State v. Dwyer

• Court: Wisconsin Court of Appeals
• Writing for the Court: MYSE
• Citation: State v. Dwyer, 143 Wis.2d 448, 422 N.W.2d 121 (Wis. App. 1988)
• Decision Date: 09 February 1988
• Docket Number: No. 87-1031-CR,87-1031-CR
• Parties: STATE of Wisconsin, d Plaintiff-Respondent, v. David O. DWYER, Defendant-Appellant. . Orally

Page 121

422 N.W.2d 121

143 Wis.2d 448

STATE of Wisconsin, ^d Plaintiff-Respondent, v. David O. DWYER, Defendant-Appellant.

No. 87-1031-CR.

Court of Appeals of Wisconsin.

Orally Argued Nov. 30, 1987.

Opinion Released Feb. 9, 1988.

Opinion Filed Feb. 9, 1988.

John E. Tradewell, Asst. State Public Defender, for defendant-appellant.

Paul Lundsten, Asst. Atty. Gen., for plaintiff-respondent.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

MYSE, Judge.

David O. Dwyer appeals his judgment of conviction for first-degree sexual assault, sec. 940.225(1)(d), Stats., and an order denying postconviction relief, sec. 809.30(2)(b), Stats. The dispositive issue is whether in admitting the victim's out-of-court statements the trial court denied Dwyer's constitutional right of confrontation by finding the victim unavailable. Other issues are whether the trial court erred 1) by excluding evidence offered as relevant to the voluntariness and trustworthiness of his confession, and 2) by ruling in limine that, should Dwyer take the stand and testify to the reliability of his confession, he could be cross-examined regarding sexual activity with his older sister. Because we conclude that the trial court violated Dwyer's constitutional right of confrontation by determining that the victim was unavailable, we reverse and remand for a new trial.

The undisputed facts contained in the record reveal the following. Anna Dwyer is the mother of David Dwyer and Linda Dwyer. Linda's three-and-one-half-year old daughter, A.F., spent a few days at Anna's home, where David also resided, in late May 1985. Linda next saw A.F. in church on Sunday morning, June 2, 1985. At church, A.F. did not sit down with the other children, saying she hurt and indicated that the pain was in her crotch area. That evening, when sorting through A.F.'s clothing, Linda saw a stain on A.F.'s nightgown. Upon questioning A.F. regarding the nature of this stain, A.F. said "blood mommy, David hurt me," and also mentioned two other names, Allen and Jerry. When Linda asked A.F. how it happened, A.F. said "David stuck something in my butt." Linda reported this information to the sheriff's department the next morning, June 3, 1985.

Later that day, Carol Abbuehl, a county protective service worker, interviewed A.F. The interview lasted approximately twenty minutes. During the interview, A.F. stated that "somebody tried to get something in my butt." When asked who did that, A.F. said "David ... he is my mom's uncle." When asked if David put anything else in her butt A.F. replied "his undies and Allen's undies and both the undies." When asked whether Allen put something in her butt too she said:

A.F.: Yup. David did put something in my butt and only Allen put something in my butt and only Larry put something in my butt.

C.A. (Abbuehl): Who's Larry?

A.F.: Larry, him too live at Grandma's.

However, later in her statement, A.F. said that just David was present at the time of the assaultive conduct.

On June 5, 1985, Officers Alfred Lentz and Richard Miller brought Dwyer to the sheriff's department for questioning. During the questioning, Dwyer made a written confession that he sexually assaulted A.F. on June 2, 1985, and admitted having sexual intercourse with Linda during their adolescence.

At the pretrial suppression hearing, Dwyer argued that his confession was involuntary because it was coerced by police threats of incarceration. Dwyer testified that he was told by the police that if he did not give a signed confession he would be arrested, but that if he did make a confession he would be released and later summoned to court. Harry Newville testified that the officers had used similar tactics to force a burglary confession from him. The court denied the suppression motion, finding that the officers made no threats, either real or implied, to Dwyer.

At the beginning of trial, the state asked the court to find A.F. incompetent to testify and unavailable for purposes of the confrontation requirement. The trial court declared her incompetent as a witness after voir dire disclosed she did not know the difference between telling the truth and telling lies. The court ruled that because she was incompetent, she was unavailable and that her out-of-court statements could be admitted under the standards delineated in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). During trial, both Linda and Abbuehl testified about their respective conversations with A.F. A.F. did not testify.

Also, at the beginning of trial, Dwyer moved in limine to exclude evidence of any prior sexual activity between himself and Linda, arguing that the incident was not relevant because it occurred when they were adolescents. The court granted Dwyer's motion, but provided that if Dwyer took the stand to deny the truthfulness of his confession, then the state could cross-examine him on his prior sexual activity with Linda, but would be limited solely to Dwyer's answers and prohibited from presenting extrinsic evidence on this incident.

The defense informed the court that it would call Newville regarding the police tactics and offered the suppression hearing transcript of Newville's testimony as an offer of proof. The court ruled that this evidence was inadmissible.

The defense called Anna Dwyer. She categorically denied that she had caught David doing anything wrong to A.F. She noted that David was "slow, has a learning problem," had been kept back in kindergarten, and was in special education classes until his graduation. She also testified that he is easily influenced by more intelligent people. When she was asked what reason David had given for signing the confession, the state objected on hearsay grounds and the court sustained the objection. The jury subsequently found Dwyer guilty of first-degree sexual assault, and the trial court denied postconviction relief. Dwyer now appeals.

Dwyer first argues that the trial court erred by admitting A.F.'s out-of-court statements. We agree. To determine whether A.F.'s out-of-court statements can be admitted into evidence against Dwyer, the following analysis is required. The threshold question is whether the evidence is admissible as a hearsay exception under state law. State v. Bauer, 109 Wis.2d 204, 215, 325 N.W.2d 857, 863 (1982). If not, the evidence is excluded. If so, we consider the confrontation issue. Id. In order to satisfy the confrontation clause, two criteria must be satisfied: 1) The declarant must be unavailable, and 2) the evidence must bear sufficient indicia of reliability. State v. Drusch, 139 Wis.2d 312, 317, 407 N.W.2d 328, 330-31 (Ct.App.1987).

We first determine whether A.F.'s statements were admissible as an exception to the hearsay rule under state law. The admission of evidence is within the discretion of the trial court. State v. Fishnick, 127 Wis.2d 247, 257, 378 N.W.2d 272, 278 (1985). However, discretion contemplates factual findings based upon an examination of the evidence and the application of those facts to proper legal standards. Id. After making such determinations, the trial court may then decide to exercise its discretion whether to admit the evidence. We will find an abuse of discretion if the trial court's factual findings are unsupported by the evidence or if the court applied an erroneous view of the law. After Hour Welding, Inc. v. Laneil Management Co., 108 Wis.2d 734, 740-41, 324 N.W.2d 686, 690 (1982).

The trial court determined that A.F.'s statements to her mother and Abbuehl were excited utterances and admissible under sec. 908.03(2), Stats. In reaching its determination, the court took into consideration the child's age, the circumstances in which the statements were made, and the length of time that elapsed between the alleged conduct and the statements. We conclude that the trial court did not abuse its discretion.

Section 908.03(2) provides in relevant part:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

....

(2) Excited utterance. 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.

This court has construed this section as follows:

This statute permits admission of a hearsay report at trial if the original statement related to a startling event and if the declarant made the statement while under the stress of excitement caused by the event. The exception is based upon spontaneity and stress, endowing such statements with sufficient trustworthiness to overcome the reasons for exclusion of hearsay. The underlying basis for this exception is that people instinctively tell the truth, but when they have time to stop and think, they may lie. The interval between the incident and the declaration is measured by the duration of excitement, rather than mere time lapse. A statement of a declarant whose condition at the time of declaration indicates that he is still under the shock of his injuries or other stress due to special circumstances will be admitted.

State v. Padilla, 110 Wis.2d 414, 418-19, 329 N.W.2d 263, 266 (Ct.App.1982) (citations omitted).

We apply a broad and liberal interpretation of what constitutes an excited utterance when young children are involved. See State v. Gollon, 115 Wis.2d 592, 598, 340 N.W.2d 912, 915 (Ct.App.1983); Padilla, 110 Wis.2d at 419, 329 N.W.2d at 266. Wisconsin cases have consistently held that statements by young children are admissible even though these statements were not made immediately following the incident. See, e.g., Love v. State, 64 Wis.2d 432, 219 N.W.2d 294 (1974) (three-and-one-half-year-old sexual assault victim made a statement the day following the incident); Bertrang v. State, 50 Wis.2d 702, 184 N.W.2d 867 (1971) (nine-year-old victim made a statement one day after the rape). We are also mindful that each case must be viewed on its particular facts, and consideration...