Bertrang v. State, S

CourtUnited States State Supreme Court of Wisconsin
Citation184 N.W.2d 867,50 Wis.2d 702
Docket NumberNo. S,S
PartiesNorman H. BERTRANG, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 169.
Decision Date30 March 1971

On April 8, 1970, plaintiff in error, Norman H. Bertrang (hereafter the defendant) was found guilty by a jury of violating secs. 944.10(3), Stats., sexual intercourse with a female under twelve years of age, and 944.11(2), (3), indecent behavior with a child. After determining the defendant was not sexually deviant and after a presentence report, defendant was sentenced to an indeterminate term of not more than twenty years on the violation of sec. 944.10(3), and concurrent terms of not more than one year on each of the other two charges.

A motion for a new trial was made, heard and denied in the trial court.

The alleged victim in this case was the nine-year-old stepdaughter of defendant. The acts complained of occurred on the night of December 18, 1969, in the home of defendant while defendant's wife was in the hospital where she had given birth to a child on December 17, 1969.

The defendant visited his wife earlier in the evening, returned around 9 or 9:30 p.m., and then left again. He stated he went to two taverns where he had some beer. He returned home around midnight and dismissed the baby-sitter, his eighteen-year-old brother-in-law, and the baby-sitter's friend, a seventeen-year-old male. The events complained of occurred sometime during the night, in the defendant's bedroom. Further facts are set forth in the opinion.

Defendant seeks review of both this judgment of conviction and the order denying his motion for a new trial.

Arnold P. Anderson, Carroll, Parroni & Postlewaite, Eau Claire, for plaintiff in error.

Robert W. Warren, Atty. Gen., William A. Platz and Robert D. Martinson, Asst. Attys. Gen., Madison, for defendant in error; Lawrence W. Durning, Dist. Atty., Eau Claire, for Eau Claire Co.

WILKIE, Justice.

The pivotal issue on this review is whether an oral statement allegedly made by the victim to her mother the day after the event was hearsay, and if so, whether it was improperly received in testimony.

At trial Mrs. Bertrang was called by the state, and on cross-examination the following occurred:

'Q. Directing your attention to Saturday morning, after you talked to Tammy and discovered blood in her panties, did you discuss the blood with her? You can answer that 'Yes' or 'No.' A. No, I didn't discuss the blood.

'Q. Did you inquire as to whether or not something had happened? A. Yes.

'Q. Please answer this question 'Yes' or 'No,' did you ask her whether someone had done something to her? A. Yes.

'Q. When you asked her this, did you supply a name? A. Yes.

'Q. Did you say, 'Did Norm do something?' A. No, I said, 'Did your dad do something?'

'Q. You said, 'Did your dad do something?' A. Yes.

'Q. Had she at any time volunteered the name of the individual that did something? A. I don't know.

'The Court: I didn't hear that answer.

'Witness: I don't know.'

The subject was not pursued any further by the defense.

On redirect examination, however, the state asked the following:

'Q. And when you talked to Tammy concerning the events, the conversation on Saturday morning, December 20th, you stated that you asked her, 'Did your dad do something?' A. Yes.

'Q. What was her answer?

'Mr. Hart: I object, Your Honor. I think this is hearsay testimony.

'The Court: Just a moment.

'Mr. Durning: I admit it is hearsay. I think counsel opened up the subject, however.

'The Court: I think he did. You may answer.

'A. Would you repeat it one more time, please?

'Mr. Durning: Would you please repeat the question, please, Miss Reporter?

'(Question read by reporter as follows: What was her answer?)

'A. She said 'Yes.'

'Q. No further questions.'

This was hearsay testimony. As such it was improperly received unless it was admissible under an exception to the hearsay rule.

1. Curative admissibility. In its decision on defendant's motion after verdict, which motion embodied the same issue presented on this appeal, the trial court felt that the rule which was applicable is that of curative admissibility as recognized by this court in Pruss v. Strube. 1

We question the applicability of the 'curative admissibility' rule. The purpose of this rule is to 'cure' some prejudice resulting to a party as the result of the presentation by the opposing party of evidence which is inadmissible. Here all of the testimony of Mrs. Bertrang was admissible. Defense counsel was careful to inquire only as to what Mrs. Bertrang said or knew. He cautioned her to answer each question only with a 'Yes' or 'No' answer. Only these answers were given.

2. Res gestae. But the statement was clearly admissible under the well-recognized exception which admits the statement made to a witness which is part of the res gestae. The key elements of this exception are contemporaneity and spontaneity.

In this case we have statements made by the victim on the second day following the alleged criminal acts, and made in response to questions from her mother, the witness testifying. In addition, the victim was nine-years old and the victim of a sexual assault which was established by physical evidence. Such circumstances are often considered by courts in passing on the admission of assertions under the res gestae exceptions. 2 Courts generally take a broader and more liberal view of the res gestae exception when assertions of a young child are involved, particularly when the child is the victim of a sexual assault or other traumatic experience. 3 We think Bridges v. State, 4 an early decision of this court, is especially in point. In Bridges, this court held that testimony of the mother of a seven-year-old child as to statements made by the child in response to questions of the mother, which statements indicated the defendant had taken indecent liberties with the child, were admissible. In Bridges this court adopted an exception to the hearsay rule related to res gestae but apparently conceptually independent thereof. 5 The court stated:

'* * * The mother's testimony as to the statement of those particulars by Sharon was clearly admissible under the rule that where the person ravished is very young, testimony as to the particulars of such statements by her is admissible. Hannon v. State, 70 Wis. 448, 451, 452, 36 N.W. 1; Bannen v. State, 115 Wis. 317, 329, 91 N.W.2d 107, 91 N.W. 965; Smits v. State, 145 Wis. 601, 605, 606, 130 N.W. 525.' 6

Other courts have apparently merely eased the requirements of contemporaneity and spontaneity in admitting the statements under the res gestae exception. 7 Under such analysis, each case is considered on its particular facts, but the fact that the assertions are not made within a few minutes or even hours of the alleged assault is not controlling, 8 nor is the fact that they are not volunteered but made in response to questions. 9

The reasons for such an exception to the hearsay rule...

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