State v. Gerald L.C.

• Decision Date: 03 May 1995
• Docket Number: No. 94-2111-CR,94-2111-CR
• Citation: 194 Wis.2d 548,535 N.W.2d 777
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. GERALD L.C., Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 777

535 N.W.2d 777

194 Wis.2d 548

STATE of Wisconsin, Plaintiff-Respondent, v. GERALD L.C., Defendant-Appellant.

No. 94-2111-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs March 30, 1995.

Opinion Released May 3, 1995.

Opinion Filed May 3, 1995.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Steven A. Koch of Seymour, Kremer, Nommensen, Morrissy & Koch, Elkhorn.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Atty. Gen., and Gregory M. Posner-Weber, Asst. Atty. Gen.

Before ANDERSON, P.J., and BROWN and SNYDER, JJ.

SNYDER, Judge.

Gerald L.C. appeals an order binding him over for trial on charges of second-degree sexual assault of a child and incest. Gerald argues that the trial court erroneously exercised its discretion at the preliminary hearing when it allowed into evidence an out-of-court statement made by Gerald's fourteen-year-old daughter to a police officer accusing Gerald of sexual assault. We conclude that the hearsay statement is not admissible under either the excited utterance or residual exceptions to the general rule against hearsay. Absent this inadmissible hearsay, we conclude that the evidence is insufficient to constitute probable cause that Gerald committed a felony. Accordingly, we reverse the bindover order.

The sexual assault and incest charges against Gerald in this case were based on a statement made by Gerald's fourteen-year-old daughter, Michelle L.C., to Walworth County Deputy Sheriff Kurt Picknell. Picknell testified at the preliminary hearing that his department received a call from an individual who stated that Michelle's boyfriend had learned that Gerald made Michelle undress at the home where Michelle was staying. ¹ That same day, Picknell contacted Michelle and interviewed her.

Picknell testified that within five minutes of interviewing Michelle, she told him that she had contact with Gerald approximately two weeks earlier. Her demeanor changed when she recalled the event, and "she became kind of shaken" and started crying. Michelle stated that Gerald made her undress, told her to spread her legs and then licked her vagina. According to Picknell, Michelle remained shaken and crying when explaining these particular events, but that she appeared to be more at ease after the interview.

Gerald objected on hearsay grounds to Picknell's testimony regarding Michelle's incriminating statement. The trial court allowed the testimony under the excited utterance exception to the hearsay rule, § 908.03(2), STATS., reasoning in part:

I believe that two weeks--actually time isn't the issue. The issue is the degree of excitement, and I believe that there's been a foundation laid. The demeanor of the child was she was still shaken, she was crying, and told the police officer that something had happened. She was under the stress of having, she said, her father make her undress, spreading her legs and licking her vagina.

Based solely on Picknell's testimony, the trial court found that there was probable cause to bind Gerald over for trial on the sexual assault and incest charges. ² Gerald appeals from this order. ³

We review evidentiary rulings made by the circuit court at a preliminary hearing under the erroneous exercise of discretion standard. State v. Lindberg, 175 Wis.2d 332, 341, 500 N.W.2d 322, 325 (Ct.App.1993). The decision whether to admit hearsay under the excited utterance exception is given deference "because the trial court is best situated to weigh the reliability of the circumstances surrounding the declaration." Id. (quoted source omitted). Therefore, we will uphold the court's determination that the evidence is admissible if it is based upon a reasoned application of the proper legal standards to the facts. Id.

EXCITED UTTERANCE EXCEPTION

Section 908.03(2), STATS., sets forth the excited utterance exception to the hearsay rule:

Hearsay exceptions; availability of declarant immaterial. 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 exception is based on the notion that "excitement or agitation stills the declarant's capacity for conscious reflection, thus reducing the risks associated with fabricated or insincere testimony." 7 DANIEL D. BLINKA, WISCONSIN PRACTICE § 803.2, at 463 (1991).

The principles governing admission of out-of-court statements as excited utterances under § 908.03(2), STATS., are well established by our supreme court:

Under sec. 908.03(2) time is measured by the duration of the condition of excitement rather than mere time lapse from the event or condition described. The significant factor is the stress or nervous shock acting on the declarant at the time of the statement. The statements of a declarant who demonstrates the opportunity and capacity to review the [event] and to calculate the effect of his [or her] statements do not qualify as excited utterances. Conversely, statements of declarants whose condition at the time of their declarations indicates that they are still under the shock of their injuries or other stress due to special circumstances, will be admitted under this exception.

Christensen v. Economy Fire & Casualty Co., 77 Wis.2d 50, 57-58, 252 N.W.2d 81, 85 (1977) (footnotes omitted).

Our supreme court has expansively applied § 908.03(2), STATS., in child sexual assault cases. State v. Sorenson, 143 Wis.2d 226, 244, 421 N.W.2d 77, 84 (1988); see also State v. Moats, 156 Wis.2d 74, 97, 457 N.W.2d 299, 309 (1990). Extrajudicial statements made by young sexual assault victims may be admissible even though the statements were not made immediately following the incident. See Sorenson, 143 Wis.2d at 244-45, 421 N.W.2d at 84. The theory behind such liberal interpretation of the excited utterance exception is that the general psychological characteristics of children typically extend the period of time that is free from the dangers of conscious fabrication. 2 CHARLES T. MCCORMICK, MCCORMICK ON EVIDENCE 224 (4th ed. 1992).

In determining whether to apply the excited utterance exception in a child sexual assault case, a court must consider a number of factors, including the age of the child and the contemporaneity and spontaneity of the alleged assertions in relation to the alleged assault. See State v. Dwyer, 143 Wis.2d 448, 459, 422 N.W.2d 121, 124 (Ct.App.1988), aff'd, 149 Wis.2d 850, 440 N.W.2d 344 (1989). While we are mindful that each case must be viewed on its particular facts, id., a survey of Wisconsin cases that have applied the excited utterance exception to child sexual assault victims' statements reveals three common factors: (1) the child is young--under the age of ten, (2) the time between the incident and the child's report is less than a week and (3) the child first reports the incident to his or her mother. ⁴ This is consistent with the In contrast, Michelle was fourteen years old at the time of the alleged incident and two weeks had passed before she made the statement to Picknell. Further, Michelle told her boyfriend about the incident first, who subsequently reported it to another individual, who then reported it to the police. ⁵ These factors make Michelle's statement substantially different than those previously allowed under the excited utterance exception.

rationale behind [194 Wis.2d 558] admitting such statements--that young children will tend to repress the stressful incident, will report the incident only to their mother and will be less likely than adults to consciously fabricate the incident over a period of time. Moats, 156 Wis.2d at 97, 457 N.W.2d at 309.

Of course, these factors by themselves are not dispositive, and the statement may be admissible if the declarant was still under the stress or excitement caused by the event at the time he or she made the statement. The State argues that "[i]t was manifestly reasonable for the court to conclude that the stress and excitement caused by her father's sexual assault still dominated [Michelle's] thought processes" at the time she made the statement to Picknell. We disagree.

The State relies on the fact that Michelle appeared shaken and crying when recounting the alleged assault. However, there is no evidence which would indicate that she was in such an emotional state during the previous two weeks. Also, Picknell testified that Michelle appeared to be at ease after the interview. Further, given the other circumstances, such as her advanced age and two-week time lapse, the rationale behind the assumption in these types of cases--that the stressful influence continued--fails.

Accordingly, we conclude that the trial court misused its discretion by concluding that Michelle's statement was admissible under § 908.03(2), STATS.

RESIDUAL EXCEPTION

We next address whether Michelle's statement falls within the residual hearsay exception, § 908.03(24), STATS. ⁶ In Sorenson, the supreme court reaffirmed the line of cases liberally construing the excited utterance exception in child sexual assault cases, but focused instead on the admissibility of such statements pursuant to the residual hearsay exceptions under §§ 908.03(24) and 908.045(6), STATS. See generally Sorenson, 143 Wis.2d at 242-45, 421 N.W.2d at 83-84; see also BLINKA, supra at 465. Therefore, in order to properly exercise its discretion, a trial court should consider the admissibility of such hearsay statements under both the excited utterance and residual exceptions. BLINKA, supra at 466.

In this case, the trial court did not consider the admissibility of Michelle's out-of-court hearsay statements under § 908.03(24), STATS. However, this court will uphold a circuit court's discretionary decision if the record contains facts which would support the decision had...