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COURT OF APPEALS DECISION DATED AND RELEASED January 18, 1996 |
NOTICE |
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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
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No. 94-1955-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
STANLEY G. BAKER,
Defendant-Appellant.
APPEAL from judgments of
the circuit court for La Crosse County:
MICHAEL J. MULROY, Judge. Reversed.
Before Eich, C.J.,
Gartzke, P.J., and Vergeront, J.
PER CURIAM. Stanley
G. Baker appeals from judgments of conviction for first-degree reckless
endangering safety, attempted sexual assault and false imprisonment.[1] The issues are whether the trial court erred
by admitting a videotaped interview of the alleged victim and whether the error
was harmless. We conclude the court
erred and the error was not harmless.
We reverse and remand for a new trial.[2]
The case was tried to a
jury. Baker and the alleged victim
Tracy[3]
were the only eyewitnesses to the events at issue. Their testimony agreed in some respects, but not others. Both testified that the incident occurred
late at night at a bridge over a creek.
Tracy was walking alone and Baker approached her. Tracy testified that he tackled her, they
rolled down a bank, wrestled on some rocks, and then went into the water. Baker held her head under water for a while
and then left. Baker testified that he
saw Tracy from a distance, thought it was somebody he knew from high school,
and thought maybe he could "pick her up." He followed her to the creek area and tried to talk to her, and
when he did she started swinging her arms at him. He grabbed her to calm her down, and they fell down the rocks
into the water. He denied trying to
hold her head under water. He tried to
help her in the water but she wanted him to leave her alone. Baker left.
In addition to the
charges named above, the jury was given an instruction on attempted
first-degree intentional homicide, with the recklessly endangering safety
charge given as a lesser included offense for that count. The jury found Baker not guilty of attempted
murder but guilty of the lesser included offense.
During direct
examination of Tracy, the State showed a videotape of a law enforcement officer
interviewing her the following day at the scene. The tape lasts approximately eight minutes. In it, Tracy describes her version of the
incident, including where in the water they were, how long she was under water,
how long they fought in the water and where Baker's hands were. She says she was under water "long
enough to think I wasn't going to make it," and thought he was not going
to let her up. He was on top of her,
forcing her down. She thought he was
going to drown her.
The trial court
overruled Baker's hearsay objection to the tape. The court held it was admissible under the residual exception,
§ 908.03(24), Stats. The court said the tape would give the jury
a clearer picture of the background in which the offense allegedly occurred and
"indicia of reliability [were] built into the situation, particularly when
[she would be] on the stand when this tape is being shown, and the defense will
be given the opportunity to cross-examine her concerning the contents of that
videotape."
After deliberating about
ninety minutes, the jury sent out a note.
As described by the trial court the note stated, "We would like to
see the video of the victim explaining what and where the incident
occurred." The tape was sent to
the jury room, and after some twenty-five more minutes the jury returned with
the verdicts.
Baker argues the
videotape was inadmissible hearsay.
Whether hearsay may be admitted under an exception in the rules of
evidence is a question of law we review without deference to the trial court. State v. Sharp, 180 Wis.2d 640,
649-50, 511 N.W.2d 316, 320 (Ct. App. 1993).
The State argues the
videotape was admissible under the residual exception, § 908.03(24), Stats., which allows a hearsay
statement to be admitted even though the declarant is available as a witness
when the statement is one "not specifically covered by any of the
foregoing exceptions but having comparable circumstantial guarantees of
trustworthiness." This exception
is for the novel or unanticipated category of hearsay that does not fall under
one of the named categories, but which is as reliable as one of those
categories. State v. Stevens,
171 Wis.2d 106, 120, 490 N.W.2d 753, 760 (Ct. App. 1992). It is intended that the residual hearsay
exception rule will be used very rarely, and only in exceptional
circumstances. Id. This exception "focuses, as do all of
the enumerated hearsay exceptions, on the character of the statements and the
circumstances under which they are made...." Mitchell v. State, 84 Wis.2d 325, 333, 267 N.W.2d
349, 353 (1978).
A videotaped statement
to police is not novel, unanticipated, rare or exceptional. However, the State argues that four aspects
of this particular videotape provide the required circumstantial guarantees of
trustworthiness. The State concedes
that no factor by itself is grounds to admit the tape, but argues they are
sufficient when taken together. We
disagree.
The first guarantee of trustworthiness
argued by the State is that the videotape was made only a short time after the
events Tracy describes. We see no
reason why, without more, a statement made shortly after an event is inherently
trustworthy. The State does not argue,
for example, that the tape is comparable to an excited utterance. A declarant is as capable of providing
incorrect or false information a short time after an event as at any other
time.
The second indicator of
trustworthiness, the State argues, is that the videotape reveals Tracy's
demeanor when she made the statements.
The significance of this, according to the State, is that it dispenses
with the usual intermediary involved in hearsay testimony and allows the jury
to judge her demeanor directly.
We reject the demeanor
argument. The residual exception in
§ 908.03(24), Stats., is
"[a] statement not specifically covered by any of the foregoing exceptions
but having comparable circumstantial guarantees of trustworthiness." Our focus must therefore be on the
circumstances surrounding the statement.[4] The jury's later ability to evaluate
demeanor is not such a circumstance.
For Tracy's statement to be admissible, the circumstances must be
comparable to the other exceptions provided in § 908.03, Stats.
In those other exceptions, the circumstances make it more likely that a
declarant will be truthful. Videotaping
a statement is not comparable to other circumstances that might impel
truthfulness. Nothing about being
videotaped makes one incline more to the truth.
The State's third
indicator of trustworthiness is that Tracy's videotaped statements were made to
a law enforcement officer, and she faced the possibility of prosecution if she
lied. A declarant may have reasons to
deceive an officer, in spite of the potential penalty. It is not a sufficient guarantee of trustworthiness
under § 908.03(24), Stats.,
that a declarant spoke with a law enforcement officer. Mitchell, 84 Wis.2d at 332-33,
267 N.W.2d at 353. The State's argument
proves too much. If accepted, it would
suggest that all statements to law enforcement officers should be admissible,
whether by victims, witnesses or suspects.
The State's final
indicator of trustworthiness is that Tracy was available for cross-examination
regarding her statements on the tape.
We reject this argument for two reasons. First, the declarant's availability is already assumed, since we
are focusing on the enumerated and residual exceptions that apply "even
though the declarant is available as a witness." See § 908.03(intro.), Stats. Second, as with the argument that the jury
can judge demeanor from the videotape, the declarant's later availability for
cross-examination is immaterial because it is not a circumstance surrounding
the making of the statement itself.
The State next argues
the videotape was admissible because it was a witness's prior consistent
statement offered to rebut an express or implied charge of recent fabrication
or improper influence, and therefore outside the definition of hearsay under
§ 908.01(4)(a)2, Stats. The State argues that defense counsel
impliedly charged improper influence by asking Tracy about the extent of her
contact with the prosecution before testifying.[5]
Defense counsel did not
imply anything improper in his questioning of Tracy. The most reasonable reading of the questions is that the defense
sought to show Tracy may have been prepared or rehearsed by the prosecution. There is nothing improper about preparation between
counsel and a witness. However, the
defense would want the jury to be aware of such activities when considering her
credibility. The defense's questions
here did not imply anything beyond ordinary preparation.
We conclude the trial
court erred in admitting Tracy's videotaped statement.
We turn to whether the
error was harmless. The test for
harmless error is whether a reasonable possibility exists that the error
contributed to the conviction. State
v. Dyess, 124 Wis.2d 525, 543, 370 N.W.2d 222, 231-32 (1985). Baker argues the error was not harmless
because of the number of inadmissible statements Tracy made and the fact that
the jury asked to see the tape shortly before reaching a verdict. The State argues admission of the tape was
harmless because it was directed "all but exclusively" to the
attempted homicide charge on which Baker was acquitted.
The State
mischaracterizes the videotape. Tracy's
videotape provided a complete description of her version of the episode,
including allegations that Baker tackled her, struggled with her, and held her
head under water. Her statements are
relevant not only to the attempted homicide charge, but also to the charges on
which Baker was convicted. In fact, the
State itself argues on a different issue that these events support the
first-degree endangering safety charge.[6]
The trial was a
credibility contest between Baker and Tracy.
The videotape related to the most crucial parts of Tracy's testimony,
and its admission may have improperly bolstered her credibility. In view of the jury's request for the tape
during its deliberations, and the ease with which it reached a verdict after
reviewing it, we conclude there is a reasonable possibility that the erroneous
admission of the tape contributed to the conviction. If the jury were to reject Tracy's version of the episode, Baker
would be acquitted of all three charges.
For that reason, all three convictions must be reversed and a new trial
ordered except, of course, on the attempted homicide charge.
By the Court.—Judgments
reversed and cause remanded.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[2] In view of our disposition, we do not reach the question whether the court should have submitted a lesser-included offense to the jury.
[4] "In our view, the very words of the rule indicate that the key to using [a hearsay residual] exception is governed by the circumstances surrounding the making of the hearsay statement." State v. Stevens, 171 Wis.2d 106, 120, 490 N.W.2d 753, 760 (Ct. App. 1992) (emphasis in original).
[5] The State relies on the following exchange:
Q.
You met with [the prosecutor] prior to testifying today?
A.
No, I did not.
Q.
You met with somebody in regard to preparation for testimony?
A.
I'm not sure it's preparation for testimony. They were present.
Q.
You haven't met with anybody from the District Attorney's office or the
victim/witness--
A.
Jane Mather.
Q.
Okay.
A.
--was down there.
....
Q.
What I'm speaking of is just in general coming up to the time of trial
you have met with the people from the District Attorney's office or the
victim/witness coordinator to discuss your testimony today, correct?
A.
No, we really didn't discuss my testimony, we just discussed being
ready.
Q.
You discussed what happened?
A.
No.
Q.
You didn't?
A. Not really; just trying to -- they were there for me. It wasn't like we were going through what happened, though.