On Point: H. Hearsay, Ch. 908

State v. Daniel H. Kutz, 2003 WI App 205, PFR filed 10/27/03
For Kutz: T. Christopher Kelly

Issue: Whether a homicide victim’s statement – “If I am not home in half an hour come looking for me” – was a hearsay “statement,” as defined in § 908.01(1), i.e., offered for the truth of the matter asserted.
Holding:

¶36. There is no dispute that an out-of-court instruction to do something is not hearsay when offered to prove that the instruction was given and,

State v. Daniel H. Kutz, 2003 WI App 205, PFR filed 10/27/03
For Kutz: T. Christopher Kelly

Issue: Whether the declarant’s statement to another relating a threat by the defendant was admissible as an excited utterance, § 908.03(2).

Holding:

¶65. We agree with the State that the first two elements of this exception are met: Daniel’s threat to Elizabeth is a startling event and her statement to Bobholz certainly relates to it.

State v. Daniel H. Kutz, 2003 WI App 205, PFR filed 10/27/03
For Kutz: T. Christopher Kelly

Issue: Whether statements made by the declarant to others describing various threats made by the defendant were admissible under the state-of-mind hearsay exception, § 908.03(3).

Holding:

¶60                        Since there are no Wisconsin cases that have resolved this issue, we look to federal cases for guidance in applying the same rule. 

State v. Robert L. Snider, 2003 WI App 172, PFR filed 8/22/03
For Snider: Timothy J. Gaskell

Issue: Whether a child-victim’s videotaped statement must satisfy all the conditions in § 908.08, or may instead satisfy the residual exception.

Holding:

¶12. We agree with the State that the plain language of Wis. Stat. § 908.08(7) permits the admission of a child’s videotaped statement under any applicable hearsay exception regardless of whether the requirements of subsections (2) and (3) have been met. 

State v. Daniel H. Kutz, 2003 WI App 205, PFR filed 10/27/03
For Kutz: T. Christopher Kelly

Issue/Holding1:

¶51. The recent perception exception is similar to the hearsay exceptions for present sense impression and excited utterances, but was intended to allow more time between the observation of the event and the statement in cases where the declarant is unavailable and the evidence would otherwise be lost.

State v. Luther Williams, III, 2002 WI 58, reconsideration denied 2002 WI 118; on certification
For Williams: Martha K. Askins, SPD, Madison Appellate

Issue: Whether a crime lab report is admissible under the business records exception, § 908.03(6).

Holding:

¶48. There can be little question that when state crime labs generate reports like those at issue here,

State v. Gary L. Gordon, 2002 WI App 53, affirmed, 2003 WI 69
For Gordon: Steven P. Weiss, SPD, Madison Appellate

Issue: Whether proof-of-service documents, introduced to show defendant’s knowledge of a domestic violence injunction, violated the hearsay rule.

Holding:

¶43. … However, these documents were not made under oath or attested to in any way; thus, they were not affidavits.

State v. Shelleen B. Joyner, 2002 WI App 250, PFR filed 10/24/02
For Joyner: Margaret A. Maroney, SPD, Madison Appellate

Issue/Holding:

¶18. Shelleen Joyner argues that Trudy Joyner’s statement is against her penal interest, however, because Trudy Joyner admitted that she “knowingly helped a robber escape.” We disagree. “[W]hen ruling upon a narrative’s admissibility … a court must break it down and determine the separate admissibility of each ‘single declaration or remark.’”

State ex rel. Willie C. Simpson v. Schwarz, 2002 WI App 7, PFR filed 1/11/02

Issue/Holding: Child-sexual-assault-victim’s hearsay statement in this revocation case satisfies test for admissibility under residual exception, State v. Sorenson, 143 Wis. 2d 226, 421 N.W.2d 77 (1988).

State v. Luther Williams, III, 2002 WI 58, on certification
For Williams: Martha K. Askins, SPD, Madison Appellate

Issue: Whether Williams satisfied the unavailability requirement necessary to admit a declarant’s against-interest hearsay statement exculpating the defendant, § 908.045(4).

Holding: Unavailability is determined by § 908.04(1)(e), and requires a “good-faith effort” and due diligence” in attempting to secure the declarant’s presence, ¶62.