State v. Brown

McGIVERIN, Justice

(dissenting).

I respectfully dissent from division I and the result of the majority opinion. I would affirm the conviction.

I. Contrary to the foreign authorities cited and the holding in division I, we have previously followed the approach taken by the majority of courts that “although a child is incompetent to testify, testimony as to his or her spontaneous declarations or res gestae statement is nevertheless admissible.” Annot., 15 A.L.R.4th 1043 , 1047 (1982).

In State v. Galvan, 297 N.W.2d 344, 347 (Iowa 1980), we said:

[T]he question [of admissibility of hearsay testimony] is not controlled by the fact that the witness’s daughter was undoubtedly not competent to take an oath as a witness. The authorities make it clear that admissibility in such cases does not turn on the competence of the child to take the oath, but on the spontaneity of the utterance or act described.

In State v. Haines, 259 N.W.2d 806, 810 (Iowa 1977), in response to defendant’s questioning the admissibility of hearsay testimony on the grounds that the out-of-court statements were made by a two and one-half year old child who did not testify and was not found by the trial court to be competent to testify, we said:

[NJormally the competency of the declar-ant is not a factor in determining whether hearsay testimony comes under the res gestae exception. We adhere to the view that even though the declarant was a very young child, the trial court was not required to make further inquiry as to the admissibility of the hearsay testimony. Other courts have allowed out-of-court declarations of young children to come into the record under the res ges-tae doctrine without meeting any further requirements.

(Citations omitted.)

I agree with the astute observation made by the court in United States v. Nick, 604 F.2d 1199, 1202 (9th Cir.1979), where it said in response to the defendant’s contention that the admission of a witness’s hearsay testimony, concerning the out-of-court statements made by a child who was not subject to cross-examination because *18 deemed to be an incompetent witness, was in violation of the Confrontation Clause:

If the sole method by which the confrontation clause could be satisfied was the opportunity to cross-examine the declar-ant in court either at the time the statement was made or at the time the statement was offered, the infant’s statement could never be received in evidence.

Therefore, I would not exclude the out-of-court identification of the defendant by the five-year-old victim just because the victim was precluded by court ruling from testifying.

II. I also believe the evidence of the out-of-court photo array identification of the defendant by the five-year-old victim was properly admissible within the trial court’s discretion as an “excited utterance” exception to the hearsay rule. See State v. Ogilvie, 310 N.W.2d 192, 196 (Iowa 1981) (adopted “excited utterance” exception to hearsay rule as defined by Fed.R.Evid. 803(2) and rejected the use of “res gestae” terminology when used to describe a situation which comes within the excited utterance exception); Iowa R.Evid. 803(2) (adopted Fed.R.Evid. 803(2) to be effective July 1, 1983).

The “excited utterance” exception is defined to mean: “A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Ogilvie, 310 N.W.2d at 196 ; see Iowa R.Evid. 803(2). The trial court has discretion to determine whether a statement is induced by stress of excitement caused by the startling event or condition. Id.

A comprehensive analysis of the standards to be applied in determining whether statements made by a child sexual abuse victim are within the excited utterance exception is provided in United States v. Iron Shell, 633 F.2d 77, 85-86 (8th Cir.1980), cert. denied, 450 U.S. 1001 , 101 S.Ct. 1709 , 68 L.Ed.2d 203 (1981), wherein the court stated:

The lapse of time between the startling event and the out-of-court statement although relevant is not dispositive in the application of [the excited utterance exception], Nor is it controlling that [the child’s] statement was made in response to an inquiry. Rather, these are factors which the trial court must weigh in determining whether the offered testimony is within the [excited utterance] exception. Other factors to consider include the age of the declarant, the physical and mental condition of the declarant, the characteristics of the event and the subject matter of the statements. In order to find that [the excited utterance exception] applies, it must appear that the declarant’s condition at the time was such that the statement was spontaneous, excited or impulsive rather than the product of reflection and deliberation .... We note at this point that our role is somewhat limited. We are not to substitute our judgment for that of the district court. We are only to reverse where we find that the admission of this testimony constituted an abuse of discretion.

(Citations omitted.)

The events in Iron Shell centered around the sexual assault of a nine-year-old girl. Shortly after the assault took place, a time approximated to be somewhere between forty-five minutes and one hour, fifteen minutes, the child was asked a single question by a law enforcement officer: “What happened?” In response, the child made statements concerning the actions of the defendant that were subsequently recounted at trial by the officer. The officer also testified that the child was not hysterical and was not crying during the time when her statements were made. The court held, based on the above standards, that the district court did not abuse its discretion in admitting the officer’s testimony concerning the child’s out-of-court statements even though there was testimony that “the declarant was calm and unexcited.” The court stated in summary:

We find that in these circumstances considering the surprise of the assault, its shocking nature and the age of the de-clarant, it was not an abuse of discretion *19 for the trial court to find that [the child] was still under the stress of the attack when she spoke to [the officer]. It was not unreasonable, in this case, to find that [the child] was in a state of continuous excitement from the time of the assault.

Id. at 86 .

Other courts have been willing to give a broad and liberal interpretation to the “excited utterance” exception when dealing with statements made by young children. See State v. Padilla, 110 Wis.2d 414, 419 , 329 N.W.2d 263, 266 (Wis.Ct.App.1982). The court in Padilla based its support of a liberal “excited utterance” exception for statements made by young children on the following observations:

In this special circumstance, the court has held that stress is present even some time after the triggering event. This ascertainment of prolonged stress is born of three observations. First, a child is apt to repress the incident. Second, it is often unlikely that a child will report this kind of highly stressful incident to anyone but the mother. Third, the characteristics of young children work to produce declarations “free of conscious fabrication” for a longer period after the incident than with adults. It is unlikely a young child will review the incident and calculate the effect of the statement.

Id. (Citations omitted.)

Relying on this liberal standard, Wisconsin cases have held out-of-court statements made by child sexual abuse victims to be admissible even though the statements have not been made immediately following the incident. The court in Padilla held that the passage of a three-day period between the alleged assault and the ten-year-old’s reporting of the incident to her mother did not take her statements out of the excited utterance exception to the hearsay rule because “[i]n the case of young assault victims, the spontaneity is observed to occur at longer time periods from the event than is normally the case with adults.” See also State ex rel. Harris v. Schmidt, 69 Wis.2d 668 , 230 N.W.2d 890 (1975); Love v. State, 64 Wis.2d 432 , 219 N.W.2d 294 (1974); Bertrang v. State, 50 Wis.2d 702 , 184 N.W.2d 867 (1971).

There exists case authority from this court that supports applying a more liberal interpretation of the excited utterance exception to statements made by young children who are victims of sexual assault. In State v. Galvan, 297 N.W.2d at 347 , we found no abuse of trial court’s discretion in admitting the hearsay testimony of a witness concerning the unique behavior of her two-year-old daughter which she had observed two days after the date of the event in question. We said:

[The child’s behavior] appears in every way to have been spontaneous and unsolicited. The passage of two days, especially for so young a child, leaves it close enough to the transaction so that a trial court could have believed any presumption of fabrication was excluded.

Id. (Emphasis added.)

Additional authority in support of bringing the child’s out-of-court identification within the “excited utterance” exception may be found in United States v. Nick, 604 F.2d at 1202 . In Nick , a three-year-old boy was sexually assaulted by his babysitter. When the mother arrived to pick up the boy, he was asleep with his pants unzipped. After bringing the child home, the mother observed what appeared to be semen on the child’s clothing. She then asked the child if the babysitter had done anything to him. The child responded that “[the babysitter] stuck his tutu in my butt.” The child also stated that the babysitter had hurt him and made him cry. The court upheld the district court’s admission of the mother’s testimony concerning the out-of-court statements made by the child over the hearsay objection entered by the defendant on the grounds that such statements were within the excited utterance exception to the hearsay rule in Rule 803(2) of the Federal Rules of Evidence. The court found that the record amply sustained the district court’s conclusion that the child was “suffering distress from the assault when he told his mother what happened and identified [the *20 babysitter] as the perpetrator of the offense.” Id. at 1202 . See also In the Interest of O.E.P., 654 P.2d 312 (Colo.1982) (statements made by four-year-old to foster mother and social worker concerning sexual abuse by her mother were admissible as an excited utterance exception even though made the day following the alleged sexual abuse); People v. Woodward, 21 Mich.App. 549 , 175 N.W.2d 842 (1970) (six-year-old sodomy victim’s statements made in a hospital shortly after the attack and in response to policewoman’s questions were admissible because they were deemed to be within the res gestae of the offense); State v. Roy, 214 Neb. 204 , 333 N.W.2d 398 (1983) (two-year-old sexual abuse victim’s answer of “daddy” made in response to emergency room nurse’s question: “Who hurt you?”, was admissible as an excited utterance exception); State v. Simmons, 52 N.J. 538 , 247 A.2d 313 (1968) (police officer’s testimony concerning an incompetent witness’s extra-judicial identification, made from her hospital bed, was not inadmissible hearsay), cert. denied, 395 U.S. 924 , 89 S.Ct. 1779 , 23 L.Ed.2d 241 (1969); Johnston v. Ohls, 76 Wash.2d 398 , 457 P.2d 194 (1969) (police officer’s testimony concerning an extra-judicial statement made by a four-year-old child — who was “presumably not competent to testify” — from her hospital bed in the emergency room, was not inadmissible hearsay because the declaration came within the res gestae exception to the hearsay rule); State v. Bloomstrom, 12 Wash.App. 416 , 529 P.2d 1124 (1974) (statements made by an eight-year-old sexual abuse victim to her mother shortly after having been brought home by the defendant were deemed admissible as an excited utterance exception). See generally Annot., 89 A.L.R.3d 102 (1979).

Relying on these authorities, I fail to discern how the trial court’s admission of the hearsay testimony concerning the child’s out-of-court identification of the defendant can be viewed as an abuse of its discretion. The identification was made by the child victim in the hospital only a short time after the attack had occurred. It is self evident that the physical and emotional state of the child was not the best or he would not have been placed in the hospital after the attack upon him. If the passage of two days is “close enough to the transaction so that the trial court could have believed any presumption of fabrication was excluded,” State v. Galvan, 297 N.W.2d at 347 , and if a child’s statements made in response to his mother’s questioning, and made after being awakened from sleeping, are deemed to be “excited utterances,” United States v. Nick, 604 F.2d at 1202 , then, a fortiori, the child victim’s identification in this case, made a short time following the attack while in the hospital, should be permitted to come within the “excited utterance” exception to the hearsay rule.

III. I believe the State concedes too much in agreeing, on appeal, that the out-of-court identification evidence was not an “excited utterance.” The trial court determined that it was within the excited utterance exception, and I agree.

In Newmire v. Maxwell, 161 N.W.2d 74, 80 (Iowa 1968), we stated:

We are firmly committed to the rule that ... we must affirm the trial court if any sufficient basis appears therefor in the record, even though the ruling was placed upon a different ground. In the ordinary appeal the burden rests upon the appellant to demonstrate error and this is not done if the record shows proper support for the ruling complained of.

Where a learned judge’s decision is right for the wrong reason it is nevertheless right.

The rules just stated apply even though the party who was successful in the trial court does not seek to uphold the ruling on the ground suggested.

(Citations omitted.) (Emphasis added.) See also Oxley v. Oxley, 262 N.W.2d 144, 151 (Iowa 1978).

It is only logical to reason that if we would uphold a ruling of a trial court for a reason other than the one relied on by the trial court, we should be able to affirm the ruling for the same reason relied on by *21 the trial court even though the appellee no longer relies on the trial court’s reasoning. I do not believe we are precluded from considering the validity of the trial court’s ruling, and its basis therefore, just because the appellee abandons it on appeal.

Because the trial court was correct in allowing the identification evidence, I would affirm.