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Full Opinion
COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
May 3, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2021AP1062-CR Cir. Ct. No. 2019CF54
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
RYAN L. BESSERT,
DEFENDANT-APPELLANT.
APPEAL from a judgment of the circuit court for Langlade County:
JOHN B. RHODE, Judge. Affirmed.
Before Stark, P.J., Hruz and Gill, JJ.
¶1 STARK, P.J. Ryan L. Bessert appeals from a judgment, entered
following a bench trial, convicting him of two counts each of first-degree sexual
assault of a child under twelve years old and incest with a child. Bessert seeks a
new trial, arguing that he was denied his Sixth Amendment rights under the
No. 2021AP1062-CR
United States Constitution. First, he claims he was denied his right to confront
witnesses against him when, pursuant to WIS. STAT. § 972.11(2m)(a) (2019-20),1
the circuit court allowed the victim to testify via closed-circuit audiovisual
equipment (CCTV).2 Second, he claims he was denied his right to a public trial
because the courthouse doors were inadvertently locked during the court’s
deliberations and when the court issued its verdicts.
¶2 For the reasons that follow, we conclude that the circuit court
properly applied WIS. STAT. § 972.11(2m)(a) under the circumstances of this case
and that Bessert’s rights were not violated by the court allowing the victim to
testify via CCTV. Further, we assume without deciding that Bessert’s right to a
public trial was violated, but we conclude that the court employed an appropriate
remedy for the constitutional violation by timely reannouncing the verdicts in
open court. Accordingly, we affirm.
BACKGROUND
¶3 Bessert came under investigation for sexual assault in January 2019.
As part of that investigation, Alex,3 who was six years old at the time, participated
in a forensic interview and reported several instances of Bessert sexually abusing
her in 2015 and 2016, when she was three years old. Sergeant Kyle Rustick, who
1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
2
We note that CCTV stands for closed-circuit television, while WIS. STAT.
§ 972.11(2m)(a) uses the phrase “closed-circuit audiovisual equipment,” which can include
CCTV. For ease of reference, we will use CCTV to refer to all closed-circuit audio and visual
equipment.
3
Pursuant to the policy underlying WIS. STAT. RULE 809.86(4), we use a pseudonym
instead of the victim’s name as well as nonidentifying terms for the other witnesses in this case.
2
No. 2021AP1062-CR
served as both an officer with the Antigo Police Department and a deputy with the
Langlade County Sheriff’s Office, also interviewed Bessert’s former girlfriend.
The girlfriend reported that between November 2013 and January 2014, she saw
Bessert digitally penetrate Alex seven to ten times when she was an infant.
According to another witness, Alex was “exhibiting sexualized behaviors,
including doll play involving sexual behavior and trying to take off a boy child’s
pants.”
¶4 In March 2019, the State charged Bessert with twenty-six counts
related to the sexual abuse allegations. Fifteen of those charges—all for
first-degree sexual assault of a child under the age of twelve, incest, or repeated
sexual assault of a child—were for the incidents Bessert’s former girlfriend
alleged to have occurred between November 2013 and January 2014, when Alex
was an infant. The remaining charges—involving additional counts of the already
listed crimes as well as mental harm to a child; exposing genitals to a child;
physical abuse of a child, intentionally causing bodily harm; and misdemeanor
battery—related to the sexual abuse allegations Alex herself made for the period
between 2015 and 2016.
¶5 Prior to trial, the State filed a motion in limine seeking to present
Alex’s testimony via CCTV as allowed under WIS. STAT. § 972.11(2m)(a). The
State’s motion alleged that Alex was “still having emotional issues regarding
[Bessert], including frequent nightmares,” and “is afraid of [Bessert] and would
not be able to adequately testify in the same room as him.” Bessert opposed the
State’s request.
¶6 At a hearing on the motion, Alex’s guardian testified that
then-seven-year-old Alex had lived with her for six years. At the time of the
3
No. 2021AP1062-CR
hearing, Alex had been participating in the early stages of the trial preparation
process with the district attorney’s office. Although the meetings at this stage
involved “fun things” like “playing with [a victim support] puppy,” “playing board
games,” and eating chicken nuggets for dinner, the guardian testified that Alex
was aware of the purpose of the meetings. According to her guardian, after the
meetings, Alex was “scared”: “[A]fter we go home at night she talks about it and
then she has nightmares, real bad ones.” When questioned about the subject of the
nightmares, Alex’s guardian explained, “Some of them are with [Bessert] taking
[Alex] away from me or lately she’s been having nightmares of [Bessert] killing
me or slicing my throat and I have to tell her it’s okay, you know, I’m here for
her.” Her guardian further testified to Alex wetting the bed for a few days after
these meetings and having angry outbursts where “she beats on the other” children
in the home.4 Based on her guardian’s experience as a mother and a foster parent,
she testified that this was unusual behavior compared to other children Alex’s age.
¶7 Further, Alex’s guardian testified that Alex did not want to see
Bessert. She reported that Alex had seen Bessert approximately one year earlier at
a McDonald’s. After that encounter, Alex came home and told her guardian that
she no longer wanted to see Bessert.
¶8 At the conclusion of the guardian’s testimony, the circuit court heard
arguments from the parties. The State reiterated that Alex’s nightmares,
bed-wetting, and aggression—all of which had developed in the preparation period
before trial—and her desire not to see Bessert again demonstrated that testifying
4
Her guardian also testified that Alex had been seeing a counselor to “minimize or deal
with trauma,” but she had not seen the counselor for months before the hearing due to the
counselor’s maternity leave.
4
No. 2021AP1062-CR
without the assistance of CCTV would “cause [Alex] serious emotional distress
such that she won’t be able to reasonably communicate.” Bessert objected to the
CCTV accommodation, focusing on his confrontation rights, asserting that a “trial
is anxious for everyone who testifies,” and concluding that “the [S]tate has not met
[its] burden … in showing that [Alex] is going to shut down and not be able to
reasonably communicate, or that she’s going to be suffering from serious
emotional distress.” Defense counsel did not challenge the constitutionality of
WIS. STAT. § 972.11(2m) directly and instead stated that “everyone says and
everyone agrees it has survived constitutional muster.”
¶9 The circuit court found that the State had met its statutory burden of
proof for the CCTV accommodation. The court found Alex’s guardian very
credible and observed that “she probably knows [Alex] better than anyone at this
stage.” It concluded
that forcing [Alex] to testify in the presence of [Bessert],
her alleged sexual abuser on multiple occasions, will result
in her suffering serious emotional distress such that I am
concerned she could not reasonably communicate
effectively in this courtroom during the trial, and that video
testimony from the other room that the district attorney has
spent some time preparing is necessary to minimize the
trauma to [Alex] and to provide a setting that is more
amenable to securing [Alex’s] uninhibited and truthful
testimony.
¶10 At the bench trial, Bessert’s former girlfriend and Alex both testified
consistently with their previous allegations of sexual abuse. To prove the
allegations from 2013 and 2014, the girlfriend testified that she witnessed Bessert
digitally penetrate Alex while he was changing her diaper and while giving Alex a
bath. According to her, Bessert was excited by this behavior.
5
No. 2021AP1062-CR
¶11 The State also called Alex via CCTV to testify to the assaults that
allegedly occurred in 2015 and 2016. Alex’s testimony was confused and
inconsistent. Her testimony began with her statement that “I woke up this
morning and [Bessert] was under the bed—under the blankets I mean.”5 When the
State attempted to redirect Alex with a question about what she did that morning,
Alex stated, “When I woke up I tried to go outside and I was trying to run away
because [Bessert] was doing the bad stuff.” Alex was asked what she liked to do
with Bessert, and she responded, “I only liked to play with him but when he did
the bad stuff I didn’t like it because when we played on the slide in the backyard I
used to play on it.” Alex testified that the “bad stuff” meant “[w]hen [Bessert]
was touching [her] private” “[w]ith his hand.” Alex also testified that Bessert
forced her to touch “his private” and that he “touched his private in [her] private.”
¶12 According to Alex, when Bessert touched her, she “would try to run
away and [she] couldn’t” and she “said please stop a lot of times.” Alex could not
remember how old she was when Bessert did this, but she stated that she was
living at his house the first time. The State asked how many times Bessert touched
her privates, questioning, “Was it one time, two times or something else?” Alex
responded that it was “two times.” When asked whether her clothes were on, Alex
stated, “I’m pretty sure I had underwear on, but I don’t really know. But I’m
pretty sure I was naked.”6
5
On redirect, the State asked Alex, “[D]o you know where [Bessert] stays right now?
Do you know where he lives right now?” Alex responded, “No…. I’m pretty sure he’s in jail.”
6
The State also entered Alex’s forensic interview into evidence, which the circuit court
stated it had viewed before the trial.
6
No. 2021AP1062-CR
¶13 Sergeant Rustick testified regarding his investigation. Through his
testimony, the State established that Alex was living with Bessert from
November 11, 2013, through the end of that year and that Alex was also with
Bessert from November 2015 through June 2016. Rustick also discussed his
interview with Bessert’s former girlfriend, explaining that she “didn’t know why I
had come to see her”; that Rustick did not “mention sexual assault”; and that he
did not mention Alex, but rather the girlfriend “brought [Alex] up.”
¶14 Bessert testified in his own defense that he did not assault Alex. He
also called his mother and daughter to testify in his defense. Neither witness was
directly asked if they saw Bessert touch Alex, but both witnesses implied that they
did not witness any inappropriate behavior between Bessert and Alex.
¶15 During closing arguments, both the State and Bessert acknowledged
that Bessert’s former girlfriend and Alex were testifying to events that occurred
during two separate time periods. The circuit court then took a short recess to
deliberate. When the circuit court came back on the record, it found Bessert guilty
of two counts each of first-degree sexual assault of a child and incest—counts one
through four of the Information, which occurred when Alex was an infant and to
which Bessert’s former girlfriend testified. The court acquitted Bessert on all
remaining charges.
¶16 Before sentencing, Bessert filed a motion for a new trial, arguing
that he was denied his constitutional right to a public trial. According to Bessert,
“the courthouse was improperly closed to the public from 4:30 P.M. until the
conclusion of trial at 5:00 P.M.” He stated that “[t]his closure was not at the
request of any party” and that “the defense was not aware the courthouse doors
automatically locked until after trial was concluded.”
7
No. 2021AP1062-CR
¶17 At the motion hearing, the parties stipulated “that the courthouse
door was locked at 4:30 p.m.” on the date of Bessert’s trial. The circuit court also
took judicial notice of the following:
[T]he CCAP minutes prepared by the clerk from the
conclusion of the trial said that we adjourned at
approximately 4:30, reconvened at approximately 4:56 and
then adjourned in finality at approximately 5:00 p.m. So
there was only approximately according to that four or five
minutes when we were on the record where the door was
locked. During that time the Court came back from
deliberations, stated that it had reviewed its notes from the
trial, reviewed the applicable jury instructions, announced
the verdicts on all 26 counts, revoked bond, and ordered a
PSI.
The court then, “out of an abundance of caution,” reannounced its verdicts in open
court and denied Bessert’s motion for a new trial. Bessert now appeals.
DISCUSSION
¶18 On appeal, Bessert presents two arguments for our review. First, he
claims that the circuit court’s decision to allow Alex to testify using CCTV
violated his right to confront the witnesses against him. Second, he argues that his
right to a public trial was violated when the court deliberated and announced its
verdicts when the courthouse doors were locked. He further disputes that
reannouncing the verdicts in open court, as the court did here, was an appropriate
remedy. For the reasons provided below, we reject Bessert’s arguments and
affirm.
Right to Confrontation
¶19 The Confrontation Clause of the Sixth Amendment to the United
States Constitution provides: “In all criminal prosecutions, the accused shall enjoy
8
No. 2021AP1062-CR
the right … to be confronted with the witnesses against him ….” 7 However, “[t]he
right to cross-examination, and thereby confrontation, is not … absolute.” State v.
Rhodes, 2011 WI 73, ¶32, 336 Wis. 2d 64, 799 N.W.2d 850; Maryland v. Craig,
497 U.S. 836, 850 (1990). “[T]he right to confrontation may be limited where
necessary to further an important public policy, so long as there are means to
assure the reliability of the witness’s testimony.” Rhodes, 336 Wis. 2d 64, ¶34
(citing Craig, 497 U.S. at 850).
¶20 “Whether an action by the circuit court violated a criminal
defendant’s right to confront an adverse witness is a question of constitutional
fact.” State v. Vogelsberg, 2006 WI App 228, ¶3, 297 Wis. 2d 519, 724 N.W.2d
649. We uphold the court’s findings of fact unless clearly erroneous, but we
independently apply the law to those facts. Id.
¶21 In this case, Bessert claims to assert an as-applied constitutional
challenge to WIS. STAT. § 972.11(2m)(a) on the grounds that it violates his right to
7
This right applies to the states through operation of the Fourteenth Amendment.
Pointer v. Texas, 380 U.S. 400, 403 (1965). Our Wisconsin Constitution also provides
confrontation rights: “In all criminal prosecutions the accused shall enjoy the right … to meet the
witnesses face to face ….” WIS. CONST. art. I, § 7. “Despite the state constitution’s more direct
guarantee to defendants of the right to ‘meet’ their accusers ‘face to face,’ the Wisconsin
Supreme Court has generally interpreted the state and federal rights of confrontation to be
coextensive.” State v. Vogelsberg, 2006 WI App 228, ¶4, 297 Wis. 2d 519, 724 N.W.2d 649
(citing State v. Burns, 112 Wis. 2d 131, 144, 332 N.W.2d 757 (1983)).
9
No. 2021AP1062-CR
confrontation.8 Our review of Bessert’s arguments, however, reveals that his
arguments largely assert a facial constitutional challenge to § 972.11(2m)(a).9
Further, and as the State argues, both of Bessert’s constitutional challenges are
undeveloped, as he fails, at the very least, to develop our standard of review on
either challenge. While we could decline to reach the merits and conclude that
Bessert’s constitutional claims are underdeveloped, see State v. Pettit, 171 Wis. 2d
627, 646-47, 492 N.W.2d 633 (Ct. App. 1992), we choose not to do so. As we
explain below, all of Bessert’s constitutional claims fail, as § 972.11(2m)(a) is
consistent with relevant legal precedent and the circuit court engaged in the
appropriate fact finding under the statute.
¶22 Bessert’s facial constitutional challenge is premised on his belief that
the Confrontation Clause “requires in person, face to face confrontation.” Citing
8
The State argues that Bessert forfeited his as-applied constitutional challenge by failing
to raise it in the circuit court. See State v. Cole, 2003 WI 112, ¶46, 264 Wis. 2d 520, 665 N.W.2d
328 (stating that an as-applied constitutional challenge may be waived or forfeited). As the State
notes, defense counsel argued at the hearing on Bessert’s motion that “everyone says and
everyone agrees [WIS. STAT. § 972.11(2m)] has survived constitutional muster.” Bessert
disagrees with the State’s position, arguing that his counsel’s statement was “not a repudiation of
[defense] counsel’s earlier [Confrontation Clause] argument, which had been acknowledged by
the court, but rather a pivot, shifting from an argument which had been lost, to an argument which
could still be won.”
We need not decide this question, as we have the authority to disregard forfeiture
arguments and address an allegedly forfeited claim on the merits. See State v. Erickson, 227
Wis. 2d 758, 766, 596 N.W.2d 749 (1999) (“[T]he [forfeiture] rule is one of judicial
administration and ... appellate courts have authority to ignore the [forfeiture].”).
9
Under a facial constitutional challenge, “the challenger must show that the law cannot
be enforced ‘under any circumstances.’” State v. Wood, 2010 WI 17, ¶13, 323 Wis. 2d 321, 780
N.W.2d 63 (citation omitted). “If a challenger succeeds in a facial attack on a law, the law is void
‘from its beginning to the end.’” Id. (citation omitted). Under an as-applied challenge, we
consider “the facts of the particular case in front of us” to determine whether a defendant’s
“constitutional rights were actually violated. If a challenger successfully shows that such a
violation occurred, the operation of the law is void as to the party asserting the claim.” Id.
(citation omitted).
10
No. 2021AP1062-CR
Crawford v. Washington, 541 U.S. 36 (2004), and Giles v. California, 554 U.S.
353 (2008), Bessert claims that there are only three exceptions to the
Confrontation Clause requirement: “(1) a dying declaration; (2) when the
defendant engages in some course of conduct designed to prevent a witness from
testifying; and (3) a prior examination if the witness were demonstrably
unavailable and the defendant had the opportunity to cross-examine the witness[]
[at] the time of the examination.” According to Bessert, none of these exceptions
apply and WIS. STAT. § 972.11(2m) does not meet the criteria for an exception to
the Confrontation Clause guarantee; thus, he appears to claim that the statute is
unconstitutional under any circumstances.
¶23 Whether the Confrontation Clause allows for modifications to the
traditional face-to-face courtroom testimony at a criminal trial is not a novel
question in our constitutional jurisprudence. In fact, in Craig, the United States
Supreme Court addressed the same question presented here: “whether the
Confrontation Clause of the Sixth Amendment categorically prohibits a child
witness in a child abuse case from testifying against a defendant at trial, outside
the defendant’s physical presence, by one-way closed circuit television.” Craig,
497 U.S. at 840. There, the State relied on a Maryland statute allowing for
testimony of a child victim by CCTV. Id. at 840-42. The Supreme Court
acknowledged that in Coy v. Iowa, 487 U.S. 1012, 1016 (1988), the Court had
previously stated that “the Confrontation Clause guarantees the defendant a
face-to-face meeting with witnesses appearing before the trier of fact.” Craig, 497
U.S. at 844. The Craig Court clarified that “[w]e have never held, however, that
the Confrontation Clause guarantees criminal defendants the absolute right to a
face-to-face meeting with witnesses against them at trial.” Id. It noted that the
11
No. 2021AP1062-CR
decision in Coy “le[ft] for another day” the question of whether any exceptions
exist. Craig, 497 U.S. at 844 (citing Coy, 487 U.S. at 1021).
¶24 The Court in Craig ultimately concluded that a child could testify
through CCTV where the circuit court makes the following three case-specific
findings: (1) that the “procedure is necessary to protect the welfare of the
particular child witness who seeks to testify”; (2) “that the child witness would be
traumatized, not by the courtroom generally, but by the presence of the
defendant”; and (3) “that the emotional distress suffered by the child witness in the
presence of the defendant is more than de minimis, i.e., more than ‘mere
nervousness or excitement or some reluctance to testify.’” Id. at 855-56 (citation
omitted). “So long as a [circuit] court makes such a case-specific finding of
necessity, the Confrontation Clause does not prohibit a State from using a one-way
closed circuit television procedure for the receipt of testimony by a child witness
in a child abuse case.” Id. at 860.
¶25 Bessert argues, however, that Craig was “incorrectly decided” and
that subsequent Supreme Court case law indicates that the decision has been
overruled. According to Bessert, Craig “[a]rguably … created a fourth exemption
to the confrontation clause,” the case “was highly questionable when it was
decided over vigorous dissent, and subsequent Supreme Court case law clearly
indicates it is no longer ‘good law.’” Bessert observes that at the time Craig was
decided, the leading Confrontation Clause case was Ohio v. Roberts, 448 U.S. 56
(1980), and Craig’s holding substantially relied on Roberts. Roberts was
subsequently overturned by Crawford, and by doing so, argues Bessert, Crawford
implicitly overturned Craig.
12
No. 2021AP1062-CR
¶26 We previously rejected this same argument in Vogelsberg. There, a
jury convicted the defendant of first-degree sexual assault of his four-year-old
grandson. Vogelsberg, 297 Wis. 2d 519, ¶2. Prior to trial, the State moved to
permit the victim to testify via CCTV. Id. The circuit court took testimony and
determined that the victim “would likely be further traumatized by having to face
his abuser at trial.” Id. The court then “ordered that the victim be allowed to
testify from behind a screen to shield him from visual contact with Vogelsberg.”
Id. On appeal, the defendant’s “primary contention [was] that the U.S. Supreme
Court’s decision in [Crawford] represents a shift in confrontation-clause
jurisprudence that overturns state and federal precedents permitting a witness to
testify from behind a barrier upon a particularized showing of necessity.”
Vogelsberg, 297 Wis. 2d 519, ¶5.
¶27 In response, we reviewed the leading state and federal case law on
the subject, ultimately concluding that Crawford did not overrule Craig.
Vogelsberg, 297 Wis. 2d 519, ¶¶6-13. We reasoned that “[h]ad the Supreme
Court intended to overrule Craig, it would have done so explicitly.” Vogelsberg,
297 Wis. 2d 519, ¶14. Further, we explained that “Crawford and Craig address
distinct confrontation questions”: “Crawford addresses the question of when
confrontation is required; Craig addresses the question of what procedures
confrontation requires. The two cases can coexist peacefully, and nothing in
Crawford suggests that Craig is placed in doubt.”10 Vogelsberg, 297 Wis. 2d 519,
¶¶15-16 (citation omitted).
10
Since Vogelsberg was decided, our supreme court has also positively cited Maryland
v. Craig, 497 U.S. 836 (1990). See State v. Rhodes, 2011 WI 73, ¶¶34-36, 336 Wis. 2d 64, 799
N.W.2d 850.
13
No. 2021AP1062-CR
¶28 The defendant in Vogelsberg did not argue that the circuit court had
failed to make the three findings required by Craig, and we did not address WIS.
STAT. § 972.11(2m)(a) or determine whether the statute comported with the three
findings required by Craig. See Vogelsberg, 297 Wis. 2d 519, ¶20. Nevertheless,
we concluded, based on our review of the record, that the court’s “use of a barrier
between Vogelsberg and the child witness was appropriate and did not violate
Vogelsberg’s confrontation right.” Id.
¶29 Bessert claims that Vogelsberg was also wrongly decided. However,
we are bound by this court’s conclusion in Vogelsberg that Craig is still good law.
See Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997) (“[O]nly the
supreme court … has the power to overrule, modify or withdraw language from a
published opinion of the court of appeals.”). Contrary to Bessert’s argument in his
reply brief suggesting that our supreme court also wrongly decided Cook, we
cannot, as an error correcting court, correct our own purported errors. See id. At
the heart of all of Bessert’s arguments is the premise that the courts have decided
these Sixth Amendment issues incorrectly. We have no authority, however, to
determine that the relevant decisions by the United States Supreme Court, the
Wisconsin Supreme Court, and this court were incorrect.
¶30 Under the applicable case law, “the right to cross-examination is not
absolute, [and] the right to confrontation may be limited where necessary to
further an important public policy, so long as there are means to assure the
reliability of the witness’s testimony.”11 Rhodes, 336 Wis. 2d 64, ¶34 (citing
11
Given this conclusion, we will not further address Bessert’s contentions that the
Confrontation Clause requires in person, face-to-face confrontation and that WIS. STAT.
§ 972.11(2m) does not meet the criteria for any of the three exceptions to his Confrontation
Clause rights. See supra ¶22.
(continued)
14
No. 2021AP1062-CR
Craig, 497 U.S. at 850). The “protection of the ‘physical and psychological well-
being’ of children” represents one such important public policy. Id., ¶35 (citation
omitted). We therefore reject Bessert’s facial constitutional challenge to WIS.
STAT. § 972.11(2m). The only remaining question, then, is whether the circuit
court’s use of § 972.11(2m) in this case violated Bessert’s rights.
¶31 As to Bessert’s as-applied constitutional challenge, he argues that
the evidence before the circuit court was insufficient to support the court’s
findings under WIS. STAT. § 972.11(2m). We note that while Bessert argues that
Craig is not good law, he does not claim that § 972.11(2m) fails to comply with
Craig’s requirements. See Craig, 497 U.S. at 855-56, 860. Consistent with those
requirements, § 972.11(2m)(a) authorizes the court to take a child witness’s
testimony via CCTV after making case-specific findings. As pertinent to this
appeal, where a child is under the age of twelve, the court must make two
findings:
Bessert also argues that the circuit court’s finding that Alex “would suffer serious
emotional distress violates the presumption [that] every defendant is presumed innocent until
proven guilty.” As the State observes, this argument appears to be a different as-applied
constitutional argument. Nevertheless, we reject Bessert’s arguments on this point as
undeveloped. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (we
need not address undeveloped arguments).
15
No. 2021AP1062-CR
a. That the presence of the defendant during the taking
of the child’s testimony will result in the child suffering
serious emotional distress such that the child cannot
reasonably communicate.
b. That taking the testimony of the child in a room other
than the courtroom and simultaneously televising the
testimony in the courtroom by means of closed-circuit
audiovisual equipment is necessary to minimize the trauma
to the child of testifying in the courtroom setting and to
provide a setting more amenable to securing the child
witness’s uninhibited, truthful testimony.
Sec. 972.11(2m)(a)1.a.-b.
¶32 We conclude the circuit court made the appropriate findings of fact
under WIS. STAT. § 972.11(2m)(a) and properly allowed Alex to testify by CCTV.
Bessert concedes on appeal that “the circuit court made a meticulous record,” but
he argues that “there is nothing in the record which supports the finding [that
Alex] would not be able to communicate.” We disagree. The evidence presented
by Alex’s guardian demonstrated that she was “scared,” and her fear had
manifested into “real bad” nightmares. Those nightmares involved Bessert
regaining custody of Alex and Bessert killing her guardian by “slicing [her]
throat.” Further, during the period where Alex was participating in trial
preparation—which consisted of fun activities to develop a familiarity with the
assistant district attorneys—she developed problems that included wetting the bed,
and she had angry outbursts toward other children. Her guardian made it clear that
Alex was scared of the entire trial process, and Bessert specifically, and that she
did not want to see Bessert again. Further, due to Alex’s counselor being on
maternity leave, Alex had no plan or support system to help her cope with this
trauma, the stress of testifying, and her fear of seeing Bessert.
¶33 Based on this evidence, the circuit court found that (1) “forcing
[Alex] to testify in the presence of [Bessert], her alleged sexual abuser on multiple
16
No. 2021AP1062-CR
occasions, will result in her suffering serious emotional distress” such that “she
could not reasonably communicate effectively in this courtroom during the trial,”
and (2) “video testimony … is necessary to minimize the trauma to [Alex] and to
provide a setting that is more amenable to securing [Alex’s] uninhibited and
truthful testimony.” On this record, the court’s findings are not clearly erroneous.
Thus, the court properly allowed the State to present Alex’s testimony via CCTV,
and there was no Confrontation Clause violation.12 See WIS. STAT.
§ 972.11(2m)(a)1.a.-b.; Craig, 497 U.S. at 850.
Right to a Public Trial
¶34 Bessert’s final argument is that when the courthouse locked its doors
prior to the circuit court reading its verdicts, his constitutional right to a public
trial was violated, and, accordingly, he is entitled to a new trial. The State
disagrees, arguing that to the extent Bessert’s public trial right was actually
violated, the court appropriately remedied the violation. Assuming without
deciding that a violation of constitutional proportions occurred, we agree with the
State that the court properly remedied the violation.
12
We also note that Bessert’s convictions were for the counts related to his actions when
Alex was an infant, as testified to by his former girlfriend. Bessert was acquitted on the charges
for which Alex provided testimony. We do not, however, address the confrontation issue under
the harmless error rubric, as we were not convinced that the State proved beyond a reasonable
doubt that the use of Alex’s testimony via CCTV did not affect the circuit court’s verdict on the
charges for which Bessert was found guilty.
17
No. 2021AP1062-CR
¶35 Defendants have a constitutional right to a public trial under the
Sixth Amendment to the United States Constitution.13 State v. Vanness, 2007
WI App 195, ¶7, 304 Wis. 2d 692, 738 N.W.2d 154.
The Supreme Court has described four values furthered by
the Sixth Amendment guarantee of a public trial: “(1) to
ensure a fair trial; (2) to remind the prosecutor and judge of
their responsibility to the accused and the importance of
their functions; (3) to encourage witnesses to come
forward; and (4) to discourage perjury.”
State v. Ndina, 2009 WI 21, ¶49, 315 Wis. 2d 653, 761 N.W.2d 612 (citation
omitted).
¶36 The right to a public trial, however, is also not absolute. Id., ¶44.
To determine whether a defendant’s right to a public trial has been violated, we
engage in a two-step analysis. Id., ¶46. First, we “determine[] whether the
closure at issue implicates the Sixth Amendment right to a public trial.” Id. We
need go no further if the first step fails. Id. If the right to a public trial is
implicated, then we “must determine whether the closure was justified under the
circumstances of the case.” Id.
Closure of a criminal trial is justified when four
conditions are met: “(1) the party who wishes to close the
proceedings must show an overriding interest which is
likely to be prejudiced by a public trial, (2) the closure must
be narrowly tailored to protect that interest, (3) alternatives
to closure must be considered by the trial court, and (4) the
court must make findings sufficient to support the closure.”
13
This right is also applicable to the states through the Fourteenth Amendment. State v.
Vanness, 2007 WI App 195, ¶7, 304 Wis. 2d 692, 738 N.W.2d 154.
18
No. 2021AP1062-CR
Id., ¶56 (quoting Vanness, 304 Wis. 2d 692, ¶9 n.3); see also Waller v. Georgia,
467 U.S. 39, 44, 46 (1984). However, even where an unjustified closure has
occurred, where the “closure is trivial, there is also no constitutional violation.”
Vanness, 304 Wis. 2d 692, ¶9. “In short, the triviality inquiry goes principally to
the length of the closure and what parts of the trial were closed.” Id., ¶12. We
review whether a defendant’s Sixth Amendment right to a public trial has been
violated as a question of constitutional fact, upholding the circuit court’s findings
of fact unless clearly erroneous but applying constitutional principles to those facts
independently. Ndina, 315 Wis. 2d 653, ¶45.
¶37 In this case, it is undisputed that the courthouse doors were locked
and closed to the public during the four or five minutes it took for the circuit court
to issue its verdicts. The closure of the building during a trial was accidental; thus,
the court made no findings to justify the closure of the criminal trial. See id., ¶56.
Further, the Second Circuit Court of Appeals has held that “closing the court to
announce the verdict was not a trivial violation because the verdict is the focal
point of a criminal trial.” Vanness, 304 Wis. 2d 692, ¶12 (citing United States v.
Canady, 126 F.3d 352, 364 (2d Cir. 1997)).
¶38 We acknowledge the State’s argument that the court closure here
may have been a trivial violation. The State asserts that “[u]nlike in Canady,
where there was no proceeding covering the announcement of the verdict, see
Canady, 126 F.3d at 363-64, here the court announced its verdicts during a trial
with ‘numerous people’ in the gallery.” The State argues that “[t]his appears to be
a significant distinction when considering the four core values that the public trial
right advances and given some of our supreme court’s statements on the topic.”
See State v. Pinno, 2014 WI 74, ¶¶42, 44, 356 Wis. 2d 106, 850 N.W.2d 207.
19
No. 2021AP1062-CR
¶39 Nevertheless, recognizing our mandate to decide cases on the
narrowest possible grounds, see State v. Blalock, 150 Wis. 2d 688, 703, 442
N.W.2d 514 (Ct. App. 1989), the State suggests that we should assume that the
courtroom closure here was not trivial. We agree. Therefore, we assume without
deciding that Bessert’s right to a public trial was violated and that the violation
was not trivial.
¶40 The remaining question is whether the remedy used by the circuit
court—reannouncing its verdicts in open court—was sufficient to remedy the
constitutional violation. The State argues in the affirmative, noting that by
reannouncing its verdicts in open court, the court heeded our supreme court’s
instruction in Pinno. There, the court observed that “even in the event of an
improper courtroom closure, courts must carefully fashion a remedy to avoid
granting a ‘windfall’ to an opportunistic defendant.” Pinno, 356 Wis. 2d 106, ¶46.
The Pinno court relied on the Supreme Court’s discussion in Waller, where the
public was excluded from a seven-day suppression hearing. Waller, 467 U.S. at
41-43. As the remedy for the constitutional violation, the Court ordered a new
suppression hearing, rather than a new trial. Id. at 50. According to the Court,
“the remedy should be appropriate to the violation. If, after a new suppression
hearing, essentially the same evidence is suppressed, a new trial presumably
would be a windfall for the defendant, and not in the public interest.” Id.
¶41 Canady is also instructive. There, after a bench trial, the district
court mailed its decision and order convicting the defendant of the crimes rather
than announcing its decision in open court. Canady, 126 F.3d at 355. The Second
Circuit held that the court’s failure to announce the verdict in open court was not a
trivial violation, but it determined that the appropriate remedy was to “remand to
the district court to announce its decision in open court.” Id. at 364. Despite
20
No. 2021AP1062-CR
acknowledging that “Canady is factually similar to [his] case,” Bessert claims that
“[t]he Canady [c]ourt’s hollow remedy contrasts sharply with the lofty language
the court used in describing the right to a public trial” and that he is entitled to a
new trial. We disagree.
¶42 We conclude that the circuit court’s remedy of reannouncing its
verdicts in open court was sufficient to advance the core values furthered by the
Sixth Amendment guarantee of a public trial. As an initial matter, we note that
neither party has identified the standard by which we are to review the court’s
choice of remedy for a violation of a defendant’s right to a public trial. Whether a
violation of the right occurred is, as noted above, a question of constitutional fact,
but the standard of review by which we consider the remedy provided by the court
is less clear. The State explained that it “has not identified a binding case that
establishes the standard by which this [c]ourt reviews a circuit court’s remedy for
a public-trial-right violation.” We concur.
¶43 The State then argues that “[b]ecause courts are charged with
fashioning a remedy that is ‘appropriate’ to the violation, see Pinno, 356 Wis. 2d
106, ¶46,” this court “should review the circuit court’s decision for an erroneous
exercise of discretion.” Bessert did not respond to the State’s assertion in his reply
brief. We conclude, however, that regardless of whether we review the circuit
court’s decision de novo or for an erroneous exercise of discretion, the court
fashioned an appropriate remedy.
¶44 In this case, the closure was accidental and not caused by the State
or the circuit court; it occurred for approximately twenty-five minutes while the
court was deliberating and not in session and for only four or five minutes during
the reading of the verdicts; and members of the public were still present in the
21
No. 2021AP1062-CR
courtroom during that time, despite the courthouse doors being locked. Under
these circumstances, we determine that granting Bessert a new trial would not be
an appropriate remedy and would provide a windfall to him. The same values
advanced by a public reading of the verdicts at the conclusion of the trial were
accomplished by reannouncing the verdicts in open court at the subsequent motion
hearing before sentencing. Bessert does not dispute this point. He merely stands
on his right to a public trial, arguing that “secret proceedings will lead to a corrupt,
indolent and arbitrary judicial system.” Bessert, however, fails to identify any
evidence that those concerns are present here. We therefore agree with the State
that, even assuming a violation of Bessert’s right to a public trial occurred, the
court appropriately remedied that violation, and Bessert is not entitled to a new
trial.
By the Court.—Judgment affirmed.
Not recommended for publication in the official reports.
22
Case Information
- Court
- Wis. Ct. App.
- Decision Date
- May 3, 2022
- Status
- Precedential