wisconsin Evidence, § 803.04 at 754-58 (3d ed. 2008) (discussing Wis. Stat. § 908.03(4), statements for purposes of medical diagnosis or treatment). "Put differently, the fact that an expert was consulted solely for the purpose of giving testimony affects only the weight to be given the statement, not admissibility." Id. at 756. "The rule expressly permits some latitude regarding statements which relate how the condition occurred, provided the cause of the affliction is reasonably pertinent to the diagnosis or treatment." Id. at 757.

In a footnote, the majority indicates that Dr. Beyer could not have relied on Detective Johnson's testimony in formulating her conclusion that Kleser acted out of fear and rage. Majority op., ¶ 96, n.ll. In making this assertion, the majority confuses the issues. Dr. Beyer did not need to rely on Detective Johnson's account of the facts. Because experts may rely on inadmissible evidence in formulating an opinion, Dr. Beyer was entitled to rely on Kleser's own description of the facts.