State v. Babcock

Decision Date07 October 1987
Citation142 Wis.2d 937,417 N.W.2d 197
CourtWisconsin Court of Appeals

Circuit Court, Winnebago County


Appeal from a judgment of the circuit court for Winnebago county: Robert Hawley, Judge.



Scott Babcock was convicted of second-degree murder and carrying a concealed weapon. Babcock raises four issues on appeal. First, he contends that the admission of statements made by the victim while en route to the hospital violated Babcock's sixth amendment right to confrontation. Second, Babcock contends that the trial court erred in admitting evidence of several blood samples obtained at the scene of the crime. Third, he argues that the trial court erred in refusing to strike testimony of a third party regarding an oral statement made by Babcock which had not been disclosed by the state. Lastly, Babcock claims error in the computation of prior convictions of a witness for impeachment purposes under sec. 906.09, Stats. We hold that the trial court did not err in any of the challenged rulings. Therefore, we affirm the judgment of conviction.

Babcock and the victim, Andy Davel, were involved in a fight outside of a restaurant. In the course of the fight, Davel was stabbed in the chest. He died two days later. Throughout the trial, Babcock contended that Davel was the aggressor in the altercation and that Babcock acted in self-defense. The state's theory was that Babcock brandished the knife early in the confrontation and stabbed Davel before any blows were struck between the two men.

The first issue involves the admissibility of statements made by Davel to his friends as they were taking him to the hospital after the stabbing. According to the challenged testimony, Davel told his friends that Babcock had 'stabbed me before I touched him.' Seconds later, Davel also remarked 'clear case of self-defense, huh.' Davel collapsed at the hospital and never regained consciousness. The trial court ruled that Davel's statements were 'excited utterances' within the meaning of sec. 908.03(2), Stats., and that, under the circumstances, the statements were inherently trustworthy.

Babcock first challenges the trial court's ruling that Davel's statements were admissible as excited utterances. The admissibility of an excited utterance is within the discretion of the trial court. Muller v. State, 94 Wis.2d 450, 465, 289 N.W.2d 570, 578 (1980). This court will affirm the trial court's ruling unless the court abused its discretion. State v. Gollon, 115 Wis.2d 592, 598, 340 N.W.2d 912, 915 (Ct. App. 1983). Discretion is properly exercised if the trial court proceeds from the facts in the record to a conclusion, using a logical rationale and relying on the correct controlling principles of law. See id.

An excited utterance is a 'statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.' Sec. 908.03(2), Stats. The exception is based on the spontaneity and stress which give the statement a high degree of trustworthiness. Gollon, 115 Wis.2d at 598, 340 N.W.2d at 915. Important factors to consider are the timing and stress under which the statement was made. Muller, 94 Wis.2d at 467, 289 N.W.2d at 578. A statement is admissible if a declarant's condition at the time of the statement indicates that he is still under the shock of his injuries or other stress due to special circumstances. Id. at 467, 289 N.W.2d at 579.

Babcock concedes that the stabbing was a startling event so that the first element of the excited utterance exception is satisfied. Babcock takes issue, however, with the second element, that the statement was made while under the stress of excitement caused by the startling event. Babcock asserts that Davel 'had sufficient time to stop and think about the event' and that the statements show that he was 'considering the legal consequences of the fight.' We disagree.

The facts of this case are virtually identical to those of La Barge v. State, 74 Wis.2d 327, 246 N.W.2d 794 (1976). La Barge involved a statement made less than five minutes after a stabbing in which the victim identified her assailant. The court held those surrounding circumstances showed that the declarant was in fact excited and under the immediate influence of the attack. Id. at 341, 246 N.W.2d at 801. Similarly, in Phifer v. State, 64 Wis.2d 24, 218 N.W.2d 354 (1974), statements of a shooting victim made ten or fifteen minutes after the shooting were admissible because '[t]he shock of the event was great enough to make it reasonable that at that time the declarant was still in an excited state.' Id. at 36, 218 N.W.2d at 360. Those circumstances, like those presented in this case, are such that it is unlikely that Davel 'reflected on the event' or 'conjured up some untrue version of that event.' Cossette v. Lepp, 38 Wis.2d 392, 398, 157 N.W.2d 629, 632 (1968). The trial court's ruling was not an abuse of discretion. 1

We next address Babcock's confrontation argument. Compliance with the hearsay rules does not insure compliance with the right of confrontation. Gollon, 115 Wis.2d at 600, 340 N.W.2d at 915-16. Whether the requirements of the confrontation clause are satisfied by hearsay evidence involves a two-step analysis. State v. Bauer, 109 Wis.2d 204, 210, 325 N.W.2d 857, 861 (1982). First, the declarant must be unavailable. Id. at 210-11, 325 N.W.2d at 861. Second, the hearsay statement must bear sufficient indicia of reliability so as to afford the trier of fact a satisfactory basis for evaluating the truth of the statement. Id. at 211, 325 N.W.2d at 861.

The first prong is clearly satisfied in this case as the declarant was the murder victim. Sec. 908.04(1)(d), Stats. As to the second prong, we conclude that sufficient guarantees of reliability existed. Reliability can be inferred when the evidence falls within a 'firmly rooted hearsay exception.' Id. at 213, 325 N.W.2d at 862 (quoting Ohio v. Roberts, 448 U.S. 56, 66 (1980)). Davel's statements fall squarely within several firmly rooted exceptions.

This court must, however, look beyond that inquiry and determine whether any unusual circumstances exist which may warrant the exclusion of the evidence. Bauer at 213-14, 325 N.W.2d at 862. We see no unusual circumstances in this case which would discredit the reliability of Davel's statements. The reliability of the statements is buttressed by the temporal proximity of the statements to the stabbing, Davel's realization that he had been stabbed, and that the statements were made en route to a hospital and just before Davel lost consciousness. Babcock's constitutional right of confrontation was not violated.

Babcock next contends that the trial court erred by admitting evidence of blood samples that had been obtained by police at the scene of the crime. The state offered four blood samples. Three of the samples matched Davel's blood type and one sample matched Babcock's blood type. The state, however, was unable to establish the precise locations at the scene from which each sample had been obtained. Babcock contends that such failure destroys the relevancy of the evidence. We conclude that the trial court did not abuse its discretion in admitting the evidence.

Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more provable or less provable than it would be without the evidence. Sec. 904.01, Stats. The criterion is whether the evidence would shed any light on the subject of the inquiry. Rogers v. State, 93...

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