State v. Padilla

• Decision Date: 27 December 1982
• Docket Number: No. 81-1407-CR,81-1407-CR
• Citation: 110 Wis.2d 414,329 N.W.2d 263
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Emilio PADILLA, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 263

329 N.W.2d 263

110 Wis.2d 414

STATE of Wisconsin, Plaintiff-Respondent, v. Emilio PADILLA, Defendant-Appellant.

No. 81-1407-CR.

Court of Appeals of Wisconsin.

Argued Sept. 30, 1982.

Opinion Released Dec. 27, 1982.

Opinion Filed Dec. 27, 1982.

Glenn L. Cushing, Asst. State Public Defender, for defendant-appellant.

David J. Becker, Asst. Atty. Gen., argued, for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., on brief.

Before VOSS, P.J., and BROWN and SCOTT, JJ.

BROWN, Judge.

Emilio Padilla was convicted of sexual contact with a ten year old contrary to sec. 940.225(1)(d), Stats. Hearsay testimony was admitted both at the preliminary examination and at trial regarding the young victim's statements to others about the assault. We hold there was no error in doing so. Also, Padilla wanted to cross-examine the ten year old about a possible previous sexual experience. With limited exceptions, such inquiry is prohibited. ¹ Since the defendant did not supply a sufficient factual basis for going into this line of examination, we hold no error occurred.

This female child was ten years old at the time. The defendant, a boyfriend of the child's mother, was accused of assaulting the girl three separate times and was convicted of one count, namely, the last or most recent incident.

At the preliminary examination, the girl did not take the stand. Only the girl's mother testified. She said her daughter told her about the assaults three days after the final incident. There was an objection to this line of testimony on hearsay grounds. The objection was overruled, and the mother was able to complete her testimony. Following the conclusion of the mother's testimony, there was a different objection that hearsay alone, without confrontation of the victim, was insufficient evidence upon which to establish probable cause.

Despite objections both before and during trial, the mother was also allowed to testify at trial concerning her daughter's account of the sexual assaults, as was a juvenile investigator who had talked with the girl.

The young girl also testified and was cross-examined. Thus, no question was raised at trial of whether using hearsay in lieu of the victim's testimony denied meaningful confrontation.

Further, at a hearing prior to trial, defense counsel argued that he must be permitted to cross-examine the child at trial about prior accusations of sexual intercourse with her stepfather, allegedly occurring when the child was nine years old. The stepfather had also, at one time, lived in the home with the mother and daughter. Defense counsel argued two alternative positions. First, if the prior incidents complained of were found to be untruthful, then cross-examination would be permissible under exception to the rape shield statute. Second, that if the prior incidents actually occurred, they could be the basis of the child's familiarity with intercourse. From this familiarity, she could invent a subsequent and parallel story regarding the defendant. The trial court denied the motion.

We will first decide the hearsay issue. Our supreme court has formulated, by case law, a special species of the excited utterance exception to the hearsay rule for statements made by young children alleged to have been the victim of sexual assault. The exception is an outgrowth of sec. 908.03(2), Stats., which provides, in part:

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 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. Muller v. State, 94 Wis.2d 450, 466-67, 289 N.W.2d 570, 578-79 (1980). 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. Id. The interval between the incident and the declaration is measured by the duration of excitement, rather than mere time lapse. Christensen v. Economy Fire & Casualty Co., 77 Wis.2d 50, 56-57, 252 N.W.2d 81, 84-85 (1977). 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. Christensen, 77 Wis.2d at 56-58, 252 N.W.2d at 84-85.

A broad and liberal interpretation is given to what constitutes an excited utterance when applied to young children. Love v. State, 64 Wis.2d 432, 219 N.W.2d 294 (1974); Bertrang v. State, 50 Wis.2d 702, 184 N.W.2d 867 (1971); Bridges v. State, 247 Wis. 350, 19 N.W.2d 529, reh'g denied, 247 Wis.2d 350, 19 N.W.2d 862 (1945). In this special circumstance, the court has held that stress is present even some time after the triggering event. This ascertainment of prolonged stress is born of three observations. First, a child is apt to repress the incident. Bertrang, 50 Wis.2d at 707-08, 184 N.W.2d at 870. Second, it is often unlikely that a child will report this kind of highly stressful incident to anyone but the mother. Cf. Bridges v. State, 247 Wis. 350, 19 N.W.2d 529 (1945). Third, the characteristics of young children work to produce declarations "free of conscious fabrication" for a longer period after the incident than with adults. It is unlikely a young child will review the incident and calculate the effect of the statement. See United States v. Nick, 604 F.2d 1199, 1204 (1979).

As a result, Wisconsin cases have held extrajudicial narratives by the young victim to be admissible even though the statements have not been made immediately following the incident. In Bertrang, the defendant raped his nine-year-old daughter. The day after the rape, the daughter reported the incident to her mother. The mother was allowed to testify as to what the daughter told her. In affirming the case, the supreme court noted the high stress of the incident, the spontaneity of the report, and its relative contemporaneity with the incident.

In Love v. State, 64 Wis.2d 432, 219 N.W.2d 294 (1974), the defendant assaulted a three-and-a-half-year-old girl. The girl told her mother about it the next morning, after the mother noticed blood on the girl's undergarments. The mother was allowed to testify concerning her daughter's statements.

In Bridges v. State, 247 Wis. 350, 19 N.W.2d 529 (1945), the mother of a seven-year-old girl was permitted to testify to statements made by the girl approximately one hour after the assault.

Finally, in State ex rel. Harris v. Schmidt, 69 Wis.2d 668, 230 N.W.2d 890 (1975), the defendant was accused of assaulting his five-year-old stepson. The boy told his mother about it the next day, and, fifteen days later, the defendant's probation officer was also told about it. Although objected to, both the mother and the probation officer were permitted to testify at a probation revocation hearing as to what the boy said. The supreme court said the testimony was permissible.

Padilla attempts to distinguish the facts in this case from the others. He notes that the child in this case was ten years old which is older than the ages of the children in other cases. He argues that, at this age, the child is now old enough to review the incident and calculate the effect of her statement after the initial spontaneity period has passed. Padilla also reasons that the three day time interval, which outdistances the Bridges, Bertrang and Love periods, is too long a lapse to countenance a finding of spontaneity, contemporaneity and continued stress. He concludes that because the basis for finding statements of young assault victims to be trustworthy has been lost in this case, the special exception to the hearsay rule should not have been allowed.

We do not agree. Contemporaneity is not a condition precedent to a finding of an excited utterance. There is nothing in sec. 908.03(2), Stats., or the seminal cases of Christensen or Muller which suggest such a thing. Quite to the contrary, as we have already noted above, the time period "is measured by the duration of the condition of excitement rather than mere time lapse from the event or condition described." Christensen, 77 Wis.2d at 57, 252 N.W.2d at 85. Thus, Christensen does not mandate that the statement be contemporaneous. The dictionary definition of contemporaneous is that which is "existing, occurring, or originating during the same time." ² The rule instead asks whether the statement is spontaneous--which is defined as having proceeded "from natural feeling ... without external constraint." ³ In the case of young assault victims, the spontaneity is observed to occur at longer time periods from the event than is normally the case with adults.

A three-day time period, as in the case here, is less contemporaneous than the time periods of the other reported cases. This does not matter, however, because spontaneity and stress are the keys. The young girl was assaulted by her mother's boyfriend. This alone is an event that a youngster would wish to repress. The record also shows that the defendant told her that if she said anything to her mother about the assault, "he would hit her." The mother testified that the victim was "afraid, scared." It is apparent from the record, then, that the stress from the assault was still upon the girl three days after the assault. Her repressed statement came out only after prodding by the mother. Therefore, the statements were made under nervous stress which would make it highly unlikely that the child's rational mind could...