State v. Brown

• Decision Date: 23 November 1983
• Docket Number: No. 68073,68073
• Citation: 341 N.W.2d 10
• Parties: STATE of Iowa, Appellee, v. Byron W. BROWN, Appellant.
• Court: Iowa Supreme Court

Page 10

341 N.W.2d 10

STATE of Iowa, Appellee, v. Byron W. BROWN, Appellant.

No. 68073.

Supreme Court of Iowa.

Nov. 23, 1983.

Charles L. Harrington, Appellate Defender, for appellant.

Thomas J. Miller, Atty. Gen., Teresa Baustian, Asst. Atty. Gen., and Patrick C. McCormick, County Atty., for appellee.

Considered en banc.

REYNOLDSON, Chief Justice.

The controlling issue in this case is whether trial court should have admitted into evidence a police officer's description of defendant's picture identification by a five-year-old sexual abuse victim who was unavailable as a witness. Defendant, appealing following his conviction of second-degree sexual abuse (a violation of Iowa Code sections 709.1(3) and 709.3(2)), asserts this was hearsay and reversible error. Agreeing, we reverse and remand for new trial.

There was adequate evidence to support the jury's verdict that defendant committed a sexual assault on the victim, a five-year-old neighbor boy. The trial was complicated by defendant's successful pretrial motion to exclude the victim's testimony on the ground the latter did not have sufficient age, maturity and mental capacity to understand the nature and obligations of an oath.

A police officer, however, was permitted to testify, over hearsay objection, that the victim had selected defendant out of a photographic array when asked "to point out an individual, if one did exist, of the individual that hurt him."

When questioned by an officer at the police station shortly after the incident, defendant made statements that placed the victim in defendant's apartment partially disrobed and crying. This officer testified defendant at three intervals also stated that "if he [the defendant] admitted to raping a child that he would be sent to the penitentiary." Defendant appeals on this issue, based on his hearsay objections and on trial court's refusal to grant his motion to suppress all of his statements to the police. Defendant's motion alleged the police failed to obtain a valid waiver of his Miranda rights, and to provide him with the support of a family member upon request. The motion further alleged defendant's statements were not voluntarily made, the latter contention apparently based upon his borderline mental retardation.

I. Admission of Victim's Pretrial Identification of Defendant in Photographic Array.

In compliance with the court's pretrial ruling, the victim was never called to the witness stand during the trial.

The victim's mother and a friend described the victim's return to their apartment, crying and bleeding from the rectum. His statements at that time, which confirmed the assault and its occurrence in defendant's apartment, were testified to by these witnesses over hearsay objections. No appeal has been taken from the admission of this evidence as an excited utterance.

The victim was then taken to the hospital for further examination. Meanwhile, defendant had consented to be taken to the police station for questioning. He also consented to his picture being taken. Pictures of other persons with similar features were selected, and an officer took all the photographs to the hospital for the victim's viewing. The victim was in a hospital bed. At that time, according to the officer, he was "not crying or hysterical or anything" but was "calm." The officer laid six photographs on the child's hospital bed and asked the child "to point out an individual, if one did exist, of the individual that hurt [you]." Only then did the child select defendant's picture.

In resisting defendant's hearsay objection, the prosecution argued this evidence was admissible under the excited utterance exception to the hearsay rule, see State v. Ogilvie, 310 N.W.2d 192, 196 (Iowa 1981). The State now concedes in its appellate brief that this exception is inapplicable, and admitted in oral argument the spontaneity undergirding the excited utterance exception was lacking in the deliberate and considered reflection and judgment ordinarily required to select a specific face out of an array of look-alike pictures. See State v. Stevens, 289 N.W.2d 592, 596 (Iowa 1980) ("This [excited utterance] exception to the hearsay rule applies generally in criminal prosecutions when the statement is made under the influence of the excitement of the incident rather than on reflection or deliberation.").

Although we have often allowed use of the "excited utterance" or "res gestae" hearsay exception despite the fact that the out-of-court declarant, like this victim, was responding to a question, the questions in those cases were "not calculated to elicit information which would otherwise have been withheld," State v. Watson 242 N.W.2d 702, 704 (Iowa 1976). Furthermore, the declarants in those cases were not "calm" but upset. See State v. Ogilvie, 310 N.W.2d at 196 (declarant sexual abuse victim "still upset"); State v. Haines, 259 N.W.2d 806, 810 (Iowa 1977) ("irrefutable evidence the child made the statements while in an excited state"); State v. Watson, 242 N.W.2d at 704 (declarant rape victim described as "pretty well shook up"). See also State v. Swanson, 228 N.W.2d 101, 103 (Iowa 1975) (In making identifying statement to police, declarant victim described as "emotional, upset, crying and sobbing, hysterical and very distraught."). Although we are sorely tempted to admit the victim's identification here under the "excited utterance" exception, the rule can only "support the admission of a hearsay statement by a child of tender years in a sexual assault case if the foundation criteria of the rule are met." People v. Kreiner, 415 Mich. 372, 379, 329 N.W.2d 716, 720 (1982). The State has conceded correctly that they are not present in this case.

The State now urges us to adopt the theory codified in Federal Rules of Evidence 803(24) and 804(b)(5), the residual or catchall exceptions to the hearsay rule. These rules, carrying the same numbers, are now incorporated in the Iowa Rules of Evidence, but had not been adopted at the time of defendant's trial. Both allow the court to admit hearsay if it is contained in

[a] statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. ¹

We note, initially, that this court previously has declined to apply a federal rule involving out-of-court identification to an Iowa criminal case, see State v. Holmes, 325 N.W.2d 114, 116 (Iowa 1982). One reason given in Holmes was that the rule in question had not "enjoyed consistent legislative support." Id.

The residual hearsay exceptions have a similarly checkered legislative history, and although they have now been adopted in Iowa, it is important to note the Congressional admonition that:

It is intended that the residual hearsay exceptions will be used very rarely, and only in exceptional circumstances. The committee does not intend to establish a broad license for trial judges to admit hearsay statements that do not fall within one of the other exceptions contained in Rules 803 and 804(b). The residual exceptions are not meant to authorize major judicial revisions of the hearsay rule, including its present exceptions.

28 U.S.C.A. Rule 803, Historical Note at 583. See also United States v. Cain, 587 F.2d 678, 681 (5th Cir.1979); United States v. Bailey, 581 F.2d 341, 346 (3d Cir.1978). In fact, according to one commentator, the listing of specific exceptions which precedes rule 803(24) was prompted by fears that the open-ended approach would "unduly minimize the predictability of rulings at trial, increase the hazards of trial preparation and give too great a measure of discretion to the trial judge." 4 J. Weinstein & M. Berger, Weinstein's Evidence 803(24) at 803-286 (1981).

However, even if we were to hold that the new Iowa rule was applicable to defendant's trial, the State's case would not be helped by that holding. Before hearsay evidence can be admitted pursuant to the rule, the trial court must determine that the conditions of the rule are met. This requires five specific findings by the trial judge (trustworthiness, materiality, necessity, notice, and service of the interests of justice). These findings "should be made explicitly on the record," 4 J. Weinstein, supra, at 803-290. Clearly, this was not done here, and the trial court's admission of the identification as an excited utterance will not substitute for the detailed weighing and balancing required to satisfy the residual exceptions' exacting specifications.

Furthermore, the "guarantees of trustworthiness" that foundation admission under the rule are lacking here. Although there is substantial authority for the proposition that children are by nature innocent and inherently trustworthy, almost all of these cases are based on the excited utterance exception. In the overwhelming majority of these cases, a distressed child has blurted out to his or her parent a garbled story of sexual abuse. The undoubted reliability of these statements comes not only from the child's evident distress but also from the childlike nature of the narrative, see United States v. Nick, 604 F.2d 1199, 1201 (9th Cir.1979) ("The child's terminology has the ring of verity and is entirely appropriate for a child of tender years."); State v. Bloomstrom, 12 Wash.App. 416, 419-20, 529 P.2d 1124, 1126 (1974) ("nature of the [child's] description tends to lend authenticity"), and the inability of a child to concoct a story based on the unknown world of sexual experience. See People in Interest of O.E.P., 654 P.2d 312, 318 (Colo.1982) ("A child ... is...