COURT OF APPEALS DECISION DATED AND RELEASED DECEMBER 3, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-1577-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
GILBERT H. BUTZLAFF,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Marathon County:
RAYMOND F. THUMS, Judge. Reversed
and cause remanded with directions.
Before Cane, P.J.,
LaRocque and Myse, JJ.
CANE, P.J. Gilbert H. Butzlaff appeals an order finding
probable cause and binding him over for trial on one count of first-degree
sexual assault of a child, contrary to § 948.02(1), Stats. Butzlaff
argues that the court erred when it declared the child unavailable to testify
and admitted the hearsay testimony of social worker Suzanne Mathison at the
preliminary hearing. We agree that
Mathison's testimony was inadmissible hearsay, and therefore reverse.
The State charged
Butzlaff with sexually assaulting his two-year-old granddaughter, H.R.T.,
sometime between February and September 1994, when Butzlaff babysat for
her. The doctors who examined H.R.T. in
February 1994 and September 1995 found no physical evidence of sexual abuse.
Mathison and the Wausau
Police Department initiated a sexual assault investigation in response to a
complaint by H.R.T.'s mother.
Approximately one year after the alleged sexual assault, Mathison
interviewed three-year-old H.R.T. on September 21, 1995, to determine whether
she had been sexually assaulted by Butzlaff.
During the interview, H.R.T. described two sexual acts that Butzlaff had
performed on her.
At the preliminary
hearing on January 31, 1996, H.R.T. testified as the State's witness. She provided inconsistent answers to the
prosecutor's questions, and failed to identify Butzlaff as her grandfather or
as the person who babysat for her or as the person who sexually assaulted
her. H.R.T. did not testify that she
told her mother about the assault. The
defense did not cross-examine H.R.T.
At the continued
preliminary hearing on March 5, 1996, Mathison testified about her interview
with H.R.T. Butzlaff objected to
Mathison's testimony as inadmissible hearsay evidence. The State asserted that Mathison's testimony
was admissible as a prior inconsistent statement under § 908.01(4)(a)(1), Stats.
The court decided that H.R.T. was unavailable to testify, and admitted
Mathison's testimony as a prior inconsistent statement. The court neither referred to § 908.04, Stats., nor specified the subsection
under which it found H.R.T. unavailable.
Instead, it decided:
The problem is that you've got a ...
child who's afraid to testify on the stand and has made comments to other
people on previous occasions, and I can really declare her unavailable based on
the testimony she gave me last time because of the fact she couldn't testify to
any of the things directly.
....
I'm going to just declare that she is
unavailable for the purposes of this hearing because of the fact based on her
prior testimony that she was unable to testify.
....
I
believe that [H.R.T.] is in fact unavailable because of the fact that she
testified or attempted to testify earlier and was overwhelmed ....
Relying
on Mathison's testimony, the court concluded that there was probable cause to
believe Butzlaff committed the offense and bound him over for trial.
Butzlaff filed this
interlocutory appeal to challenge the order.[1] He argues that the court erred when it
declared H.R.T. unavailable and admitted H.R.T.'s statements to Mathison.[2] The State contends that the court properly
admitted Mathison's testimony as an exercise of its discretion. In the alternative, the State argues that
H.R.T.'s statements were admissible because of the residual hearsay exception
in § 908.03(24), Stats.
We interpret the State's
failure to advance a prior inconsistent statement argument on appeal as a
concession by the State that the exception is inapplicable. We therefore deem the argument abandoned,
and do not address it. See Reiman
Assoc., Inc. v. R/A Adver., Inc., 102 Wis.2d 305, 306 n.1, 306 N.W.2d
292, 294 n.1 (Ct. App. 1981).
The sole issue on appeal
is whether Mathison's testimony at the preliminary hearing was admissible. If the testimony is inadmissible, there is
no probable cause established to support the bindover for trial. We usually review the trial court's
evidentiary rulings at a preliminary examination under an erroneous exercise of
discretion standard. State v.
Gerald L.C., 194 Wis.2d 548, 555, 535 N.W.2d 777, 779 (Ct. App.
1995). If the record reflects that the
trial court erroneously exercised its discretion or applied the wrong legal
standard, we will reverse the trial court's decision. See State v. Sharp, 180 Wis.2d 640, 649, 511 N.W.2d
316, 320 (Ct. App. 1993); Heggy v. Grutzner, 156 Wis.2d 186, 200,
456 N.W.2d 845, 851 (Ct. App. 1990).
When the court bases its
discretionary choice on an erroneous view of the law, it has exceeded its
discretion. State v. Stevens,
171 Wis.2d 106, 111, 490 N.W.2d 753, 756 (Ct. App. 1992). In this case, the court did not consider the
residual hearsay exception when it decided to admit Mathison's testimony. However, this is the argument presented by
both parties on appeal. We therefore
consider the merits of the residual hearsay exception as applied to the
undisputed facts. The admissibility of
hearsay evidence under particular hearsay exceptions is a question of law,
which we review de novo. See id.
at 111-12, 490 N.W.2d at 756.
The Wisconsin Rules of
Evidence, found in chs. 901 through 911, Stats.,
apply to preliminary hearings. State
v. Moats, 156 Wis.2d 74, 84, 457 N.W.2d 299, 304 (1990). A statement other than that made by the
declarant while testifying at trial is hearsay when it is offered to prove the
truth of the matters asserted. State
v. Britt, 203 Wis.2d 25, 38, 553 N.W.2d 528, 533 (Ct. App. 1996); see
§ 908.01(3), Stats. Hearsay evidence is inadmissible unless a
recognized hearsay exception exists. See
Britt, 203 Wis.2d at 38, 553 N.W.2d at 533; see §§ 908.02,
908.03, Stats. Neither party disputes that H.R.T.'s
statements to Mathison were made outside of court approximately one year after
the alleged assault and that they were offered to prove the truth of the matter
asserted.
The court declared
H.R.T. unavailable as a witness at the preliminary hearing. The pertinent statute is the following:
908.04
Hearsay exceptions; declarant unavailable; definition of unavailability.
(1) "Unavailability as a witness" includes
situations in which the declarant:
(a) Is exempted by ruling of the judge on
the ground of privilege from testifying concerning the subject matter of the
declarant's statement; or
(b) Persists in refusing to testify
concerning the subject matter of the declarant's statement despite an order of
the judge to do so; or
(c) Testifies to a lack of memory of the
subject matter of the declarant's statement; or
(d) Is unable to be present or to testify
at the hearing because of death or then existing physical or mental illness or
infirmity; or
(e)
Is absent from the hearing and the proponent of the declarant's statement has
been unable to procure the declarant's attendance by process or other
reasonable means.
After a review of the
record, we disagree that H.R.T. was unavailable as a witness under § 908.04, Stats.
See State v. Dwyer, 143 Wis.2d 448, 463, 422 N.W.2d 121,
126 (Ct. App. 1988), aff'd, 149 Wis.2d 850, 440 N.W.2d 344 (1989). The fact that H.R.T. may have had difficulty
testifying in the courtroom setting does not render her unavailable. We determine that the court may have
inappropriately evaluated the competency, rather than the availability, of H.R.T.
when it decided that H.R.T. was unavailable.
See id. at 461-62, 422 N.W.2d at 125. Nevertheless, because both parties present
residual hearsay exception arguments on appeal, our conclusion that H.R.T. was
available is not dispositive of Butzlaff's appeal.
Regardless of H.R.T.'s
availability, we must consider whether there were comparable circumstantial
guarantees of trustworthiness that made H.R.T.'s statements admissible pursuant
to §§ 908.03(24) and 908.045(6), Stats. Although not addressed by the trial court,
both parties advance this argument on appeal.
Both subsections allow for the admission of "[a] statement not
specifically covered by any of the foregoing exceptions but having comparable
circumstantial guarantees of trustworthiness." Id. The
State has the burden to show guarantees of trustworthiness that are comparable
to those existing in the enumerated hearsay exceptions. See Stevens, 171 Wis.2d
at 120, 490 N.W.2d at 760. "It is
intended that the residual hearsay exception rule will be used very rarely, and
only in exceptional circumstances."
Id.
Wisconsin courts have
established various factors used to determine whether the statements of alleged
child victims of sexual abuse are admissible under residual hearsay
exceptions. State v. Sorenson,
143 Wis.2d 226, 245-46, 421 N.W.2d 77, 84-85 (1988); State v. Jagielski,
161 Wis.2d 67, 73-74, 467 N.W.2d 196, 198 (Ct. App. 1991). The court should consider the attributes of
the child, the person to whom the child made the statement, the circumstances
under which the statement was made, the content of the statement, and other
corroborating evidence for consistency with the assertions made in the
statement. Jagielski, 161
Wis.2d at 73-74, 467 N.W.2d at 198.
Because no single factor is dispositive, "the court must evaluate
the force and totality of all these factors to determine if the statement
possesses the requisite 'circumstantial guarantees of trustworthiness'
...." Sorenson,
143 Wis.2d at 246, 421 N.W.2d at 85.
First, we consider the child's
attributes, including the following:
[A]ge,
ability to communicate verbally, to comprehend the statements or questions of
others, to know the difference between truth and falsehood, and any fear of
punishment, retribution or other personal interest, such as close familial
relationship with the defendant, expressed by the child which might affect the
child's method of articulation or motivation to tell the truth.
Id. at
245, 421 N.W.2d at 84; see also State v. Padilla, 110 Wis.2d 414,
422, 329 N.W.2d 263, 268 (Ct. App. 1982).
The fact that H.R.T. was less than three years old at the time of the
alleged incident and less than four years old when she made the statements to
Mathison weighs against the likelihood that her statements were
fabricated.
However, when she
testified at the preliminary hearing, H.R.T. appeared to be very confused by
the prosecutor's questions and exhibited an inability to give verbal
responses. Additionally, H.R.T. did not
recall making the statements about the alleged assault to anyone. H.R.T. told Mathison that she liked her
grandfather, and Mathison reported that "[H.R.T.] seems to be more upset
by her mother's current reaction to these disclosures than the overall impact
and the behavior." These facts
weigh against the trustworthiness of her statements to Mathison.
Second, we consider the
"person to whom the statement was made, focusing on the person's
relationship to the child, whether that relationship might have an impact upon
the statement's trustworthiness, and any motivation of the recipient of the
statement to fabricate or distort its contents." See Sorenson, 143 Wis.2d at 245, 421 N.W.2d at
84. Mathison is a social worker
experienced in the investigation of child sexual assault allegations. Although nothing in the record suggests that
she had any personal intention to distort H.R.T.'s statements, she acknowledged
that she knew that Butzlaff was a suspect and she referred to Butzlaff during
the interview. Mathison's involvement
in the interview with H.R.T. weigh against the trustworthiness of her
statements.
Third, we consider
"the circumstances under which the statement was made, including relation
to the time of the alleged assault, the availability of a person to whom the
child might confide, and other contextual factors which might enhance or
detract from the statement's trustworthiness." See id. at 245-46, 421 N.W.2d at 85. H.R.T. made the statements approximately one
year after the alleged assault occurred and in response to Mathison's questions. We recognize that "[c]ontemporaneity
and spontaneity of statements are not as crucial in admitting hearsay statement
of young sexual assault victims under the residual exception." Id. at 249, 421 N.W.2d at
86. However, in the absence of other
indicia of reliability, the lapse of an extended period of time between the
alleged assault and the statements weighs against trustworthiness. Gerald L.C., 194 Wis.2d at
562-63, 535 N.W.2d at 782 (statements made by alleged victim two weeks after
alleged assault were untrustworthy).
The significant lapse of time strongly suggests that H.R.T.'s statements
were untrustworthy.
Fourth, we review the
content of the statements for "any sign of deceit or falsity and whether
the statement reveals a knowledge of matters not ordinarily attributable to a
child of similar age." See id.
at 561, 535 N.W.2d at 781 (quoting Sorenson, 143 Wis.2d at
245-46, 421 N.W.2d at 84-85). Mathison
testified that H.R.T. used terminology expected from a child her age to
accurately identify male and female body parts and to describe the sexual acts
allegedly perpetrated by Butzlaff. She
described Butzlaff and the acts, and demonstrated one of the acts with
dolls. "A young child is unlikely
to fabricate a graphic account of sexual activity because it is beyond the
realm of his or her experience." Sorenson,
143 Wis.2d at 249, 421 N.W.2d at 86 (citation omitted). The specificity with which three-year-old
H.R.T. described Butzlaff and described and demonstrated the alleged acts lends
some support to the statements' trustworthiness.
Finally, we consider any
"other corroborating evidence, such as physical evidence of assault,
statements made to others, and opportunity or motive of the defendant ... for
consistency with the assertions made in the statement." Id. at 246, 421 N.W.2d at
85. The record indicates that H.R.T.
was examined by physicians in February 1994 and September 1995 who found no
physical evidence of sexual abuse, and the record discloses no other corroboration. The lack of corroborating evidence weighs
against the statements' trustworthiness.
We conclude that H.R.T.
was an available witness. Additionally,
regardless of her availability, H.R.T.'s statements to Mathison did not possess
sufficient circumstantial guarantees of trustworthiness to be admissible under
the residual hearsay exception.
Therefore, the court erred when it admitted Mathison's hearsay testimony
and concluded there was probable cause to support the bindover.
By the Court.—Order
reversed and cause remanded with directions to dismiss.
Not recommended for
publication in the official reports.
[2] Butzlaff also argues on appeal that the excited utterance and prior inconsistent statement exceptions to the hearsay rule do not render H.R.T.'s statements admissible. Because these exceptions are not addressed in the State's brief and because we reverse on other grounds, we do not address them.