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Hearsay – Statement of Recent Perception, § 908.045(2)

State v. Antwan B. Manuel, 2005 WI 75, affirming 2004 WI App 111
For Manuel: Steven D. Phillips, SPD, Madison Appellate

Issue/Holding1 [general principles]:

¶29      … As this court summarized in Weed, for a statement to fit recent perception exception, it must pass the following three criteria:

(1) the statement was not made in response to the instigation of a person engaged in investigating, litigating, or settling a claim and was made in good faith with no contemplation of pending or anticipated litigation in which the declarant would be an interested party; (2) the statement narrated, described, or explained an event or condition recently perceived by the declarant; and (3) the statement was made while the declarant’s recollection is clear. [6]

Weed, 263 Wis. 2d 434, ¶14 (citation and quotations omitted).  Only the first criterion is at issue here.¶30      According to 7 Daniel D. Blinka, Wisconsin Practice: Wisconsin Evidence, § 8045.2 at 710 (2d ed. 2001), the statement of recent perception exception “mainly focus[es] on the declarant’s mental state at the time the statement was made.”  Because the exception is based on unavailability, however, the exception’s criteria “must be inferred from the statement itself and the surrounding circumstances.”  Id.

Issue/Holding2 [applied to facts]:

¶31 With regard to the specifics of the first criterion, we first note that Stamps’ statements were not made in response to the instigation of a person engaged in investigating, litigating, or settling a claim. Stamps made his statements to his girlfriend two days after the shooting, just before they went with their son to a motel in Sun Prairie. The trial court ruled that Rhodes’ testimony formed the basis for Stamps’ comments about what had occurred and for their behavior afterwards. There simply is no evidence that Stamps’ comments were made in response to the instigation of Rhodes, and it is clear that she was in no way investigating, litigating, or setting a claim.…

¶33 … Thus, the trial court essentially found that there was no indication the statement was made in bad faith and was not made in anticipation of litigation. We cannot conclude this assessment was unreasonable.

Stamps, in other words, made several statements to his girlfriend Rhodes about a shooting he had witnessed and Rhodes told the police what Stamps had said. Stamps took the 5th at trial, and was therefore an unavailable declarant. Rhodes testified, but denied remembering anything. Note that court’s recitation of facts in ¶31 is misleading: Stamps did not make the statements two days after the shooting; rather, he made them several hours afterward (see ¶1 [“Shortly after the incident”]; and 2004 WI App 111, ¶3 [“on the night of the shooting”]). Why harp on this? The point of the recent perception exception is to allow greater lapse of time between described event and description than would be accommodated by its better-pedigreed cousins, present sense impression and excited utterance, see ¶28. Several hours is plenty long as it is; two days is something else.

Worth noting, too, the reference to Dan Blinka’s treatise, which in the past year alone has been cited approvingly by the supreme court for some evidentiary proposition or another no fewer than 9 times (by rough count). If Blinka isn’t the most highly regarded commentator on the Wisconsin evidence code then it’s hard to say who would be. Regardless, the court’s reliance is quite clear, so that if you’ve got an evidence problem his treatise is one of the first resources to consult.

 

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