State v. Walton
| Decision Date | 03 August 1981 |
| Citation | 432 A.2d 1275 |
| Parties | STATE of Maine v. Frederick W. WALTON. |
| Court | Maine Supreme Court |
David M. Cox, Dist. Atty., Gary F. Thorne Asst. Dist. Atty., (orally), Bangor, for plaintiff.
Libhart, Ferris, Dearborn, Willey & Ferm, Joel A. Dearborn (orally), Brewer, for defendant.
Before McKUSICK, C. J., and GODFREY, NICHOLS, GLASSMAN, * ROBERTS and CARTER, JJ.
Frederick W. Walton appeals the judgment of conviction for unlawful sexual contact, 17-A M.R.S.A. § 255 (Supp.1980), entered against him on a jury verdict in the Superior Court, Penobscot County. Walton asserts that the presiding justice erred in permitting the six-year-old prosecutrix to testify and in admitting in evidence testimony of what the prosecutrix told her mother about the alleged criminal event several hours after it happened. We find no error in permitting the prosecutrix to testify, but we vacate the judgment on the grounds that the court erred in admitting hearsay testimony.
From the evidence admitted at trial, the jury could have found the following facts beyond a reasonable doubt. The child who complained against Walton was frequently in his home, where Walton's daughter would babysit her and her younger brother. During the afternoon of February 20, 1980, while the prosecutrix was resting on a bed on the second floor of Walton's home, Walton entered the room, lowered her pants, and touched her in the area of her vagina with his finger.
Before he permitted the six-year-old prosecutrix to testify, the presiding justice conducted a voir dire proceeding in which he, as well as the prosecutor and defense counsel, questioned the young girl. Their questioning proceeded along the lines suggested by M.R.Evid. 601(b), which provides in pertinent part:
(b) Disqualification of witness; interpreters. A person is disqualified to be a witness if the court finds that (a) the proposed witness is incapable of expressing himself concerning the matter so as to be understood by the judge and jury either directly or through interpretation by one who can understand him, or (b) the proposed witness is incapable of understanding the duty of a witness to tell the truth.
On his appeal, Walton challenges only the prosecutrix's ability to understand the duty of a witness to tell the truth.
When a witness of tender years is proposed, "the court must exercise its sound judicial discretion to evaluate the child's testimonial competency under Rule 601 on the basis of the totality of the voir dire." State v. Vigue, Me., 420 A.2d 242, 246 (1980); see also State v. Pinkham, Me., 411 A.2d 1021, 1024 (1980). Here, the child's answers on voir dire clearly showed she knew what it meant to tell a lie. The voir dire further established that the child knew that it was wrong to lie and that the consequence of lying would be to "get into trouble." Any inability on the part of the child to articulate in further detail the consequences of lying must be looked at in the context of her overall responses during the voir dire. Despite her youth, the prosecutrix understood the questions propounded to her and gave intelligent answers that showed an ability and desire to differentiate between truth and falsity. She knew that she should not lie and that "trouble" would come to her if she did. She more clearly stated the consequences of falsehood than did the child witness in Vigue, 420 A.2d at 245 n.2. On the totality of her voir dire, there is no basis for an appellate court to hold that the trial justice abused his discretion in determining that the prosecutrix understood the duty of a witness to tell the truth. He committed no error in receiving the testimony of the six-year-old victim of the allege crime.
Under the "excited utterance" exception to the hearsay rule, M.R.Evid. 803(2), the presiding justice allowed the prosecutrix's mother to testify to what her young daughter reported Walton had done to her earlier on the same day. Before admitting those hearsay statements for the truth of the matter asserted, 1 the trial court made preliminary findings pursuant to M.R.Evid. 104(a). We hold that admission of these statements was error because (1) the record does not support the preliminary findings necessary for admission of an excited utterance and (2) the record demonstrates that the presiding justice misconceived the applicable rule.
The trial court must make three findings before admitting a hearsay statement under the excited utterance exception: (1) that a startling event occurred; (2) that the hearsay statement related to the startling event; and (3) that the hearsay statement was made while the declarant was under the stress of excitement caused by that event. M.R.Evid. 803(2). The trial court could and did find the first two requirements here. Furthermore, the evidence indicates that the prosecutrix was under stress when she made the utterance. The record, however, does not support a finding that the prosecutrix was then under the stress of excitement.
Apparently by agreement of the parties 2 and consistent with M.R.Evid. 104(c), the court entertained a voir dire examination of the prosecutrix's mother to determine the admissibility of the prosecutrix's statements made to her mother on the evening of February 20, 1980, containing the details of a sexual assault committed that afternoon. No other conclusion can be drawn from the mother's testimony but that the prosecutrix had been under stress for at least two days prior to the utterances in question. The prosecutrix described other sexual incidents occurring prior to February 20. The mother testified that her daughter was "acting out," acting "really different," and saying that "her heart hurt" and that she "was really bad" over a period of two days prior to the events on the evening of February 20. She further described her daughter just prior to the utterances in question as acting out, nervous, saying that she had been bad, that she "had a black mark on her heart" and that she was afraid of the defendant.
Clearly, the child was under a great deal of stress and...
To continue reading
Request your trial
-
Bayne v. State
...utterances about a prior related event has been rejected by foreign jurisdictions in only a few instances. They include State v. Walton, 432 A.2d 1275 (Me.1981), in which the child, immediately after one sexual incident with the perpetrator, and while in a state of excitement caused by that......
-
State v. True
...of the complaint are not, however, admissible under this rule. State v. King, 123 Me. 256, 122 A. 578 (1923); accord State v. Walton, Me. 432 A.2d 1275, 1277 (1981); State v. Ranger, 149 Me. 52, 59, 98 A.2d 652, 655 (1953); State v. Mulkern, 85 Me. 106, 26 A. 1017 (1892). See 4 J. Wigmore, ......
-
State v. Zinck
...had the cousin's testimony merely confirmed that a complaint had been made to the cousin. State v. True, 438 A.2d at 464; State v. Walton, 432 A.2d 1275, 1277 (Me.1981). Our observation of sixty years ago is still true today: Testimony in prosecutions for rape, that shortly after the allege......
-
State v. Franklin
...was under the stress of excitement caused by the event or condition" constitutes an exception to the hearsay rule. In State v. Walton, 432 A.2d 1275 (Me.1981), we described three prerequisites for the admissibility of evidence under Rule 803(2). The presiding justice must find "(1) that a s......