Opinion

State v. Zimmerman

  • 121 Idaho 971
  • 829 P.2d 861
  • 1992 Ida. LEXIS 86
Court
Idaho Supreme Court
Filed
Apr 2, 1992
Status
Published
Author
Bakes
On the bench
Johnson, Bakes, McDevitt, Boyle
Cited by
109 cases

holding that five-year-old’s statement made at least five days after incident was not excited utterance

How later courts described this case

  • holding that five-year-old’s statement made at least five days after incident was not excited utterance
  • holding that “a psychologist does not provide ‘medical’ treatment as contemplated by” I.R.E. 803(4)
  • conviction reversed when Court could not say that beyond a reasonable doubt there was no reasonable possibility that improperly admitted hearsay statements contributed to the conviction
  • noting that child did not make statements to psychologist for purposes of medical treatment

Written by the judges who cited it.

The opinion

BAKES, Chief Justice,

specially concurring:

I concur in Parts 1(A) and 1(C), Part II, and Part III of the Court’s opinion. As to Part 1(B), the hearsay statement concerning the child’s statement that, “No, I’m not going to tell my Dad’s secret. You tell him,” ordinarily I would agree that such a statement made two weeks after an event would not constitute an excited utterance for purposes of I.R.E. 803(2). However, I don’t believe that the “startling event or condition” necessarily has to be the criminal event, in this case the sexual abuse of the child. For example, if a person is sexually abused or assaulted by a person, and inadvertently is confronted by the assailant two weeks later and makes a spontaneous and excited utterance at that confrontation, as the result of “the stress or excitement caused by the [original] event or condition,” it could constitute an excited utterance under I.R.E. 802(2). In this case the child, on being confronted by a police officer, made the statement that, “No. I’m not going to tell my Dad’s secret. You tell him.” Whether or not the unanticipated appearance of a police officer to a child victim is a sufficiently “startling event or condition” under I.R.E. 803(2) to constitute an excited utterance, made while the declarant was under the stress or excitement caused by the original event or condition, is a factual determination for the trial court. The question of whether the unanticipated appearance of the police officer was a sufficiently “startling event” and whether or not the child was still under the “stress” caused by the original sexual molestation was a question for the trial court. It is a very close question in this case whether or not these circumstances constitute an unreasonable extension of the excited utterance exception contained in I.R.E. 803(2). My inclination is to affirm the trial court on this issue.

However, I concur with the majority that the “sleep-talk” statements were clear error. There is just no way of knowing whether the statements, “Don’t, Daddy, don’t,” or “No, Daddy, no,” were motivated by sexual molestation, the threat of a spanking, or a subconscious response to the father’s insistence that he is going to take the child back to its mother. I agree with the Court that this error is not harmless.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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