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).
¶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. However, we cannot agree that a reasonable trial judge on this record could conclude that when Elizabeth told Bobholz the next morning of Daniel’s threat, she was still under the stress of the excitement from the night before. There is no basis for inferring that, from the time of the threat the night before until she related it to Bobholz, Elizabeth had no time to reflect and no break in the stress caused by the excitement of the threat. The State does not provide us with any case that applies the exception in a similar fact situation, and we have been able to locate none.38
38 The special considerations when a child is the declarant are not involved. See Huntington, 216 Wis. 2d at 682-83. For adults, an event of an extreme nature that has a severe effect on the declarant has been found to justify a lapse of a few hours. See State v. Boshcka, 178 Wis. 2d 628, 640-41, 496 N.W.2d 627 (Ct. App. 1992) (statements made within a few hours after declarant suffered a repeated and aggravated sexual assault and threat of death should she report it, made to the first people she talked to after the incident). Here we have a longer time lapse and less extreme circumstances.