State v. Brown

were retro- say its enactments whether- applied as

spective prospective, Iowa, Appellee, STATE of it did not have interpretations; future direct courts how its right BROWN, Byron Appellant. W. be construed with statutes were to ref- already decided. We erence to matters 68073. No. by the amendments made have construed Assembly [prior] applied as General Supreme Court Iowa. case; legislature may to a certain 23, 1983. Nov. enactment, not, by later direct us to change interpretation our as it affects litigation.

this same Richardson v. 253, 255,

Fitzgerald, 132 Iowa 109 N.W.

866, 867, by “... we said: direction judicial legislature function particular in a performed

shall be [cer- way plain is a violation of the Con-

tain] Immediately this, following

stitution.” quoted approval Cooley from

... we with (7th Ed.)

on Constitutional Limitations Legislature

114: “As the cannot set aside the construction law al-

ready applied by the courts to actual

cases, compel neither can it courts for particular adopt

the future to construc- Legislature per-

tion of a law which the (Italics sup-

mits in force.” to remain said,

plied.) We further at the same

pages: “Expository legislation is so uni-

formly the courts condemned that we

need cite no more than a few of the approval with our

numerous decisions principle. [Citing authorities.] 1009-10, (em-

Id. at 97 N.W.2d at 910-11 added).

phasis majority wrong surrendering legislature a fundamental constitution- power judicial

al entrusted to branch of

government. possi- not make We should legislature

ble to sit review of an

appellate pending litiga- court’s decision

tion, change its outcome enactment

of a statute effect to take before the deci-

sion complied the trial with court. I

would affirm.

H victim had selected defendant pho- out of a tographic array when asked “to out individual, exist, an if one did of the individ- ual that hurt him.” questioned by When an officer at the police shortly incident, station after the defendant placed made statements that victim in apartment defendant’s partially crying. disrobed and This officer testified defendant at three intervals also stated that “if he rap- admitted to [the defendant] ing a child that he would sent to the penitentiary.” appeals Defendant on this issue, based hearsay objections on his and on grant trial court’s refusal to his motion suppress all of his statements to- the police. alleged Defendant’s po- motion lice failed to obtain a valid waiver of his Harrington, Appellate Charles L. De- rights, Miranda provide and to him with fender, appellant. support family of a upon member re- Miller, Gen., Atty. Thomas J. Teresa quest. The alleged motion further defend- Baustian, Gen., Atty. Asst. and Patrick C. ant’s statements were not voluntarily McCormick, County Atty., appellee. made, the latter contention apparently upon

based his borderline mental retarda- tion. REYNOLDSON, Chief Justice. I. Admission Victim’s Pretrial in Photo- Identification of Defendant controlling The issue in this case is graphic Array.

whether trial court should have admitted police into evidence a description officer’s compliance In with pretrial the court’s picture defendant’s a ruling, the victim was never called to the five-year-old sexual abuse victim who was during witness stand the trial. Defendant, unavailable as a ap- witness. The victim’s mother and a friend describ- pealing following his conviction of second- ed the victim’s return apartment, to their degree (a sexual abuse violation of Iowa crying bleeding and from the rectum. His 709.1(3) 709.3(2)), Code sections and asserts time, statements at that which confirmed

this hearsay was and reversible error. the assault and its occurrence in defend- Agreeing, we reverse and remand for new apartment, ant’s were testified to these trial. witnesses over objections. ap- No adequate peal There was has been taken from evidence to the admission of support jury’s verdict this evidence as an that defendant excited utterance. victim, committed a sexual assault on the The victim was then taken hospital to the five-year-old neighbor boy. The trial was Meanwhile, for further examination. de- complicated by defendant’s pre successful fendant had consented to be taken to the trial motion to exclude the victim’s testimo police station for questioning. He also con- ny ground on the the latter did not have picture being sented to his taken. Pictures age, maturity sufficient capaci mental persons of other with similar features were

ty to obligations understand the nature and selected, and an photo- officer took all the of an oath. graphs hospital to the for the victim’s view- officer, however, A police permitted ing. hospital victim was bed. At testify, hearsay objection, time, over officer, that the according he crying hysterical anything” making or but identifying “not police, statement to de- photo- “calm.” laid clarant “emotional, The officer six victim described up- as- set, hospital crying sobbing, child’s graphs hysterical bed very individual, distraught.”). Although the child “to out an sorely asked we are exist, tempted if did the individual hurt admit the one victim’s identification here under the “excited [you].” Only excep- then did the child select de- utterance” tion, only the rule can picture. “support the fendant’s admis- sion of statement a child of resisting hearsay objec- defendant’s years tender in a sexual assault case if tion, prosecution argued this evidence foundation criteria of are met.” under was admissible the excited utterance People Kreiner, 372, 379, 415 Mich. rule, the hearsay see State The State has (Iowa Ogilvie, 1981). conceded correctly they are not appellate State now concedes present in this case. exception inapplicable, brief that this is and The urges State now to adopt us argument admitted in the spontaneity oral theory codified in Federal Rules of Evi- undergirding the excep- excited utterance 803(24) 804(b)(5), dence and the residual or in lacking tion was the deliberate and con- exceptions catchall hearsay rule. judgment ordinarily sidered and reflection rules, numbers, These carrying the same required specific to select a face out of an are incorporated now in the Iowa Rules of array pictures. look-alike See State Evidence, but adopted had not been Stevens, 592, (Iowa 1980) 289 N.W.2d 596 time of defendant’s trial. Both allow the (“This exception to the [excited utterance] hearsay to admit if it is in contained hearsay applies generally rule in criminal prosecutions specifically statement not when the statement is made covered [a] any the foregoing exceptions under the influence of the excitement of but hav- ing equivalent guarantees the incident rather than on reflection or circumstantial trustworthiness, deliberation.”). if the court deter- (A) mines that the statement is offered Although we have often allowed fact; (B) as evidence of a material use ges- “excited utterance” or “res probative statement more tae” hearsay despite fact which is offered than other declarant, victim, the out-of-court like this proponent evidence which the pro- can responding question, questions to a through efforts; (C) cure reasonable and in those cases were “not calculated elicit general purposes of these and rules information which would have otherwise justice interests of will best be withheld,” Watson, been State 242 served admission of the statement 702, (Iowa 1976). N.W.2d Further into evidence.1 more, the declarants in those cases were note, We initially, that this court previ- “calm” upset. Ogilvie, but See ously has declined to apply a federal rule (declarant 310 N.W.2d at 196 sexual involving out-of-court identification an abuse victim “still upset”); State v. case, Holmes, Iowa criminal see State v. Haines, 806, (Iowa 1977) 259 N.W.2d (Iowa 1982). One (“irrefutable evidence the child made the given reason in Holmes was that thé rule state”); statements while in an excited in “enjoyed had leg- consistent Watson, (declarant 242 N.W.2d at 704 support.” islative Id. rape “pretty victim described as well up”). shook hearsay See also State v. Swan exceptions residual have son, (Iowa 1975) (In similarly legislative history, checkered only 1. The two Although rules differ in that rule out-of-court declarant. the State exceptions 804(b)(5), can used non-testifying when out-of-court relied on testify, declarant is available but does not while did not set meet definition of "unavailable” exceptions, require unavailability 804(a). rule 804 forth in rule although they adopted have now been in sition that children are nature innocent Iowa, inherently important Congres- trustworthy, to note the it is almost all of these cases are that: based on the excited utter sional admonition exception. ance In overwhelming ma It that the residual is intended cases, jority of these a distressed child has very rarely, exceptions will be used parent garbled blurted out to his or her only exceptional circumstances. The story of sexual abuse. The undoubted reli does not intend to establish a committee ability these only statements comes not judges for trial to admit broad license from the child’s evident distress but also hearsay statements that do not fall with- narrative, from the childlike nature of the exceptions of the other contained one Nick, see United States v. 604 F.2d 804(b). in Rules 803 residual (9th Cir.1979) (“The child’s terminolo not meant exceptions are to authorize gy ring verity entirely has the and is major judicial revisions of the appropriate years.”); for a child of tender rule, including present exceptions. Bloomstrom, Wash.App. 28 U.S.C.A. Rule Historical Note at 419-20, (“nature 529 P.2d Cain, 583. also United States v. See description tends to lend [child’s] (5th Cir.1979); F.2d United States authenticity”), inability and the of a child to (3d Cir.1978). Bailey, 581 F.2d story concoct a based on the unknown commentator, fact, according to one experience. People world of sexual specific exceptions pre listing of which O.E.P., (Colo. Interest 654 P.2d 803(24) prompted by cedes rule fears 1982) (“A hardly adept child ... at the open-ended approach that the would “un type necessary of reasoned reflection duly predictability rulings minimize the of story relating concoct a false to a bizarre trial, prepa at increase hazards of trial experience.”); Posten, sexual 302 give great too a ration measure of 638, (Minn.1981) (finding 640 it trial judge.” discretion to the 4 J. Wein “highly unlikely year that a six old would Berger, M. stein & Weinstein’s Evidence capacity story have the to concoct a like (1981). 803(24)[01]at 803-286 this”). explained As the court in State v. However, even if we were to hold Padilla, 414, 427, 110 Wis.2d Iowa applicable that the new rule was 263, (1982), young 270 “the victim’s account trial, defendant’s the State’s case would present sexual assault must be true helped by holding. not be Before because the victim can have no other hearsay pursuant evidence can be admitted source for knowledge the considerable of rule, trial court must determine the details of sexual intercourse.” The for the conditions of the rule are met. acts, effect, eign speak through the child requires specific findings five This victim knowledge because his or her of (trustworthiness, judge materiality, trial suggests previous experi them a firsthand notice, necessity, and service of the inter ence with sex. These justice). findings ests of “should be is, fact, exactly It this rationale which record,” explicitly on the made 4 J. Wein permits the introduction of this victim’s stein, supra, Clearly, at 803-290. this was friend, statements to his mother and her here, and not done the trial court’s admis placing apart- the assault in defendant’s of the identification sion as an excited ut However, boy’s ment. later identifica- will not terance substitute the detailed for photograph tion of the no contained such weighing balancing required satisfy it, reliability. making indicia of he was exceptions’ the residual exacting specifica showing not a forced awareness of a realm tions. experience ordinarily young of from hidden Furthermore, the “guarantees children; of trust- merely responding he was with a worthiness” that foundation un- single gesture very ordinary to a and nar- Indeed, der rule are lacking Although rowly question. here. focused the identi- fication, there is propo- foreign authority substantial for the made at the behest of a

15 State, very Knight 52, response and in to a authority figure (Fla.Dist.Ct.App.1979), So.2d denied, t. partakes far more of the specific question, 385 So.2d 761 cer (Fla.1980); testimony than does People White, of at trial character Ill.App.3d of an excited utterance. of the character 523, 530, 81, (1975); 338 N.E.2d Preston And, although incompetence finding Commonwealth, 398, 406 S.W.2d potential to a wit- testify primarily relates denied, cert. (Ky.1966), 920, 386 U.S. oath, understanding of the it also ness’s (1967); State v. S.Ct. 17 L.Ed.2d 792 maturity suggests a or lack either the Arbuthnot, (La.1979); 367 So.2d required capacity to answer the mental Williams, State v. 598 S.W.2d truthfully. questions there is noth- Where (exclusion (Tenn.Crim.App.1980) based on ing propensity else to indicate a either for confrontation, grounds). But telling truth the truthfulness Simmons, see State v. N.J. statement, particular that statement cannot (1968), cert. A.2d 313 395 U.S. admitted. (incom S.Ct. L.Ed.2d 241 was, course, no opportunity There petent victim’s out-of-court identification of counsel the victim’s defense defendant held reliable because of her ex cross-examination, through treme and spontaneous agitation during although one the federal commentator on Annot., showup). also A.L.R.2d rules has stated that evidence 803(24) only if should be allowed under rule “the evidence is a kind where cross-ex- Because believe we “the reliability.” amination would not enhance weight of authority judicial and the best Weinstein, supra, at 4 J. 804-122. The reasoning requires the exclusion such importance of deal- cross-examination when Howard, evidence,” People v. 198 Colo. at ing with identification is under- at 599 P.2d we now hold that the by Federal Rule of Evidence scored hearsay exceptions residual ordinarily can 801(d)(1)(c), adopted now the Iowa Rules not be used to admit evidence of an out-of- assigned Evidence and same num- identification when the identifying This rule ber. removes statement testify declarant does trial and is not prior from the hear- identification realm of Thus, available for cross-examination. say altogether if declarant testifies “[t]he showing evidence victim’s identification subject is hearing at the trial or and of the defendant should not have been ad cross-examination concerning the state- mitted. Because we have decided that the added.) (Emphasis ment.” hearsay, identification is inadmissible we need not reach the problem defendant’s rationale, Possibly following this several sixth right amendment to confront the out- courts do allow the admission of out-of- him, see State v. against of-court witness court identifications when the out-of-court Williams, identifier testifies at trial is 598 S.W.2d at 833. available People See v. cross-examination. pre admission of is Gould, 621, 626, 865, 54 Cal.2d 354 P.2d prejudicial sumed error unless the 867, 273, (1960); v. Cal.Rptr. 7 Rice 275 contrary affirmatively is established. States, 582, (D.C. United 437 A.2d 583 Webb, 404, State v. (Iowa 309 N.W.2d 411 1981); Lasley, v. 224, 228, State Minn. 306 Horn, 1981); State v. 717, 282 724 N.W.2d 604, (1975), N.W.2d 607 cert. 236 Galvan, (Iowa 1979). In State v. 297 1077, 820, 429 U.S. 97 S.Ct. 50 L.Ed.2d 796 (Iowa 1980), approved N.W.2d 344 we State, (1977); Fells v. 618, 345 So.2d 622 admission of non-verbal (Miss.1977). one communication However, overwhelming witness, two-year-old but refused to majority jurisdictions do not admit out- second, find a less dramatic of-court communication identifications when the declarant cumulative, testify merely speculate or “to does not and is not available for People Howard, See v. jury ignore cross-examination. likelihood that would 317, 320, People also 899, (1979); evidence,” 198 Colo. 599 P.2d id. 348. v. 901 Whitsel, 149, v. 618, 624, 300 State 339 N.W.2d Mich.App. Prophet, 1983); Hodges, State v. (Iowa (conviction 326 N.W.2d 652, reversed N.W.2d 345, (Iowa 1982), find that the we State prejudice which extreme of the because proof met its burden of on this issue. has identification when attaches deficient, mentally Although defendant is policeman). testimony given is not, itself, subnormality this mental We, too, speculate on the effect refuse to incapable making him enough to render testimony. of the officer’s statement. See State v. Sneth- voluntary convic- reverse defendant’s therefore We en, 245 N.W.2d 308, (Iowa 1976); State remaining briefly treat the issues tion. We Connor, (Iowa v. N.W.2d counsel in the new trial guide court and Winfrey, 221 N.W.2d 1976); State v. upon remand. Fetters, (Iowa 1974); State Admissibility State- II. of Defendant’s 1972). (Iowa Defendant N.W.2d 88-90 to Police. ments questioned on an intermittent basis for questioning hours. The two and one-half argues Defendant his state hours, place during waking normal took sup police should have been to the ments police part done in a of the station and was Miranda general voluntari pressed on which the defendant was familiar. with under the exclu grounds, as well as ness defendant, and Only one officer confronted by this court sionary rule announced him of his pains that officer took to advise McAteer, 290 N.W.2d 924 (Iowa State rights. Finally, defendant constitutional 1980) family lawyer). (telephone call to convincingly demonstrated his under- Miranda, however, applies only when a standing police proceedings and his v. Mathi Oregon custody. defendant participate during in them willingness to 492, 495, 711, 714, ason, 97 S.Ct. 429 U.S. suppression hearing and trial. There his (1977); Miranda v. L.Ed.2d in the of his state- was no error Arizona, 384 U.S. 436, 445, 86 S.Ct. police. ment to the (1966); 16 L.Ed.2d Cook, (Iowa 1983); 311-13 error Defendant asserts it was reversible Brewer, 277-78 Bizzett permit police officer’s us, 1978). (Iowa we On record before repeatedly stated that defendant custody was not when find defendant raping a “if he admitted to [defendant] accompanied interrogation occurred. He peniten- that he sent to the would be police voluntarily station officers variously objected to tiary.” Defendant subjected physical time to either at no ground on the the answer entirely He restraint. was left or verbal (which through an was before the court points during his inter at various alone offer) hearsay, and in-chambers would be believed, correctly, he view, he that admission, probative an and its value not he chose. Be free to leave whenever was outweighed by prejudice to the would be police did not so restrict defend cause appellate In his brief defend- defendant. custody, him in freedom as render ant’s only speculative infer- ant contends that a proce neither Miranda warnings nor the support testimony as an ence would outlined McAteer were required. in dures probative of any admission2 and that value outweighed by the re- his statements was to the Defendant’s statements sulting prejudice. long therefore were admissible as as police voluntarily rule is that evidence that they were made. After review Our probative quality of but is ing totality of the circumstances as we has a minimum do, generally see constitutionally required highly prejudicial must be exclud- are As a matter of interest see new Iowa Rule of 2. 801(d): by party-opponent. Evidence Admission (A) against party and is offered a statement is hearsay. which are not A state- Statements statement.... hearsay his own not if: ment is 765, 770, Wallace, Contrary Iowa I. foreign ed. to the State v. authorities cit- 615, (1966). I, this in Balancing holding ed and N.W.2d division we have equation primarily judge, previously for the trial the approach followed by taken majority if it may who receive evidence affords of courts “although that child is incompetent for a reasonable inference on a to testify, basis testimony Id., Hickman, 337 in issue. see State v. as to his or spontaneous her declarations or (Iowa 1983); 512, v. N.W.2d 515-16 State gestae res statement nevertheless admis- 619, Fuhrmann, (Iowa Annot., 257 N.W.2d 624-25 sible.” 15 A.L.R.4th 1977). (1982). responses In this case defendant’s Galvan, In State N.W.2d placed in questioning

officer’s the victim (Iowa 1980), we said: apartment, cry- partially disrobed and admissibility of hear- [T]he [of ing. The obvious defense contention say testimony] is not controlled police that were nonetheless unable fact the witness’s daughter was un- obtain assault. a confession of the Fur- doubtedly competent not to take an oath ther, contending the defense was defend- as a witness. The authorities make it involuntary. were ant’s statements admissibility clear that in such cases competence does not turn on the It is obvious the re statements oath, sponta- take the but flected defendant’s awareness of his situa neity utterance act described. consequences tion and the state Haines, In State N.W.2d addition, by him. ments made it bore (Iowa 1977), response in to defendant’s mind, upon knowledge state defendant’s questioning the admissibility in and motivation his denial of sexual con grounds on the out-of- rightly We trial tact. hold court could court statements were made a two and have relevancy concluded obvious year testify one-half old child who did not testimony prevailed over this considera found the trial court to be prejudicial impact. tions of its As throw competent to we testify, said: issue, ing light some on this see State [NJormally competency declar- Odem, (Iowa 1982); 322 N.W.2d determining is not a ant factor wheth- Williams, 256 N.W.2d hearsay testimony er comes under the (Iowa 1977); McDonald, 190 State v. gestae exception. res We adhere to the (Iowa 1971); State v. Ol though view even the declarant was son, 318-19, 260 Iowa child, very young trial §§ (1967); 29 Am.Jur.2d Evidence required inquiry to make further as 611, 646, admissibility testi- We rulings. find no error these mony. Other courts have allowed out-of- I, provided For the reasons division young court declarations children to however, reverse we and remand for new ges- come into the record under the res trial. meeting any tae doctrine without further requirements. AND REVERSED REMANDED.

(Citations omitted.) All except Justices concur McGIVERIN agree I with the astute observation made LARSON, JJ., and who dissent and by Nick, in the court United States v. WOLLE, J., part. who takes no (9th Cir.1979), F.2d where it said in response to the defendant’s contention

McGIVERIN, (dissenting). Justice that the admission of a witness’s respectfully I testimony, concerning dissent from division I and the out-of-court the majority opinion. by result of the I would statements made child who was not affirm the conviction. subject to because cross-examination witness, application of ex- incompetent was excited utterance be an [the

deemed it ception], controlling Clause: Nor is that of the Confrontation in violation [the response was in statement made by confron- child’s] which the If sole method the Rather, inquiry. to an these are factors the was could be satisfied tation clause weigh the in which trial court must de- the declar- opportunity to cross-examine termining testimony the at the time the state- whether offered in court either ant excep- state- or at the time the is within the ment was made [excited utterance] offered, the infant’s statement ment was tion. Other factors consider include declarant, in never received evidence. age physical could be the the the declarant, mental of the condition Therefore, out- not exclude the I would and the characteristics of event sub- by of the identification defendant of-court In ject matter of the statements. order just five-year-old victim because excep- to find that excited utterance [the ruling from precluded by court was victim applies, must appear it tion] testifying. time declarant’s condition was the evidence of the out- II. I also believe spontane- such that the statement was array of the photo of-court ous, impulsive than excited or rather by five-year-old victim defendant product of reflection and delibera- court’s properly admissible within the trial tion .... note at that our We this excep- as an “excited utterance” discretion role is somewhat limited. We are hearsay rule. tion judgment substitute our for that of the 1981) (Iowa Ogilvie, 310 N.W.2d are only district court. We to reverse exception to (adopted “excited utterance” we where find that this by defined Fed.R.Evid. as testimony an constituted abuse discre- 803(2) rejected gestae” the use of “res tion. terminology situa- when used describe a which comes within excited utter- (Citations omitted.) tion 803(2) exception); Iowa R.Evid. ance The events in Iron Shell centered around 803(2) (adopted Fed.R.Evid. effective nine-year-old girl. the sexual of a assault 1, 1983). July Shortly place, after the assault took time The “excited utterance” approximated to be somewhere between relating to to mean: “A statement hour, defined forty-five minutes and one fifteen startling event or condition made while minutes, single ques- the child was asked a ex- declarant under the stress of by a tion law enforcement officer: “What by citement caused the event or condition.” happened?” response, the child made 196; Ogilvie, 310 N.W.2d at see Iowa concerning statements the actions of the 803(2). R.Evid. The trial court has discre- subsequently defendant that were recount- tion to determine whether a statement by ed at trial the officer. The officer also induced caused stress excitement hysterical testified that the was not startling event or condition. Id. crying during and was not the time when her statements were made. The court comprehensive analysis A the stan held, standards, based on the above in applied determining dards to be whether its the district court did abuse discre- statements made a child sexual abuse admitting in testimony tion officer’s are within ex victim the excited utterance concerning child’s out-of-court state- provided ception is v. Iron United States though there ments even Cir.1980), Shell, (8th 633 F.2d 85-86 that “the declarant was calm and unexcit- cert. U.S. S.Ct. in summary: stated ed.” (1981), 68 L.Ed.2d 203 wherein the court stated: find We these circumstances con- assault, sidering startling surprise of the lapse time between the shocking age al- nature de-

event the out-of-court statement clarant, an though dispositive is not was not abuse of discretion relevant (1975); State, trial court find that Love v. the to Wis.2d [the child] (1974); State, stress of the attack N.W.2d Bertrang under the was still It was spoke she to Wis.2d N.W.2d 867 when officer]. [the unreasonable, case, find in this to There exists authority case from this a was in state of continu- that child] [the supports applying court that a more liberal the time of the as- ous excitement from interpretation of the excited utterance ex- sault. ception to by young statements made chil- at Id. 86. dren who are victims of sexual assault. Galvan, State N.W.2d at we willing give a

Other courts have been no found abuse of trial court’s discretion in interpretation liberal to the “ex broad and admitting hearsay the testimony of a wit- exception dealing when cited utterance” concerning unique ness the behavior her by young made children. with statements two-year-old daughter which she had ob- Padilla, 110 Wis.2d See State days served two after the date of the event (Wis.Ct.App.1982). N.W.2d question. in We said: support in of a The court Padilla based exception appears every liberal “excited utterance” child’s in [The behavior] by young way spontaneous made children on the statements have been and unso- following passage observations: licited. The espe- two days, cially child, young for so circumstance, it close special court leaves

In this the enough to the present transaction so that trial is even some has held stress any presump- court could have believed the This triggering time after event. tion fabrication was prolonged stress born excluded. ascertainment is First, is of three observations. a child added.) (Emphasis Id. Second, repress apt to the incident. authority support Additional bring- unlikely report child will this often that a ing the child’s out-of-court identification highly any- kind of stressful incident to exception the within “excited utterance” Third, the one but mother. the charac- Nick, may be found in United States v. pro- of young teristics children work to Nick, 1202. In a three-year-old boy F.2d at duce declarations “free of conscious fa- sexually by babysitter. assaulted his period longer brication” for a after the up pick When the mother arrived to unlikely than with It incident adults. boy, asleep pants unzipped. he was his with young child will review the incident and bringing home, After the child the mother calculate effect statement. appeared what on observed be semen (Citations omitted.) Id. clothing. then asked the child if child’s She standard, Relying babysitter anything this liberal Wiscon- had done to him. sin have held babysitter] cases out-of-court statements The child responded “[the made child his tutu in my sexual abuse victims stuck butt.” The child also though admissible even that the him babysitter statements stated had hurt immediately following have been him cry. upheld made made The court dis- incident. Padilla held trict court’s of the mother’s tes- passage three-day period of a timony concerning be- out-of-court state- alleged ten-year- tween the assault and the ments made child over reporting objection old’s of the incident moth- to her entered the defendant on the grounds take her er did not statements out of the that such within statements were exception excited utterance utterance to the hear- excited young say 803(2) rule because case of as- rule Rule the Federal Rules “[i]n victims, sault the spontaneity is of Evidence. The court observed found that longer periods amply occur time from the record sustained district court’s normally event “suffering than is with case conclusion that adults.” See also ex rel. from the when told Harris distress assault he Schmidt, happened 69 Wis.2d mother what and identified [the 20 of state he of the of the child was not the best or perpetrator as the

babysitter] placed hospital In the Inter would also not have been in the at 1202. See fense.” Id. (Colo.1982) O.E.P., upon passage 312 after P.2d the attack him. If the 654 est of four-year-old by to foster (statements days enough made of two “close to the trans- concerning sexu and social worker have mother action so that the trial court could as by her were admissible mother any presumption al abuse fabrication believed though even utterance excluded,” Galvan, an excited 297 was State v. alleged day following the sexual made if a statements N.W.2d at child’s Woodward, 21 abuse); Mich.App. People v. question- response made in to mother’s (1970) (six-year-old N.W.2d 175 842 from ing, being after awakened and made made in a hos sodomy victim’s statements utter- deemed to be “excited sleeping, are in re shortly the attack and pital after ances,” Nick, v. F.2d at States United questions ad policewoman’s were sponse 1202, then, fortiori, the child victim’s a they were deemed to be because missible case, in this made a short identification offense); gestae res State within hos- following time the attack while in the 204, 333 214 Neb. N.W.2d Roy, v. permitted within pital, be to come should (two-year-old abuse victim’s (1983) sexual exception to the the “excited utterance” response “daddy” made in answer hearsay rule. question: emergency room nurse’s “Who I too much III. the State concedes believe an as excited you?”, was admissible hurt agreeing, appeal, on that the out-of-court Simmons, exception); utterance an “excited identification evidence was not (police 247 A.2d 313 N.J. trial utterance.” The court determined concerning incompe an testimony officer’s within the excited utterance identification, extra-judicial tent witness’s exception, agree. I bed, her inad hospital from made Maxwell, Newmire hearsay), cert. 395 U.S. missible (Iowa 1968), (1969); 80 we stated: L.Ed.2d 241 S.Ct. Ohls, 76 Wash.2d 457 P.2d Johnston firmly We to the rule are committed (1969) (police testimony officer’s con must affirm the trial court if ... we cerning extra-judicial an statement made therefor in appears sufficient basis “pre four-year-old child—who was by a record, ruling though even testify” sumably competent —from placed ground. In the upon different room, hospital emergency bed in the her upon ordinary appeal the burden rests hearsay because the was not inadmissible error and appellant demonstrate gestae came within the res ex declaration prop- if the this is not done record shows rule); ception to State v. complained of. support ruling er for the Bloomstrom, Wash.App. P.2d judge’s learned decision is Where a (1974) (statements by eight- made an right wrong neverthe- for the reason it is her sexual abuse victim to year-old mother right. less shortly having brought after home been just apply rules stated even as the defendant were deemed admissible though party who was successful exception). gen excited utterance an uphold court does not seek to trial Annot., erally A.L.R.3d ruling ground suggested. on the authorities, I Relying on these fail added.) (Citations omitted.) (Emphasis how trial court’s admission discern Oxley, Oxley See also concerning the (Iowa 1978). of the de- out-of-court identification child’s logical if we only It is to reason that as an abuse can viewed fendant ruling uphold a trial court would was made discretion. by the reason than the hospital only other one relied child victim in the a short court, affirm the trial we should be able to after the attack had occurred. It is time ruling same relied on physical evident that the and emotional reason self though appellee probative no more trial court even on the for which it reasoning. court’s longer relies on the trial offered than other evidence which precluded from I not believe we are do proponent procure the can through rea- considering validity of the trial court’s efforts; (C) sonable and general pur- therefore, ruling, just and because its basis poses of rules in these interest appellee appeal. on abandons it justice will best be served of the statement into evidence. How- Because the trial court was correct in ever, evidence, allowing may the identification I statement not be admitted affirm. exception would under this propo- unless the nent of it makes known to the adverse LARSON, (dissenting). Justice party in sufficiently advance of the trial hearing provide testimony boy’s pho- party The officer’s of the to the adverse identification, hearsay, though prop- with a opportunity prepare fair erly it, admitted. meet his intention to the offer particulars it, statement in- and the Regardless of whether trial court and cluding the name and address of de- the dissent of Justice McGiverin are correct clarant. in their conclusion that the identification qualifies excep- for the “excited utterance” I boy would hold that the was unavaila- the hearsay tion to rule under Iowa Rule of hearsay purposes ble for because of the 803(2), Evidence it was admissible under excluding testimony. court’s order his “residual” Iowa Rule of 804(a)(5) (“absent Iowa R.Evid. from the 804(b)(5). is no error Evidence There when trial ... and proponent of his state- admitted properly evidence even procure ment has been unable to at- though grounds on different from those by process tendance or other reasonable may We cited trial court. affirm means.”). This is not critical here accepting the trial court without its reason- because the exceptions “residual” Belieu, 382, ing. State v. 314 N.W.2d are identical in both “available” and “una- (Iowa 1982). settings, vailable” Iowa Rules of Evidence code, Although pat- Iowa’s evidence 803(24) 804(b)(5). and rules, yet after the was not terned federal Our de review is not novo. “The trial trial, in effect at the time we have often court’s of admissibility determination ev looked to the Federal Rules Evidence 803(24) idence under [identical shaping Iowa’s law of common evidence. 804(b)(5)] will appeal not be overturned on See, e.g., State, Kyle N.W.2d except (Citation for an of discretion. abuse (Iowa 1982) (rule 801(d)(2)); State v. omitted).” Friedman, 593 F.2d U.S. v. Hall, (Iowa 1980) (rule 297 N.W.2d (9th Cir.1979). 109, 118 Bailey, U.S. v. 608); State v. N.W.2d Savage, 288 (3rd Cir.1978) (“trial F.2d court (Iowa 1980) (rule 701); Flesher, State v. discretion”). vested with (Iowa 1979)(rule 801); 286 N.W.2d Howard, I un- believe the conditions for admission 1979) (Iowa (rule 201(c)); Harmon, State v. der the rule are here. can satisfied There (Iowa 1976)(rule 403). be no officer’s statement regarding photo of- Iowa and Federal Rules of Evidence fered 804(b)(5) as evidence material fact. The are identical: requirement may “notice” the rule also Exceptions. Other A statement be deemed because the defense satisfied specifically by any covered of the sig- was aware of the identification foregoing exceptions having equiva- but trial, nificance in advance far guarantees lent circumstantial of trust- worthiness, through if minutes of filed with the court determines that (A) attorney’s county statement is offered as evidence information. See fact; (B) Carlson, a of material the statement is United 547 F.2d States (“the guy the corner in Cir.1976), the defendant 431 U.S. (8th cert. him” “the man Judy’s apartment 53 L.Ed.2d beat 914, 97 S.Ct. one,” Judy’s apartment was the as relat- adequacy of notice examining the By mother, boy’s boy’s point- and the ed prepare to meet allowed the time pursuant ing apartment to these door re- to defendant’s offered a statement 804(b)(5)], reviewing question of sponse to an officer’s where [803(24) rules hurt). the ad- boy’s injuries whether may boy determine had been opportunity “a fair has had party of events. verse his version also corroborated also v.U.S. The other 7106. ment.” ^[1974] Cong., Second met, as follows: prepare to Bailey, 581 U.S.Code H.Conf.Rep. No. conditions contest the Sess. & Admin.News at Cong. F.2d at 348. of rule (1974) reprinted in use of the state- 804(b)(5) 1597, 93rd are with the trustworthiness of a statement alone should placed the is a reduced need for admission. Further, to the extent there is Bailey pants the defendant’s own out points boy down. in his be determinative, apartment corroboration, there that corroboration “Rather, because should day, only analyzed by evaluating not be guar- circumstantial “[Equivalent A. ” corroborating veracity of the facts antees trustworthiness. of statement, but also the circumstances of the “trust- a determination Because made the statement which the declarant usually depends of worthiness” speak incentive he had to truthful- and the and demean- characteristics heavily on the And, ly falsely.” 581 F.2d at 349. see interplay and on or of witnesses (trustwor- P.2d at Hopkinson, 632 131-32 events, perceptions, the trial people, “may through established either thiness given some defer- findings must be court’s corroborating evidence or con- other (under Carlson, at 547 F.2d 1354 ence. sidering the motivation and/or behavior 804(b)(5), has “wide latitude trial court (Citation declarant. omit- pattern of the determining the trustwor- of discretion ted).”) statement”). The trial court thiness here, “excited utterance” rea- albeit Here, incentives those circumstances and trustworthy sons, the identification found reliability. appears There to be no indicate and reliable. boy not have the reason to believe did guile and absence of or bad mo innocence fairness appears There to be no five-year-olds. v. typical tive Roberts array proce- or identification photo in the Hollocher, 200, (8th F.2d 204-05 664 Cir. quickly positively iden- boy The dure. (child’s ad 1981) age supporting factor the defendant. tified trustworthiness); assuring missibility and Persuasively, there is corroborative evi Colo., O.E.P., 654 People in Interest of supports photo identifica dence which 312, (“a (1982) years of three P.2d 318 Many courts have held corrobo tion. hardly adept type at the of reasoned may supply the ele rating circumstances necessary reflection to concoct a false sto See, e.g., ment of trustworthiness. U.S. experience sexual ry relating to a bizarre (5th Cir.), Ward, F.2d 1080 cert. de 552 mother.”); implicating the child’s State v. 850, 161, nied, 54 L.Ed.2d 434 98 S.Ct. U.S. 638, (Minn.1981) Posten, 641 302 N.W.2d 1141, Garner, (1977); 574 F.2d 119 v.U.S. (mother six-year-old sex abuse victim Cir.), (4th 439 U.S. 1144-46 cert. daughter’s night testify to her allowed to (1978); 936, 333, 58 L.Ed.2d 333 99 S.Ct. mares, fought and scratched in which she 1131, (4th West, 574 F.2d 1135 Cir. U.S. v. it, Ray. Stop “Ray, stop. Stop it. and said State, 79, 1978); 632 P.2d Hopkinson 204, —, it.”); 214 Stop Roy, Neb. State denied, 455 (Wyo.1981), cert. U.S. 131-32 398, (1983) (“tender age” 333 N.W.2d 922, 1280, (1982). L.Ed.2d 463 S.Ct. an indicia (ones two-year-old sex abuse victim boy’s “excited utterances” 637, Doe, N.M. reliability); pointed directly to State challenged appeal) on candor, 638, (statement faulty relat memory, and mispercep- 614 P.2d victim sex admit by four-year-old abuse tion—are minimal here. 4 ed Louisell and § Padilla, ted); Mueller, Evidence, 110 Wis.2d State v. pp. Federal 69- (1982)(“the (1980). character produce young children work istics of majority finds the trial court’s ruling fabrication’ ‘free conscious declarations competency on determinative of “trustwor a longer period after the incident than thiness.” there is significant But differ adults”). also, v. Bloom with deciding ence between whether a child of strom, Wash.App. 529 P.2d five appropriately can understand and re 1124, 1126 State, (1974); Haley v. 157 Tex. spond pressures an adversary 153-54, Cr.App. S.W.2d hand, courtroom one and on the other, the hospital whether Also, apart whether wholly from Simmons, N.J.Super. reliable. at utterance,” identification was an “excited (“The A.2d mere fact that support the facts and rationale which deaf-mute, judge the trial found pos this significant, claim here are as Justice intelligence sessed of the a seven-year- of details, guarantors and McGiverin act as of first-grader old incompetent to testify be trustworthiness. inability cause of express her to herself as ideas, preclude to abstract does not her boy may The majority asserts that the pointing accusatory Doe, an finger.”); 94 only of picked photograph have the the N.M. (four-year-old at 614 P.2d at 1088 person recognized. just he But he was not incompetent sex abuse victim ruled pictures pick; and told he but his shown was admitted); one, hearsay any, identification asked to choose the if who had Bloom strom, 418-19, Wash.App. 12 hurt him. There is no at 529 P.2d evidence the at (“we otherwise, boy agree did and that if the the elements of circumstances the significant danger do indicate a of excited utterance the hearsay mis subterfuge. present, rule are hearsay testimony take See v. Sim of mons, 437-40, N.J.Super. 430, [eight-year-old] is A.2d admissible (1968), aff'd, competent 633-34 N.J. whether or not the child is as a omitted).”). (Citations A.2d cert. U.S. 89 witness. Accord Haley, (1969). Tex.Cr.App. boy S.Ct. 23 L.Ed.2d 241 at relating information of which he had S.W.2d at 402. The district court here knowledge, ruled incompetent first-hand and he told about the the child because he experience shortly present age, after it In “does not occurred. at have sufficient potentially maturity, firmities such capacity as reliance on er and mental to under secondary faulty obligations roneous stand the and information nature an oath; placing recollection were thus nonexistent. Nor is and that him the witness equivocation. unnecessarily there evidence of later stand would create an atmo Further, officer, mother, sphere prejudicial unduly mother’s defend friend, nothing nurses ant.” two were available to The latter reason has to do jury concerning assist the with the the circumstanc identification itself and former goes appreciate under ability es whieh statement was to the child’s made.

Indeed, oath, boy gravity reliability because the knew the defend not to the ant, the risks often an inherent in identifi the circumstances un present cation were not der I here. which it was made. Division of Jus tice McGiverin’s dissent in this case is also Certainly, jury may weigh this evi- persuasive point, join I on this it. dence, account; taking boy’s age into find, I cannot as majority, but does the The majority is also concerned that the “guaran- identification without sufficient defendant a traditional afforded trustworthiness, guarantor tees trustworthiness.” Put another cross-exami- way, the hearsay dangers ambiguity, lack nation. at 350-51. Bailey, 581 F.2d — Supreme linking evidence defendant to the crime. Court

But, United States as the excluded, stated, boy’s how- has With ever, the efforts could readily be conceded that State’s reasonable may While it and the Confrontation yield hearsay rules no evidence better than the designed protect generally are Clause relating boy’s identification of defend- values, quite it is a different similar ant, including statements made before he overlap com- suggest that the thing to hospital hospital taken to the and the that the Confrontation Clause plete and photo photo identification. That identifica- than a codifica- nothing more or less provided strongest possible evi- tion hearsay and their rules of tion of the linking boy’s inju- defendant to the dence they historically existed exceptions as ries. common law. purposes C. these rules “[GJeneral 149, 154, Green, 399 U.S. California justice and the interests will best be (1970). 1930, 1932,26 L.Ed.2d S.Ct. served admission the statement into evaluating necessity for cross-ex- ” evidence. context, the court in the amination requirement simply This “is a further reliability “indicia of which has looked to emphasis upon showing necessity widely viewed determinative have been as may placed reliability a statement be- and a caution that the hear- of whether though jury there is no confronta- fore say lightly disregarded, not be should Evans, the declarant.” Dutton v. tion of and the should be reconciled 74, 89, 210, 220, 27 91 S.Ct. U.S. expressed in philosophy with the rule 102. As outlined L.Ed.2d (Citation omitted).” Friedman, F.2d (trustworthi- above, reliability indicia of the at 1119. Federal and Iowa Rule of Evi- ness) permit satisfactory “a in this case identically provide: dence 102 evaluating prior the truth the basis for of These rules shall be construed to se- Green, at statement” 399 U.S. 90 S.Ct. administration, cure fairness in elimina- 26 L.Ed.2d at and therefore unjustifiable expense delay, of tion West, admission. 574 F.2d at 1137-38. promotion growth develop- of Also, identification, present at the those ment of evidence of the law to the end officer, mother, including police moth- may the truth be ascertained and friend, er’s and two nurses were available proceedings justly determined. regarding the cir- cross-examination reliability And to the I am satisfied here with the cumstances statements. argued statements, in- boy showing extent defendant was necessity, competent testify, argued to he also consistency and with the of admission with against reliability enhancing function Moreover, policy of the rules. where of cross-examination this case. guarantees there are circumstantial necessity, it trustworthiness and would circumstances, Under these I would find be. truth-seeking “antithetical to the function “equivalent guarantees circumstantial judicial system our and would not serve trustworthiness” and no sixth amendment deprive justice” jury the interests of to confrontation violation. of the victim’s identification of his attacker. probative B. is more “[Statement Carlson, F.2d at 1355. which than offered proponent other evidence which the can here, mirroring In a case the facts ” procure through reasonable (in confrontation Ninth Circuit clause efforts. 803(24) challenge) used the criteria of rules apparently eye- Because there were no 804(b)(5) weigh reliability to of a boy’s injuries witnesses to the and no direct child’s out-of-court identification under the physical linking injury evidence to a exception. particular person, “excited utterance” U.S. boy’s Cir.1979) (9th (per Nick, cu- perpetrator probative is the most 604 F.2d riam). assault, as facts were stated young relevant and far too appreciate follows: the implications of that assault. The assault occurred when [defendant] Finally, portion of the statement babysitting Nick the child. The identifying Nick as assailant is inher- many child’s mother had known Nick for ently trustworthy under all of the cir- acquainted years and the was well cumstances of this case. Extrinsic evi- Nick. the child’s mother with When dence op- established Nick had the up picked youngster, the child was portunity to commit the crime. The child asleep with Nick a locked bedroom. well, new Nick and he likely was not pants unzipped. The child’s After were mistake his assailant. The mother was brought home, she the child she observed likely to have had any faulty recollec- youngster’s clothing. “white stuff” in the simple, shocking tion the child’s seven- The mother asked the child whether Nick Moreover, word statement. she herself him, anything had done and the child subject rigorous cross-examina- responded, “yea, Eneas stuck his [Nick] (Footnote tion on omitted). that score. my tutu butt.” The child also stated Nick, 604 present F.2d at 1204. In the that Nick had hurt him and made him case, surrounding the circumstances cry. victim’s statement were similar to those in

Nick, 604 F.2d at 1201. Nick, support which lends further for the parallels reasoning my court’s own ruling. trial court’s in this dissent: I would affirm. apply 804(B)(5)] We now these [rule whether, criteria to decide under all circumstances, the child’s declaration significant guarantees his mother had

of trustworthiness. The child’s state- directly

ment responsive to his moth-

er’s about the soiled condition apparel and upset

of his condition. The statement was made while the child Iowa, Appellee, STATE of suffering pain still and distress from terminology the assault. The child’s has ring verity entirely appro- OLIVER, Appellant. Debra priate years. to child of his tender No. 68664. child’s statement was corroborated physical person evidence on his Supreme Court of Iowa. apparel. his is extremely unlikely It Nov. 1983. the statement under these circumstances was fabricated. The statement un- material,

questionably and it was more

probative identity as to the assail- evidence, except

ant than other

Nick’s confession. The declaration

mother at the time of the event was more probative

rather than less than might give

that he have been able to

months after the event even if dis- compe-

trict court would have found him (Federal Evidence,

tent. Rule

601.) The of justice interests were by admitting

served declaration child,

this who was the victim a sexual

Case Details

Case Name: State v. Brown

Court Name: Supreme Court of Iowa

Date Published: Nov 23, 1983

Citation: 341 N.W.2d 10

Docket Number: 68073

Court Abbreviation: Iowa