State v. Willette

RANDALL, Judge,

concurring specially.

I concur in the majority’s remand to the trial court to consider whether the Minnesota Child Abuse Reporting Act (MCARA) is applicable.

However, I do not join in the majority’s advisory comment that “we have difficulty imagining how the 32-year-old Willette could not be found to have been in a position of authority over a seven-year-old who resided with him.” A remand to the trial court must be neutral, with both parties given a fair chance and an equal opportunity to present whatever evidence and arguments they deem advisable. I question the advisability of the majority’s indication to the trial court how it should rule on a previously unexplored issue which, at the omnibus hearing, will be fact intensive. A reading of MCARA and the cases and statutes cited by the majority leads to the conclusion that just what is “responsibility for a child’s care,” “lawful custodian,” “babysitting, whether paid or unpaid,” “position of authority,” and “supervision,” are issues of paramount importance that both parties need to develop and argue. At this stage, because of the complete lack of previous development by appellant and respondent, it is not proper for us to assume how the issue will come out in front of the trial judge.

In addition, unlike the majority, I would answer the sole issue raised on appeal. As appellant’s statement of the case sets out in paragraph five, the issue developed, briefed and argued before the trial court and our court is:

*348Admissibility of the officer’s testimony regarding the Defendant’s spouse’s statements.

Even though we are remanding on the possible applicability of MCARA, the record before us is complete on the issue of whether the trial court properly suppressed the double hearsay testimony of the deputy sheriffs regarding Sandra Willette’s statement about what allegedly respondent told her. Appellant, respondent, and the trial court approached that issue from the premise that Sandra Willette (Sandra) did not take the stand at respondent’s trial. Her not taking the stand must remain a possibility at this point.1 If she does not take the stand, I would affirm the trial court’s suppression of the double hearsay testimony of the sheriff. The trial court properly sustained respondent’s objections of hearsay, and the violation of his sixth amendment right to confront his accusers.2

I.

Hearsay

The state agrees that introduction of respondent’s statements to Sandra through the deputies is double hearsay and admissible only if “each part of the combined statements conforms with an exception to the hearsay rules.” Minn.R.Evid. 805. Respondent’s hearsay statement to his spouse is admissible as a statement against interest under Minn.R.Evid. 804(b)(3). This satisfies the first hurdle of the hearsay within hearsay problem.

The state then claims the deputies’ testimony as to what Sandra told them should be admissible under the residual hearsay exception for statements of unavailable witnesses. A statement that does not fall within the specific hearsay exceptions may be admissible if it has equivalent circumstantial guarantees of trustworthiness, and if:

the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purpose of these rules and the interests of justice will best be served by admission of the statement into evidence * * *.

Minn.R.Evid. 804(b)(5); State v. Renier, 373 N.W.2d 282, 286 (Minn.1985). Critical to the determination of admissibility is whether the statement has “equivalent circumstantial guarantees of trustworthiness.” Id. Circumstances which may establish guarantees of trustworthiness include: the declarant was under oath when the statement was made; the statement was made within a reasonable length of time after the incident in question; the declarant was subject to cross examination; and the witness’ report was based on firsthand knowledge. See State v. Hansen, 312 N.W.2d 96, 102 (Minn.1981).

Here, respondent’s spouse did not have firsthand knowledge of the alleged sexual conduct, was not under oath, and was not subject to cross examination when the statements were taken. Not only did Sandra have no firsthand knowledge of the alleged sexual conduct; she told the deputies that she “did not know whether it was true, as Willette had lied to her in the past.”

Appellant concedes the state seeks to introduce Sandra’s first statement, the evening of August 1, the one on which she has no firsthand knowledge of truth or falsity, as substantive evidence of respondent’s guilt. This hearsay is not more probative *349than other evidence available to appellant, as appellant has the testimony of the victim. See Minn.R.Evid. 804(b)(5)(B). Also, since it purports to constitute a confession by respondent, this double hearsay has more potential for unfair bias and prejudice than probative value. Minn.R.Evid. 403.

The state further argues that since Sandra Willette was excited and nervous when she told the sheriffs what she claimed respondent had told her the double hearsay is admissible under the “excited utterance” exception. Minn.R.Evid. 803(2). The state overlooks the historical progression and reasoning behind the excited utterance exception. The exception was built into the general hearsay rule on the theory that when the declarant “blurts out” something, it is apt to be true. Supposedly, one does not carefully rehearse and then “blurt out” a lie. The exception goes to the presumed reliability of the declarant (the speaker against whom the state wants to use the declaration as evidence), in this case respondent. The excited utterance exception is not available to someone like Sandra, who merely hears a speaker and then passes his words along. The state claims that because Sandra was “excited,” she can now tell a third party can testify what the original declarant said.3 Sandra’s excitement has nothing to do with the truth or falsity of the contents of respondent’s statement. The excited utterance exception relied on by appellant is without merit.

Given the discretion afforded a trial court in weighing evidence and ruling on motions of suppression, the trial court properly suppressed the double hearsay as not falling within any recognized exception.

On Sandra’s second statement to a deputy (August 3rd), appellant claims that they want to offer the testimony of the deputy regarding this August 3rd statement for a non-hearsay purpose, namely, “to show respondent’s state of mind.” The state argues it therefore falls into the exception provided by Minn.R.Evid. 803(3). Appellant disclaims any intention to offer this second statement as substantive evidence of respondent’s guilt. However, a reading of appellant’s brief belies the so-called “state of mind” exception to the hearsay rule. Appellant’s brief states:

The details supplied by the respondent through his wife to Officer Kujawa4 show precisely what the respondent did, what the respondent had the victim do, the number of times the molestation occurred, where it occurred, what times it occurred, and the thoughts of the respondent when he committed the acts.

It could only be argued with one’s tongue in one’s cheek that testimony about “precisely what the respondent did” and “who with,” “how many times,” and “where and when,” is being offered “only” to show a defendant’s state of mind, and not to show that he is guilty of the charge. The trial court properly suppressed this second statement on the same hearsay grounds as the first.

II.

Confrontation Clause

Even if the statements were deemed admissible under exceptions to the hearsay rule, they still must survive analysis under the confrontation clause before they may be admitted. Hansen, 312 N.W.2d at 102. A hearsay statement made by an unavailable witness must bear sufficient “indicia of reliability” to avoid a conflict with the confrontation clause. Id. Again, “un-sworn, ex parte statements made during police questioning have traditionally been considered as inherently untrustworthy.” Id. at 103. “Indeed, the purpose of the confrontation clause is to prohibit these ex *350parte declarations from being introduced at trial.” Id.

No balancing act need be performed to see whether suppression of the deputies’ hearsay on the grounds of confrontation interferes with getting substantial and important evidence to the jury. At all times, appellant has available the testimony of S.L.P., the alleged victim. The deputies’ testimony is not worth much as corroboration, since the deputies got their hearsay from Sandra, who admits she has no firsthand knowledge of what happened. The deputies themselves do not even have independent knowledge that the alleged conversation between Sandra and respondent took place.

It must also be noted under an analysis of the confrontation clause that Minn.R. Evid. 801 through 806 relative to hearsay are general rules which, on the surface, do not distinguish between civil and criminal cases. However, the advisory comments to the rules on hearsay, Minn.R.Evid. 804, point out the difference between civil and criminal cases, and that “the rule is not intended to codify the scope of the sixth amendment.” In other words, an attorney may be able to carefully craft double hearsay in a civil case to render it admissible, but fail in a criminal case because of the additional barrier set by the confrontation clause of the sixth amendment. A state rule of evidence is subservient to the Constitution if the two conflict.

The trial court properly suppressed the deputies’ testimony on the grounds that its admission as substantive evidence would violate respondent’s constitutional rights in a criminal case to confrontation.

I concur in the remand to the trial court to reopen the omnibus hearing and instruct appellant and respondent to develop and argue the issue of whether MCARA affects respondent’s marital privilege. If it should turn out that Sandra Willette does not take the stand, I would answer the issue raised on appeal by finding the trial court properly suppressed the hearsay testimony of the deputy sheriffs.5

. The state, for tactical reasons, can always choose not to put Sandra Willette on the stand, even if she is free to testify. Also, it is possible that after remand and a hearing on the applicability of MCARA, the trial court may yet find that respondent's right to invoke the marital privilege, found in Minn.Stat. § 595.02, subd. 1(a), survives. The answer to that question depends entirely on the parties’ presentation to the trial court of appropriate facts and legal arguments. That question is not now before us, the answer cannot be presumed, and in the interest of judicial economy the question raised on appeal should be answered, even though we are remanding.

. In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him; * * *. U.S. Const. Amend. VI.

. The state is not claiming that respondent was excited when he related his acts to Sandra, and that therefore his excitement at the time he spoke carries through Sandra to the deputy sheriffs. The state’s contention that it is entitled to the utterance exception is based solely on its claim that, if Sandra was excited when she spoke to the deputies, the deputies can now put into evidence what respondent was supposed to have said to Sandra, who then related it to them.

. The statement of Officer Kujawa is the second statement made August 3, the one here analyzed.

. This concurrence does not address, as it is not before us, the question of whether the deputies can take the stand in rebuttal if Sandra takes the stand, and then respondent takes the stand and denies having admitted to the acts about which she testifies. If that situation should arise, the trial court, at that time, will have to assess the respective arguments of the parties based on the law and the evidence that has been developed to that point in the trial. It is accepted law that, at times, otherwise inadmissible evidence "may” come in during rebuttal as a form of impeachment. This question is not now before this court, and will not be decided.