Supreme Court of WisconsinMar 30, 1971
50 Wis. 2d 702 (Wis. 1971)
50 Wis. 2d 702184 N.W.2d 867

No. State 169.

Argued March 4, 1971. —

Decided March 30, 1971.

ERROR to review a judgment and an order of the circuit court for Eau Claire county: MERRILL R. FARR, Circuit Judge. Affirmed.

For the plaintiff in error there was a brief by Arnold P. Anderson and Carroll, Parroni Postlewaite, all of Eau Claire, and oral argument by Mr. Anderson.

For the defendant in error the cause was argued by Robert D. Martinson, assistant attorney general, with whom on the brief were Robert W. Warren, attorney general, William A. Platz, assistant attorney general, and Lawrence W. Durning, district attorney of Eau Claire county.

On April 8, 1970, plaintiff in error, Norman H. Bertrang (hereinafter the defendant) was found guilty by a jury of violating secs. 944.10(3), Stats., sexual intercourse with a female under twelve years of age, and 944.11(2), (3), indecent behavior with a child. After determining the defendant was not sexually deviant and after a presentence report, defendant was sentenced to an indeterminate term of not more than twenty years on the violation of sec. 944.10(3), and concurrent terms of not more than one year on each of the other two charges.

A motion for a new trial was made, heard and denied in the trial court.

The alleged victim in this case was the nine-year-old stepdaughter of defendant. The acts complained of occurred on the night of December 18, 1969, in the home of defendant while defendant's wife was in the hospital where she had given birth to a child on December 17, 1969.

The defendant visited his wife earlier in the evening, returned around 9 or 9:30 p. m., and then left again. He stated he went to two taverns where he had some beer. He returned home around midnight and dismissed the baby-sitter, his eighteen-year-old brother-in-law, and the baby-sitter's friend, a seventeen-year-old male. The events complained of occurred sometime during the night, in the defendant's bedroom. Further facts are set forth in the opinion.

Defendant seeks review of both this judgment of conviction and the order denying his motion for a new trial.

The pivotal issue on this review is whether an oral statement allegedly made by the victim to her mother the day after the event was hearsay, and if so, whether it was improperly received in testimony.

At trial Mrs. Bertrang was called by the state, and on cross-examination the following occurred:

" Q. Directing your attention to Saturday morning, after you talked to Tammy and discovered blood in her panties, did you discuss the blood with her? You can answer that `Yes' or `No.' A. No, I didn't discuss the blood.

" Q. Did you inquire as to whether or not something had happened? A. Yes.

" Q. Please answer this question `Yes' or `No,' did you ask her whether someone had done something to her? A. Yes.

" Q. When you asked her this, did you supply a name? A. Yes.

" Q. Did you say, `Did Norm do something?' A. No, I said, `Did your dad do something?'

" Q. You said, `Did your dad do something?' A. Yes.

" Q. Had she at any time volunteered the name of the individual that did something? A. I don't know.

"The Court: I didn't hear that answer.

"Witness: I don't know."

The subject was not pursued any further by the defense.

On redirect examination, however, the state asked the following:

" Q. And when you talked to Tammy concerning the events, the conversation on Saturday morning, December 20th, you stated that you asked her, `Did your dad do something'" A. Yes.

" Q. What was her answer?

"Mr. Hart: I object, Your Honor. I think this is hearsay testimony.

"The Court: Just a moment.

"Mr. Durning: I admit it is hearsay. I think counsel opened up the subject, however.

"The Court: I think he did. You may answer.

" A. Would you repeat it one more time, please?

"Mr. Durning: Would you please repeat the question, please, Miss Reporter?

"(Question read by reporter as follows: What was her answer?)

" A. She said `Yes.'

" Q. No further questions."

This was hearsay testimony. As such it was improperly received unless it was admissible under an exception to the hearsay rule.

1. Curative admissibility. In its decision on defendant's motion after verdict, which motion embodied the same issue presented on this appeal, the trial court felt that the rule which was applicable is that of curative admissibility as recognized by this court in Pruss v. Strube.

We question the applicability of the "curative admissibility" rule. The purpose of this rule is to "cure" some prejudice resulting to a party as the result of the presentation by the opposing party of evidence which is inadmissible. Here all of the testimony of Mrs. Bertrang was admissible. Defense counsel was careful to inquire only as to what Mrs. Bertrang said or knew. He cautioned her to answer each question only with a "Yes" or "No" answer. Only these answers were given.

2. Res gestae. But the statement was clearly admissible under the well-recognized exception which admits the statement made to a witness which is part of the res gestae. The key elements of this exception are contemporaneity and spontaneity.

In this case we have statements made by the victim on the second day following the alleged criminal acts, and made in response to questions from her mother, the witness testifying. In addition, the victim was nine years old and the victim of a sexual assault which was established by physical evidence. Such circumstances are often considered by courts in passing on the admission of assertions under the res gestae exceptions. Courts generally take a broader and more liberal view of the res gestae exception when assertions of a young child are involved, particularly when the child is the victim of a sexual assault or other traumatic experience. We think Bridges v. State, an early decision of this court, is especially in point. In Bridges, this court held that testimony of the mother of a seven-year-old child as to statements made by the child in response to questions of the mother, which statements indicated the defendant had taken indecent liberties with the child, were admissible. In Bridges this court adopted an exception to the hearsay rule related to res gestae but apparently conceptually independent thereof. The court stated:

Annot. (1962), 83 A.L.R. 2d 1368.


See, e.g., Annot., supra, footnote 2, at page 1370.

". . . The mother's testimony as to the statement of those particulars by Sharon was clearly admissible under the rule that where the person ravished is very young, testimony as to the particulars of such statements by her is admissible. Hannon v. State, 70 Wis. 448, 451, 452, 36 N.W. 1; Bannen v. State, 115 Wis. 317, 329, 91 N.W. 107, 91 N.W. 965; Smits v. State, 145 Wis. 601, 605, 606, 130 N.W. 525."

Bridges, supra, footnote 4, at page 363.

Other courts have apparently merely eased the requirements of contemporaneity and spontaneity in admitting the statements under the res gestae exception. Under such analysis, each case is considered on its particular facts, but the fact that the assertions are not made within a few minutes or even hours of the alleged assault is not controlling, nor is the fact that they are not volunteered but made in response to questions.

Annot., supra, footnote 2.

See, e.g., State v. Simmons (1968), 52 N.J. 538, 247 A.2d 313.

See, e.g., In re Lewis (D.C.App. 1952), 88 A.2d 582.

The reasons for such an exception to the hearsay rule are obvious. A young child may be unable or unwilling to remember (as here) all the specific details of the assault by the time the case is brought to trial; or be unwilling to testify, or at least inhibited in doing so from a feeling of fear or shame, or as a result of the strangeness of the courtroom surroundings, particularly with a jury and perhaps members of the general public present. The desirability of avoiding the necessity of forcing a young child to testify to such matters at all has been noted, particularly when the defendant is (as here) a parent or occupies some other close relationship to the child.

State v. Boodry (1964), 96 Ariz. 259, 394 P.2d 196, certiorari denied, 379 U.S. 949, 85 Sup.Ct. 448, 13 L.Ed.2d 546.

We conclude therefore that the testimony of the mother about the statements made to her by her nine-year-old daughter were admissible, in the discretion of the trial court, as an exception to the hearsay rule recognized in Wisconsin in Bridges.

Each case must be viewed on its particular facts and in exercising its discretion of whether to admit testimony about statements made by a child of similar age to the one here involved, the trial court should consider the age of the child, the nature of the assault, physical evidence of such assault, relationship of the child to the defendant, contemporaneity and spontaneity of the assertions in relation to the alleged assault, reliability of the assertions themselves, and the reliability of the testifying witness.

Although the trial court did not admit the testimony on this basis, defendant was not prejudiced, since it was admissible on these grounds.

By the Court. — Judgment and order affirmed.