Williams v. State

¶1concurring in result.

¶2Because I do not agree that the excited utterance of-the three-year-old, out-of-court declarant was admissible in this case, I concur in result only. The majority cites with approval § 297 of McCormick on Evidence (3d ed. 1984) to support its contention that the competence of an out-of-court declarant is irrelevant to the determination of the admissibility of an excited utterance. This is not the law in Indiana as I read it.

¶3The case of Weldon v. State (1869), 32 Ind. 81, is stare decisis on the issue before us. In that case, this Court held that the statements of a six-year-old made to her parents soon after she was allegedly assaulted by the defendant were inadmissible hearsay and did not come within the res gestae exception to the hearsay rule because the declarant was incompetent to testify. This case has yet to be overturned in this state. See 15 A.L.R.4th 1043 (1982); 83 *1202A.L.R.2d 1368 (1962). While there is dicta in two of our eases to suggest that Indiana adheres to the rationale that competency pertains only to a witness’s ability to testify in court, Matthews v. State (1987), Ind., 515 N.E.2d 1105, 1106 n. 1, citing Moster v. Bower (1972), 153 Ind.App. 158, 171, 286 N.E.2d 418, 425; Jarrett v. State (1984), Ind., 465 N.E.2d 1097, 1099, those cases are distinguishable from this one. In Jarrett, the child witness was later determined to be competent and actually testified at trial. In Matthews, the victim was ten years old, and thus presumed competent, although the trial court subsequently found her to be not competent to testify. Her statements were held inadmissible under the res gestae exception because they had been made too long after the event occurred and only after repeated questioning by her parents and authorities. The issue of competency was not before this Court then. Furthermore, both cases involved a child victim’s out-of-court statement. Here the statement was an excited utterance made by a three-year-old concerning actions directed toward a third person, not an act which occurred to the child herself. The law in this state is as stated in Weldonand the rule is a sound one.1

¶4Excited utterances have long been recognized as exceptions to the hearsay rule because they generally carry with them, as do all statements which come within one of the exceptions to the hearsay rule, sufficient indicia from the circumstances under which they were made to assure their reliability without subjecting the declarant to cross-examination or the jury’s in-court scrutiny. The excited utterance of a three-year-old carries no such indicia of reliability, for competence cuts to the very heart of reliability.

¶5This Court has often stated that the test for determining a child's competence to testify is whether the child has the ability to distinguish truth from falsehood and whether the child understands the necessity and importance of telling the truth when testifying and feels some compulsion to do so. Jones v. State (1984), Ind., 464 N.E.2d 1283. We require this test because there is something inherently unreliable about the testimony of a child and we presume, by statute, that a child is incompetent to testify until proven otherwise. I.C. 34-1-14-5. This unreliability is connected not only to the child’s ability to tell the truth, as indicated by the second part of the test, but is also related to the child’s ability to perceive, as the first part of the test demonstrates. This deficiency in a child’s ability to perceive external events has been pointed out in a number of studies. See Goodman and Reed, Age Differences in Eyewitness Testimony, 10 Law and Human Behavior 317 (1986) and other articles cited by Justice Dickson in Matthews, 515 N.E.2d 1105, 1106 n. 2. This concern for unreliability is not allayed by the fact that the statement of the child was an excited utterance. In fact, such concerns are magnified in this context. Children are inherently more excitable than adults and are not equipped with as wide a worldview through which external events can be ordered. To a child, something told to them as being true is likely to seem as true or as real as something experienced directly and therefore is just as likely to produce an excited utterance as experiencing the event firsthand. The trier of fact in this situation will have great difficulty in deciding what weight to give such testimony without cross-examination or observing the child’s in-court demeanor.

¶6This concern for the unreliability of a child’s statements (as well as for the rights *1203of a defendant) is also evident in the statute controlling the admissibility of recorded statements of child victims, I.C. 35-37-4-6, and the cases limiting that statute, see, e.g., Miller v. State (1988), Ind., 531 N.E.2d 466, which, when read together, delineate a very narrowly drawn exception to the hearsay rule. The lengths to which the statute and our cases have gone to assure the reliability of such statements and protect defendants from this type of hearsay indicate to me the unreliability of such statements. They also demonstrate the distinction that should be drawn between a child’s perception of crimes committed against the child and those committed against others.

¶7For these reasons, I believe the excited utterance of the three-year-old here was improperly admitted into evidence by the trial court. However, even if we were to adopt the rule as stated in McCormick, § 297, as the majority has apparently done, the statement would still be inadmissible. The cited section makes clear that while direct proof is not necessary, it must appear from the circumstances that the de-clarant observed the event about which the statement was made and if there is any doubt, the question should go to the jury. Here, the ambulance attendants arrived shortly after 1:30 a.m. Common sense would dictate that a three-year-old would be asleep at that hour. The statement here contains no indication that the child actually observed the shooting and there is not an adequate showing in the record that would indicate that the child’s statement was the result of such observation. It is therefore inadmissible even under the majority rule. However, I agree with the majority that the statement merely repeated information that appellant had already conveyed himself in statements to ants, and that therefore the admission of the testimony in question was harmless error.