State v. Huntington

JANINE P. GESKE, J.

¶ 53. (dissenting). Although I believe the majority accurately analyzes the evidentiary issues under current Wisconsin case law, I dissent.

¶ 54. Our current case law stretches the excited utterance and the general residual hearsay exceptions in child sexual assault cases to the point that hearsay statements admitted under them no longer possess the inherent trustworthiness justifying admissibility.

¶ 55. The majority correctly applies the holdings in State v. Gerald L.C., 194 Wis. 2d 548, 535 N.W.2d 777 (Ct. App. 1995), State v. Moats, 156 Wis. 2d 74, 457 N.W.2d 299 (1990), and other prior cases to the issue of admissibility of Jeri's statements to her mother, her sister, and the police officer under the excited utterance exception, Wis. Stat. § 908.03(2). Under that exception, the majority accurately points out that "the *700related statement must be made while the declarant is still under the stress of excitement caused by the event or condition." Majority op. at 682. The inherent trustworthiness of a hearsay statement under that exception emanates from the temporary stress of excitement arising from the event and still existing at the time the statement is made. In Christensen v. Economy Fire & Cas. Co., 77 Wis. 2d 50, 58, 252 N.W.2d 81 (1977), quoting Cossette v. Lepp, 38 Wis. 2d 392, 398, 157 N.W.2d 629 (1968), this court stated: "It is the condition of excitement that temporarily stills the capacity for reflection which is the significant factor assuring trustworthiness, assuring that the declarant lacked the capacity to fabricate." Rather than using the traditional analysis for the exception as described in Christensen, the majority, consistent with our recent cases, applies what has become a looser test of admissibility under § 908.03(2).

¶ 56. The looseness occurs because this court no longer looks for evidence that the declarant is still under "the condition of excitement" from the event when making the statement. The court looks to see only if the declarant is upset when making the statement. I do not for one moment question that a sexual assault of a child is an extremely stressful event for the child. Nor do I question that a child who has been assaulted may well be under the stress of the event for a prolonged period of time. There is a fundamental difference, however, between a statement "relating to a startling event made while the declarant was under the stress of excitement caused by the event" and a declarant later becoming stressed and upset while describing an earlier event. The latter declaration does not provide the inherent trustworthiness envisioned in the excited utterance exception. Discussing Wisconsin *701case law, Professor Blinka cautions that "the temporary relationship between the startling event and the making of the statement has been most sorely tested in instances where children have reported sexual or physical abuse long after the event occurred." 7 Daniel D. Blinka, Wisconsin Practice (Evidence) § 803.2, at 465 (1991).

¶ 57. Here we know that two weeks after the last alleged incident, Jeri called her mother on the telephone, crying ánd hysterical. There is nothing in the record about Jeri's emotional condition during the two preceding weeks. In fact, the majority acknowledges that "the record is devoid of any information concerning Jeri's conduct in the two weeks after the last incident and preceding her report. . . ." Majority op. at 684-85. The circuit court knew only that Jeri was distressed at the time she recounted these alleged incidents two weeks after the last incident. The fact that "there are indications that she had just discovered that she would be spending two weeks alone with the defendant," majority op. at 685, does not establish that Jeri was still under the stress of excitement from an assaultive event two weeks earlier.

¶ 58. After concluding that Jeri's hearsay statements were properly admissible under the excited utterance exception, the majority also analyzes the admissibility of those statements under Wis. Stat. § 908.03(24), the general residual exception. The majority relies on State v. Sorenson, 143 Wis. 2d 226, 245-46, 421 N.W.2d 77 (1988), where this court agreed that § 908.03(24) could be used to admit hearsay statements by children in sexual abuse cases if the court considered the appropriate factors, including the attributes of the child, the child's relationship to, and the motivations of, the person to whom the statement *702was made, the circumstances under which the statement was made, the content of the statement itself, and other corroborating evidence.

¶ 59. Unfortunately, this court has created an evidentiary quagmire by asking trial judges to decide the admissibility of hearsay statements pursuant to Wis. Stat. § 908.03(24) by using the Sorenson factors. The general residual exception originally was applied where the inherent trustworthiness of the statement, although not covered by other exceptions, was clear and fairly easy to satisfy based on sufficient surrounding circumstances. For example, in Wirth v. State, 55 Wis. 2d 11, 197 N.W.2d 731 (1972), this court concluded that a prepackaged, sealed bottle of codeine-type cough syrup was admissible to prove the contents of the bottle. Indicia of inherent trustworthiness were obvious and easily satisfied based on the surrounding circumstances which included special storage, an unbroken seal, dispensing restrictions, and labeling and packaging regulations. See Wirth, 55 Wis. 2d at 15. In State v. Peters, 166 Wis. 2d 168, 179-80, 479 N.W.2d 198 (Ct. App. 1991), the court of appeals emphasized that "before otherwise inadmissible statements can be admitted under the residual exception, we must be confident that there are guarantees of trustworthiness sufficient to allow the jury to depend on such evidence to make decisions of the utmost importance."

¶ 60. In Sorenson, this court expanded the circuit court's duty to decide hearsay admissibility by looking at and weighing a myriad of credibility-related factors. Rather than considering just the circumstances surrounding the making of the statement, Sorenson tells the circuit court to consider factors like the child's fear of punishment and other personal interest, the motivations and biases of the person recounting the child's *703statement, contextual factors which might enhance or detract from the statements' trustworthiness, etc. See Sorenson, 143 Wis. 2d at 245-46. Many of the factors that the circuit court applies under Sorenson are the same type of factors which a fact-finder would ordinarily consider in deciding what credibility and weight to give a witness's testimony. Under Sorenson, the circuit court makes that assessment in deciding whether a hearsay statement is admissible and can be heard by the jury.

¶ 61. Reading the majority opinion, it becomes apparent that what should be a relatively easy admissibility determination on the applicability of a well-established hearsay exception — a Sorenson analysis under Wis. Stat. § 908.03(24) — has turned into a complicated credibility determination by the judge. For example, the majority points out that the record shows that Jeri "loved the defendant," and that there is no "evidence supporting a motive for the victim to fabricate." Majority op. at 688. The majority also considers that Jeri was emotional during the recounting of the incidents (not that she was emotional since the alleged incidents), that there are no "other contextual factors which detract from the truthfulness of Jeri's statements," and that "the content of Jeri's statements reveal no indications of falsity." Majority op. at 690. We have traveled a long distance under the general residual exception from admitting the label on a bottle of cough syrup to admitting hearsay allegations of sexual assault two weeks after the last alleged incident.

¶ 62. The United States Supreme Court has held that a defendant's Sixth Amendment1 right to confront *704his or her accusers is not violated if the hearsay statement is admitted under a "firmly rooted exception." Ohio v. Roberts, 448 U.S. 56, 66 (1980); State v. Hickman, 182 Wis. 2d 318, 328, 513 N.W.2d 657 (Ct. App. 1994). See also White v. Illinois, 502 U.S. 346, 355 n.8 (1992). As this court continues to entertain a looser reading of Wis. Stat. § 908.03(2), while also relying on Sorenson's very liberal reading of Wis. Stat. § 908.03(24), we risk extending our hearsay exceptions well beyond their original intent. We thereby also risk problems under the Confrontation Clause. See Idaho v. Wright, 497 U.S. 805, 817, 823-27 (1990).

¶ 63. I dissent based on the majority's loosened application of the excited utterance exception and its use of the Sorenson factors for the residual hearsay exception. I would overrule our decision in Sorenson and would urge this court to devise a way to halt the unnecessary, and dangerous, expansion of these two hearsay exceptions.

¶ 64. For the foregoing reasons, I respectfully dissent.

¶ 65. I am authorized to state that Chief Justice Shirley S. Abrahamson and Justice William A. Bab-litch join this opinion.

The Sixth Amendment to the United States Constitution provides in part: "In all criminal prosecutions, the accused shall enjoy the right. . .to be confronted with the witnesses against *704him; [and] to have compulsory process for obtaining witnesses in his favor...."