text:
    State of Wisconsin, Plaintiff-Respondent, v. Terrance W. Walther, Defendant-Appellant.
    Court of Appeals

      No. 99-2058-CR.

      Submitted on briefs November 7, 2000.

    Decided December 19, 2000.

    2001 WI App 23
    (Also reported in 623 N.W.2d 205.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs oí Raymond M. Dall'osto of Gimbel, Reilly, Guerin & Brown, of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief oí James E. Doyle, attorney general, and David J. Becker, assistant attorney general.
    Before Wedemeyer, P.J., Fine and Schudson, JJ.
   SCHUDSON, J.

¶1. Terrance W. Walther appeals from the trial court's nonfinal order denying his motion for an in camera review of confidential records of the child whose complaint led to criminal charges against him. Walther argues that the trial court erred in concluding that this court, in State v. Munoz, 200 Wis. 2d 391, 546 N.W.2d 570 (Ct. App. 1996), and Jessica J.L. v. State, 223 Wis. 2d 622, 589 N.W.2d 660 (Ct. App. 1998), "impose[d] a heightened threshold showing of relevance, materiality and necessity for disclosure for a fair determination of guilt or innocence," in contrast to the threshold established in State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993), for a defendant seeking an in camera review of the records. He argues that, under Shiffra and its progeny, his showing was sufficient. Walther is correct and, accordingly, we reverse.

I. BACKGROUND

¶ 2. The State's corrected criminal complaint and information charged that on December 17, 1998, Walther committed second-degree sexual assault of a child, second-degree sexual assault (force or violence), and child enticement. The complaint alleged:

[The alleged victim] reported that he is 13 years old . . . and on approximately [December 17, 1998], the defendant invited him into his van to go to a Walmart store in the southwest corner of the county and then return to their place of departure in the northeast corner of the county. After Walmart, instead of taking [the child] back to the place of departure, the defendant stopped the van . . . near Walmart's and forced [him] to the back of the van and told him that if he told anyone, he (the defendant) was going to kill him .... In the back of the van, the defendant fondled [the child's] genitals and held him down forcibly and put his (the defendant's) mouth on [the child's] penis and also licked his buttocks, all without his consent.

¶ 3. The defense filed a "Motion for In Camera Review of Medical, Psychological, Psychiatric, Residential Treatment and Counseling Records." In support of the motion, defense counsel submitted an affidavit stating, in part:

After reviewing the discovery materials provided to me to date, it appears that the alleged victim . . . has had various contacts with the law enforcement re: problems at St. Aemilian-Lakeside, [a residential treatment facility] where he resided in 1998-99.
Darryl Stegall, ... a potential witness identified in police reports, has advised our investigator, Charles Hess, that he has known [the alleged victim] since May, 1998.
Stegall advises that [the child] was frequently AWOL from St[.] Aemilian's and in December, 1998, [the child] advised Stegall that he had been sexually assaulted by a staff member at St. Aemilian's.
My investigator has spoken with Anthony Hammond,... [who] also knows [the child].
Hammond recalls [the child] being AWOL from St. Aemilian's on numerous occasions. Hammond advised our investigator that [the child] indicated that the reason[ ] he would go AWOL was because he was being abused and beaten by staff at St. Aemilian's.
Hammond advised our investigator that he recalls seeing [the child] with a bruised or black eye in December, 1998. Hammond asked how he got the bruising and [the child] told him that he had gotten it in a fight with a staff member at St. Aemilian's.
Police reports provided to the defendant in the course of discovery in this case indicate that [the child] told police that he got the bruised forehead and black eye in December, 1998 from being struck by the defendant, Terrance Walther.
It is my understanding that [the child] resided at St. Aemilian's in 1998 and 1999.1 do not know if he continued to be assaulted there, or if any complaints or reports of abuse or his medical condition were compiled by St. Aemilian's.
I am aware from Milwaukee Journal /Sentinel articles in the past two years that sexual assaults of the residents at St. Aemilian's have occurred... .
I believe that [the child's] psychiatric, medical and residential treatment records are highly relevant to [his] credibility, perception and recall, all of which will be at issue at Walther's trial, and that disclosure of such may also lead to exculpatory evidence.
Disclosure of the requested materials are [sic] absolutely critical to Walther's defense.
This affidavit is executed in support of Walther's motion to compel production for in camera review by the court and release of said documents to defense counsel, so Walther and his counsel can effectively prepare for trial.

(Footnote added.)

¶ 4. Defense counsel's brief in support of the motion clarified the basis for Walther's request for an in camera review. The brief, in part, explained:

The purpose of this review is to determine whether:

1. [the child] made other true or false allegations of sexual assault or unwanted sexual contact against any other persons, including staff at St. Aemilian-Lakeside, Inc.
2. ... [the child's] allegations against Walther resulted from any improper suggestion by another, fear of reprisal from staff or residents at St. Aemilian's, or arose from a mental disease or deficiency he was suffering from; and
3. ... [the child's] mental condition may impact on his recollection, perception and credibility.
Walther recognizes the sensitivity of such records; however, given the nature and gravity of the charges against him and the fact that [the child] had a long, troubled history, was placed in foster care and residential treatment due to irregular behavior and/or dysfunctional family situations, it is very likely that such records would contain information material and necessary to Walther's defense!.] [The child's] statements to associates, as outlined in the Affidavit of [counsel], are further grounds showing a need for disclosure. Whether [the child] may have made allegations of sexual assault in the past (true and false), whether he was the victim of sexual assault or abuse while at St. Aemilianfs] in 1998-99, and whether his sexual assault allegations against Walther resulted from any improper suggestion by any medical or mental health professional, threat from staff or residents!,] and any other exculpatory information are concerns that can only be addressed by disclosure of documents.

¶ 5. At the trial court hearing on the motion, the State opposed Walther's motion, contending that "the defense has not met its burden of establishing materiality." The defense countered that the State had "confused the standards the court has to really apply." Defense counsel contended, "It's not a standard of whether [the requested information is] probably material or is material, but [rather, whether it] might be helpful and material in order for the court to go to that next step" and review the records in camera to determine whether they included "material and relevant evidence."

¶ 6. The defense then supplemented its brief and affidavit by submitting Child Protective Services records from the State of Washington which, defense counsel explained, caused him "further concerns relative to the ability of the alleged victim in this case to accurately perceive and relate back what occurred to him as well as to his mental condition and stability." The defense, conceding that "just having a troubled history or having some kind of counseling background is not enough," then also submitted a packet of materials, explaining:

But what we have presented to the court both in my affidavit as well as in the packet I have just submitted, at the first part of that packet is [sic] the actual statements obtained from acquaintances of the victim which, as the court has inquired of [the prosecutor], indicates [sic] that the victim has told police that my client sexually assaulted him in December of '98, he has told his acquaintances he was assaulted by staff at St. Aemilian[']s in December of '98, he has told police in the discovery I have reviewed that it was Mr. Walther who hit him and caused him the bruise on his face in December of '98, yet he has told acquaintances that staff did this, and now apparently according to [the prosecutor] today he is conceding that staff or someone else did it other than Mr. Walther.

(Footnote added.) Thus, defense counsel maintained: "We have here very fact-specific statements . . . which specifically relate in time, place, and manner to the actual offense. I think this goes to the very core of what would be considered exculpatory evidence or at least potentially so."

¶ 7. The prosecutor disputed the defense assertion that the child had given inconsistent statements. The prosecutor maintained that, in the child's alleged statements holding both Walther and a St. Aemilian's staff member responsible for the bruise or bruises suffered in about December 1998, "[t]wo separate things are alleged to have occurred." Later in the hearing, however, the prosecutor conceded, "We don't know whether it's the same bruise." Defense counsel then declared:

That's exactly my point which is why I believe we have a right, we have made [sic] that necessary burden, the threshold burden for the court to access these records and then determine this,, because if it is the same bruise, it's highly relevant. If it isn't the same bruise, the [S]tate may be correct at this point; and it becomes immaterial to the defense.
However, we don't know that now; and to allow the case to go forward without access to this potentially exculpatory evidence violates Shiffra as well as Brady [v. Maryland, 373 U.S. 83 (1963)] and Kyles [v. Whitley, 514 U.S. 419 (1995)].
. . . and I would supplement what is stated in the affidavit with the additional references to the Washington State [dependency petition] action which goes again to perception, ability to recall. We don't know if the alleged victim had been ingesting controlled substances or alcohol in December of '98. The medical records, if he has been treated, would clearly show that which may be relevant, too, to his perception and ability to recall.

(Footnote added.)

¶ 8. Denying Walther's motion, the trial court opined that this court, as reflected by the decision in Jessica J. L., is "very deferential to the privacy interests that people have in their psychiatric or counseling records." While indicating that it was "sympathetic to the [defense's] position," given the obstacles to obtaining "the kind of information that's needed to make that showing of materiality" necessary to merit an in camera review, the trial court concluded that Walther had failed to make the necessary showing. In its order, the trial court further clarified the basis for its decision, stating that "the Jessica J.L. and Munoz decisions impose a heightened threshold showing of relevance, materiality and necessity for disclosure for a fair determination of guilt or innocence before in camera disclosure can be ordered under Shiffra, and that the defendant has not met that heightened threshold."

II. DISCUSSION

¶ 9. As we have explained:

"To be entitled to an in camera inspection, the defendant must make a preliminary showing that the sought-after evidence is material to his or her defense. We review under the clearly erroneous standard the findings of fact made by the trial court in its materiality determination." Whether a defendant has made the required preliminary showing presents a question of law.

Munoz, 200 Wis. 2d at 395 (citation omitted). In the instant case, although the parties express differing views of what the records might show, they do not challenge any of the trial court's factual findings. The trial court properly evaluated Walther's motion by acknowledging that it would "assume that the information that's contained in the affidavit is true and that if [it] were to look at the records [it] would find that kind of information."

¶ 10. In Munoz, this court carefully traced the language in Shiffra in order to clarify, not alter, the Shiffra standard. In Munoz, we acknowledged that, in Shiffra, the contrast between two articulations of the standard — "may be helpful to the defense," and "may be necessary to a fair determination of guilt or innocence" — could cause confusion. See Munoz, 200 Wis. 2d at 397-98. Thus, in Munoz, we explained:

The broad language of Shiffra — -"that the sought-after evidence is relevant and may be helpful to the defense," Shiffra, 175 Wis. 2d at 608, 499 N.W.2d at 723 (emphasis added) — certainly would seem to suggest a very low threshold for a defendant to establish the basis for an in camera inspection. A closer reading of Shiffra, however, reveals that a defendant must establish more than "the mere possibility" that psychiatric records "may be helpful" in order to justify disclosure for an in camera inspection.
. . . [Although Shiffra s reference to information that "is relevant and may be helpful to the defense" could cover almost anything the defense sought to discover, Shiffra did not repeat the "may be helpful" language elsewhere in the opinion but, instead, reiterated the standard: "may be necessary to a fair determination of guilt or innocence." Shiffra, 175 Wis. 2d at 610, 400 N.W.2d at 723 (emphasis added).

Munoz, 200 Wis. 2d at 397-98. Jessica J.L., relying on both Shiffra and Munoz, expressed nothing that would alter either the Shiffra standard or the Munoz clarification. See Jessica J.L., 223 Wis. 2d at 627—29, 632—34.

¶ 11. Here, Walther established more than the mere possibility that the requested records "may be necessary to a fair determination of guilt or innocence." See Shiffra, 175 Wis. 2d at 610. The information Walther provided, both in counsel's affidavit and supplemental submissions, about the child's background and treatment history, in combination with the information about the reported sexual assaults at St. Aemilian's, established more than the mere possibility that the requested records would reveal information necessary to a fair determination of guilt or innocence. See State v. Ballos, 230 Wis. 2d 495, 499-501, 602 N.W.2d 117 (Ct. App. 1999) (trial court erred in denying request for in camera review where, "[t]aken together, the treatment, the timing [of the treatment in relationship to the crime], and the apparent potential relationship among the [treatment foci and the crime] provided more than 'the mere possibility' that [the defendant's] treatment records ' "may be necessary to a fair determination of guilt or innocence"'"), review denied, 2000 WI 21, 233 Wis. 2d 84, 609 N.W.2d 473.

¶ 12. Additionally, the information regarding the child's accounts — of whether Walther or a St. Aemilian's staff member was responsible for the bruise or bruises suffered at or near the time of the alleged crimes — was relevant to the child's credibility, generally, and to the child's allegations against Walther, specifically. The trial court understood the relevance and significance of this information but, curiously, did not carry that understanding to its logical conclusion. Denying Walther's motion, the court commented:

[T]o the extent that the child may have lied when he told someone else that he got that other bruise from a fight with a member of St. Aemilian[']s, all of that seems to me like fertile ground for cross-examination at trial rather than something that rises to the level of materiality for me to think that this child cannot perceive the truth or relate the truth and that there is something in some sort of record that would be supportive of that.

Indeed, such information was potentially fertile ground for cross-examination and, for that very reason, the records documenting both that and related information were material to a fair determination of guilt or innocence.

¶ 13. Thus, Walther's showing stands in sharp contrast to that considered in Munoz, where we affirmed the denial of a defendant's request for an in camera review of a sexual assault victim's mental health records in part because the defendant had offered "nothing to suggest that... [the victim's] experiences or counseling in any way compromised her credibility." Munoz, 200 Wis. 2d at 400. Similarly, Walther's showing was far more specific and substantial than that in Jessica J.L. where, we explained, an in camera review of a child's counseling records was not required, in part because defense counsel's motion "[did] not offer any facts, which if true, would show that there was exculpatory information in the records sought," Jessica J.L., 223 Wis. 2d at 626-27, and defense counsel's representations did not provide "any allegation which, if believed, would tend to prove that [the child] has a psychological disorder that would make her a poor reporter of events relating to sexual conduct or draw her credibility into question in any way," id. at 635.

¶ 14. In the instant case, the trial court commented that its decision to deny Walther's request for in camera review was a "close call." Recognizing the obvious difficulties in discerning the details of nondis-closed confidential records, we caution trial courts to carefully consider, in cases presenting "close call[s]," the consequences of cutting off in camera review. As emphasized in Shiffra, and as reiterated in Munoz, a trial court's in camera review "is a limited intrusion that often provides 'the best tool for resolving conflicts between the sometimes competing goals of confidential privilege and the right to put on a defense." Munoz, 200 Wis. 2d at 400 (quoting Shiffra, 175 Wis. 2d at 611-12).

By the Court. — Order reversed.

       By order of December 3, 1999, this court granted Walther's petition for leave to appeal the trial court's order, concluding that Walther's petition met the criteria for interlocutory review. See WlS. STAT. § 808.03(2)(c) (1997-98).

       The affidavit attached copies of Milwaukee Journal Sentinel articles of May 12 and 15, 1997, which reported, among other things: (1) "[s]tate officials" had "cited" St. Aemilian-Lake-side "in two incidents of sexual abuse among boys"; (2) a Milwaukee County report on one of the incidents "criticized [St. Aemilian-Lakeside] for not reporting the assault to police and for not appropriately intervening with medical examinations after the incident was discovered"; (3) "[t]he two citations come months after [St. Aemilian-Lakeside] was cited . . . for an incident of sexual abuse involving two children and criticized by officials for not immediately reporting it to Child Protective Services, as required by law"; (4) the president of St. Aemilian-Lakeside said that "[m]any of the current residents were victims of sexual abuse or perpetrators of sexual abuse before they arrived,... making them more likely to act out sexually while in treatment," and that "more than half of the residents . . . have been sexually abused"; (5) "[i]n a review of its records this week, St. Aemilian-Lakeside found that 80% of current residents had been either sexual victims or sexual offenders"; and (6) children involved in the sexual abuse incidents referred to in the articles included those who were twelve and thirteen years old.
      We detail some of the information in the articles not to attest to the articles' accuracy, but rather, to more fully present the relevant information submitted to the trial court for its consideration of Walther's motion. We do not cite these articles to imply any criticism of St. Aemilian-Lakeside, or of its predecessor entities which, one of the articles also noted, "for years" had been "widely respected for caring for some of Wisconsin's most troubled children."

       Later in the hearing, defense counsel elaborated that "in that packet" were "the full investigative reports of the statements of the [child's] two acquaintances that were made to my investigator" regarding the child's alleged assertion that he had been "assaulted by someone other than [Walther]."

       The Washington dependency petition alleged that between August 1990 and May 16,1995, the child's mother had "smok[ed] pot with all three [of her] children" and "giv[en] wine coolers to all three." Earlier in the hearing, the prosecutor conceded that the materials from Washington were "not as vague and completely unfounded" as those considered in Jessica J.L. v. State, 223 Wis. 2d 622, 589 N.W.2d 660 (Ct. App. 1998), but contended that they still fell "far short of what is required by both Jessica and [State v.] Shiffra[, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993)]."

       In the instant case, the trial court expressed an understanding of those difficulties, stating:
      And to some extent I'm sympathetic to the position that you are in, [defense counsel], because in order to even get the court to look at the records, you have got to make some kind of a showing which supports materiality. But in a case where there is ... a stranger assault alleged and relatively little is known about the victim, it's very difficult for the defense to get the kind of information that's needed to make that showing of materiality.


source: Caselaw Access Project

author: CANE, C.J.

license: Public Domain

text:
    Alicia Danielson, Plaintiff-Appellant, v. Andrea H. Gasper, ABC Insurance Company, and Wisconsin Medical Assistance, Defendants, Jerome Eric Clark and Illinois Farmers Insurance Company, Defendants-Respondents.
    Court of Appeals

      No. 00-0950.

      Submitted on briefs November 6, 2000.

    Decided December 19, 2000.

    2001 WI App 12
    (Also reported in 623 N.W.2d 182.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Jason W. Whitley of Novitzke, Gust & Sempf of Amery.
    On behalf of the defendant-respondent, Illinois Farmers Insurance Company, the cause was submitted on the brief of Susan R. Tyndall of CMT Legal Group, Ltd. Of Waukesha.
    Before Cane, C.J., Hoover, P.J., and Peterson, J.
   CANE, C.J.

¶ 1. Alicia Danielson appeals a summary judgment dismissing Illinois Farmers Insurance Company from this action. Danielson was injured when the car in which she was a passenger was struck by Andrea Gasper, who was driving a car that Jerome Clark had loaned her. Danielson acknowledges that Clark's insurer, Farmers, paid her $100,000, its full policy coverage for each person per occurrence. However, she argues Farmers should not have been dismissed because Clark's alleged negligent entrustment of the car to Gasper constitutes a separate occurrence that provides an additional $100,000 in policy coverage. Thus, the issue is whether this single automobile liability policy provides coverage for two occurrences where there was a single car accident allegedly caused by negligent entrustment and negligent driving. Because we conclude that there was only one occurrence as defined by the policy (equating an occurrence with an accident), we reject Danielson's argument and affirm the judgment.

¶ 2. After Danielson was injured, she brought suit alleging that Gasper negligently drove the car and that Clark had negligently entrusted the car to Gasper. At the time of the accident, Clark, a Minnesota resident, had an insurance policy with Farmers that provided $100,000/$300,000 coverage for each occurrence. The policy potentially provided coverage to Gasper as the driver and Clark as the owner. Farmers paid $100,000 to Danielson for Gasper's negligence.

¶ 3. After Farmers paid Danielson $100,000, it moved for summary judgment on grounds that it had exhausted its policy limits because it had no further obligation to defend or indemnify Clark. Danielson opposed the motion, arguing that Gasper's negligent driving and Clark's negligent entrustment were separate acts that constitute separate occurrences under the Farmers policy. The circuit court concluded that there were no disputed issues of material fact and that Farmers was entitled to judgment as a matter of law. The court dismissed Farmers from the suit and this appeal followed.

¶ 4. On appeal, the parties agree that there are no issues of disputed fact and that this case presents issues of contract interpretation. The interpretation of an insurance contract is a question of law that this court reviews de novo. See Hull v. State Farm Mut. Auto. Ins. Co., 222 Wis. 2d 627, 635-36, 586 N.W.2d 863 (1998). The interpretation of an insurance contract is controlled by principles of contract construction. See General Cas. Co. v. Hills, 209 Wis. 2d 167, 175, 561 N.W.2d 718 (1997). "The primary objective in interpreting a contract is to ascertain and carry out the intentions of the parties." Id. To that end, "the language of an insurance policy should be interpreted to mean what a reasonable person in the position of the insured would have understood the words to mean." Id.

¶ 5. The first issue presented is whether Minnesota or Wisconsin law governs interpretation of the contract. The insurance policy was delivered to Clark in Minnesota and Clark, a Minnesota resident, kept the vehicle in Minnesota. However, the accident occurred in Wisconsin, and Danielson and Gasper are both Wisconsin residents. The threshold determination in a conflict of laws case is whether a genuine conflict exists between Wisconsin law and the law of the other state. See Gavers v. Federal Life Ins. Co., 118 Wis. 2d 113,115, 345 N.W.2d 900 (Ct. App. 1984). If the laws of the two states are the same, we apply Wisconsin law. See Sharp ex rel. Gordon v. Case Corp., 227 Wis. 2d 1, 11, 595 N.W.2d 380 (1999).

¶ 6. Danielson argues that regardless of whether we interpret the Farmers policy pursuant to Wisconsin or Minnesota contract law, the result is the same because a clause in the Farmers policy requires that the policy be interpreted according to the broadest coverage allowed by the state in which the accident occurred. Although we reject this argument because Danielson raises it for the first time on appeal, we note that Danielson has not argued, in the alternative, for the application of Minnesota law. Farmers argues that Minnesota law applies, but that even if Wisconsin law applies, the result would be the same. Because neither party identifies a conflict, we will apply Wisconsin law. See id.

¶ 7. The second issue presented is whether there were two occurrences, as defined by the insurance policy. In its definition section, the policy provides: "Accident or occurrence means a sudden event, including continuous or repeated exposure to the same conditions, resulting in bodily injury or property damage neither expected nor intended by the insured person." Danielson argues that there are two separate occurrences, two separate torts, two separate tortfeasors and, therefore, two separate policy limits that would provide coverage. Danielson bases her argument on Iaquinta v. Allstate Ins. Co., 180 Wis. 2d 661, 510 N.W.2d 715 (Ct. App. 1993). In Iaquinta, we examined an insurance policy issued in Wisconsin to a Wisconsin resident who, like Danielson, alleged both negligent driving and negligent entrustment.

¶ 8. In Iaquinta, we concluded that Wisconsin's omnibus statute required that full policy coverage be afforded to two tortfeasors, which raised the insurer's liability to $200,000. See id. at 665-66. Specifically, we concluded that WlS. STAT. § 632.32(3) required that full policy coverage be provided in cases where both the named insured and the additional insured are actively negligent. See id. at 666.

¶ 9. Danielson argues that as in Iaquinta, Wisconsin's omnibus statute requires that the Farmers policy provide full coverage because both the named insured, Clark, and the additional insured, Gasper, were actively negligent. Farmers responds that Iaquinta was legislatively overruled in 1995 by the introduction of WlS. Stat. § 632.32(5)(f) and, alternatively, that § 632.32 applies only to policies issued and delivered in Wisconsin. See WlS. STAT. § 632.32(1). We conclude that Farmers' second argument is dispositive.

¶ 10. Wisconsin Stat. § 632.32(1) does not require a Minnesota insurer issuing a policy in Minnesota to comply with statutes established for policies issued in Wisconsin. Instead, it expressly indicates that it applies "to every policy of insurance issued or delivered in this state." See WlS. STAT. § 632.32(1). Because the policy was not issued or delivered in this state, the only way that § 632.32 could apply is if Farmers . and its insured, Clark, agreed by contract to incorporate Wisconsin's omnibus statute into the policy.

¶ 11. Danielson contends that a provision of the Farmers policy entitled "Out of State Coverage" requires that the policy provide whatever coverage is required by Wisconsin law. Farmers asserts that because Danielson raises the issue of the applicability of this policy provision for the first time on appeal, we should decline to address this argument. We agree. See State v. Caban, 210 Wis. 2d 597, 604, 563 N.W.2d 501 (1997) (issues not presented in trial court will not be considered for the first time on appeal). Even if we were inclined to address this argument, Danielson has offered no case law to support her interpretation of the provision, thereby providing another reason why we decline to address this argument. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992).

¶ 12. Danielson has not convinced us that WlS. Stat. § 632.32 applies to an insurance policy issued in Minnesota to a Minnesota resident. Therefore, Iaquinta is not controlling. Neither the omnibus statute nor any other Wisconsin statute requires us to impose additional rights or duties on the contracting parties. Instead, the parties' rights and duties must be determined based solely on our interpretation of the words in the policy. The language of the policy should be interpreted to mean what a reasonable person in the position of the insured would have understood the words to mean. See General Cas. Co., 209 Wis. 2d at 175.

¶ 13. The Farmers policy provides that the bodily injury liability limit for each person, $100,000, is the maximum for bodily injury sustained by one person in any occurrence. The policy explicitly defines the key terms at issue: "Accident or occurrence means a sudden event, including continuous or repeated exposure to the same conditions, resulting in bodily injury or property damage neither expected nor intended by the insured person." This definition is unambiguous; an occurrence is the same thing as an accident: a sudden event resulting in bodily injury. Here, the sudden event resulting in bodily injury was the collision of Gasper's and Danielson's cars. Pursuant to the policy's definition of the word accident, we do not consider the acts, incidents or omissions that led to the accident for purposes of determining the maximum amount payable to Danielson under this single policy. Instead, we look to the accident itself and the number of persons injured to determine the limits of liability.

¶ 14. The Farmers policy had a bodily injury liability limit of $100,000 for each person injured in an auto accident, with $300,000 as the maximum amount payable to injured persons in each accident. The policy states that these amounts are the most that Farmers will pay regardless of the number of "insured persons" or claims made. Thus, the number of insureds whose negligence caused the accident does not determine the amount payable under the policy. Instead, the amount payable is $100,000 for each person injured in an accident or a total of $300,000 for all persons injured if two or more persons are injured. Therefore, under the plain language of the policy, Danielson is entitled to $100,000 from the policy to compensate her for her injuries. Because Farmers has already settled with Danielson for this amount, the circuit court correctly granted summary judgment in Farmers' favor.

By the Court. — Judgment affirmed.

       Clark did not actively participate in the motion and did not take a position for or against summary judgment.

       WISCONSIN Stat. § 632.32 provides in relevant part:
      Provisions of motor vehicle insurance policies.

        (3) REQUIRED PROVISIONS. Except as provided in sub. (5), every policy subject to this section issued to an owner shall provide that:
      (a) Coverage provided to the named insured applies in the same manner and under the same provisions to any person using any motor vehicle described in the policy when the use is for purposes and in the manner described in the policy.
      (b) Coverage extends to any person legally responsible for the use of the motor vehicle.

       Wisconsin Stat. § 632.32(1) provides:
      SCOPE. Except as otherwise provided, this section applies to every policy of insurance issued or delivered in this state against the insured's liability for loss or damage resulting from accident caused by any motor vehicle, whether the loss or damage is to property or to a person.

       Therefore we do not consider further Farmers' argument that Iaquinta v. Allstate Ins. Co., 180 Wis. 2d 661, 510 N.W.2d 715 (Ct. App. 1993), was legislatively overruled. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938) (only disposi-tive issues need to be addressed).

       The provision states:
      An insured person may become subject to the financial responsibility law, compulsory insurance law or similar law of another state or in Canada. This can happen because of the ownership, maintenance or use of your insured car when you travel outside of Minnesota. We will interpret this policy to provide any broader coverage required by those laws, except to the extent that other liability insurance applies. No person may collect more than once for the same elements of loss.

       In addition to not convincing us that any Wisconsin statute requires us to impose additional rights or duties on the parties' contract, Danielson fails to cite any Minnesota statute or case that would impose rights or duties.

       We are mindful that our supreme court has previously held that in some cases, the words "accident" and "occurrence" should be viewed from the perspective of cause rather than effect. See Olsen v. Moore, 56 Wis. 2d 340, 349-51, 202 N.W.2d 236 (1972). In Olsen, the court was dealing with insurance coverage for passengers of two cars that were struck by the defendant Moore's car. See id. at 342-43. The passengers argued that Moore's impact with the first automobile was a separate "occurrence" from Moore's impact with the second automobile for purposes of determining coverage under Moore's policy. See id. at 345. The court had to look to the cause of the collisions to determine whether a single, uninterrupted cause resulted in a number of injuries. See id. at 349. The court concluded that because there was only one cause, there was only one accident. See id. at 350. In the case before us, only one collision — one accident — occurred. Therefore, in contrast to Olsen, we do not have to construe the word "accident" from the standpoint of the cause rather than the effect.

       The policy states: "We will pay no more than the maximum limits provided by this policy regardless of the number of vehicles insured, insured persons, claims, claimants, policies or vehicles involved in the occurrence."


author: PETERSON, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Arden Krueger, Defendant-Appellant.
    Court of Appeals

      No. 00-1136-CR.

      Submitted on briefs December 4, 2000.

    Decided December 19, 2000.

    2001 WI App 14
    (Also reported in 623 N.W.2d 211.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Edward John Hunt of Hunt Law Group, Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general and William L. Gansner, assistant attorney general.
    Before Cane, C.J., Hoover, P.J., and Peterson, J.
   PETERSON, J.

¶ 1. Arden Krueger appeals his judgment of conviction for attempting to have sexual contact with a person under thirteen years of age, contrary to WlS. Stat. §§ 939.32 and 948.02(1). Krueger argues that he was denied his right to effective assistance of counsel because defense counsel failed to object when the trial court provided the jury with an instruction that did not contain an element of the crime. We agree and reverse Krueger's conviction.

BACKGROUND

¶ 2. Krueger was charged with attempted sexual contact with a person under thirteen years of age. At the conclusion of trial, the court provided the jury with an instruction missing an element of the crime. The instruction informed the jury that "sexual contact," as defined in WlS. STAT. § 948.01(5)(a), required an "intentional touching" of the victim's breast or vaginal area, but it did not state that the touching must have "the purpose of sexually degrading or sexually humiliating the complainant or sexually arousing or gratifying the defendant." Defense counsel did not object to the incomplete instruction. The jury found Krueger guilty.

¶ 3. Krueger filed postconviction motions and claimed ineffective assistance of counsel. The trial court denied his motions. This appeal followed.

STANDARD OF REVIEW

¶ 4. The familiar two-pronged test for an ineffective assistance of counsel claim requires a defendant to prove (1) deficient performance and (2) prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984); see also State v. Sanchez, 201 Wis. 2d 219, 236, 548 N.W.2d 69 (1996) (the Strickland analysis applies equally to ineffectiveness claims under the state constitution). To prove deficient performance, a defendant must show specific acts or omissions of counsel, which are "outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. To prove prejudice, a defendant must show that counsel's errors were so serious that the defendant was deprived of a fair trial and a reliable outcome. See id. at 687. In order to succeed, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.

¶ 5. On appeal, the trial court's findings of fact will be upheld unless they are clearly erroneous. See State v. Pitsch, 124 Wis. 2d 628, 634, 369 N.W.2d 711 (1985). However, proof of either the deficiency or the prejudice prong is a question of law that this court reviews independently. See id.

DISCUSSION

¶ 6. Krueger argues that defense counsel was deficient when he failed to object to the incomplete instruction that the trial court gave the jury. Krueger further argues that the deficiency was prejudicial. Because our resolution of these issues is dispositive of the appeal, we need not address the other issues Krue-ger raises. See Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983).

¶ 7. The State concedes that Krueger's defense counsel's performance was deficient. The State argues, however, that Krueger was not prejudiced because he has not shown a reasonable probability that the verdict would have been any different if the jury had been fully instructed. As a result, resolution of this appeal rests on whether Krueger's defense was prejudiced by the incomplete instruction given to the jury.

¶ 8. Wisconsin Stat. § 948.02(1) states that "[wjhoever has sexual contact or sexual intercourse with a person who has not attained the age of 13 years is guilty of a Class B felony." The definition of sexual contact in WlS. STAT. § 948.01(5)(a) reads:

Intentional touching by the complainant or defendant, either directly or through clothing by the use of any body part or object, of the complainant's or defendant's intimate parts if that intentional touching is either for the purpose of sexually degrading or sexually humiliating the complainant or sexually arousing or gratifying the defendant.

¶ 9. The instruction given by the trial court stated that in order for the jury to find Krueger guilty, the State must prove beyond a reasonable doubt that (1) Krueger touched the victim's breast or vaginal area, and (2) the touching was an intentional touching. The instruction did not inform the jury that intentional touching must be "for the purpose of sexually degrading or sexually humiliating the complainant or sexually arousing or gratifying the defendant." Id.-, see also Wis JI — Criminal 2101 A.

¶ 10. "The Due Process Clause protects a defendant against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he or she is charged." State v. Howard, 211 Wis. 2d 269, 290, 564 N.W.2d 753 (1997) (citing In re Winship, 397 U.S. 358, 364 (1970)). The burden of proving all elements of a crime beyond a reasonable doubt rests upon the State. See Muller v. State, 94 Wis. 2d 450, 473, 289 N.W.2d 570 (1980).

¶ 11. In Howard, 211 Wis. 2d at 292, the jury was entirely precluded from considering an essential element of the crime. Our supreme court held that the absence of the instruction rendered the verdict fundamentally unfair. See id. "[Howard] is entitled to a fair trial according to the established rules of procedures and principles of law, with a jury finding on each and every element of the crime charged." Id. at 295.

¶ 12. In State v. Avila, 192 Wis. 2d 870, 893a, 532 N.W.2d 423 (1995), the supreme court distinguished the effect of flawed jury instructions from the complete absence of an essential instruction. It held that if the circuit court fails to instruct a jury about an essential element of the crime and the jury must find that element beyond a reasonable doubt, there is an automatic reversal of the verdict. See id.

¶ 13. While Howard and Avila address the absence of an essential jury instruction under a harmless error analysis and not in the context of ineffective assistance of counsel, they lend guidance to our analysis. Here, the complete absence of an essential instruction was fundamentally unfair to Krueger. The absence allowed the jury to convict him without making a finding on an essential element of the crime. See Howard, 211 Wis. 2d at 292. The State was required to prove beyond a reasonable doubt that Krueger not only intended to intentionally touch the victim's breast or vaginal area, but that he did so with the intent to become sexually aroused or gratified. See WlS. Stat. § 948.01(5)(a); see also WlS JI — CRIMINAL 2101A.

¶ 14. Under the instructions given by the trial court, the State was relieved of proving an essential element. The jury was allowed to convict Krueger without being asked to determine whether Krueger touched the victim with the intent to become sexually aroused or gratified. Therefore, the absence of the instruction renders Krueger's conviction "fundamentally unfair." Howard, 211 Wis. 2d at 292.

¶ 15. We conclude that a jury instruction lacking an essential element of the crime is fundamentally unfair and establishes prejudice under the Strickland test. Krueger is therefore entitled to a new trial.

By the Court. — Judgment reversed.

      A11 references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

       Krueger also argues that he was denied effective representation because his trial counsel failed to (1) lay a foundation for impeachment of the complainant; (2) seek exclusion of other acts evidence; and (3) object to the opinion evidence of a witness. Krueger further contends that the trial court erred by excluding admission of exculpatory evidence and by failing to fully instruct the jury of all of the elements of first degree sexual assault of a child.


author: ANDERSON, J.

text:
    Susan M. Lodl, Plaintiff-Co-Appellant, Kohl's Department Store, Involuntary-Plaintiff, v. Progressive Northern Insurance Company, Defendant-Third-Party Plaintiff-Co-Appellant, Liberty Mutual Insurance Company, Defendant-Appellant, Wausau Underwriters Insurance Company, Officer Brian M. Fredericks, and Town of Pewaukee, Defendants-Respondents, v. Walker J. Young, Jr., Third-Party Defendant-Appellant.
    Court of Appeals

      No. 00-0221.

      Submitted on briefs September 20, 2000.

    Decided December 20, 2000.

    2001 WI App 3
    (Also reported in 625 N.W.2d 601.)

      On behalf of the defendant-appellant and the third-party defendant-appellant, the cause was submitted on the briefs of Thomas A. Cabush of Kasdorf Lewis & Swietlik, S.C., Milwaukee. On behalf of the plaintiff co-appellant (joined by defendant-third-party plaintiff-co-appellant), the cause was submitted on. the briefs of Mark L. Thomsen of Cannon & Dunphy, S.C., Brookfield.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Raymond J. Pollen and Michele M. Ford of Crivello, Carlson, Mentkowski & Steeves, S.C., Milwaukee.
    Before Brown, P.J., Nettesheim and Anderson, JJ.

      Petition to cross-review denied.

      Petition to review granted.

   ANDERSON, J.

¶ 1. In this appeal, we conclude that an intersection without operative traffic control signals during an evening storm is a compelling and known danger of such force that it creates a ministerial duty in the performance of traffic control. Therefore, we reverse the circuit court's grant of summary judgment to the Town of Pewaukee and Town of Pewaukee Police Officer Brian M. Fredericks because there is a genuine issue of material fact regarding whether Fredericks failed to act at the intersection.

¶ 2. The evening of June 18, 1998, was stormy, and the intersection of County Highway J and Capitol Drive in the Town of Pewaukee was dark because the traffic control lights were inoperative. Susan M. Lodi was the front seat passenger in a car being driven by Walker J. Young, Jr., that was eastbound on Capitol Drive when it was struck broadside by a vehicle being operated southbound on County Highway J by James R. Radmer. Lodi commenced this action against Fred-ericks, the Town of Pewaukee and its insurer, Wausau Underwriters Insurance Company (hereinafter Pewaukee). Lodi alleged that Fredericks was negligent in the manner in which he directed traffic at the intersection of County Highway J and Capitol Drive and that Pewaukee was liable for Fredericks's negligence under a respondeat superior theory. Pewaukee filed an answer, including affirmative defenses that Fredericks and Pewaukee were immune from suit under the doctrines of judicial, quasi-judicial, legislative and quasi-legislative immunity and that Lodi's claims were subject to the limitations and immunities in WlS. STAT. § 893.80 (1997-98). Young was subsequently added as a third-party defendant by Radmer's insurer.

¶ 3. Pewaukee filed a motion seeking summary judgment on the grounds that Fredericks and Pewaukee were entitled to immunity under WlS. Stat. § 893.80(4) because there was no law or rule regarding the manner in which Fredericks was to direct traffic at the intersection that created a ministerial act. The circuit court granted summary judgment, concluding that although there were material issues of fact as to whether Fredericks and Pewaukee were negligent, they were entitled to immunity under the statute.

¶ 4. Lodi and Young appeal the grant of summary judgment to Fredericks and Pewaukee. Both appellants contend that Fredericks and Pewaukee are not entitled to immunity because either there was a breach of a ministerial duty or a compelling and known danger existed at the intersection.

¶ 5. We review a motion for summary judgment using the same methodology as the trial court. See Ottinger v. Pinel, 215 Wis. 2d 266, 272, 572 N.W.2d 519 (Ct. App. 1997). That methodology is well known, and we will not repeat it here except to observe that summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See id.

The dispute must center on a "genuine issue of material fact." A factual issue is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. A "material fact" is one that impacts the resolution of the controversy. In analyzing whether there are genuine issues of material fact, we draw all reasonable inferences in favor of the nonmoving party.

Strasser v. Transtech Mobile Fleet Serv., Inc., 2000 WI 87, ¶ 32, 236 Wis. 2d 435, 613 N.W.2d 142 (citations omitted). Summary judgment presents a question of law that we review de novo. See Ottinger, 215 Wis. 2d at 273. When reviewing a summary judgment granting immunity to a public officer, we start with the proposition that the doctrine of public immunity assumes that the public officer was negligent. See Kierstyn v. Racine Unified Sch. Dist., 221 Wis. 2d 563, 566, 585 N.W.2d 721 (Ct. App. 1998), aff'd, 228 Wis. 2d 81, 596 N.W.2d 417 (1999). Therefore, the question before us is whether Fredericks is entitled to immunity. See id.

¶ 6. Public employees are immune from personal liability for injuries resulting from the negligent performance of a discretionary act within the scope of their public office. See Santiago v. Ware, 205 Wis. 2d 295, 338, 556 N.W.2d 356 (Ct. App. 1996). However, this general rule is subject to exceptions, which represent a judicial balance struck between "the need of public officers to perform their functions freely against the right of an aggrieved party to seek redress." Lister v. Bd. of Regents, 72 Wis. 2d 282, 300, 240 N.W.2d 610 (1976). An exception may exist where

the public officer's or employee's duty is absolute, certain and imperative, involving merely the performance of a specific task and (1) the law imposes, prescribes and defines the time, mode and occasion for its performance with such certainty that nothing remains for the exercise of judgment or discretion, or (2) there exists a known present danger of such force that the time, mode and occasion for performance is evident with such certainty that nothing remains for the exercise of judgment and discretion. Additionally, the doctrine of immunity may be inapplicable where a public officer's challenged decision involves the exercise of discretion but the discretion exercised is not governmental, i.e., does not require the application of statutes to facts nor a subjective evaluation of the law.

Kierstyn, 221 Wis. 2d at 569 (citations omitted).

¶ 7. We begin by rejecting Lodi's and Young's argument that the technique Fredericks was to use to direct traffic was so carefully defined that he did not have any discretion in selecting the method of traffic control that he would use. They contend that written policies on traffic direction were so detailed that Fred-ericks did not have to exercise any judgment or discretion. In other words, Lodi and Young assert that Fredericks's actions fall under the "ministerial act" exception to the general policy granting Fredericks and Pewaukee immunity.

¶ 8. Pewaukee had a written policy manual for police officers that included policies on directing and controlling traffic.

POLICY 4.23 - CONTROL AND DIRECTION OF TRAFFIC
I. PURPOSE - The purpose of controlling and directing traffic is to facilitate the safe and efficient movement of such traffic. It is up to the police to see that traffic moves as safely and as quickly as possible.
II. PROCEDURE - Direction and Control - Officer should first place himself in the center of traffic flow. Using police whistle signals as indicated in State Statutes 346.40, officer should indicate traffic which should stop by holding both arms horizontal, with palms of hands facing traffic. After traffic has stopped, officer should then turn his body to face one lane of traffic which has stopped. In this manner, the officer's body acts as a token barricade to the stopped traffic. To begin movement of a column of vehicles, officer should look directly at the lead driver, point at him, and then indicate with whistle signal and arm motion that he should move. To begin traffic flow from the opposite direction, repeat this procedure with lead driver in that column. After flow has started, intermittent arm signals will keep traffic moving. Arm signals should be intermittent, however, not continuous, and should be crisp. Left turning should be directed to do so in front of the officer, rather than behind. In this manner, the officer can observe the vehicle throughout the turn, thereby lessening the possibility of being struck by the turning vehicle. During hours of darkness, officers should use a flashlight or flares to assist him/her in directing traffic, officers should also wear reflective clothing to enhance his/her safety. (Emphasis added.)

Lodi and Young contend that the policy is mandatory because the foreword to the manual declares that "[t]he language and meaning in this manual are to be construed as general orders." Lodi and Young also argue that, coupled with a state traffic regulation on using a whistle while directing traffic, the Pewaukee policy imposed a duty that was "absolute, certain and imperative." Thus, traffic control was a ministerial duty.

¶ 9. We disagree with this conclusion. Pewaukee Police Chief Denny Stone, who drafted the policy and procedures manual, testified that "should" was discretionary. Stone testified that the intersections in Pewaukee are growing in size and number and "there are [an] infinite number of circumstances that can occur in each one." Because of these variables, Stone stated that "it is impossible to give a black and white ... rote policy that you must follow." For those reasons, we conclude that the policy is couched in discretionary terms, and a policy drafted in discretionary terms does not create a ministerial duty. See Ottinger, 215 Wis. 2d at 274-75.

¶ 10. We now consider whether the intersection constituted a compelling and known danger and therefore presented an imperative and mandatory duty. In a series of cases starting with Cords v. Anderson, 80 Wis. 2d 525, 259 N.W.2d 672 (1977), it has been held that a compelling and known danger creates a duty of response that is an exception to the immunity granted public officers and municipalities. See Kimps v. Hill, 200 Wis. 2d 1, 15-16, 546 N.W.2d 151 (1996). In Cords, the supreme court held that a park manager had an absolute, certain or imperative duty to place warning signs or advise superiors of the conditions of a dangerous public trail. See Cords, 80 Wis. 2d at 542. The manager knew that people regularly used the trail at night and that it passed a few inches from a ninety-foot gorge. See id. at 536-37. The supreme court held that the park manager had a ministerial duty to erect signs warning of the obvious danger or advise superiors of the danger because there "can be no policy of leaving it alone when such an obvious danger exists." Id. at 538, 542. In Domino v. Walworth County, 118 Wis. 2d 488, 490-92, 347 N.W.2d 917 (Ct. App. 1984), we concluded that a police dispatcher informed of a downed tree was under a "duty so clear and absolute" that the dispatcher was legally obligated to send a police squad to investigate the situation.

¶ 11. The reasoning behind these cases was given in Cords:

The question here is whether the [public officer] had an absolute, certain, or imperative duty to either place the signs warning the public of the dangerous conditions existing on the upper trail or to advise his superiors of the condition with a view toward adequate protection of the public responding to the invitation to use this facility. There comes a time when "the buck stops." [The public officer] knew the terrain at the glen was dangerous particularly at night; he was in a position as park manager to do something about it; he failed to do anything about it. He is liable for the breach of this duty.

Cords, 80 Wis. 2d at 541. As we noted in Ottinger, "[a] public officer may face liability when he or she is aware of a danger that is of such distinction that the public officer's duty to act becomes 'absolute, certain and imperative.'" Ottinger, 215 Wis. 2d at 277 (citation omitted).

¶ 12. In Kimps, 200 Wis. 2d at 15 — 16, the supreme court explained that when a public officer is faced with a compelling and known danger, he or she has a duty that is so clear and absolute that it falls within the definition of a ministerial duty. Fredericks is not immune from liability if he knew of the dangerous intersection, was in a position to do something about it, and yet did nothing. See id. at 15.

¶ 13. There is no genuine issue of material fact that the situation at the intersection of County Highway J and Capitol Drive was a compelling and known danger because the traffic control lights were inoperative during the evening storm. This situation is not unlike the path open for night hiking that ran within inches of a precipitous drop into a ninety-foot gorge. See Cords, 80 Wis. 2d at 536-37. Nor is it unlike a tree fallen across a road at 12:55 a.m. See Domino, 118 Wis. 2d at 490. The question we address is whether Freder-icks acted appropriately in the face of this compelling and known danger. The evidence is contradictory.

¶ 14. The evidentiary record submitted by Pewaukee at the summary judgment motion establishes that Fredericks was dispatched at 8:49 p.m. to the intersection by Sergeant Richard Ryman because the traffic control lights were inoperative. Approximately thirty minutes earlier, Ryman had dropped stop signs posted on the traffic light poles at the intersection after he was notified that the lights were inoperative. Fredericks testified that when he arrived at the intersection, he donned a blaze orange trench coat with reflective striping, grabbed a flashlight and positioned himself in the "absolute center of the intersection." Fredericks testified that "the problem that was going on there was that... nobody was yielding to nobody. Pretty much people were just flying through the intersection." Because the vehicles using the intersection were not obeying his signals, Fredericks testified that he called for assistance and portable stop signs.

¶ 15. In response to Pewaukee's evidentiary submissions, Lodi and Young produced contrary evidence. Young, the driver, testified that during the storm he was eastbound on Capitol Drive approaching the intersection with County Highway J and began to slow as he entered the intersection. He noticed that traffic traveling in both directions on County Highway J was stopped at the intersection and that there were no signs warning that the traffic lights were inoperative. Young testified that he saw an officer wearing a dirty yellow raincoat standing on the gravel shoulder along the southeast side of the road. Young testified that Fredericks gave no indication that he was attempting to control or direct traffic using the intersection and that the only time he saw a flashlight in Fredericks's hands was after the accident when Fredericks came to Young's vehicle. Young also testified that there was a car parked near Fredericks, but it did not have any lights operating as he entered the intersection.

¶ 16. There is a genuine issue of material fact as to whether Fredericks was in a position to do something about the compelling and known danger at the intersection and nonetheless did nothing. The trial court erred in granting summary judgment because a reasonable jury could find from Young's testimony that Fredericks was in a position to do something about the compelling and known danger of the intersection and failed to act, in which case he is not entitled to immunity. See Kimps, 200 Wis. 2d at 15.

¶ 17. Pewaukee asserts that the nature of law enforcement is inherently dangerous and requires the officers to exercise discretion and judgment for which they should be immune. We understand Pewaukee's argument to be that law enforcement officers enjoy immunity simply because they are law enforcement officers, regardless of whether the police officer actually exercises discretion or not. In support, Pewaukee cites Barillari v. City of Milwaukee, 194 Wis. 2d 247, 259-60, 533 N.W.2d 759 (1995). But Barillari does not say that. Barillari says that police officers must be free to perform their responsibilities without fearing that they or their employers could be held liable for damages from "their allegedly negligent discretionary decisions." Id. at 261-62. Thus, we see that if the police officers actually exercise discretion, that exercise will be immunized. However, if the police officers fail to exercise discretion when a known and present danger exists, then immunity does not exist. The factual issue at trial will be whether the police officer in fact tried to alleviate a dangerous situation or whether he simply sat at the intersection and did nothing. The question of immunity will depend on that factual finding. We conclude that Pewaukee's reliance on Barillari is premature.

¶ 18. Summary judgment was inappropriately granted because whether or not Fredericks took action when confronted by a compelling and known danger is in dispute. Whether Fredericks and Pewaukee are entitled to governmental immunity hinges upon the fact finder's resolution of the disputed facts. If the finder of fact concludes that Fredericks acted, Freder-icks and Pewaukee are entitled to governmental immunity even if his direction of traffic was negligent.

By the Court. — Order reversed and cause remanded with directions.

       The pertinent provisions of WlS. Stat. § 893.80(4) (1997-98), provide:

        No suit may be brought against any . . . political corporation, governmental subdivision... for the intentional torts of its officers, officials, agents or employes nor may any suit be brought against such corporation, subdivision ... or against its officers, officials, agents or employes for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.
      All references to the Wisconsin Statutes are to the 1997 — 98 version unless otherwise noted.

       This argument ignores an introductory "Rationale and Purpose" of traffic enforcement policies that requires an officer enforcing traffic safety regulations to enforce the law "impartially with mature judgment."

       Wisconsin Stat. § 346.40 provides:
      (1) Whenever traffic is alternately being directed to stop and to proceed by a traffic officer using a whistle, such officer shall use the following whistle signals which shall signify as follpws:
      (a) One blast of the whistle means that all traffic not within the intersection shall stop.
      (b) Two blasts of the whistle means that traffic which had been stopped prior to the one blast shall proceed through the intersection and that the traffic which was stopped by the one blast shall remain stopped.
      (2) The traffic officer shall regulate the interval between the one and the 2 blasts so as to permit traffic that is legally within the intersection to clear the intersection.


author: BROWN, P.J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Edward A. Murillo, Defendant-Appellant.

    Court of Appeals

      No. 00-0812-CR.

      Submitted on briefs November 9, 2000.

    Decided December 20, 2000.

    2001 WI App 11
    (Also reported in 623 N.W.2d 187.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Craig W. Albee of Glynn, Fitzgerald & Albee, S.C. of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Chris R. Larsen, assistant attorney general, and James E. Doyle, attorney general.
    Before Brown, P.J., Nettesheim and Snyder, JJ.

      Petition to review denied.

   BROWN, P.J.

¶ 1. In this appeal, we examine the scope of the declaration against the social interest exception to the hearsay rule. We also examine whether the admission of a brother's statement on grounds that it was against his social interest violated the defendant's right of confrontation where the brother would not take the stand and the statement inculpated the defendant. We hold that the trial court properly ruled that the statement given by defendant Edward (Eddie) Murillo's brother, Luis, was admissible under the social interest exception to the hearsay rule. We further hold that the exception is not a firmly rooted exception to the hearsay rule. Therefore, its admission would violate Eddie's confrontation right unless there are otherwise "particularized guarantees of trustworthiness." But we hold that such guarantees existed here. We affirm the admission of Luis's statement. In another issue, we hold that the trial court properly exercised its discretion in permitting an anonymous jury to be impaneled. We affirm Eddie's convictions for being a party to first-degree intentional homicide while armed, intentionally giving a dangerous weapon to a child and possession of a firearm by a felon.

¶ 2. The facts are as follows. Santiago Herrera was murdered by gunshot while standing on the porch of his home. Zebulon Robinson, a minor at the time of the incident, told police about the events leading to Herrera's death. Robinson related that he went to Herrera's house to buy marijuana. While he and Herrera were standing on Herrera's porch, Eddie, Luis and Mario Garcia, all members of the La Familia gang, approached the house. Eddie pointed a gun at Robinson and told him to get off the porch. Eddie then said something like "you Kings don't run nothing over here no more so get off our block" and shot Herrera. Eddie then handed the gun to Robinson and told him to get rid of it.

¶ 3. Police then arrested Luis and questioned him. Before the interview began, Luis was read his Miranda rights as the police considered him a suspect in the shooting. Luis initially told the police he was not in the area of the shooting, but was with his girlfriend watching television. The officer left the interview room and when he returned he told Luis that he had checked with the girlfriend and his story did not hold up. Luis became more nervous and told the police that he was near the shooting and saw those involved running but did not do anything.

¶ 4. After a break, Luis became increasingly upset and according to the officer was crying, pacing, praying and collapsing. It is very important to the rest of this opinion to tell exactly what the officer related. Therefore, we now quote the officer's trial testimony.

PROSECUTOR: [W]hen you went back in [to interview Luis] after the 20 minute break did you make any observations about how Luis Murillo was acting?
OFFICER: Yes.
PROSECUTOR: What did you observe?
OFFICER: He was very emotional, very upset and very afraid. He was alternately crying with tears just literally streaming down his face, pacing, his voice was cracking. He asked me several times what do I do. He collapsed on the floor a number of times where he just dropped. He just dropped and was in a position — in a seated position on the floor. There were a couple of times he was in a praying position on his knees with his elbows on the chairs, clasped his hands and appeared to be praying and the entire time he was continually sobbing and crying.
PROSECUTOR: Now, when you went back in after the 20 minute break, did Luis express any concerns to you about testifying?
POLICE: He was afraid to testify against his brother.

¶ 5. Luis then told the officer that he saw Eddie shoot Herrera. Luis signed a written statement to that effect. Eddie was arrested and charged with first-degree intentional homicide while armed (which was later amended to contain a charge of party to the crime of homicide), intentionally giving a dangerous weapon to a child and possession of a firearm by a felon.

¶ 6. Before trial, Luis was deposed, but he refused to testify, asserting his Fifth Amendment right against self-incrimination. The State granted him immunity, but he still refused to testify and was held in contempt. Eddie filed a motion to exclude Luis's statement, assuming that Luis would refuse to testify at trial, on the grounds that it was hearsay and that admitting it violated his right to confront Luis. The trial court denied the motion, holding that the statement was admissible under WlS. Stat. § 908.045(4) (1997-98), under both the penal interest exception and social interest exception. It further held that Eddie's confrontation right was not violated.

¶ 7. According to the trial court, Luis's statement was against his penal interest because it exposed him to obstruction charges as Luis initially told police that he was not in the area of the shooting. The trial court also opined that the statement was against Luis's social interest because, considering how upset Luis was and the fact that he was turning in his brother, a reasonable person in Luis's position would not have made the statement unless it was true. As to Eddie's confrontation right claim, the trial court determined that the social interest exception is firmly rooted in Wisconsin and, therefore, admitting the statement did not violate Eddie's Sixth Amendment right.

¶ 8. At trial, Luis again asserted his Fifth Amendment right and was offered immunity but still would not testify. A police officer read Luis's statement into evidence. Eddie was convicted on all counts. On appeal, Eddie renews his argument that Luis's statement was inadmissible because it was hearsay. Further, even if the statement was admissible as an exception to the hearsay rule, Eddie continues to argue that its admission violated his Sixth Amendment right to cross-examine Luis.

¶ 9. We initially address Eddie's claim that Luis's statement is inadmissible hearsay because it does not fall under one of the exceptions to the hearsay rule. We will not reverse a trial court's decision to admit hearsay evidence unless the trial court erroneously exercised its discretion. See State v. Stevens, 171 Wis. 2d 106, 111, 490 N.W.2d 753 (Ct. App. 1992). Although the trial court held that the statement was admissible under both the penal interest exception and the social interest exception, we need only discuss the social interest exception since we agree with the trial court that Luis's statement was against his social interest.

¶ 10. Wisconsin Stat. § 908.045(4) contains what is commonly known as the social interest exception:

908.045 Hearsay exceptions; declarant unavailable.
(4) Statemment against INTEREST. A statement which was at the time of its making ... so far tended to ... make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in the declarant's position would not have made the statement unless the person believed it to be true. . ..

The. Federal Rules of Evidence do not recognize this exception; some states recognize it and some do not. In only one other Wisconsin case, Stevens, 171 Wis. 2d at 112-18, has an appellate court discussed this exception in detail.

¶ 11. Hearsay statements which subject the declarant to "hatred, ridicule and disgrace" are admissible under this exception "based on the psychological assumption that persons do not make statements which are damaging to themselves unless satisfied for good reason that they are true." Id. at 113. Stated another way, because encountering "hatred, ridicule and disgrace" is such an unpleasant experience, few would subject themselves to it by making a particular statement unless the statement was true.

¶ 12. It is appropriate at this point to quote from, a work by noted evidence scholar Edward J. Imwinkelried concerning this exception to the hearsay rule:

It is not enough that the declarant believes that the revelation might trigger a mild community reaction. The declarant must fear that the disclosure will pose a direct and palpable threat... . Given the rationale for the declaration against social interest exception, in principle the admissibility of the proffered statement turns on the declarant's subjective state of mind. The issue is not whether the revelation subsequently renders the declarant an object of hatred, ridicule or disgrace. The issue is not even whether, at the time of the statement, there was an objective probability that the disclosure would have that effect. The focus is on whether the declarant is in a truthful frame of mind when the declarant speaks. The declarant's actual, subjective state of mind controls. The declarant's awareness of a supposed threat to an interest is the key to inferring [his or] her sincerity. . ..
Of course, it is often difficult to prove a person's subjective state of mind. For that reason, courts employ an objective standard. They treat the state of mind of the hypothetical, reasonable person as circumstantial evidence of the actual declarant's subjective frame of mind. They initially inquire whether a hypothetical, reasonable person would have viewed the revelation as disserving; and absent unusual circumstances, they presume that the declarant had the same state of mind as the hypothetical, reasonable person.

Edward J. Imwinkelried, Declarations Against Social Interest: The (Still) Embarrassingly Neglected Hearsay Exception, 69 S. Cal. L. Rev. 1427, 1432-34 (May 1996).

¶ 13. We learn from Imwinkelried that most jurisdictions purport to incorporate an objective test because determining the declarant's subjective state of mind is often difficult, but do so by looking at what a reasonable person in the declarant's position would feel. Wisconsin is one of these jurisdictions. WISCONSIN STAT. § 908.045(4) considers whether a "reasonable person in the declarant's position would not have made the statement unless the person believed it to be true." (Emphasis added). But we also learn from Imwinkelried that, notwithstanding the statute's wording, most courts consider the declarant's "actual, subjective motivation" when it is known. See Imwinkelried, supra, at 1434.

¶ 14. The smoking gun in this analysis is supplied by the McCormick treatise: "It can scarcely be doubted . . . that statements of [the] declarant disclosing his or her ... actual mental state would be received and would control in an appropriate case." 2 McCOR-MICK ON Evidence § 319 at 347-48 (4th ed. 1992). Thus, if the court can divine the declarant's actual state of mind by learning about the declarant's demeanor — words and actions surrounding the giving of the statement — that will go a long way toward determining the admissibility of the statement on grounds that it was against the declarant's social interest.

¶ 15. We applied this analysis in Stevens. We wrote that we would consider the declarant's subjective state of mind, if known. See Stevens, 171 Wis. 2d at 114 ("[T]here is both an objective and a subjective pole to the social interest exception. The objective pole is the determination that the declarant actually faced a risk of hatred, ridicule or disgrace. The subjective pole concerns the declarant's appreciation of the risk of hatred, ridicule or disgrace.") (Emphasis added.)

¶ 16. Thus, in considering whether the trial court was correct in applying the social interest exception here, we look to whether the trial court had a window into Luis's subjective state of mind. In other words,, does the record underlying the trial court's discretionary choice show Luis's awareness or belief that making a statement undermined his interest? An affirmative-answer is the key to determining the declarant's sincerity.

¶ 17. We are convinced that Luis's actual state of mind was on display in testimony before the trial court. Here was Luis, faced with the difficult dilemma of whether to turn in his brother, a fellow gang member to boot. It is not difficult to ascertain that a reasonable person in Luis's position would feel he or she would be the object of "hatred, ridicule or disgrace" from family members and members of the gang. A reasonable person in Luis's position would understand that those who Luis is most likely to interact with and hold in high esteem would probably perceive him as disloyal and his act as one of betrayal if he told police what he knew. Eddie would resent Luis for turning on him. The family would likely hold Luis responsible for separating Eddie from the family if Luis told the police what happened. Luis's fellow gang members would likely be angered by Luis's conduct. Therefore, the objective prong is satisfied.

¶ 18. That all of these considerations were weighing heavily on Luis's mind is evidenced by his actions, words and demeanor just prior to giving his statement. The testimony of the interrogating officer is riveting. Luis is crying "with tears just literally streaming down his face, pacing, his voice was cracking." He is seen begging the officer for advice about what to do. He collapses on the floor a number of times. He "just dropped," assuming a seated position on the floor and a praying position on his knees. He appears to be praying and, the entire time, he is continually sobbing and crying.

¶ 19. These are not the actions of a person who is about to lie. These are the actions of a person who is torn between telling the truth and risking the disgrace of family and gang members or keeping quiet. The trial court was able to gain insight into Luis's actual mental state and so have we. The subjective prong is satisfied. We are convinced that Luis realized that the revelation would make him the subject of hatred, ridicule or disgrace. He understood that the disclosure would pose a direct and palpable threat to him. We are satisfied that Luis would never have given the statement if it were untruthful. We affirm the trial court's admission of the statement as an exception to the hearsay rule on grounds that it was a statement given against Luis's social interests.

¶ 20. Our preceding discussion also drives Eddie's next issue. Eddie contends that even if Luis's statement was admissible under the social interest exception, admitting it violated Eddie's Sixth Amendment right to confront a witness against him. For this, Eddie relies on the United States Supreme Court decision in Lilly v. Virginia, 527 U.S. 116 (1999), which he believes is on all-fours with the facts and circumstances of his case. We will discuss Lilly and then show how different this case is from Lilly.

¶ 21. Benjamin Lilly, Mark Lilly and Gary Barker were involved in a number of robberies, and one of them shot and killed Alex DeFilippis. See id. at 120. When the police questioned Mark, he initially stated that he stole alcohol during the first two robberies, handled a gun and was present during the other robberies and the homicide. See id. at 121. Police told Mark that he would be charged with burglary and that unless he broke family ties, his brother might drag him into a life sentence. Id. Mark then stated that he had nothing to do with the shooting of DeFilippis and that his brother shot him. Id.

¶ 22. A plurality of the Court analyzed the law as follows: In criminal prosecutions the defendant has a Sixth and Fourteenth Amendment right "to be confronted with the witnesses against him." Id. at 123 (citations omitted). "The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact." Id. (citation omitted) (emphasis added). When the State seeks to admit a hearsay statement of an unavailable declarant, the court must decide whether the Confrontation Clause allows the State to deny the defendant his or her usual right to force the declarant "to submit to cross examination, the 'greatest legal engine ever invented for the discovery of truth.'" Id. (citation omitted).

¶ 23. The Lilly Court announced a two-prong test for determining when the hearsay statement of an unavailable declarant is admissible. If the hearsay falls within a firmly rooted hearsay exception, it is automatically admitted, as such statements are reliable even without cross-examination. See id. at 124-25. If the hearsay does not fall within a firmly rooted hearsay exception, it is only admissible if it contains "particularized guarantees of trustworthiness." See id. at 125. The Court then held that the penal interest exception is not a firmly rooted hearsay exception, see id. at 134, and the circumstances surrounding Mark's statement did not indicate that it contained particularized guarantees of trustworthiness. Therefore, the Court determined that Mark's statement was inadmissible. See id. at 139-40.

¶ 24. Applying Lilly to this case, the first consideration, therefore, is whether the social interest exception is firmly rooted. The State concedes that Luis's statement is not automatically admitted because the social interest exception is not a firmly rooted hearsay exception. We accept the concession for reasons stated in the footnote.

¶ 25. This brings us to the second consideration, that being whether Luis's statements contain particularized guarantees of trustworthiness. And here we see a world of difference between the facts surrounding Luis's statements and the facts surrounding Mark Lilly's statement. First, there is the obvious about Luis's statements, actions and demeanor, which we have already gone into at great length in order to demonstrate his actual state of mind. Even the closest reading of Lilly reveals nothing showing Mark's actual state of mind when he gave his statement implicating his brother. We know that Mark's statement was admitted as a statement against his penal interest, not as a statement against his social interest. So, the mere fact that Mark was Benjamin's brother was not central to the Court's analysis, unlike the case here. We know that Mark's statements came in response to an interrogating officer's leading questions, unlike Luis's statements. We know that because Mark was up to his neck in criminal involvement, he had what the Court described as a "natural motive" to exculpate himself as much as possible, unlike Luis. We note that Mark was under the influence of alcohol, unlike Luis.

¶ 26. Eddie argues that the facts of this case are just like the facts of Lilly. Eddie is wrong. The only thing that connects the two cases is that both Mark and Luis were brothers of the person they turned against. While we agree with Eddie that suspects have a natural motive to shift the blame to each other rather than tell the truth, we have more information here which convinces us, as it convinced the trial court, that Luis's statement was not borne out of any motive to shift the blame. We affirm the trial court's denial of Eddie's contention that his Sixth Amendment right to confrontation was violated.

¶ 27. Finally, Eddie asserts that the court improperly exercised its discretion by referring to jurors by number rather than name. In State v. Britt, 203 Wis. 2d 25, 34, 553 N.W.2d 528 (Ct. App. 1996), we held that the trial court may exercise its discretion and take "reasonable steps to protect the identity of potential jurors in a criminal case." The trial court may allow anonymity if there is "strong reason to believe that the jury needs protection," and if the court takes "reasonable precautions to minimize any prejudicial effect to [the defendant] and to ensure that his fundamental rights to a fair and impartial jury were protected." Id. at 34, 36 (citation omitted). While anonymous juries are rare, they have been used in criminal cases, most often involving organized crime, drug-related activity or gang activity. See id. at 32. Courts have approved the use of an anonymous jury if it is necessary to protect potential jurors and their families from harassment, intimidation, bribery, publicity and other potential interferences that might make an individual afraid or apprehensive about being on a jury. See id.

¶ 28. In Britt, the victim and witnesses were threatened or were afraid to testify in a trial against a gang member who shot and paralyzed another. See id. at 35. The prosecutor asked that the names, addresses and places of employment of potential jurors not be revealed in open court on the record. See id. at 30. This court held that the trial court properly exercised its discretion, noting that "this pattern of victim intimidation presented sufficient grounds to reasonably believe that the jury might also be subject to tactics of fear and intimidation." Id. at 35. Moreover, the trial court took reasonable precautions to minimize prejudice and protect the defendant's rights by allowing the parties to ask general questions about the jurors' residence and employment in open court and on the record. See id. at 36. Also, the parties were allowed prior access to written questionnaires in which the jurors presumably answered these questions. See id. at 37.

¶ 29. Eddie argues that an anonymous jury was inappropriate in this case because the evidence of gang involvement was "thin to non-existent" and, unlike Britt, there was no evidence that the gang was acting in an obstructive manner which might cause the jurors to fear for their safety. We disagree. There was evidence of gang involvement in this case; Robinson testified that Eddie, Luis and Mario were members of the La Familia gang, and Mario was taken into custody wearing La Familia colors. Furthermore, evidence indicated that gang members were obstructing justice and instilling fear in witnesses who were supposed to testify at trial. The record contains a police officer's statement indicating that gang members in the city of Racine were afraid to testify against members of their own gang for fear of retaliation, including anything from beatings to shootings. As support for this proposition, the statement claimed that Luis, with the help of fellow gang members, was evading the police after giving his statement. The jury learned that Luis would not testify and was afraid of his brother. Also, Robinson told the police he was afraid to testify for fear of retaliation.

¶ 30. Robinson's trial testimony that Eddie said, "you Kangs don't run nothing over here no more so get off our block" indicates that the shooting may have been retaliatory in nature over a territory dispute between the La Familia gang and the Latin Kings gang. Britt indicated that the retaliatory nature of gang criminal activity may justify an anonymous jury. See id. at 35-36 (citing State v. Bowles, 530 N.W.2d 521, 531 (Minn. 1995) (once evidence was admitted that the victim's murder was retaliatory in nature, jurors could have reasonably concluded that were they to convict the defendant, they or their families would be vulnerable to harassment or retaliation from gang members)).

¶ 31. In summary, the obstruction of justice, intimidation of witnesses and retaliatory nature of this crime provide sufficient grounds for reasonable jurors to conclude they too might be subjected to intimidation. The record supports the empanelment of an anonymous jury.

¶ 32. We also conclude that the trial court took reasonable precautions to minimize prejudice and protect Eddie's rights. The only information not revealed in open court was the name of the jurors. While Eddie may have a right to obtain sufficient information regarding potential jurors to uncover bias, see Britt, 203 Wis. 2d at 37-38, this right was hardly restricted by not being able to use the jurors' names in open court. A name reveals little if anything about one's biases. Furthermore, any prejudice that Eddie may have faced by the insinuation to the jurors that their names were not revealed in open court because Eddie was "dangerous" and. therefore probably guilty was minimized by the limited anonymity of the jury.

By the Court. — Judgment affirmed.

        Miranda v. Arizona, 384 U.S. 436 (1966).

       All references to the Wisconsin Statutes are to the 1997-98 version.

       In Lilly, the Court stated that firmly rooted hearsay exceptions have "longstanding judicial and legislative experience" and "rest on such a solid foundation that admission of virtually any evidence within it comports with the 'substance of the constitutional protection.'" Lilly v. Virginia, 527 U.S. 116, 126 (1999) (citations omitted). For example, spontaneous declarations is a firmly rooted hearsay exception because it is at least two centuries old, widely accepted among the states and has substantial guarantees of trustworthiness. See id. According to the Court, the penal interest exception is not firmly rooted because it is not generally based on the maxim that statements made without a motive to reflect the legal consequences of one's statement, and in situations that are exceptionally conducive to veracity, lack the dangers of inaccuracy that typically accompany hearsay. The exception rather is founded on the broad assumption "that a person is unlikely to fabricate a statement against his own interest at the time it is made." Id. at 126-27 (citation omitted). Similarly, the social interest exception is also based on the assumption that a person is unlikely to fabricate a statement against his own interest, see State v. Stevens, 171 Wis. 2d 106, 113, 490 N.W.2d 753 (Ct. App. 1992), and therefore is not a firmly rooted hearsay exception.