# State v. Brown

> Supreme Court of Iowa · November 23, 1983 · 341 N.W.2d 10

URL: https://www.frixlaw.com/law-library/cases/9672698

## Case

- **Full name:** STATE of Iowa, Appellee, v. Byron W. BROWN, Appellant
- **Court:** Supreme Court of Iowa
- **Decided:** November 23, 1983
- **Citations:** 341 N.W.2d 10; 1983 Iowa Sup. LEXIS 1741
- **Precedential status:** Published
- **Opinion:** Dissent by Larson
- **Judges:** Reynoldson, McGiverin, Larson, Wolle
- **Cited by:** 47 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9672698

## How later opinions describe it (automated extraction)

- finding no custodial interrogation where the defendant “accompanied officers to the police station voluntarily and was at no time subjected to either physical or verbal restraint”
- finding no custody when a defendant was subjected to no physical restraint and felt free to leave at any time
- finding no custody when a defendant was subject to no physical restraint and felt free to leave at any time
- finding no custody where the defendant was questioned intermittently for approximately two hours

## Opinion text

LARSON, Justice
(dissenting).
The officer’s testimony of the boy’s photo identification, though hearsay, was properly admitted.
Regardless of whether the trial court and the dissent of Justice McGiverin are correct in their conclusion that the identification qualifies for the “excited utterance” exception to the hearsay rule under Iowa Rule of Evidence 803(2), it was admissible under the “residual” exception of Iowa Rule of Evidence 804(b)(5). There is no error when evidence was properly admitted even though on grounds different from those cited by the trial court. We may affirm the trial court without accepting its reasoning. State v. Belieu, 314 N.W.2d 382, 384 (Iowa 1982).
Although Iowa’s evidence code, patterned after the federal rules, was not yet in effect at the time of trial, we have often looked to the Federal Rules of Evidence in shaping Iowa’s common law of evidence. See, e.g., Kyle v. State, 322 N.W.2d 299, 306 (Iowa 1982) (rule 801(d)(2)); State v. Hall, 297 N.W.2d 80, 91 (Iowa 1980) (rule 608); State v. Savage, 288 N.W.2d 502, 505 (Iowa 1980) (rule 701); State v. Flesher, 286 N.W.2d 215, 216 (Iowa 1979) (rule 801); State v. Howard, 284 N.W.2d 201, 203 (Iowa 1979) (rule 201(c)); State v. Harmon, 238 N.W.2d 139, 144 (Iowa 1976) (rule 403).
The Iowa and Federal Rules of Evidence 804(b)(5) are identical:
(5) Other Exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules in the interest of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to the offer the statement and the particulars of it, including the name and address of the de-clarant.
I would hold that the boy was unavailable for hearsay purposes because of the court’s order excluding his testimony. Iowa R.Evid. 804(a)(5) (“absent from the trial ... and the proponent of his statement has been unable to procure his attendance by process or other reasonable means.”). This point is not critical here because the “residual” hearsay exceptions are identical in both “available” and “unavailable” settings, Iowa Rules of Evidence 803(24) and 804(b)(5).
Our review is not de novo. “The trial court’s determination of admissibility of evidence under rule 803(24) [identical to 804(b)(5)] will not be overturned on appeal except for an abuse of discretion. (Citation omitted).” U.S. v. Friedman, 593 F.2d 109 , 118 (9th Cir.1979). U.S. v. Bailey, 581 F.2d 341, 346 (3rd Cir.1978) (“trial court is vested with discretion”).
I believe the conditions for admission under the rule are satisfied here. There can be no question that the officer’s statement regarding the photo identification was offered as evidence of a material fact. The “notice” requirement of the rule may also be deemed satisfied because the defense was aware of the identification and its significance far in advance of the trial, through minutes of testimony filed with the county attorney’s information. See United States v. Carlson, 547 F.2d 1346, *22 1355 (8th Cir.1976), cert. denied, 431 U.S. 914 , 97 S.Ct. 2174 , 53 L.Ed.2d 224 (1977).
By examining the adequacy of the notice and the time allowed to prepare to meet a statement offered pursuant to these rules [803(24) and 804(b)(5)], a reviewing court may determine whether the adverse party has had “a fair opportunity to prepare to contest the use of the statement.” H.Conf.Rep. No. 1597, 93rd Cong., Second Sess. (1974) reprinted in [1974] U.S.Code Cong. & Admin.News at 7106.
U.S. v. Bailey, 581 F.2d at 348 .
The other conditions of rule 804(b)(5) are also met, as follows:
A. “[Equivalent circumstantial guarantees of trustworthiness. ”
Because a determination of the “trustworthiness” of hearsay usually depends heavily on the characteristics and demean- or of witnesses and on the interplay of events, people, and perceptions, the trial court’s findings must be given some deference. Carlson, 547 F.2d at 1354 (under rule 804(b)(5), trial court has “wide latitude of discretion in determining the trustworthiness of the statement”). The trial court here, albeit for “excited utterance” reasons, found the identification trustworthy and reliable.
There appears to be no fairness question in the photo array or identification procedure. The boy quickly and positively identified the defendant.
Persuasively, there is corroborative evidence which supports the photo identification. Many courts have held that corroborating circumstances may supply the element of trustworthiness. See, e.g., U.S. v. Ward, 552 F.2d 1080 (5th Cir.), cert. denied, 434 U.S. 850 , 98 S.Ct. 161 , 54 L.Ed.2d 119 (1977); U.S. v. Garner, 574 F.2d 1141, 1144-46 (4th Cir.), cert. denied, 439 U.S. 936 , 99 S.Ct. 333 , 58 L.Ed.2d 333 (1978); U.S. v. West, 574 F.2d 1131 , 1135 (4th Cir. 1978); Hopkinson v. State, 632 P.2d 79, 131-32 (Wyo.1981), cert. denied, 455 U.S. 922 , 102 S.Ct. 1280 , 71 L.Ed.2d 463 (1982). The boy’s “excited utterances” (ones not challenged on appeal) pointed directly to the defendant (“the guy on the corner in Judy’s apartment beat him” and “the man in Judy’s apartment was the one,” as related by the boy’s mother, and the boy’s pointing to defendant’s apartment door in response to an officer’s question of where the boy had been hurt). The boy’s injuries also corroborated his version of events. Further, the defendant’s own admission placed the boy in his apartment that day, with his pants down.
Bailey points out that corroboration alone should not be determinative, because to the extent there is corroboration, there is a reduced need for admission. “Rather, the trustworthiness of a statement should be analyzed by evaluating not only the facts corroborating the veracity of the statement, but also the circumstances in which the declarant made the statement and the incentive he had to speak truthfully or falsely.” 581 F.2d at 349 . And, see Hopkinson, 632 P.2d at 131-32 (trustworthiness “may be established either through other corroborating evidence or by considering the motivation and/or behavior pattern of the declarant. (Citation omitted).”)
Here, those circumstances and incentives indicate reliability. There appears to be no reason to believe the boy did not have the innocence and absence of guile or bad motive typical of five-year-olds. Roberts v. Hollocher, 664 F.2d 200, 204-05 (8th Cir. 1981) (child’s age a factor supporting admissibility and assuring trustworthiness); People in Interest of O.E.P., Colo., 654 P.2d 312, 318 (1982) (“a child of three years is hardly adept at the type of reasoned reflection necessary to concoct a false story relating to a bizarre sexual experience implicating the child’s mother.”); State v. Posten, 302 N.W.2d 638, 641 (Minn.1981) (mother of six-year-old sex abuse victim allowed to testify to her daughter’s nightmares, in which she fought and scratched and said “Ray, stop. Stop it, Ray. Stop it. Stop it.”); State v. Roy, 214 Neb. 204 , —, 333 N.W.2d 398, 401 (1983) (“tender age” of two-year-old sex abuse victim an indicia of reliability); State v. Doe, 94 N.M. 637, *23 638 , 614 P.2d 1086 (1980) (statement related by four-year-old sex abuse victim admitted); State v. Padilla, 110 Wis.2d 414, 419 , 329 N.W.2d 263, 266 (1982) (“the characteristics of young children work to produce declarations ‘free of conscious fabrication’ for a longer period after the incident than with adults”). See also, State v. Bloomstrom, 12 Wash.App. 416, 419 , 529 P.2d 1124, 1126 (1974); Haley v. State, 157 Tex.Cr.App. 150, 153-54 , 247 S.W.2d 400, 402 (1952).
Also, wholly apart from whether the identification was an “excited utterance,” the facts and rationale which support that claim here are significant, as Justice McGiverin details, and act as guarantors of trustworthiness.
The majority asserts that the boy may have only picked the photograph of the person he recognized. But he was not just shown pictures and told to pick; he was asked to choose the one, if any, who had hurt him. There is no evidence that the boy did otherwise, and the circumstances do not indicate a significant danger of mistake or subterfuge. See State v. Simmons, 98 N.J.Super. 430, 437-40 , 237 A.2d 630, 633-34 (1968), aff'd, 52 N.J. 538 , 247 A.2d 313 , cert. denied, 395 U.S. 924 , 89 S.Ct. 1779 , 23 L.Ed.2d 241 (1969). The boy was relating information of which he had first-hand knowledge, and he told about the experience shortly after it occurred. Infirmities such as reliance on potentially erroneous secondary information and faulty recollection were thus nonexistent. Nor is there any evidence of later equivocation. Further, the officer, mother, mother’s friend, and two nurses were available to assist the jury concerning the circumstances under whieh the statement was made. Indeed, because the boy knew the defendant, the risks often inherent in an identification were not present here.
Certainly, the jury may weigh this evidence, taking the boy’s age into account; but I cannot find, as does the majority, the identification without sufficient “guarantees of trustworthiness.” Put another way, the hearsay dangers — ambiguity, lack of candor, faulty memory, and misperception — are minimal here. 4 Louisell and Mueller, Federal Evidence, § 413, pp. 69-70 (1980).
The majority finds the trial court’s ruling on competency determinative of “trustworthiness.” But there is a significant difference between deciding whether a child of five can appropriately understand and respond to the pressures of an adversary courtroom on the one hand, and on the other, whether the hospital identification was reliable. Simmons, 98 N.J.Super. at 437 , 237 A.2d at 633 (“The mere fact that the trial judge found this deaf-mute, possessed of the intelligence of a seven-year-old first-grader incompetent to testify because of her inability to express herself as to abstract ideas, does not preclude her pointing an accusatory finger.”); Doe, 94 N.M. at 639 , 614 P.2d at 1088 (four-year-old sex abuse victim ruled incompetent but his hearsay identification admitted); Bloomstrom, 12 Wash.App. at 418-19 , 529 P.2d at 1126 (“we agree that if the elements of the excited utterance exception to the hearsay rule are present, the hearsay testimony of the [eight-year-old] child is admissible whether or not the child is competent as a witness. (Citations omitted).”). Accord Haley, 157 Tex.Cr.App. at 153 , 247 S.W.2d at 402 . The district court here ruled the child incompetent because he “does not at present have sufficient age, maturity, and mental capacity to understand the nature and obligations of an oath; and that placing him on the witness stand would unnecessarily create an atmosphere unduly prejudicial to the defendant.” The latter reason has nothing to do with the identification itself and the former goes to the child’s ability to appreciate the gravity of the oath, not to the reliability of the identification in the circumstances under which it was made. Division I of Justice McGiverin’s dissent in this case is also persuasive on this point, and I join it.
The majority is also concerned that the defendant was not afforded a traditional guarantor of trustworthiness, cross-examination. See Bailey, 581 F.2d at 350-51 . *24 But, as the United States Supreme Court has stated,
While it may readily be conceded that hearsay rules and the Confrontation Clause are generally designed to protect similar values, it is quite a different thing to suggest that the overlap is complete and that the Confrontation Clause is nothing more or less than a codification of the rules of hearsay and their exceptions as they existed historically at common law.
California v. Green, 399 U.S. 149, 154 , 90 S.Ct. 1930, 1932 , 26 L.Ed.2d 489, 495 (1970).
In evaluating the necessity for cross-examination in the hearsay context, the court has looked to “indicia of reliability which have been widely viewed as determinative of whether a statement may be placed before the jury though there is no confrontation of the declarant.” Dutton v. Evans, 400 U.S. 74, 89 , 91 S.Ct. 210, 220 , 27 L.Ed.2d 213, 227 (1970). As outlined above, the indicia of reliability (trustworthiness) in this case permit “a satisfactory basis for evaluating the truth of the prior statement” Green, 399 U.S. at 161 , 90 S.Ct. at 1936 , 26 L.Ed.2d at 499 , and therefore admission. West, 574 F.2d at 1137-38 . Also, those present at the identification, including the police officer, mother, mother’s friend, and two nurses were available for cross-examination regarding the circumstances of the statements. And to the extent defendant argued the boy was incompetent to testify, he also argued against the reliability enhancing function of cross-examination in this case.
Under these circumstances, I would find “equivalent circumstantial guarantees of trustworthiness” and no sixth amendment confrontation violation.
B. “[Statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts. ”
Because there were apparently no eyewitnesses to the boy’s injuries and no direct physical evidence linking the injury to a particular person, the boy’s identification of the perpetrator is the most probative evidence linking defendant to the crime. With the boy’s testimony excluded, however, the State’s reasonable efforts could yield no evidence better than the hearsay relating the boy’s identification of defendant, including statements made before he was taken to the hospital and the hospital photo identification. That photo identification provided the strongest possible evidence linking defendant to the boy’s injuries.
C. “[GJeneral purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. ”
This requirement “is simply a further emphasis upon the showing of necessity and reliability and a caution that the hearsay rule should not be lightly disregarded, and the admission should be reconciled with the philosophy expressed in rule 102. (Citation omitted).” Friedman, 593 F.2d at 1119. Federal and Iowa Rule of Evidence 102 identically provide:
These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.
I am satisfied here with the reliability of the statements, the showing of necessity, and with the consistency of admission with the policy of the rules. Moreover, where there are circumstantial guarantees of trustworthiness and necessity, it would be. “antithetical to the truth-seeking function of our judicial system and would not serve the interests of justice” to deprive the jury of the victim’s identification of his attacker. Carlson, 547 F.2d at 1355 .
In a case mirroring the facts here, the Ninth Circuit (in a confrontation clause challenge) used the criteria of rules 803(24) and 804(b)(5) to weigh the reliability of a child’s out-of-court identification under the “excited utterance” exception. U.S. v. Nick, 604 F.2d 1199 (9th Cir.1979) (per cu- *25 riam). The relevant facts were stated as follows:
The assault occurred when [defendant] Nick was babysitting the child. The child’s mother had known Nick for many years and the child was well acquainted with Nick. When the child’s mother picked up the youngster, the child was asleep with Nick in a locked bedroom. The child’s pants were unzipped. After she brought the child home, she observed “white stuff” in the youngster’s clothing. The mother asked the child whether Nick had done anything to him, and the child responded, “yea, Eneas [Nick] stuck his tutu in my butt.” The child also stated that Nick had hurt him and made him cry.
Nick, 604 F.2d at 1201 .
The court’s reasoning parallels my own in this dissent:
We now apply these [rule 804(B)(5)] criteria to decide whether, under all of the circumstances, the child’s declaration to his mother had significant guarantees of trustworthiness. The child’s statement was directly responsive to his mother’s question about the soiled condition of his apparel and his upset condition. The statement was made while the child was still suffering pain and distress from the assault. The child’s terminology has the ring of verity and is entirely appropriate to a child of his tender years. The child’s statement was corroborated by physical evidence on his person and on his apparel. It is extremely unlikely that the statement under these circumstances was fabricated. The statement was unquestionably material, and it was more probative as to the identity of the assailant than any other evidence, except Nick’s confession. The declaration to his mother at the time of the event was more rather than less probative than testimony that he might have been able to give months after the event even if the district court would have found him competent. (Federal Rule of Evidence, rule 601.) The interests of justice were served by admitting the declaration of this child, who was the victim of a sexual assault, and far too young to appreciate the implications of that assault.
Finally, that portion of the statement identifying Nick as the assailant is inherently trustworthy under all of the circumstances of this case. Extrinsic evidence established that Nick had the opportunity to commit the crime. The child new Nick well, and he was not likely to mistake his assailant. The mother was not likely to have had any faulty recollection of the child’s simple, shocking seven-word statement. Moreover, she herself was subject to rigorous cross-examination on that score. (Footnote omitted).
Nick, 604 F.2d at 1204 . In the present case, the circumstances surrounding the victim’s statement were similar to those in Nick , which lends further support for the trial court’s ruling.
I would affirm.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9672698. Public record. Not legal advice.