The SCOW docket: State v. Mercado

Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them.  

Majority: Chief Justice Patience Roggensack (34 pp.)

The full decision for this case is here.

Roggensack

The upshot

We conclude that (Angel) Mercado forfeited several of his objections to the admissibility of the forensic interviews. Specifically, Mercado forfeited his contentions that: (1) the circuit court erred by not watching the victims' forensic interviews in their entirety prior to admitting them and (2) the circuit court erred by permitting N.G. to testify prior to the jury watching her forensic interview. Additionally, although Mercado objected to the admissibility of N.G.'s video-recording under Wis. Stat. §§ 908.08(2) and (3), we conclude that her video-recording is admissible under § 908.08(7), based on the residual hearsay exception found in Wis. Stat. § 908.03(24). Therefore, we conclude that the circuit court did not erroneously exercise its discretion when it admitted the three video-recorded forensic interviews during Mercado's trial. Accordingly, the court of appeals' decision is hereby reversed in full and has no precedential value. 

---

---

Background

​Mercado was arrested in August of 2016 for sexually assaulting N.G., L.G. and O.G., who were ages four through seven ​at the time of the assaults. The victims and their mother, C.C., lived with Mercado during that time. C.C. had known Mercado since 2011 and she and her children moved in with him so that she could assist him with his day-to-day activities (e.g., banking, appointments, medication, etc.). 

C.C. learned of the assaults on August 11, 2016....C.C. took all three girls to the hospital that night. The hospital staff did not find any physical evidence of the assaults; however, each victim individually repeated her allegations to the hospital staff. 

On August 16, 2016, C.C. took N.G., L.G. and O.G. to the Sojourner Family Peace Center in Milwaukee where they underwent forensic interviews with Officers Patricia Klauser and Danillo Cardenas. Before asking about what happened to them, the officers took the time to ascertain whether N.G., L.G. and O.G. understood the difference between right and wrong or the truth and a lie.  ​N.G. and L.G. initially had difficulty articulating that difference. ...

The State charged Mercado with two counts of first degree sexual assault of a child, sexual intercourse with a child under 12 years old...and one count of first degree sexual assault of a child, sexual contact with a child under 16 years old....

Before trial began, the State informed Mercado and the circuit court of its intent to introduce the video-recordings of the victims' forensic interviews into evidence. In a pretrial hearing regarding the video-recordings' admissibility, Mercado objected to the introduction of N.G.'s and L.G.'s video-recordings. Specifically, Mercado alleged that N.G. "evinces in this interview . . . zero ability to be able to tell the examiner the difference between truth and a lie." Mercado raised the same objection regarding L.G. The State disagreed. It acknowledged that "[N.G.] does have some trouble with the examples that she's given." Nonetheless, the State argued that the video-recording showed that she understood the importance of telling the truth. Mercado did not object to the introduction of O.G.'s forensic interview....

Mercado's case continued to trial in January of 2017.5 There, the State introduced the video-recordings of their forensic interviews which were admitted into evidence.6 The State also provided the jury with transcripts of the videos. Mercado did not object to either O.G.'s or L.G.'s videorecordings. After each video, the State called each victim to the stand to testify....

​The jury returned a guilty verdict on all counts. ​

---

The guts

Mercado appealed to the court of appeals reprising his postconviction arguments. The court of appeals agreed with Mercado. We granted the State's petition for review. On review, we determine: (1) whether Mercado forfeited all of his objections relating to O.G. and L.G. and one argument related to N.G. by not raising them at trial, in his postconviction motion or on appeal, and (2) whether N.G.'s video-recording is admissible under the residual hearsay exception. We also determine the proper interpretation of Wis. Stat. §§ 908.08(2) and (5)....
​
We first examine whether Mercado forfeited all of his objections as they relate to O.G. and L.G. and one objection as it relates to N.G. by not objecting at trial, raising an issue in his postconviction motion or raising an issue on appeal. If Mercado did forfeit his objections, the State argues that the court of appeals erred by directly reviewing and reversing the alleged errors to which Mercado did not object. We conclude that, under Wis. Stat. § 901.03(1), Mercado forfeited several of his objections by either not raising them during his trial or raising an issue on appeal. First, Mercado did not object to the court's showing of O.G.'s video-recording at any stage until he moved for postconviction relief. Additionally, although Mercado objected to the admissibility of L.G.'s video-recording during a pre-trial hearing, he did not renew his Wis. Stat. § 908.08(3)(c) argument relating to L.G. on appeal to the court of appeals. Finally, Mercado did not object to the court permitting N.G.'s testimony prior to showing her videorecording.8...

To the extent that there are defenses related to the admissibility of O.G.'s and L.G.'s video-recordings, we conclude Mercado forfeited those arguments and there was therefore no error in the circuit court admitting either video-recording. 

Hearsay

We have set out five factors that courts look to in determining whether a video-recording of a child's statement meets circumstantial guarantees of trustworthiness...

We conclude that N.G.'s statement has circumstantial guarantees of trustworthiness such that it is admissible under the residual hearsay exception. 

First, N.G. was four years old at the time of the assaults....N.G.'s age "tend[s] to support the veracity of [her] report of sexual abuse" by Mercado. Id. Additionally, she had a close relationship with Mercado having lived with him and spent time with him outside of the house....although she had trouble articulating the difference between the truth and a lie, there is simply no evidence that N.G. deliberately fabricated her statement.

Second, N.G. made her statement to a police officer. Similar to the social worker in Sorenson to whom the victim made her statement, Officer Cardenas had experience conducting these types of forensic interviews and did not appear to utilize coercive interviewing techniques....We detect no motive to coerce N.G. to implicate Mercado nor any motive to have her fabricate her assertions. Officer Cardenas's relationship with N.G. weighs in favor of admitting N.G.'s video-recording. 

Third, the circumstances under which N.G. made her statement support its reliability. Again, N.G. made her statement during a one-on-one interview with a police officer at a neutral location. Additionally, although difficult to pinpoint, the timing of the statement in relation to the assaults is at least a neutral factor. The assaults occurred between June and August of 2016. This puts her statement in a range of potentially a few days to one or two months after the assaults....

Fourth, the content of N.G.'s statement further supports its trustworthiness....Based on the manner in which she described the assaults, the content of her statement appears to be free from adult manipulation.

Fifth, there is circumstantial evidence that corroborates N.G.'s statement to Officer Cardenas. We note at the outset that there was not physical evidence of the assaults, which is to be expected given the nature of the assaults. Rather, we conclude there is corroborating evidence in the consistency of N.G.'s statements. Specifically, N.G. offered nearly identical statements to her mother and to Nurse Kanack. In both circumstances she was unprompted and offered these statements voluntarily.....