State v. Gollon

Decision Date20 October 1983
Docket NumberNo. 82-2329-CR,82-2329-CR
Citation340 N.W.2d 912,115 Wis.2d 592
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. John L. GOLLON, Defendant-Appellant.
CourtWisconsin Court of Appeals

James M. Bablitch, Stevens Point, for defendant-appellant.

Bronson C. La Follette, Atty. Gen., and Marguerite M. Moeller, Asst. Atty. Gen., for plaintiff-respondent.


GARTZKE, Presiding Judge.

Defendant John Gollon was convicted on two charges of first-degree sexual assault, contrary to sec. 940.225(1)(d), Stats. He appeals from an order denying his motion for a new trial. We affirm the order denying a new trial as to one conviction and reverse and remand for a new trial as to the other.

The primary issue is whether defendant was denied his constitutional right of confrontation when the trial court allowed witnesses to state what the child victim told them about the incident. Defendant also contends that the trial court erred by refusing to sever the charges for trial, admitting evidence as exceptions to the hearsay rule, admitting other crimes evidence, and allowing the jury to inspect certain evidence. He requests a new trial in the interest of justice. We conclude that defendant's right to confrontation was denied as to one charge but that his other contentions lack merit.

The alleged assaults involved two incidents, each with a six-year-old girl. The J.L. incident occurred June 11, 1981, and the T.H. incident the next day. Each child and her mother testified at the July 9, 1981 preliminary hearing. T.H. and her mother testified at the February 1982 trial. J.L.'s mother and a neighbor testified at the trial, but J.L. did not because, according to her mother, she was too afraid.

T.H. testified at the trial that defendant had put his finger in her vagina. She circled where defendant had touched her on the sketch of a girl. T.H.'s mother testified that when she awakened T.H. the evening of the day of the alleged assault and asked her about the incident, T.H. said defendant had put his finger in her vagina.

J.L.'s mother testified that June 13, 1981 J.L. told her that the defendant had touched her vaginal area, put his finger in her vagina, and taken out his penis. A neighbor testified that June 12th J.L. said the defendant was "digging in her pants" and had shown his penis to her and her friends.

The first issue is whether the mothers' and neighbor's testimony regarding the out-of-court statements by the girls was admissible. It is undisputed that the testimony constituted hearsay under sec. 908.01(3), Stats., and was properly objected to. The question is whether the girls' out-of-court statements come within a hearsay exception. If the statements are within a hearsay exception, we must consider whether defendant's constitutional right to confront J.L. was violated. State v. Bauer, 109 Wis.2d 204, 210, 325 N.W.2d 857, 860 (1982).

1. Excited Utterance Hearsay Exception

The trial court ruled that the girls' statements are within the excited utterance hearsay exception, sec. 908.03(2), Stats. 1 It reached that conclusion after considering the girls' ages, their lack of understanding of defendant's actions, testimony that defendant told them not to tell about the incidents, the likelihood that T.H. would not make up a story soon after being awakened late at night, and the likelihood that J.L. did not tell about the incident sooner due to fear and anxiety.

The excited utterance exception is based on spontaneity and stress which give a hearsay statement a high degree of trustworthiness. State v. Padilla, 110 Wis.2d 414, 418, 329 N.W.2d 263, 266 (Ct.App.1982). The exception is liberally applied to statements by a young child involved in a claimed sexual assault. Bertrang v. State, 50 Wis.2d 702, 706-07, 184 N.W.2d 867, 869 (1971). A young child may be unwilling or unable to remember the details by the time a case is brought to trial, or may be inhibited by fear or shame. Id. at 707-08, 184 N.W.2d at 870. It is thought, however, that "the characteristics of young children work to produce declarations 'free of conscious fabrication' for a longer period after the incident than with adults." Padilla, 110 Wis.2d at 419, 329 N.W.2d at 266.

We must affirm the trial court's ruling on a claimed excited utterance unless the court abused its discretion. Cossette v. Lepp, 38 Wis.2d 392, 398, 157 N.W.2d 629, 632 (1968). Discretion is properly exercised if it proceeds from facts of record to a conclusion, employing logical rationale without reliance on an erroneous theory of law. McCleary v. State, 49 Wis.2d 263, 277, 182 N.W.2d 512, 519 (1971).

When admitting the girls' statements as excited utterances, the trial court exercised its discretion. T.H.'s statements were made the evening of the day of the incident, and J.L.'s were made within one and two days of the incident. These times are well within the period that a young child's statements can be spontaneous. The Padilla court held that statements by a ten-year-old made three days after the alleged sexual assault were spontaneous and based on stress. Id. 110 Wis.2d at 421, 329 N.W.2d at 267. The court's findings that the defendant told the girls not to tell what had occurred, that T.H.'s statements were made upon her being awakened, and that J.L.'s statements were products of fear and anxiety support its conclusion that the statements were excited utterances.

Defendant asserts T.H. did not appear emotionally upset by the alleged assault, her statements were replies to questions rather than volunteered and some of her statements were made after she spoke to police. Even if these considerations weigh against admitting the statements, 2 when reviewing a trial court's discretionary decision, we do not choose between competing facts. We determine whether the decision was "the product of a rational mental process by which the facts of record and law relied upon are stated and are considered together for the purpose of achieving a reasoned and reasonable determination." Hartung v. Hartung, 102 Wis.2d 58, 66, 306 N.W.2d 16, 20 (1981). Because the trial court properly exercised its discretion, its ruling that the girls' statements fall within the excited utterance exception must be sustained.

2. Confrontation

The sixth amendment to the United States Constitution and art. 1 sec. 7 of the Wisconsin Constitution guarantee a criminal defendant the right to be confronted with the witnesses against him. The primary purpose of that right is to ensure that the trier of fact has a satisfactory basis to evaluate the truthfulness of the evidence. Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 219, 27 L.Ed.2d 213 (1970). Compliance with the hearsay rule does not insure compliance with the right of confrontation. State v. Lenarchick, 74 Wis.2d 425, 433, 247 N.W.2d 80, 85 (1976).

To satisfy the confrontation clause, "the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant," and then show that the statement bears indicia of reliability. Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980). See also, State v. Bauer, 109 Wis.2d 204, 215, 325 N.W.2d 857, 863 (1982). The prosecution must make a good faith effort to produce a witness for trial in order to support a finding of unavailability. Barber v. Page, 390 U.S. 719, 724-25, 88 S.Ct. 1318, 1321-22, 20 L.Ed.2d 255 (1968). The record in this case provides no evidence that the prosecution made any effort to produce J.L. for trial.

Unavailability is a mixed question of law and fact. When mixed questions are presented, the court must determine two matters: (1) what happened; and (2) whether those facts fulfill a particular legal standard. The second is an issue of law. Department of Revenue v. Exxon, 90 Wis.2d 700, 713, 281 N.W.2d 94, 101 (1979), aff'd, 447 U.S. 207, 100 S.Ct. 2109, 65 L.Ed.2d 66 (1980).

The trial court made no finding whether J.L. was available. 3 In some cases where the trial court has failed to make factual findings, the court of appeals may assume the trial court determined the issue in support of its decision. See, Sohns v. Jensen, 11 Wis.2d 449, 453, 105 N.W.2d 818, 820 (1960).

Availability, for confrontation purposes, is a constitutional fact. The existence of this constitutional fact is too important to be established by inference from the trial court's action. It must be determined explicitly by the court. Testimony by a parent as to the existence of the constitutional fact of unavailability does not, ipso facto, establish the fact. J.L.'s mother's testimony that she was too afraid to testify is insufficient to satisfy the unavailability requirement. If a child is physically available, whether the child is able to testify should be judicially determined.

The state contends that unavailability need not be shown in this case. It is true that the unavailability requirement is subject to limited exceptions, Bauer, 109 Wis.2d at 212, 325 N.W.2d at 861-62; see also, Roberts, 448 U.S. at 65 n. 7, 100 S.Ct. at 2538 n. 7, and can be waived in special circumstances. Bauer, 109 Wis.2d at 213, 325 N.W.2d at 862. Otherwise, the "literal right to 'confront' the witness at the time of trial that forms the core of the values furthered by the Confrontation Clause," California v. Green, 399 U.S. 149, 157, 90 S.Ct. 1930, 1934, 26 L.Ed.2d 489 (1970), would be seriously weakened. The limited exceptions apply when production of the declarant would be unduly inconvenient and of small utility to the defendant. Hagenkord v. State, 100 Wis.2d 452, 473, 302 N.W.2d 421, 432 (1981). Neither justification for an exception has been shown to apply to J.L.'s testimony.

We do not imply that the trial court is powerless to protect a child-victim witness in a sexual assault case from unduly vigorous...

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