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.
¶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, accordingly, to explain the effect on the person to whom the instruction was given…. Therefore, the trial court correctly ruled that the instruction was not hearsay when used to show why her mother began looking for her at 3:45 p.m. However, we do agree with Daniel that the State sought to offer and did offer Elizabeth’s mother’s testimony for purposes in addition to establishing why she went looking for her daughter when she did. Although that is the only purpose the prosecutor expressly acknowledged when asked by the trial court, the prosecutor’s other comments suggest the State viewed Elizabeth’s instruction to her mother as also relevant-“highly relevant”-to Elizabeth’s concern for her own safety. We understand the State’s position to be that, because Elizabeth’s utterance was in the form of an instruction, it was not hearsay when used either to prove that she said it (and thus to prove what her mother did in response) or to prove Elizabeth’s view’s of Daniel, and the State could therefore use the instruction for both purposes. The court’s ruling appears to accept this position, because it allowed the parties to “argue the inferences that can be drawn therefrom.”¶37. Our examination of the record at trial shows the State did in fact use Elizabeth’s instruction for a purpose other than to explain why her mother went looking for her when she did. Her instruction to her mother was mentioned three times in the State’s closing argument, and one of those references was clearly used to convey that Elizabeth feared Daniel might do something to harm her and that he did. We therefore address Daniel’s contention that Elizabeth’s instruction to her mother was hearsay when used in this way.