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  • December 15, 2023

    Statements by Abuse Victim to Nurse, Doctor Were Non-Testimonial

    Statements an eight-year-old girl made to a nurse and a doctor in the presence of a police officer were made to seek medical care and were thus non-testimonial for Confrontation Clause purposes, the Wisconsin Court of Appeals has held

    Jeff M. Brown

    A Woman Lawyer In A Dark Gray Suit With Her Hair Pulled Back Questioning A Wintess In Court

    Dec. 15, 2023 – Statements an eight-year-old girl made to a nurse and a doctor in the presence of a police officer were made to seek medical care and were thus non-testimonial for Confrontation Clause purposes, the Wisconsin Court of Appeals has held.

    In State v. Antonio G. Ramirez, Jr., 2021AP1590 (Nov. 15, 2023), the Court of Appeals District II concluded that admitting those statements into evidence did not violate the Sixth Amendment and admission of other statements she made was harmless error.

    Alleged Sexual Abuse

    On Sept. 5, 1999, Officer George Larsen went to a residence where a woman said her boyfriend, Antonio G. Ramirez, Jr., had sexually assaulted the couple’s seven-year-old daughter, Megan. Larsen drove Megan to the hospital.

    Jeff M. Brown Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    Larsen stayed in the emergency room while Megan told Donna Halpin, a nurse, that Ramirez had laid her down on a bed and put his genitals against hers. Megan then used a teddy bear to show Larsen where Ramirez had touched her with his genitals.

    Megan also told Dr. Suzanne Siegel, who later came into the room, that Ramirez had put his genitals against her.

    The Kenosha County District Attorney charged Ramirez with three counts of sexual assault and one count of child enticement.

    During the trial, Larsen testified about the statements he heard Megan make to Halpin and Siegel on Sept. 5, 1999, as well as statements she made to him while touching the teddy bear.

    Halpin and Siegel also testified at the trial about the statements Megan made at the hospital. Siegel also testified about records made by Dr. Schellpfeffer in November 1998, when Megan went to the hospital with a vaginal tear.

    Schellpfeffer testified at the trial too, after being granted immunity by the state.

    Schellpfeffer feared that he could be prosecuted because he failed to report suspected child abuse and was statutorily required to do so as a healthcare provider. The circuit court did not allow Ramirez to impeach Schellpfeffer.

    The jury convicted Ramirez on all counts. Ramirez appealed.

    Medical Statements Were Non-Testimonial

    Ramirez argued that by admitting the out-of-court statements made by Megan through the testimony of other witnesses, the circuit court violated his rights under the Confrontation Clause of the Sixth Amendment to the U.S. Constitution.

    Ramirez also argued that by barring him from impeaching Dr. Schellpfeffer by questioning Schellpfeffer about the grant of immunity, the circuit court denied Ramirez his right to a fair trial.

    Presiding Appeals Court Judge Mark Gundrum began his opinion for a three-judge panel by explaining that only the erroneous introduction of testimonial out-of-court-statements implicates the Confrontation Clause.

    Gundrum noted a Wisconsin Supreme Court case in which the court, following U.S. Supreme Court cases, held that oral statements made by confidential reporters to Child Protective Service employees were not testimonial out-of-court statements.

    Megan’s statements to Halpin and Larsen, Judge Gundrum concluded, were similarly non-testimonial.

    “They were oral statements made by an eight-year-old girl directly to a nurse and a doctor in connection with their examination of her in the ER of a hospital,” Gundrum wrote.

    Judge Gundrum also reasoned that Megan would not have known her statements to the nurse and the doctor in the ER could be used later to criminally punish someone, even though a police officer had driven her to the hospital and was in the room while a medical professional questioned her.

    “There is no indication in the record that when Megan made her statements to Halpin and Siegel during the examination, Megan – the declarant – would have had any idea that samples taken from her private areas might be sent to a ‘crime lab’ or what that might mean, or that Halpin might later provide the police with a written statement as to her and Seigel’s conversation with Megan and the results of the examination,” Gundrum wrote.

    Rather, Judge Gundrum concluded, Megan’s statements were made to address her health.

    “All the statements Megan made to Halpin and Siegel were non-testimonial as they were made for the primary purpose of facilitating proper medical care for Megan, not prosecuting Ramirez and the circuit court did not err in allowing their admission at Ramirez’s 2001 trial,” Gundrum wrote.

    Harmless Error

    Judge Gundrum concluded that the court of appeals need not decide whether the statements Megan made to Officer Larsen on Sept. 5, 1999, at the hospital were testimonial, because the admission of those statements was harmless error.

    “The totality of the evidence presented at trial was so extensive and compelling as to Ramirez’s guilt on the charges on which he was convicted that we conclude beyond a reasonable doubt, there is no reasonable possibility the verdicts would have been any different if these statements had not been admitted at trial,” Gundrum wrote.

    Non-impeachment Was Harmless Error

    Judge Gundrum also concluded that the circuit court’s decision not to allow Ramirez to attempt to impeach Dr. Schellpfeffer was harmless error.

    Gundrum pointed out that Ramirez had failed to present an argument about how his impeachment of Schelpfeffer would have affected the trial.

    “Instead of suggesting the types of questions that might have been asked of Schellpfeffer at trial in hopes they would bear fruit, Ramirez merely posits that ‘depriving the jury of this information meant the jury could not adequately assess Schellpfeffer’s credibility, or his claims that he’d suspected sexual abuse he did not report,’’ Judge Gundrum wrote.

    Gundrum pointed out that it would have mattered little if jurors doubted whether Schellpfeffer’s potentially incriminating testimony was true, because Siegel testified to the key information about the November 1998 injuries suffered by Megan – that they were almost certainly caused by sexually abusive penetration.

    “Considering the totality of the evidence presented at trial, we are convinced beyond any reasonable doubt that there is no possibility that any amount of impeachment of Schellpfeffer related to the grant of immunity would have altered the verdicts,” Judge Gundrum wrote.

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    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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