State v. Ramirez

410 Wis. 2d 224

2023 WI App 63

State of Wisconsin, Plaintiff-Appellant,

v.Antonio G. Ramirez, Jr., Defendant-Respondent.^†

Court of Appeals

No. 2021AP1590–CR. Submitted on briefs October 27, 2022.—Decided November 15, 2023.

2023 WI App 63

(Also reported in — N.W.2d —.)

APPEAL from an order of the circuit court for Kenosha County: DAVID P. WILK, Judge. Reversed and cause remanded with directions.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Joshua L. Kaul, attorney general, and Jacob J. Witter, assistant attorney general.

On behalf of the respondent, the cause was submitted on the brief of Andrew Hinkel, state public defender, Madison.

Before Gundrum, P.J., Neubauer and Grogan, JJ.

¶ 1. GUNDRUM, P.J. In Ramirez v. Tegels, 963 F.3d 604, 618–19 (7th Cir. 2020), the United States Court of Appeals for the Seventh Circuit affirmed the district court's grant of Antonio G. Ramirez, Jr.'s petition for a writ of habeas corpus and ordered the State to "either release Mr. Ramirez from custody or grant him a new appeal in which he may advance his confrontation [clause] claim" related to his convictions from a 2001 jury trial for sexually assaulting his step-daughter, Megan,¹ in November 1998 and September 1999. His appeal rights reinstated, Ramirez filed a postconviction motion in the circuit court contending he was entitled to a new trial because (1) his Confrontation Clause rights were violated by the admission at trial, through other witnesses, of out-of-court statements by Megan and her younger brother, neither of whom testified at trial, and (2) he was denied his right to a fair trial because he was barred from impeaching a State witness, Dr. Michael Schellpfeffer, in connection with immunity the State granted him for his testimony. The circuit court agreed with both of Ramirez's contentions, granted his motion, and ordered a new trial. The State appeals, and we now reverse and direct the circuit court to reinstate Ramirez's October 29, 2013 amended judgment of conviction.

Background

¶ 2. On September 7,1999, Ramirez was charged with two counts of sexually assaulting seven-year-old Megan on November 8, 1998, as well as with child enticement and sexually assaulting her on September 5,1999.² The following evidence relevant to this appeal was presented at his 2001 trial.

¶ 3. Officer George Larsen testified that on September 5, 1999, he was dispatched to Megan's grandmother's residence, where he spoke with Megan's mother. In a "very emotional, sad, crying, concerned" state, she indicated she believed Megan had been sexually assaulted by Ramirez because when she returned to her residence that evening, "the door was locked with a chain which was not normal" and she had to force it open; "[u]pon entering … she saw [Ramirez] coming out of the child's bedroom pulling up his shorts" and Megan "sitting on the toilet, and she had a look on her face"; and her son told her that Ramirez "had [Megan] on the bed face down, and there were boogers on the bed." The mother also told Larsen that after returning to her residence and observing what she had observed, she angrily confronted Ramirez, and a fight ensued. Ramirez initially pre- vented her from leaving the residence, but eventually Megan's grandmother picked her and the children up and drove them to the grandmother's residence.

¶ 4. Larsen transported Megan and her mother to the hospital and was in the emergency room (ER) for some time while Nurse Donna Halpin spoke with Megan. Larsen gave Megan a Teddy bear, which she held while she talked with him. Megan told him "that her father³ had put her face down … on the bed, and … put his private by her pooh-pooh," and she showed Larsen on the bear where Ramirez had touched her "with his private." She also told Larsen that when she went to the bathroom and wiped herself, "there was brown stuff on there." Larsen told his supervisor, as well as evidence technician John Gray, to look for evidence of such wiping.

¶ 5. Asked if he "hear[d] any conversation between either [himself] and [the nurse] and [Megan] about any incident that occurred in November of 1998," Larsen responded, "Yes. [Megan] also stated that when this happened before that it was her dad." As Megan's mother was then explaining to Larsen that months earlier she had taken Megan to St. Catherine's Hospital because of vaginal bleeding that the mother believed was from a bathtub fall, Megan interjected, "No, my daddy did it."

¶ 6. On cross-examination, Larsen acknowledged that at no point was he alone with Megan or her younger brother, and he could not recall if it was Megan or her mother who first mentioned the November 1998 assault. He again testified that the mother had stated that the younger brother "had told her that [Megan] was face down on the bed with dad and there were boogers on the bed[]." Larsen acknowledged he believed "boogers" could be "some evidence of semen or sperm" and that he had informed evidence technicians as to where to look for evidence in the home. He agreed that he had told the mother while at the grandmother's residence that they would be going to the hospital and "ha[d] to do a rape kit."

¶ 7. Halpin testified that she had twenty-six years of combined experience as a pediatric nurse taking care of children "for any type of medical or emotional problems" and as an ER nurse. "do[ing] lots of things," including "assess[ing] patients as they come in to find out the acuity of care that's needed." She agreed it was "part of [her] responsibility to obtain the history from a patient," adding that a nurse

need[s] a history to find out current events that are going on with the patient[,] their history in the past, past medical problems. We try to find out exactly the symptoms they've been having and what they've been treated for before, and what's been surrounding the current reason that they're in the emergency department.

After obtaining the history, a nurse "document[s] it on the chart and … share [s] that with the physician and then we take care of the patient together."

¶ 8. Halpin further testified that Megan arrived in the ER on September 5, 1999, accompanied by her mother and Larsen. The mother told Halpin she had been gone from the house for a short time, and when she came back, the door was locked, "which was unusual." The mother

said she broke in to get through the door. And when she got in the house she saw her husband coming outof [Megan's] bedroom pulling his pants up …. [N]ext she saw [Megan] on the toilet in the bathroom and she went in there. She said that [Megan] had a very bad look on her face, and she knew something bad had happened.

¶ 9. Because Megan was "very frightened," Hatpin began with a general, noninvasive examination and asked basic questions to build rapport. Halpin was eventually able to ask Megan more substantive questions, and with Halpin and Megan's mother both talking with Megan, she slowly revealed details. Halpin asked Megan "where this happened," and she responded, "in her bedroom." Megan further told Halpin " [t]hat her dad had taken off her pants and he took off his pants, and she was laying on her belly on the bed. And he put his pee-pee by her butt. Well, like on top of her." Megan's mother was crying, upset, hugging Megan, and "[t]elling her to tell us the truth." Megan further told Halpin she "felt something by her butt, so she went into the bathroom and she wiped herself with some tissue and threw it in the wastepaper basket."

¶ 10. Halpin asked Megan "if this was the first time something like this had happened," and Megan responded, "No." Megan's mother then asked her "if when she went to St. Catherine's for her vaginal bleeding did she really hurt herself on the bathtub. And she said: No, she hadn't," adding "that dad … was trying to put his pee-pee inside of her and that's how she got cut. That it wasn't the bathtub." Halpin asked Megan why she had not told anyone, and Megan informed her that Ramirez "had told her that if she told anybody about this that he would hurt her little brother, her mom or her grandma."

¶ 11. Halpin also testified that Dr. Suzanne Siegel entered the room and examined Megan with Halpin's assistance. Halpin observed "a creamy discharge" in Megan's vaginal area, which she indicated "could be a normal finding in an adult [but not] on a young girl." Siegel utilized a "Woods lamp," which shows purple if "semen" is present, and it revealed "little speckles of purple all over [Megan's] thighs." Samples of the substance were obtained, with one being sent, Halpin believed, to "the lab" and one to "the crime lab." Halpin recovered clothing from Megan " [a]ccording to a rape protocol that we follow," and after Megan had been discharged from the ER, Halpin provided a police officer with a written statement as to what had occurred.

¶ 12. On cross-examination, Halpin acknowledged that according to a September 5, 1999 report by Siegel, there was no indication vaginal penetration had occurred. On redirect examination, she testified that the "diagnostic impression" from the report stated "[p]hysical findings are consistent with sexual assault" and confirmed that the report indicated "[r]edness" was observed on Megan's vaginal area. On further re-cross-examination, Halpin acknowledged that such redness "could also come from a child rubbing herself," but based upon the particular redness Megan had, Halpin denied that it "could also come from … [l]ike a mother wiping a child." She indicated she did not know whether it could come "from someone putting something in the child."

¶ 13. Siegel testified that she was the ER physician who examined Megan on September 5, 1999. Megan's mother informed Siegel that Ramirez appeared intoxicated when she left their residence, and when she returned, "the door was locked and she had to break into the door. And she found the child in the bathroom wiping herself and … her husband leaving the child's room pulling his pants up."

¶ 14. Siegel...