01-0008 State ex rel. Simpson v. Schwarz, Administrator, Division of Hearings and Appeals

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Further, defendant was not entitled to sentence credit for the time spent on electronic monitoring because he was not then in “custody” within the meaning of Wis. Stat. sec. 973.155.

“We need not determine, however, the contours of the good cause requirement, because we conclude that the test is always met when the evidence offered in lieu of an adverse witness’s live testimony would be admissible under the Wisconsin Rules of Evidence….

“[W]e note that LeAnn was six years old when she reported the incident to her mother and the police officer and she was ‘unlikely to review an incident of sexual assault and calculate the effect of a statement about it,’ thus suggesting she was telling the truth….

LeAnn told both her mother and Officer Lehnert that Simpson had sexually assaulted her. In neither case was LeAnn prompted to specifically identify Simpson, yet she did in both conversations. Because ‘it would be natural for a child who has been physically abused by another to inform a parent of that abuse,’ the fact that LeAnn first told her mother provides the statements with a circumstantial guarantee of trustworthiness….

Further, LeAnn explained that she waited to tell her mother because Simpson told her to keep it secret. LeAnn related the incident to her mother immediately after Tracy told LeAnn, ‘If anyone ever messes with you, you have to tell mama.’…

“Considering the factors as a whole, we conclude that LeAnn’s statements possess sufficient circumstantial guarantees of trustworthiness to qualify under the residual hearsay exception. We therefore further conclude that good cause existed and its basis is found in the record, and because the ALJ found specifically that the evidence was reliable, a finding of good cause was implicit in the ALJ’s ruling. Accordingly, the ALJ’s failure to specifically find good cause was harmless error.”

Judgment revoking defendant’s probation is affirmed.

Recommended for publication in the official reports.

Dist I, Milwaukee County, Haese, J., Dykman, J.

Attorneys:

For Appellant: Willie C. Simpson, Green Bay

For Respondent: David H. Schwarz, Madison; Kathleen M. Ptacek, Madison