State v. Huntington

• Decision Date: 20 March 1998
• Docket Number: No. 96-1775,96-1775
• Citation: 216 Wis.2d 671,575 N.W.2d 268
• Parties: STATE of Wisconsin, Plaintiff-Respondent,d v. Eugene HUNTINGTON, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 268

575 N.W.2d 268

216 Wis.2d 671

STATE of Wisconsin Plaintiff-Respondent,d v. Eugene HUNTINGTON, Defendant-Appellant-Petitioner.

No. 96-1775.

Supreme Court of Wisconsin.

Argued Nov. 6, 1997.

Decided March 20, 1998.

For the defendant-appellant-petitioner there were briefs and oral argument by Jack E. Schairer, First Assistant State Public Defender.

For the plaintiff-respondent the cause was argued by Marguerite M. Moeller, Assistant Attorney General, with whom on the brief was James E. Doyle, Attorney General.

¶1 ANN WALSH BRADLEY, Justice

The defendant, Eugene Huntington, seeks review of an unpublished decision of the court of appeals that affirmed his conviction ¹ on three counts of felonious sexual assault of a child under age 13. The defendant challenges testimony concerning the child's statements to others as inadmissible hearsay and argues that an expert witness improperly testified concerning another witness's credibility. Because we determine that the evidence of the child's statements to others falls within recognized hearsay exceptions or constitutes harmless error, and because we conclude that the State's expert witness did not offer an impermissible opinion on the truthfulness of another witness, we affirm the decision of the court of appeals.

¶2 At approximately 10:00 p.m. on the evening of August 19, 1994, a hysterical 11-year-old Jeri E. called her mother from a friend's home where she had been planning on staying the night. She told her mother that she had been sexually abused by her stepfather, Eugene Huntington. When Jeri's mother arrived to pick Jeri up ten minutes later, she observed that "her girlfriend's mother was holding her, Jeri was sobbing hysterically and she came running to my arms."

¶3 Shortly after returning home, Jeri's sister, Dawn, arrived to find both the mother and child crying and upset. Jeri first told her mother and then her sister that on numerous occasions, ² while staying overnight with him, the defendant would come into her room and rub her "private parts," both above and below her underwear, insert one of his fingers into her vagina, and make her rub his penis. Jeri also alleged that on one occasion the defendant got on top of her and started moving "up and down." In speaking privately with Dawn, Jeri continued to cry and told Dawn how scared she was and that she thought that it was her own fault that her stepfather did this to her. While the evidence is inconclusive on the issue, the last instance of abuse allegedly occurred two weeks prior to Jeri's disclosure of the abuse to her mother and sister.

¶4 Within two hours of first revealing the allegations of abuse to her mother, Jeri was taken to the Spooner Police Department and interviewed by Officer Glau. While she seemed initially shy and fidgeted, Jeri repeated her allegations against the defendant. She remained upset and crying and Officer Glau had to stop the interview and wait for Jeri to regain her composure on several occasions.

¶5 Almost three months later, Jeri was also examined by Nurse Diane McCormick to determine the extent of her physical abuse, to evaluate the existence of physical injury, and to develop an appropriate plan of treatment and counseling. McCormick is a pediatric nurse practitioner with a subspecialty in child abuse and neglect. She is on staff with Dr. Carolyn Levitt, the State's expert in this case, at the Midwest Children's Resource Center. Jeri was referred to the center by Lori Carter Bell, the tribal therapist working with Jeri, and by the Washburn County Social Services Department. As part of her initial examination of Jeri, McCormick interviewed both Jeri's mother and Bell. Both women repeated Jeri's allegations to McCormick.

¶6 Three evidentiary rulings are the focus of the defendant's challenge. First, the defendant filed a pretrial motion in limine asking the circuit court to exclude or limit the testimony of potential witnesses, including that of Jeri's mother, her sister, and Officer Glau. ³ The defendant contended that the child's statements to the mother, sister, and officer constituted impermissible hearsay that did not meet the requirements of the excited utterance exception as applied to child abuse cases and explained in State v. Gerald L.C., 194 Wis.2d 548, 535 N.W.2d 777 (Ct.App.1995). The circuit court denied the motion.

¶7 Second, McCormick testified at trial about her examination of Jeri. McCormick repeated her initial conversations with Bell and Jeri's mother, which included the accusations that Jeri made against the defendant. The defense objected that such statements were double hearsay. The circuit court overruled the objection on the grounds that the testimony fell within the medical diagnosis or treatment exception to the hearsay rule.

¶8 Finally, the jury also heard testimony from the State's child sexual abuse accommodation expert, Dr. Carolyn Levitt. The State asked Dr. Levitt to comment concerning whether the facts of Jeri's allegations of abuse, such as her delay in reporting the abuse and her inability to quantify the exact number of instances of abuse, were consistent with the behavior of child abuse victims. Despite defense counsel's objection that the questions called for an inadmissible assessment of Jeri's credibility, the circuit court permitted Dr. Levitt to respond.

¶9 The jury found the defendant guilty on three of the six counts of felonious sexual assault of a child under age 13 contrary to Wis. Stat. § 948.02(1). ⁴ The defendant appealed, and the court of appeals affirmed the conviction.

¶10 The court of appeals determined that the circuit court properly admitted the statements of the mother, sister, and Officer Glau as excited utterances. The court also rejected the defendant's interpretation of Dr. Levitt's testimony, declaring that Dr. Levitt did not offer an opinion on Jeri's truthfulness. Finally, the court of appeals found Nurse McCormick's testimony admissible. The appellate court determined that Jeri's statements to her mother were excited utterances and that the mother's recital of such statements to McCormick were made for purposes of medical diagnosis or treatment. The court of appeals also determined that both Jeri's statements to Bell and Bell's recounting of those statements to McCormick fell within the medical diagnosis or treatment exception to the hearsay rule.

I. Application of Exceptions to Hearsay Rule.

¶11 The admission of out-of-court statements pursuant to an exception to the hearsay rule is a determination left to the discretion of the circuit court. See State v. Moats, 156 Wis.2d 74, 96, 457 N.W.2d 299 (1990). Because the circuit court is better able to weigh the reliability of circumstances surrounding out-of-court statements, "we look not to see if we agree with the circuit court's determination, but rather whether the trial court exercised its discretion in accordance with accepted legal standards and in accordance with the facts of record." Grube v. Daun, 213 Wis.2d 533, 542, 570 N.W.2d 851 (1997)(internal citations omitted); see also State v. Martinez, 150 Wis.2d 62, 71, 440 N.W.2d 783 (1989). If we can discern a reasonable basis for its evidentiary decision, then the circuit court has not committed an erroneous exercise of discretion. See State v. Sorenson, 143 Wis.2d 226, 240, 421 N.W.2d 77 (1988).

A. Statements of Mother, Sister, and Officer Glau as Excited

Utterances.

¶12 The State contended at trial that Jeri's statements to these three parties were admissible either as an excited utterance under Wis. Stat. § 908.03(2), or under the general residual hearsay exception set forth in Wis. Stat. § 908.03(24). ⁵ The circuit court and court of appeals agreed, and held that the statements to Jeri's mother and sister and Officer Glau fell within the excited utterance exception.

¶13 "The excited utterance exception ... is based upon spontaneity and stress" which, like the bases for all exceptions to the hearsay rule, "endow such statements with sufficient trustworthiness to overcome the reasons for exclusion of hearsay." Martinez, 150 Wis.2d at 73, 440 N.W.2d 783 (quoting Christensen v. Economy Fire & Casualty Co., 77 Wis.2d 50, 56-57, 252 N.W.2d 81 (1977)). Accordingly, the excited utterance exception has three requirements. First, there must be a "startling event or condition." Muller v. State, 94 Wis.2d 450, 466, 289 N.W.2d 570 (1980). Second, the declarant must make an out-of-court statement that relates to the startling event or condition. Finally, the related statement must be made while the declarant is still "under the stress of excitement caused by the event or condition." Id. Essentially, "[i]t must be shown that the statement was made so spontaneously or under such psychological or physical pressure or excitement that the rational mind could not interpose itself between the spontaneous statement or utterance stimulated by the event and the event itself." Martinez, 150 Wis.2d at 73, 440 N.W.2d 783 (quotingWilder v. Classified Risk Ins. Co., 47 Wis.2d 286, 292, 177 N.W.2d 109 (1970)).

¶14 This court has also recognized that "there is a compelling need for admission of hearsay arising from young sexual assault victims' inability or refusal to verbally express themselves in court when the child and the perpetrator are sole witnesses to the crime." Sorenson, 143 Wis.2d at 243, 421 N.W.2d 77. Accordingly, in some cases, where a child has made an allegation of sexual abuse that does not immediately follow the incident, Wisconsin appellate courts have liberally construed the excited utterance exception to hold such statements sufficiently contemporaneous and spontaneous to fall within the exception. See Sorenson, 143 Wis.2d at 244-45, 421 N.W.2d 77; Moats, 156 Wis.2d at 97, 457 N.W.2d 299; see, e.g., State v. Gilbert, 109 Wis.2d 501, 515, n. 21, 326 N.W.2d 744 (1982); State v. Padilla, 110 Wis.2d 414, 420, 329 N.W.2d 263, 266 (Ct.App.1982).

¶15 This application is...