W.C.L. v. People

• Decision Date: 09 July 1984
• Docket Number: No. 82SC243,82SC243
• Citation: 685 P.2d 176
• Parties: W.C.L., Jr., Petitioner, v. The PEOPLE of the State of Colorado, Respondent, And Concerning W.L. and M.L., Parents.
• Court: Colorado Supreme Court

Page 176

685 P.2d 176

W.C.L., Jr., Petitioner, v. The PEOPLE of the State of Colorado, Respondent, And Concerning W.L. and M.L., Parents.

No. 82SC243.

Supreme Court of Colorado,

En Banc.

July 9, 1984.

David F. Vela, Colorado State Public Defender, Barbara S. Blackman, Deborah S. Waldbaum, Deputy State Public Defenders, Denver, for petitioner.

Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Joel W. Cantrick, Sol. Gen., Nathan B. Coats, Asst. Atty. Gen., Denver, for respondent.

DUBOFSKY, Justice.

We granted certiorari to review the decision of the Court of Appeals in People ex rel. W.C.L., Jr., 650 P.2d 1302 (Colo.App.1982). The Court of Appeals affirmed the decree of delinquency entered by the Weld County District Court against W.C.L., Jr. (W.C.L.), after a jury found W.C.L. guilty of acts which if committed by an adult would constitute sexual assault on a child under section 18-3-405, 8 C.R.S. (1978). Over W.C.L.'s objections, the district court admitted into evidence out-of-court statements by the four-year-old victim under CRE 803(2) and (4): the excited utterance and medical diagnosis exceptions to the hearsay rule. The Court of Appeals ruled that the codified hearsay exceptions were not applicable, but admitted the statements because the evidence was sufficiently trustworthy and necessary under common law rules. We reverse the judgment of the Court of Appeals.

In February 1980, W.C.L., age 16, began living with his sister and brother-in-law, the parents of the victim. During the ensuing months, W.C.L. occasionally babysat for the victim, a girl then age three, and her younger brother. On June 5, 1980, the victim went to stay at the home of an aunt while her family moved. Two days later, on June 7, the victim spent the day with another aunt and the aunt's young children.

When the aunt was preparing the children for baths at bed-time, and while all the children were undressed, the victim faced the aunt's six-year-old son, spread her legs, and said, "Get me." The aunt spoke the victim's name and asked what she was doing in a tone that apparently startled the child. Five to ten minutes later when the victim was in the bathtub, the aunt asked where she had learned that, and the child replied, "Uncle [W.C.L.] tickles me." The aunt asked her where W.C.L. tickled her, and the victim pointed to her genitals. The aunt reported the incident to the Department of Social Services.

On June 12, 1980, the victim was referred by the Department of Social Services for evaluation by David Kerns, a pediatrician on the child protection team at the University of Colorado hospital, who was qualified at trial as an expert in the diagnosis and treatment of child abuse, including sexual abuse of children. His physical examination revealed that the victim had sustained repeated penetration of the vagina. The doctor also observed multiple small puncture marks on the child's feet and buttocks. The victim's responses to his questions indicated that the physical injuries were the result of parental abuse and that the sexual contact was with W.C.L.

After the doctor testified at trial that the child told him she had had sexual contact with W.C.L., he read the following conversation as recorded in his notes:

I asked: "What does Uncle W. [W.C.L.] do to you?" and [the victim] said: "He touches me here," and pointed to her genitals. I asked: "With his fingers?" and [the victim] said: "No." And I asked: "With what?" and [the victim] said: "With his cock."

I asked: "Does he hurt you with it?" She said: "Yes."

The doctor described the victim's demeanor while responding to his questions as matter-of-fact.

The doctor then observed:

I think the experience of everybody working in this field and writing about it is that if a young child tells you that they have had sexual activity with somebody, then you had best believe it; that young children do not lie or fabricate when they give you really graphic portrayals of sexual activity. That means they have experienced it.

So I think the state of understanding in the field is that if we get graphic allegations of sexual activity from young children, we should presume they are true.

Just before trial began, the district court determined that the victim was incompetent to testify. ¹ However, the district court admitted the victim's statement to the aunt under the excited utterance exception to the hearsay rule, codified in CRE 803(2). The district court found that the statement was spontaneous, was made when the child was excited, was volunteered by the child in response to a question that did not suggest the answer, and indicated the absence of any intellectual contrivance. The court determined that the fact the statement was not made immediately after the assault was not critical. The court admitted the victim's statement to the doctor under the medical diagnosis exception to the hearsay rule, codified at CRE 803(4), on the basis that the medical diagnosis in this case necessarily included the source of the injuries as well as their nature.

W.C.L. conceded that the child had been sexually assaulted but denied that he committed the assault. Therefore, the victim's identification of W.C.L. to the aunt and the doctor was crucial because it was the only testimony identifying a perpetrator of the offense. The Court of Appeals recognized the necessity of the hearsay evidence, and although it ruled that the victim's statements did not fall within the excited utterance or medical diagnosis exceptions to the hearsay rule, it upheld their admission. ² The Court of Appeals noted that Fed.R.Evid. 803(24), allowing admission into evidence of any hearsay statement not specifically covered by the stated exceptions if the hearsay statement was found to have "equivalent circumstantial guarantees of trustworthiness," was omitted intentionally from the Colorado Rules of Evidence. However, the Court of Appeals was persuaded that "when, by corroborating evidence, a foundation is laid which clearly establishes an incentive to tell the truth, and no incentive to falsify, and where the necessity is also established, the statements may properly be admitted as a qualified exception to the hearsay rule." People ex rel. W.C.L., 650 P.2d at 1304 (citing United States v. Bailey, 581 F.2d 341 (3rd Cir.1978); Good v. A.B. Chance Co., 39 Colo.App. 70, 565 P.2d 217 (1977)).

We agree with the Court of Appeals that the victim's statements do not fall within the exceptions to the hearsay rule codified in the Colorado Rules of Evidence. We also agree with the Court of Appeals that the statements at issue have circumstantial guarantees of trustworthiness equivalent to those supporting the codified exceptions to the hearsay rule. However, this court did not include a residual hearsay exception similar to that in Fed.R.Evid. 803(24) when it adopted the rules of evidence. Therefore, we reverse the judgment of the Court of Appeals.

I.

The issue in this appeal is whether the testimony of two witnesses relating statements of the victim, who was not competent to testify, is admissible hearsay under the Colorado Rules of Evidence. ³ The district court allowed the aunt to testify about the victim's statement to her, considering it an excited utterance. CRE 803(2) defines the excited utterance exception to the hearsay rule as "[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." ⁴ The rationale supporting the excited utterance exception is that statements made under the stress of excitement are generally reliable because of a lack of time to fabricate. People ex rel. O.E.P., 654 P.2d 312 (Colo.1982); 6 J. Wigmore, Evidence § 1747 at 195 (Chadbourn rev. 1976); C. McCormick, Handbook of the Law of Evidence § 297 at 704 (E. Cleary 2d ed. 1972). The exception recognizes that "circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication." O.E.P., 654 P.2d at 317 (quoting Fed.R.Evid. 803(2) advisory committee note). ⁵

At least two requirements must be met before a statement qualifies as an excited utterance: "First, there must be some occurrence or event sufficiently startling to render normal reflective thought processes of an observer inoperative. Second, the statement of the declarant must have been a spontaneous reaction to the occurrence or event and not the result of reflective thought." People v. Dement, 661 P.2d 675, 678-679 (Colo.1983) (quoting C. McCormick, supra, § 297 at 704). See also People v. Franklin, 683 P.2d 775 (1984). Generally, the sufficiency of the event or occurrence to qualify as the "startling event"--the first requirement--is not questioned. See People v. Franklin, 683 P.2d at 781; C. McCormick, supra, § 297 at 705. Courts "look primarily to the effect of a particular event upon the declarant and, 'if satisfied that the event was such as to cause adequate excitement, the inquiry is ended.' " O.E.P., 654 P.2d at 318 (quoting C. McCormick, supra, § 297 at 705).

Here, the dates of the assaults were never established, although the evidence supported an opportunity for W.C.L. to have committed the assault on several occasions between February, 1980 and June 5, 1980. The district court, however, determined that the startling event was the aunt's speaking the child's name and asking the child what she was doing while the child was making the suggestive gesture. Under this analysis, the first question is whether the aunt's reaction to the child's behavior creates an event for the child which is sufficiently startling, and the second is whether the child's statement five or ten minutes later was a spontaneous reaction. The Court of Appeals limited its consideration of the startling event to the assault and held that because it is impossible to determine the intervening time between any of the assaults and the...