State v. Marks

402 Wis.2d 285

975 N.W.2d 238

2022 WI App 20

STATE of Wisconsin, Plaintiff-Respondent,

v.Joseph M. MARKS, Defendant-Appellant.^†

Appeal No. 2020AP1746-CR

Court of Appeals of Wisconsin.

Submitted on Briefs: June 15, 2021

Opinion Filed: April 27, 2022

On behalf of the defendant-appellant, the cause was submitted on the briefs of Steven Roy of Sun Prairie.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Aaron R. O'Neil, assistant attorney general, and Joshua L. Kaul, attorney general.

Before Stark, P.J., Hruz and Nashold, JJ.

NASHOLD, J.

¶1 A jury found Joseph Marks guilty of two sexual crimes that occurred when the victim, "Renee,"¹ was four years old. This appeal concerns the circuit court's admission, pursuant to WIS. STAT. § 908.08(3), of the audiovisual recording of Renee's statement to a social worker. Marks argues that the recording is not "free from excision, alteration and visual or audio distortion" under para. (3)(b) of the statute because the State merged a separate audio recording with the video of the interview, so as to produce a final video that the jury could better hear. Marks further contends that Renee's statement does not: (1) reflect her understanding that false statements are punishable and the importance of telling the truth, see para. (3)(c); or (2) contain sufficient indicia of trustworthiness, see para. (3)(d). Finally, Marks argues that his trial counsel was ineffective for not moving the court to reconsider its admission of the recording upon counsel's later receipt of an expert report critiquing the social worker's interview technique.

¶2 We conclude that the merger of the audio and video in the manner done here, so as to produce a final recording with clear, continuous sound, does not run afoul of the requirements of WIS. STAT. § 908.08(3)(b) because the resulting recording is free from excision, alteration, and visual or audio distortion. We further conclude, on our independent review, that the recording is admissible under paras. (3)(c) and (d). Finally, we determine that Marks’ trial counsel was not ineffective for failing to bring a motion to reconsider the admission of the recording because Marks cannot show that the expert's report would have caused the circuit court to change its pretrial ruling. We affirm.

BACKGROUND

¶3 The following allegations are taken from the criminal complaint. On March 20, 2018, Renee's father and stepmother contacted Cumberland Police Department Officer Greg Chafer. The stepmother reported to Chafer statements that Renee, then four years old, had made to her about Marks. At the time, Marks was the live-in boyfriend of Renee's mother, and the mother and father shared placement of Renee and her two older siblings.

¶4 According to Renee's stepmother, on March 19, 2018, Renee told her the following. Marks asked Renee to pull down her pants, and Renee did so. Marks pulled down his own pants, and Renee saw Marks’ penis. Marks "touched" Renee, and then he had her "touch herself" (the stepmother reported that Renee "was pointing to her crotch when she was telling [her] what had happened and where she was touched"). Marks touched Renee "3 times at their old house and once at the new house" (Renee's mother and Marks moved in February 2018). The stepmother asked Renee if Renee had told her mother; Renee said she had not because Marks had told her to keep it a secret.

¶5 On March 21, 2018, Chafer received a call from Renee's prekindergarten teacher, who stated that Renee had told the teacher that she had seen Marks’ penis, that Marks had told her to pull down her pants and touch herself, and that Marks then pulled down his pants and touched himself. The teacher reported "that [Renee] told her that she did not want to do it, but that [Marks] told her to just do it."

¶6 On March 22, 2018, Martha Moyer, a social worker for the Barron County Department of Health and Human Services, conducted a forensic interview of Renee. The interview took place in a room at the police department, with Chafer also present.

¶7 The State charged Marks with one count each of first-degree sexual assault of a child under the age of thirteen and exposing genitals to a child. See WIS. STAT. §§ 948.02(1)(e), 948.10(1). The State moved to admit the recording of Moyer's interview of Renee. See WIS. STAT. § 908.08(3) (to admit into evidence the audiovisual recording of an oral statement of a child who is available to testify, the court must make certain findings concerning the child's age, understanding, and trustworthiness, the recording's accuracy, and the admission's effect on the fairness of the proceeding).

¶8 The circuit court held an evidentiary hearing on the State's motion. The threshold issue was the admissibility of a modified version of the original interview recording that was created by law enforcement so as to remove audio problems in the original version. See WIS. STAT. § 908.08(3)(b) (to be admitted into evidence, the child's recorded statement must be "accurate and free from excision, alteration and visual or audio distortion").

¶9 Chafer testified that when he viewed a DVD copy of the original recording ("the original DVD"), there was no problem with the "visual portion," but "[t]he audio portion was cutting in and out throughout the interview." Moyer, however, had separately recorded the audio portion of the interview on another device. Chafer therefore copied Moyer's recording to a jump drive, listened to it once, and sent the jump drive and original DVD to Larry Flessert, a senior digital forensic examiner at the Department of Justice, Division of Criminal Investigation. Chafer asked if Flessert "would be able to basically scrub the audio off of [the original DVD] and replace it with the audio of [Moyer's] recording." Flessert did just that, producing a new DVD ("the final DVD") that combined the audio from the jump drive with the video from the original DVD. Chafer watched the final DVD in full and determined that the recording contained the complete interview of Renee, did not have any distortions to the video or audio, and did not have any "gaps."

¶10 Flessert testified to the process he used to create the final DVD. He explained that the original DVD stored audio and video tracks in "chunks" or "splintered" media files. As a first step, then, Flessert "merge[d] ... together" all of the audio files and all of the video files, so as to create one "file[ ] that had the entire video portion of the interview and the entire audio portion of the interview." Flessert then used "Vegas Video," a video production program, to "match" Moyer's audio recording with the video of the interview. Flessert explained that Vegas Video allows one to "take a given piece of audio on a certain track and align it with video that's on another track and then put them so that the timing is correct for the two."

Flessert determined that Moyer's recording and the video "matched perfectly."² Thus, by substituting in Moyer's recording, he created a video with clear, continuous sound. Flessert testified that the process of merging audio and video did not itself create any distortions or alterations or cause any content loss.

¶11 In opposition to the State's motion, Marks argued that the final DVD was inadmissible because it was "pieced ... together by some means" and, therefore, was not free from excision, alteration, or distortion under WIS. STAT. § 908.08(3)(b). Marks further argued that the recording did not satisfy para. (3)(c) because it was not "made ... upon the child's understanding that false statements are punishable and the importance of telling the truth."

¶12 The circuit court determined that Renee's recorded statement was admissible under WIS. STAT. § 908.08(3). Specifically, as to para. (3)(b), the court disagreed with Marks’ position that the final DVD was inadmissible because it contained excisions, alterations, or visual or audio distortions. The court explained:

Did they have [a] problem recording it? Yes, but [I] was clearly able to hear and see.... And, according to Mr. Flessert, there's no doubt in his mind that it was accurate the way he put it together. And you could tell that just by looking at it that it was—people's mouthing was appropriate with what was said.

The court further determined that the recording met the other statutory criteria for admissibility under § 908.08(3).

¶13 The State played the final DVD at trial, during Moyer's testimony. The jury found Marks guilty of both counts charged, and the circuit court imposed a total sentence of twelve years of initial confinement and eight years of extended supervision.³

¶14 Marks brought a motion for postconviction relief. He argued that his trial counsel was ineffective for not moving the circuit court to reconsider its pretrial ruling on the admissibility of the video recording. Marks based his motion on a psychologist's report subsequently obtained by trial counsel, which critiqued various aspects of Moyer's interview technique. According to Marks, the report demonstrated that Renee was unreliable and that her interview was "littered with failures." Following a Machner⁴ hearing, the court denied the motion.

¶15 Marks appeals. We will discuss further facts related to the pretrial motion hearing and postconviction proceedings where pertinent to our analysis.

DISCUSSION

I. Principles of Law and Standards of Review.

¶16 Our legislature enacted WIS. STAT. § 908.08 so as to allow children to testify in criminal and related proceedings "in a way which minimizes the mental and emotional strain of their participation in those proceedings" while "preserv[ing] the right of all parties to cross-examine those child witnesses." 1985 Wis. Act 262, § 1. Accordingly, § 908.08 provides a procedure for the State⁵ to introduce the recorded oral statement of a child who is available to testify, as an alternative to reliance on a hearsay exception under our rules of evidence. Sec. 908.08(7) ; State v. Snider , 2003 WI App...