State v. Smith
| Decision Date | 19 September 1985 |
| Citation | 126 Wis.2d 513,376 N.W.2d 868 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE OF WISCONSIN, Plaintiff-Respondent, v. MICHAEL W. SMITH, Defendant-Appellant. 83-342-CR. |
| Court | Wisconsin Court of Appeals |
Circuit Court, Grant County
Affirmed
Appeal from a judgment of the circuit court for Grant county: William L. Reinecke, Judge.
Before GARTZKE, P.J., DYKMAN, J., and RUDOLPH T. RANDA, Reserve Judge.
Michael Smith appeals from a judgment of conviction for first-degree sexual assault, sec. 940.225(1)(d), Stats. Appellant contends that he was denied hsi: (1) right to confrontation by the admission of the victim's hearsay statements, one of which was improperly admitted hearsay; (2) right to present a defense by the trial court's exclusion of expert testimony and an affidavit intended to impeach the victim, limiting of cross-examination of state witnesses, and refusal to order a psychiatric examination of the victim or deposition of the victim and her mother; and (3) right to a fair trial before an impartial judge. Appellant also asks for a new trial in the interest of justice. We resolve all issues against appellant and affirm.
In the evening of July 23, 1981, William Reuter, the boyfriend of the victim's mother, left appellant with the victim in an apartment Reuter shared with the girl's mother. Reuter returned about one-half hour later. In an agitated state, the girl reported to Reuter that appellant 'had taken her into the bedroom, laid her down on the bed and was kissing her and rubbing her belly and putting his hands down her pants.'
The next day the victim repeated the story to Cuba City Police Chief Dennis Bartow. Later that day appellant confessed to assaulting the girl. He repudiated the confession at trial. At appellant's request the court authorized the hiring of a clinical psychologist, Dr. Don Verger, to act as a consultant. Verger filed a report addressing the victim's ability to testify truthfully based on the tendencies of four-year-old children, but was not allowed to testify at trial as to the report's contents. Appellant's request for a psychiatric examination of the victim was denied.
The victim did not testify. The trial court admitted her out-of-court statements to Bartow and Reuter under the excited utterance exception to the hearsay rule and held they did not violate appellant's right to confrontation.
Appellant contends that the victim's statement to Officer Bartow was not admissible under the excited utterance exception to the hearsay rule. 1 This exception is based on the assumption that spontaneous statements made under stress are highly trustworthy. State v. Gollon, 115 Wis.2d 592, 598, 340 N.W.2d 912, 915 (Ct. App. 1983). The exception is liberally applied to statements of young children involved in claimed sexual assaults, id. (citation omitted). Admission of the statement under the exception must be affirmed unless it was an abuse of discretion. '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.' Id. (citation omitted).
. . .
The trial court admitted the victim's hearsay statements after considering her age, the nature of the assault, and the statement's spontaneity, contemporaneity and general reliability. See Bertrang v. State, 50 Wis.2d 702, 708, 184 N.W.2d 867, 870 (1971). The victim's age and the timing of the statements after the incident are similar to those factors in other cases where admissions of statements under the excited utterance exception were affirmed. Gollon, 115 Wis.2d at 596, 598, 340 N.W.2d at 914, 915 (); State v. Padilla, 110 Wis.2d 414, 417, 329 N.W.2d 263, 265 (Ct. App. 1982) (); State ex rel. Harris v. Schmidt, 69 Wis.2d 668, 673, 683, 230 N.W.2d 890, 893, 898-99 (1975) (); Love v. State, 64 Wis.2d 432, 437, 440, 219 N.W.2d 294, 296, 298 (1974) (). That the victim's statement to Officer Bartow was elicited by questioning is not controlling Gollon, 115 Wis.2d at 599, 340 N.W.2d at 915 (footnote omitted).
The absence of physical evidence of the assault or of a familial relationship between appellant and the victim does not preclude the statement's admissibility in light of the other factors. While prior sexual experiences of a young child may be relevant to rebut the inference that young children's statements about sexual assaults are truthful because they lack experience from which to prevaricate, see Wold v. State, 57 Wis.2d 344, 357-58, 204 N.W.2d 482, 491 (1973), the vague allegations of prior 'sexual experience' in affidavits by trial counsel and Allen and Sharon Smith are insufficient to overcome this inference. The trial court did not abuse its discretion in admitting the statement.
Appellant contends his constitutional right to confrontation was violated by admission of the victim's statements through Officer Bartow and Reuter. 2 Appellant objected to admission of the statements on confrontation grounds, but appellant's trial counsel stated that he did not wish to cross-examine the victim at trial. 3
. . . .
To overcome a confrontation objection, 'the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.' Ohio v. Roberts, 448 U.S. 56, 65 (1980), quoted in State v. Bauer, 109 Wis.2d 204, 210-11, 325 N.W.2d 857, 861 (1982). Once unavailability is shown, indicia of reliability are necessary for hearsay to be admissible. Id. at 211, 325 N.W.2d at 861.
The trial court stated that there was good reason for not forcing the victim to testify, relying on Dr. Verger's testimony that the victim could suffer harm by being forced to testify. Appellant contends that the victim's unavailability was not established. The state argues that appellant waived his objection to availability.
Appellant's trial counsel stated at trial that he concurred in the decision not to force the victim to testify. He added that he had spoken to the victim and her grandparents and was advised that she had no memory of the incident. He said, 'So there is no point in the defense calling her . . ..' Appellant conceded the victim's unavailability. We do not review his objection.
'Reliability can be inferred without more in a case where the evidence falls within a firmly hearsay exception.' Ohio v. Roberts, 448 U.S. at 66, quoted in Bauer, 109 Wis.2d at 213, 325 N.W.2d at 862. The admissibility of excited utterances by young victims in sexual assault cases has been recognized for many years. See Hannon v. State, 70 Wis. 448, 452, 36 N.W. 1, 3 (1888) (). Longevity can establish that a hearsay exception is 'firmly rooted.' State v. Dorcey, 103 Wis.2d 152, 162, 307 N.W.2d 612, 617 (1981). 4
In addition, the totality of the circumstances carry indicia of reliability. Dorcey, 103 Wis.2d at 164, 307 N.W.2d at 618. One statement was made to Reuter shortly after the incident while the victim was upset. These facts provide the paradigmatic case for application of the excited utterance exception. The statement given to Reuter was consistent with the statement given to Officer Bartow. We conclude the statements were accompanied by sufficient indicia of reliability to satisfy the confrontation clause.
Appellant contends that the trial court erred in excluding Allen and Sharon Smith's affidavit which alleged that the victim had told them that she left her apartment because her mother and Reuter were 'making love.' The evidence was offered to establish that the victim had knowledge of sexual relations from sources other than the assault. No offer of proof was made other than the allegations in the affdavit, leaving important questions unanswered: Was the child sent from her apartment because she was told by her mother or Reuter that they were going to 'make love?' What is this child's understanding of 'making love' and what is it based on? Had she observed the act? The assumption that she had obtained the same type of explicit sexual knowledge from the incidents referred to in the affidavit as reportedly gained from the present sexual assault is unwarranted, based on the limited information provided. See Padilla, 110 Wis.2d at 429, 329 N.W.2d at 271. The trial court did not abuse discretion in excluding this evidence.
Appellant contends the trial court erred in excluding Dr. Verger's testimony as to the characteristics of a four-year-old child, 5 which was offered to impeach the victim's hearsay statements. Exclusion of expert testimony is within the trial court's discretion. 'The question on appeal is not whether this court, ruling initially on the admissibility of the evidence, would have permitted it to come in, but whether the trial court exercised its discretion in accordance with accepted legal standards and in accordance with the facts of record.' State v. Wollman, 86 Wis.2d 459, 464, 273 N.W.2d 225, 228 (1979) (citation omitted). 'This court will uphold that exercise of discretion unless the circumstances show that the ruling was manifestly wrong and an abuse of discretion.' La Barge v. State, 74 Wis.2d 327, 341, 246 N.W.2d 794, 800 (1976) (citation omitted).
The trial court excluded Dr. Verger's testimony because the testimony would be superfluous, confusing and speculative and would usurp the jury's credibility weighing function. The trial court concluded that the jurors...
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