State v. Daniel H. Kutz

COURT OF APPEALS

DECISION

DATED AND FILED

September 25, 2003

Cornelia G. Clark

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62.

Appeal No.	02-1670-CR	Cir. Ct. No. 00-CF-1809
STATE OF WISCONSIN			IN COURT OF APPEALS



State of Wisconsin, Plaintiff-Respondent, v. Daniel H. Kutz, Defendant-Appellant.

APPEAL from a judgment of the circuit court for Dane County: stuart a. schwartz, Judge. Affirmed.

Before Deininger, P.J., Dykman and Vergeront, JJ.

¶1 VERGERONT, J. Daniel Kutz was charged with first-degree intentional homicide, hiding a corpse, stalking, and obstructing an officer, all arising out of the disappearance of his wife, Elizabeth Kutz, on July 27, 2000, and events preceding her disappearance. He was convicted of all four offenses after a jury trial and now appeals on two grounds: (1) the State did not have probable cause to arrest him and the trial court therefore erred in denying his motion to suppress evidence obtained in a search incident to that arrest; and (2) a number of Elizabeth’s statements, related by witnesses at trial, were inadmissible hearsay.

¶2 We conclude the State did have probable cause to arrest Daniel and the trial court therefore properly denied his motion to suppress evidence. With respect to those evidentiary challenges Daniel has properly preserved for appellate review, we conclude: (1) the instruction of Elizabeth to her mother to come looking for her if she was not home by 3:45 p.m. was not hearsay and therefore was not inadmissible on hearsay grounds; (2) Elizabeth’s hearsay statements to others that Daniel was following her came within the recent perception exception in Wis. Stat. § 908.045(2) (2001-02)[1] and therefore were properly admitted; and (3) Elizabeth’s hearsay statements to others of threats Daniel had made to her did not come within the state-of-mind exception in Wis. Stat. § 908.03(3), the recent perception exception in § 908.045(2), or the excited utterance exception in § 908.03(2)[2] and were therefore erroneously admitted; however, these errors were harmless. Accordingly, we affirm the judgment of conviction for each of the four offenses.

Probable Cause To Arrest

I. Background

¶3 At the time of her disappearance, Daniel and Elizabeth were married, had been together approximately twelve years, and had two children. They were having marital problems; about a week before her disappearance, Elizabeth had moved out of the house she shared with Daniel near Poynette, Wisconsin, and taken the two children to live with her mother in Poynette. On July 27, 2000, Elizabeth went to work in the morning at Demco in DeForest and left at 3:15 p.m., but she did not return to her mother’s house. Her family reported her missing later that day, and officers of the Village of DeForest Police Department began to search for her and Daniel and the vehicles each had been driving. The car Daniel had been driving that day, a blue Cavalier, was found about 11:00 p.m. parked behind a closed business down the street from Demco. Also at about 11:00 p.m., officers of the Dane County Sheriff’s Department picked up Daniel walking north along Highway CV, just north of the airport, without shoes or a shirt. They dropped Daniel off at his brother’s house in DeForest, where DeForest police officers located him. They asked Daniel to come to the police department for further questioning and he did. Approximately two hours later, Officer James Pertzborn placed Daniel under arrest. One of the items taken from him in the search incident to the arrest was a wristwatch, which was later tested and revealed traces of Elizabeth’s blood. Her body was never located.

¶4 Prior to trial, Daniel moved to suppress the evidence of the wristwatch and the test results, contending that the State lacked probable cause to arrest him. The evidence at the hearing on this motion showed that at the time of the arrest, Officer Pertzborn had the following information. Greg Stahl came to the police department shortly after 9:00 p.m. on July 27 and said that he and Elizabeth were having an affair; Elizabeth had told him Daniel was distraught over the breakup of their marriage and had threatened to kill himself; he had seen Daniel earlier that day in a blue Cavalier in an apartment parking lot near Demco; he and a friend had looked for Elizabeth and could not find her; and he and Elizabeth had plans for the evening and it was unlike her to not notify him if her plans changed. Stahl also stated that Elizabeth had told him on several occasions that Daniel had followed her, she was tired of his “controlling nature,” and she was afraid.[3] Officer Pertzborn also learned that Elizabeth was living with her mother and her mother had reported that Elizabeth called her at 3:15 p.m. and said she would be home from work in a half hour and if she were not home by then, to come looking for her. Her mother stated that it was uncharacteristic of Elizabeth not to let her mother know her plans, since she (her mother) had the children. Her mother told Officer Pertzborn she and the family had been contacting as many of Elizabeth’s close friends as they could think of and no one had any information about where she might be.

¶5 From fellow officers, Officer Pertzborn learned there had been a dispatch report earlier of an “estranged husband possibly stalking or hanging around …” his wife’s workplace, but the investigating officer did not see the husband. Officer Pertzborn also learned that within the last five months or so Daniel had been in possession of a firearm, which he had shown to family members, and had been arrested approximately two years previously for discharging a shotgun at or toward a truck driver who came to Daniel’s residence to repossess a truck.

¶6 Officer Pertzborn was one of the officers who went to Daniel’s brother’s house. He saw that Daniel was not wearing a shirt or shoes, his socks were wet and dirty, and his pants were rolled up and appeared damp or wet at the bottom. Daniel appeared very physically tired and depressed. Officer Pertzborn learned from another officer that when Daniel had arrived at his brother’s house, his brother had asked him where his boots and shirt were and where Elizabeth was, and Daniel had not given an answer; his brother was very concerned about where Elizabeth was.

¶7 Daniel disclosed that he was extremely distraught over the breakup of his marriage; he said that was the only thing on his mind, and he had not eaten or slept for two days. He suspected that Elizabeth was having an affair with a man named Greg who lived in Portage. He also spoke of a foreclosure that was occurring on farmland he and Elizabeth owned. Officer Pertzborn observed small scratches on Daniel’s wrist and a small sore on his hand, and he identified photographs showing these, which were admitted into evidence. He also saw what appeared to be dried blood on one of the sores.

¶8 Daniel gave this account of his activities on July 27. He had called Elizabeth early in the morning to say he would probably stop by to see her at work that day. He drove the blue Cavalier to meet her after work, and he parked it on County Highway V to wait for her. About 3:30 p.m., he saw her coming towards him in the green Jeep, she pulled over, he got in the Jeep with her, and left his car there. They drove around and talked about their marriage and the children; he said he could not be specific about where they went because he was concentrating on their conversation. They eventually went to Token Creek Park and had sexual intercourse in the vehicle, and he took his boots off, but kept his shirt on. They talked more, left the park, and Elizabeth drove to a Stop-N-Go gas station where he got out and went into the store; she said she had to go to Portage and he said he would walk. After he went into the store, he realized he left his boots in the Jeep. He bought a drink and snack, ate them, and started walking north on Highway CV until the officers picked him up. His intention was to walk home, which was about twenty-five to thirty miles away. He acknowledged that it was out of character for Elizabeth not to contact anyone and let them know where she was. However, he expressed no concern for her welfare or whereabouts and declined the offer to go with them to try to find her.

¶9 Officer Pertzborn testified to the training he had had on domestic violence, and, based on that training and on his experience, he saw several “red flags” indicating that Daniel may have harmed Elizabeth when he was with her on July 27: the evidence that Daniel had been seen at her workplace earlier in the day, meaning that he was potentially stalking her; her statement to her mother to come looking for her if she was not home by a certain time, potentially indicating she knew Daniel was stalking her and was afraid of him; her moving out and Daniel’s knowledge that she wanted to end the marriage and was having an affair; and the intensity of his preoccupation with the breakup of the marriage. Officer Pertzborn was also aware that Daniel’s car had been found in a location that was not where he said he left it.

¶10 Based on this evidence, the trial court concluded that when Officer Pertzborn arrested Daniel, he had probable cause to believe Daniel had committed a criminal offense. The court further concluded that the search was a lawful search incident to a lawful arrest, and there was probable cause to believe that the wristwatch might contain “trace elements” based on the evidence of his contact with Elizabeth. The court therefore denied the motion to suppress the evidence.

II. Discussion

¶11 In order to be lawful, an arrest must be based on probable cause. State v. Secrist, 224 Wis. 2d 201, 212, 589 N.W.2d 387 (1999). Probable cause for arrest exists when the totality of the circumstances within the arresting officer’s knowledge would lead a reasonable police officer to believe that the defendant probably committed a crime. State v. Koch, 175 Wis. 2d 684, 701, 499 N.W.2d 152 (1993). While the information must be sufficient to lead a reasonable officer to believe that the defendant’s involvement in a crime is “more than a possibility,” it “need not reach the level of proof beyond a reasonable doubt or even that guilt is more likely than not.” Secrist, 224 Wis. 2d at 212. Probable cause is a flexible, commonsense measure of the plausibility of particular conclusions about human behavior. State v. Petrone, 161 Wis. 2d 530, 547-48, 468 N.W.2d 676 (1991).

¶12 In determining whether probable cause exists, the court applies an objective standard, see State v. Riddle, 192 Wis. 2d 470, 476, 531 N.W.2d 408 (Ct. App. 1995), and is not bound by the officer’s subjective assessment or motivation. State v. Kasian, 207 Wis. 2d 611, 621, 558 N.W.2d 687 (Ct. App. 1996). The court is to consider the information available to the officer from the standpoint of one versed in law enforcement, taking the officer’s training and experience into account. State v. Pozo, 198 Wis. 2d 705, 712-13, 544 N.W.2d 228 (Ct. App. 1995). The officer’s belief may be predicated in part upon hearsay information, and the officer may rely on the collective knowledge of the officer’s entire department. State v. Cheers, 102 Wis. 2d 367, 386, 388-89, 306 N.W.2d 676 (1981). When a police officer is confronted with two reasonable competing inferences, one justifying arrest and the other not, the officer is entitled to rely on the reasonable inference justifying arrest. State ex rel. McCaffrey v. Shanks, 124 Wis. 2d 216, 236, 369 N.W.2d 743 (Ct. App. 1985).

¶13 In reviewing an order granting or denying a motion to suppress evidence, we uphold the trial court’s findings of fact unless they are clearly erroneous. Secrist, 224 Wis. 2d at 207. In this case, there were no significant disputes in the evidence presented at the motion hearing. Whether the evidence satisfies the standard of probable cause is a question of law, which we review de novo. Id. at 208. Our independent review leads us to agree with the trial court that Officer Pertzborn did have probable cause to arrest Daniel.

¶14 Based on the information Officer Pertzborn had at the time he arrested Daniel, a reasonable officer could infer that the reason Elizabeth had not returned to her mother’s house by 3:45 p.m. on July 27 was that she had been seriously harmed. The officer knew from Stahl, Elizabeth’s mother, and Daniel himself that it was unlike Elizabeth not to let others know if her plans changed; she had told her mother she would be home within a half hour after work and she had plans with Stahl for the evening. The officer also knew that her family and friends had been searching for her since about 3:45 p.m. without success. It was therefore reasonable to infer that someone would have learned of her whereabouts if she had not been incapacitated and also hidden. Had she been in an accident, which Daniel suggests is a reasonable alternative explanation, that likely would have come to the attention of someone searching for her.

¶15 From the following evidence, a reasonable officer could infer that Daniel was probably the person who had harmed Elizabeth and put her somewhere she would not be found. He was the last person known to have seen her. His story—that she dropped him off at the Stop-N-Go, said she had to go to Portage, and he decided to walk home twenty-five to thirty miles, forgetting he had no shoes on—is not credible for at least three reasons: (1) Daniel suspected she was having an affair with a man who lived in Portage and was upset about it, so it is not believable that he would have had no response to her statement that she had to go to Portage; (2) it is not believable that he would have been agreeable to being left at the Stop-N-Go with the only option being to walk such a distance; and (3) it is not believable that, planning to walk that distance, he would not have made sure he had his shoes before Elizabeth left in the Jeep. From the implausibility of this story and Daniel’s lie about the location of his car, it is reasonable to infer that he had something to hide about his encounter with Elizabeth. From his indifference to what had happened to her, it is reasonable to infer that he knew what had happened to her. Had he not known, it is inconceivable, given the strong feelings he had expressed for her, that he would not have been very upset that she had not turned up and would not have been anxious to find her, especially because, according to him, she said she was going to Portage where he knew the man lived.

¶16 Officer Pertzborn knew that Daniel was distraught over Elizabeth’s decision to leave him and his suspicions of her affair to the point of being obsessed. From this information and the information that Daniel had followed her to work on several occasions and parked his car near her workplace during the workday, the officer could reasonably infer that Daniel was monitoring her whereabouts. He could reasonably infer from the foregoing information and from the phone call to her mother that Daniel had given Elizabeth some reason to be afraid that he would be waiting for her after work and would not let her go home as she planned. The scratches on Daniel’s wrist and sore on his hand were consistent with a recent struggle with another person. Officer Pertzborn knew that Daniel had possessed a firearm as recently as five months ago, so he could reasonably infer Daniel had access to a weapon, and from the information about the arrest two years earlier, he could reasonably infer, at a minimum, that Daniel was capable of using a firearm to threaten harm to another person. Finally, from Officer Pertzborn’s training on domestic abuse, he knew that Daniel’s behavior and emotions in response to his wife’s leaving were indicators of a significant potential for engaging in violence toward her.

¶17 Daniel argues that, because there was no physical evidence of foul play, a disappearance of twelve hours is sufficient only for reasonable suspicion that Elizabeth was the victim of a crime, not for probable cause to believe that Daniel had committed a crime against her. Daniel also argues that his distress over his wife’s affair and her decision to leave are not sufficient to reasonably suggest that he would commit violence against her, because most of the time people do not commit violence against their spouses for those reasons. However, we are to consider the totality of the circumstances, not each fact in isolation. The circumstances here include specific behaviors and reactions of Daniel as well as other evidence, that, to an officer with Officer Pertzborn’s training, reasonably suggest that this particular situation had probably escalated to violence against Elizabeth. As for Daniel’s point that the scratches on Daniel’s wrists were consistent with the fact that he was sitting in tall grass when the officers picked him up, Officer Pertzborn was not required to draw the inference consistent with innocence when there was a reasonable inference consistent with culpability. See Shanks, 124 Wis. 2d at 236.[4]

¶18 We are satisfied that, at the time Officer Pertzborn arrested Daniel, the totality of the circumstances known to the officer, together with reasonable inferences from that information, was such that a reasonable officer could conclude that Daniel had probably committed a crime of violence against his wife.

Evidentiary Rulings

I. Background

¶19 Daniel brought a pretrial motion in limine seeking to preclude witnesses from relating numerous things Elizabeth said to them on the ground that they were hearsay statements and did not come within any exception. His objections were taken up by the court in these categories: (1) Elizabeth’s utterance to her mother when she called her on July 27 from work about 3:15 p.m., “If I am not home in a half hour come looking for me”;[5] (2) Elizabeth’s statements that Daniel had made threats to her; (3) Elizabeth’s statements that Daniel was following her; and (4) Elizabeth’s statements that Daniel had locked her in the bathroom.

¶20 With respect to Elizabeth’s utterance to her mother “[i]f I am not home in a half hour come looking for me,” the prosecutor argued that it was not hearsay because it was a command or instruction and not an assertion of historical fact, and therefore could not be offered to prove the truth of its contents. The prosecutor also stated: “The fact that an inference—a very strong inference—and obviously there is no objection to it on the grounds of relevance because it is highly relevant—the fact that an inference can be drawn from the command doesn’t make it hearsay ….” Defense counsel replied that the prosecutor’s comments showed that the State intended to use the utterance to prove that Elizabeth did run into trouble and thus it was hearsay. The court asked the prosecutor the purpose for the State offering the utterances. The prosecutor responded that the purpose was to prove that “after a half hour people started looking for Beth and didn’t find her.” The prosecutor continued:

I think it would be admissible and is admissible as a statement by Beth indicating some concern on her part for her health and well-being, that may be true, but we never have to get to that question because it’s not hearsay in the first place, it doesn’t assert a fact like the question, “Joe, why did you stab Bill?” asserts a fact.

¶21 The court concluded that because the State said it was not offering Elizabeth’s utterance to her mother for the truth of its contents but for other reasons, it was admissible, and the “parties can argue the inferences that can be drawn therefrom.”

¶22 With respect to Elizabeth’s statements that Daniel made threats to her, the prosecutor argued that they came within the state-of-mind exception in Wis. Stat. § 908.03(3) and the recent perception exception in Wis. Stat. § 908.045(2). Defense counsel conceded that some of these statements might be admissible as a recent perception with the proper foundation establishing the relation in time between Elizabeth’s statement and the event she described, but, counsel asserted, the submissions did not establish that foundation. The court agreed with defense counsel that it could not tell from the submissions when the threats that Elizabeth was relating had been made, and therefore it could not tell whether her statements came within the hearsay exception for recent perceptions. However, the court also stated that, based on the case law it had reviewed, it viewed Elizabeth’s statements of threats by Daniel to be admissible under the state-of-mind exception, § 908.03(3).

¶23 With respect to Elizabeth’s statements that Daniel was following her, the State argued, based on the submissions and certain offers of proof, that there was adequate foundation for all the statements under either one or more of the exceptions for present sense impression, Wis. Stat. § 908.03(1), excited utterance, Wis. Stat. § 908.03(2), and recent perception, Wis. Stat. § 908.045(2). After rather extensive commentary on the statements and the various exceptions argued by the prosecutor, the court concluded its comments with:

I’m not sure as I read these that they would be excited utterances, although some of them could be with the proper foundation, but I think that they do fall into one, two or three—Subsection (1), (2) or (3) of 908.03, and I think that they do fall within the category of 908.045(2).

Keep in mind by indicating that I’m going to admit these statements, the defense is certainly not estopped from renewing their objection if you feel during the course of the trial that the prerequisite underpinnings for this testimony have not been made by the State.

But based on what I’ve been able to read here at this time I would admit those statements, as well.

¶24 Finally, the court considered Elizabeth’s statements to others that Daniel had locked her in the bathroom and she had to climb out the window.[6] There was a brief discussion on the various exceptions that might apply, concluding with the court’s statement that it could not determine which, if any, exceptions applied without knowing how the evidence was actually going to come in at trial.

¶25 At trial, Daniel’s counsel did not object on hearsay grounds to any of the testimony relating Elizabeth’s utterance and statements.

II. Discussion

A. Waiver

¶26 We address first the State’s contention that Daniel has preserved his objection only to Elizabeth’s utterance to her mother to come looking for her and has waived the right to challenge all the other statements of Elizabeth that were the subject of his hearsay motion in limine. According to the State, the court made a definitive ruling only on that one utterance, and on all the other statements it simply provided guidance as to what it would likely consider admissible at trial. Therefore, the State continues, Daniel had to renew his objections at trial in order to preserve them, which he did not do.

¶27 The general rule is that parties waive objections to the admissibility of evidence if they do not object before the trial court. State v. Edwards, 2002 WI App 66, ¶9, 251 Wis. 2d 651, 642 N.W.2d 537. Whether an objection adequately preserves an issue for appeal presents a question of law, which the appellate court reviews de novo. State v. Agnello, 226 Wis. 2d 164, 172, 593 N.W.2d 427 (1999). The purpose of requiring an adequate objection to preserve an issue for appeal is to give the parties and the court notice of the disputed issue, as well as a fair opportunity to prepare and address it in a way that most efficiently uses judicial resources. Id. at 172-73. A definitive pretrial ruling preserves an objection to the admissibility of evidence without the need for an objection at trial, as long as the facts and law presented to the court in the pretrial motion are the same as those that arise at trial. State v. Venema, 2002 WI App 202, ¶25 n.6, 257 Wis. 2d 491, 650 N.W.2d 898; State v. Bergeron, 162 Wis. 2d 521, 528-29, 470 N.W.2d 322 (Ct. App. 1991).

¶28 Considering first Elizabeth’s statements that Daniel made threats to her, we conclude the court did make a definitive ruling that these were admissible under the state-of-mind exception to the hearsay rule. The fact that the court indicated it could not determine from the record whether those statements came within other exceptions does not render the court’s ruling on the state-of-mind exception preliminary or tentative: only one exception is necessary for hearsay to be admissible. For the same reason, after the court made the ruling on the state-of-mind exception, defense counsel was not obligated to object to the same statements at trial on the ground that they did not come within other exceptions.

¶29 With respect to Elizabeth’s statements that Daniel was following her, we understand the court to have ruled that if the State presented the foundation at trial it had laid out in argument, the statements would be admissible under the exception for recent perception. This is a conditional ruling but nonetheless definitive: the statements come in under that exception as long as the State presents the evidence it said it would. There was therefore no need for defense counsel to renew its hearsay objection to those statements in order to preserve it for appeal unless the State did not present the evidence it said it would, or unless other evidence, not brought to the court’s attention at the motion hearing, was presented at trial and called into question the applicability of that exception.[7] As we have already stated, the fact that the court did not definitively rule on other possible exceptions did not require Daniel to raise the inapplicability of those exceptions at trial.

¶30 We do agree with the State, however, that Daniel did not preserve his objection on hearsay grounds to testimony of statements Elizabeth made to others on the bathroom incident. The court made very clear it could not rule on what exceptions might apply to those statements until it heard how the evidence came in at trial. It was therefore incumbent on Daniel to object at trial to any testimony on this incident that he considered inadmissible hearsay. We also agree with the State that Daniel has not preserved for appeal hearsay objections to statements he did not include in his pretrial hearsay motion and did not object to at trial.[8]

¶31 Daniel argues that, because the waiver rule is one of judicial administration rather than judicial authority, we have the authority to, and should, address all the statements he challenges on appeal, even if he did not include them in his pretrial hearsay motion or did not obtain a trial court ruling on them. He relies on State v. Polashek, 2001 WI App 130, ¶28, 246 Wis. 2d 627, 630 N.W.2d 545 (Ct. App. 2001), aff’d in part and rev’d in part on other grounds, 2002 WI 74, 253 Wis. 2d 527, 646 N.W.2d 330 (2002). However, as we explain in Polashek, we exercise our discretion to address an issue not raised in the trial court only when the issue is one of law and certain other factors are present. Id. In contrast, the admissibility of evidence involves a trial court’s discretion, and an objection serves the purpose of allowing the trial court and the other party to correct any evidentiary error during the trial. See State v. Holt, 128 Wis. 2d 110, 124, 382 N.W.2d 679 (Ct. App. 1985). We therefore decline to consider Daniel’s hearsay challenges to statements that he did not include in the pretrial motion and to statements on which he did not obtain a definitive ruling.

B. Hearsay

¶32 We will address those hearsay objections Daniel properly preserved in this order: (1) Elizabeth’s utterance to her mother “[i]f I am not home in a half hour come looking for me”; (2) her statements that Daniel was following her; and (3) her statements that Daniel made threats to her.

¶33 The decision to admit or exclude evidence is generally a matter within the trial court’s discretion. State v. Peters, 166 Wis. 2d 168, 175, 479 N.W.2d 198 (Ct. App. 1991). We do not reverse such rulings if the court properly exercises its discretion by applying the correct legal standard to the relevant facts of record. State v. Sveum, 220 Wis. 2d 396, 405, 584 N.W.2d 137 (Ct. App. 1998). When the trial court bases a discretionary decision on an erroneous view of the law, it has exceeded its discretion. Id. However, an appellate court may review the record to determine if a statement is admissible under a particular hearsay exception even though the trial court did not admit the statement on that basis. See State v. Martinez, 150 Wis. 2d 62, 72, 440 N.W.2d 783 (1989).

1. “If I am not home in a half hour come looking for me”

¶34 Daniel contends that Elizabeth’s utterance to her mother, although in the form of an instruction to come looking for her, contained an implicit assertion that Daniel posed a danger to her. Therefore, he continues, it was a “statement” as defined in Wis. Stat. § 908.01(1): “(a) an oral or written assertion or (b) nonverbal conduct of a person, if it is intended by the person as an assertion.” He argues that in spite of the prosecutor’s statement to the trial court, the State offered Elizabeth’s instruction to prove that Daniel did in fact pose a danger to her, and it was therefore hearsay, that is, “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Section 908.01(3).

¶35 The State responds that an instruction is not hearsay because it is not an “assertion” under Wis. Stat. § 908.01(1). It emphasizes that Elizabeth’s mother’s testimony was not offered to prove the truth of any assertion contained in the instruction, but rather to show why her mother went looking for her when she did. In the alternative, the State argues, even if the instruction did contain an implicit assertion, implicit assertions are not included in the definition of “statement” and therefore cannot be hearsay.

¶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. See State v. Curbello-Rodriguez, 119 Wis. 2d 414, 427, 351 N.W.2d 758 (Ct. App. 1984) (statement not hearsay when offered to prove that it was said, that victims heard it, and victims were intimidated as a result); see also State v. Wilson, 160 Wis. 2d 774, 779, 467 N.W.2d 130 (Ct. App. 1991) (statement that owner’s roommate told defendant in a burglary prosecution that he could enter and take some items not hearsay to prove that the effect on the defendant, that is, he believed he had permission). 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.[9] 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.[10] We therefore address Daniel’s contention that Elizabeth’s instruction to her mother was hearsay when used in this way.

¶38 We begin with the question of whether Elizabeth’s instruction to her mother was an “assertion” within the meaning of Wis. Stat. § 908.01(1) and (3). “Assertion” is not defined in the rule, and neither party nor our own research has disclosed a Wisconsin case that has defined this word. Federal cases applying the identical federal rule, Fed. R. Evid. 801(a), have defined assertions as “positive declaration[s],” United States v. Lewis, 902 F.2d 1176, 1179 (5th Cir. 1990), and “utterances [that] assert facts.” United States v. Gibson, 675 F.2d 825, 834 (6th Cir. 1982). Treatises use definitions such as “expression of fact, or opinion, or … both,” David F. Binder, Hearsay Handbook § 1-2, at 1-3 (4th ed. 2001); and “either true or false and typically [but not necessarily] describ[ing] an event or condition that occurred in the past,” also including, for example, “a present state of mind, emotion or feeling.” 7 Daniel D. Blinka, Wisconsin Practice: Wisconsin Evidence § 801.2, at 525 (2d ed. 2001). These definitions are generally consistent with the dictionary definition of “assert”: to “state or express positively; affirm.” The American Heritage College Dictionary 82 (3d ed. 1993).[11] Bringing these various sources together and condensing a bit, we conclude that an “assertion” as used in Wis. Stat. § 908.01(1) means an expression of a fact, condition, or opinion.

¶39 The Wisconsin Judicial Council Committee’s Note to Wis. Stat. § 908.01 adds a further qualification to the term “assertion” in that it considers the intention of the speaker[12] to be determinative of whether something is an “assertion.” 59 Wis. 2d R229, R230 (1973). While this discussion primarily occurs in the context of a discussion of nonverbal conduct, which § 908.01(1) explicitly requires must be intended as an assertion in order to be a statement, the note also states: “In the case of an oral or written statement that lends itself to differing views with respect to the nature of the assertion, or nonverbal conduct, the intention of the declarant is the key to whether the statement can become hearsay.” Id. at R232.[13] The Federal Advisory Committee’s Note on the rule also emphasizes the intent of the speaker in determining whether something is an assertion: “nothing is an assertion unless intended to be one.”[14] Federal Advisory Committee’s Note, 1973, Wis. Stat. § 908.01, 59 Wis. 2d R230, R230-32.

¶40 The reason for requiring that an utterance be intended as an assertion is that when a speaker does not intend to communicate anything, his or her sincerity is not in question and the need for cross-examination to test perception, memory, and narration is much diminished. United States v. Long, 905 F.2d 1572, 1580 (D.C. Cir. 1990). Although some courts and commentators have criticized this reasoning,[15] we consider it generally sound. Moreover, while we are not bound by the Judicial Council Committee’s Note,[16] we view it as significant authority in construing the rule. Accordingly, we conclude that an assertion must be intended by the speaker as an expression of a fact, opinion, or condition.

¶41 The State contends that Elizabeth’s utterance to her mother cannot be considered an assertion because it is an instruction. It is generally true that commands, instructions, and questions are not considered assertions under the federal rule because they are not expressions of a fact, opinion, or condition, but instead are telling someone to do something or asking someone for information. However, this principle is not as rigid as the State suggests. While some treatises may state that commands, instructions, and questions are not assertions, including Binder, supra, § 2.2, at 2-4 to 2-6, on which the State relies, the very cases cited in support of that statement suggest this is not always true. See, e.g., Lewis, 902 F.2d at 1179 (“The questions asked by the unknown caller, like most questions and inquiries, are not hearsay because they do not and were not intended to assert anything.”) (emphasis added). Other treatises, including Blinka, supra, § 801.2, at 527-28, on which the State also relies, acknowledge that an exclamation mark or a question mark rather than by a period does not necessarily mean the utterance is not an “assertion” for hearsay purposes. See also 2 McCormick on Evidence § 246, at 97 n.6 (John W. Strong, ed., 5th ed. 1999). Indeed, in the trial court the State conceded that some utterances not in the form of a declarative sentence may contain an assertion, citing the classic example “Joe, why did you stab Bill?” used in Powell v. State, 714 N.E.2d 624, 628 (Ind. 1999).[17] Of the federal cases the State cites, some contain general statements to the effect that commands or instructions are not assertions, but in all the cases the commands or instructions were offered to prove that they occurred; thus, in none was the court asked to decide whether a particular command or instruction contained an assertion when offered to prove the truth of that assertion.[18]

¶42 We can see no logical reason why the grammatical form of an utterance—whether a declarative sentence, command/instruction or question—should conclusively determine whether an utterance is intended by the speaker as an assertion within the meaning of Wis. Stat. § 908.01(1).[19] We therefore conclude that the fact that Elizabeth’s utterance to her mother was in the form of an instruction does not automatically mean it was not an assertion.

¶43 We next consider the State’s contention that, because any assertion contained in Elizabeth’s instruction is implicit rather than explicit, it is not an assertion within the meaning of Wis. Stat. § 908.01(1). No Wisconsin case has addressed this issue,[20] and the Judicial Council Committee’s Note provides no guidance. Our review of federal case law reveals several different approaches.[21]

¶44 One approach, exemplified by United States v. Zenni, 492 F. Supp 464, 469 (E.D. Ky. 1980), construed the Federal Advisory Committee’s Note, see supra note 14, to prevent considering any implicit assertion as an assertion, apparently assuming that an intended assertion is necessarily only an explicit assertion.[22] A second approach, exemplified by United States v. Long, 905 F.2d 1572, 1580 (D.C. Cir. 1990), relied on the requirement of intent in deciding that a particular implicit assertion is not intended by the speaker as assertion, thus not foreclosing the possibility that an implicit assertion might be intended as an assertion.[23] A third approach, used by the Sixth Circuit in Lyle v. Koehler, 720 F.2d 426, 432-33 (6th Cir. 1983), defined the issue as whether the inferences the propounding party sought to elicit from certain letters “should be included within the set of ‘assertions’ that the letters make”; it concluded they were because the words of the letters “necessarily invited” those inferences and “form[ed] an integral part of the letters.” We view this approach as arriving at the intent of the speaker or writer by considering what assertions are necessarily implied in the utterance. Finally, a fourth approach, the one that Daniel propounds, was articulated in United States v. Reynolds, 715 F.2d 99, 102-03 (3d. Cir. 1975), where the court focused on the use of the utterance by the proponent and not on the speaker’s intent; the court concluded the utterance was hearsay because its probative value depended upon the truth of an assumed fact it implied.[24]

¶45 We do not adopt the approach of the Third Circuit, as expressed in Reynolds, because it does not take into account the intent of the speaker in determining whether an utterance is an assertion, and we have already decided that is a requirement for an “assertion” under Wis. Stat. § 908.01(1). On the other hand, we are not persuaded by the analysis in Zenni, which the State apparently favors, because that analysis assumes without explanation that an assertion does not include an intended expression of a fact, opinion, or condition if it is implicit in the words used. Moreover, the court in Zenni acknowledged that some utterances might be intended as an assertion even though the “words [were] non-assertive in form” and such utterances would require a preliminary determination of intent: for example, an airport security inspector that says “go on through” to a passenger after using a metal detector on them might intend to assert that the passenger did not have a gun. Zenni, 492 F. Supp at 469 n.21. We also observe that, even when treatises describe the rule in federal courts to be that implicit assertions are not hearsay, they often point out exceptions. See, e.g., McCormick on Evidence, supra, § 250, at 111-12 n.29 (noting in a footnote, that when the utterance “it will stop raining in an hour” is offered to prove it is raining, that is hearsay, because “the fact to be proved is a necessary implication of the utterance”).

¶46 We conclude that the preferable approach is to include within the meaning of “assertion” in Wis. Stat. § 908.01(1) an expression of a fact, opinion, or condition that is implicit in the words of an utterance as long as the speaker intended to express that fact, opinion, or condition. From the standpoint of the principles underlying the rule against hearsay, we see no reason to distinguish between an explicit and an implicit assertion. As for determining whether the speaker intends an implicit assertion and if so, what that assertion is, we adopt the framework described in the Judicial Council Committee’s Note and the Federal Advisory Committee’s Note for determining whether non-verbal conduct is intended as an assertion. The burden is on the party claiming that an utterance contains an implicit assertion to show that a particular expression of fact, opinion, or condition was intended by the speaker, and the trial court determines this as a preliminary matter. See supra note 14. See also United States v. Jackson, 88 F.3d 845, 848 (10th Cir. 1996). Sometimes it will be evident from the utterance itself that the speaker necessarily intended an implicit assertion. However, when evidence of surrounding circumstances is needed to resolve the issue, the party claiming an implicit assertion must present that evidence to the trial court. Id.

¶47 In this case, when the prosecutor stated at the motion hearing that Elizabeth’s instruction to her mother contained a highly relevant inference and defense counsel objected that use of the instruction for that purpose was hearsay, the trial court should have decided what implicit assertion, if any, the instruction contained. Although the trial court did not do so, our independent review of the record persuades us that a reasonable trial court could have concluded that the instruction did not contain an implicit assertion by Elizabeth that Daniel was dangerous. The instruction itself does not necessarily imply the assertion Daniel propounds. That is, the instruction itself necessarily implies that Elizabeth intended to assert to her mother that she wanted her mother to come looking for her if she was not home by 3:45 p.m., but the instruction, in itself, does not necessarily imply any assertion about the reason for her request. It was therefore incumbent upon Daniel to present evidence of the surrounding circumstances to support his position that Elizabeth intended to express to her mother that Daniel was dangerous. It is by no means clear from the submissions that she intended to express that fact. The submissions would support a determination that she intended to express to her mother her fear about what Daniel might do, which is not the same thing as expressing the fact of his dangerousness.[25] The submissions are also consistent with her fearing that he would bother her by insisting on talking her into coming back to him or by following her to prevent her from meeting Stahl—not that Daniel would harm her. Accordingly, we conclude there was a proper basis in the record for deciding that the instruction was not an assertion within the meaning of Wis. Stat. § 908.01(1) that Daniel was dangerous.

¶48 Because a reasonable judge could have determined that Elizabeth’s instruction to her mother did not contain the implicit assertion that Daniel was dangerous, the trial court did not err in denying Daniel’s motion to exclude the instruction on hearsay grounds. There may have been other bases on which the instruction could have been properly excluded, such as relevancy or prejudice, or a limiting instruction may have been appropriate to prevent the State from using the instruction to suggest that Daniel was dangerous. However, as we have mentioned above, see footnote 9, Daniel did not make any objection other than hearsay and did not request a limiting instruction. We emphasize, however, that nothing in this opinion should be read as approving a practice whereby a proponent of an utterance objected to as hearsay states the utterance will be used for a non-hearsay purpose and then at trial uses it to prove the truth of an implicit or explicit assertion.

2. Elizabeth’s statements of Daniel following her[26]

¶49 Daniel contends the trial court erred in ruling that the following statements of Elizabeth come within the hearsay exception for recent perception: (1) to her mother on July 16, 2000, that Daniel was on her tail all the time; (2) to her mother on July 22, that Daniel had found her in DeForest on that day and pulled out in front of her car and screamed at her for leaving without him; (3) to her mother on July 25 by telephone that she was at Burger King and Daniel had followed her there; (4) to her stepfather on July 21, upon coming into the house, that Daniel was up the road watching her from his car while she was trying to back out; (5) to Stahl by telephone in the evening of July 25, that Daniel had followed him home from work that day and when she was en route to Stahl’s apartment earlier in the evening, she saw Daniel in his car and turned in another direction to “throw him off”; and (6) to Stahl, on the morning of July 27, that Daniel had been following her to work for several days and she had seen him on her way to work that morning.[27]

¶50 Wisconsin Stat. § 908.045(2) is an exception available only if the declarant is unavailable as a witness and provides:

(2) Statement of recent perception. A statement, not in response to the instigation of a person engaged in investigating, litigating, or settling a claim, which narrates, describes, or explains an event or condition recently perceived by the declarant, made in good faith, not in contemplation of pending or anticipated litigation in which the declarant was interested, and while the declarant’s recollection was clear.

¶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. Weed, 2003 WI 85, ¶15, 263 Wis. 2d 434, 666 N.W.2d 485. Given the longer lapse of time allowed between the declarant’s perception and description of the event, the exception contains safeguards to insure trustworthiness and accuracy: (1) the event or condition must be recently perceived in relation to the declarant’s describing it; (2) the statement must be made while the declaration’s recollection is clear; and (3) the statement must not be in response to the instigation of a person engaged in investigating, litigating, or settling a claim and must be made in good faith with no contemplation of pending or anticipated litigation in which the declarant would be an interested party. Id., ¶¶14-15. The trial court has wide discretion in deciding whether the time lapse is sufficiently short and whether the statement was made in good faith without contemplation of anticipated litigation. See Christensen v. Economy Fire & Cas. Co., 77 Wis. 2d 50, 63-64, n.13, 252 N.W.2d 81 (1977).[28] In Kluever v. Evangelical Reformed Immanuels Congregation, 143 Wis. 2d 806, 813-15, 422 N.W.2d 874 (Ct. App. 1988), the court held that a time lapse of eight to ten weeks between the event and the statement describing constituted a “recent” perception.

¶52 We conclude the trial court properly exercised its discretion in ruling that the above six statements came within this exception. As to the last five of these statements, there is no reasonable argument that Elizabeth was not relating events she recently perceived: in each case it was the same day, in some cases during or immediately following the event described. With respect to the first statement, the context provided by Elizabeth’s mother’s testimony satisfies us that Elizabeth was describing recent events. Elizabeth’s mother testified that earlier that same day she herself had seen Daniel follow her daughter around her (Elizabeth’s mother’s) house, including into the bathroom, and Elizabeth said then he was not letting her out of his sight. In addition, the evidence—both the voluminous witness interviews submitted with the pretrial motion and the evidence at trial—was that Elizabeth and her mother were very close, Elizabeth confided in her mother, and they spoke or saw each other nearly every day, if not more often. Thus, it is reasonable to infer that Elizabeth was relating conduct that had occurred on that day or within a day or two prior. There is no indication that Elizabeth did not have a clear recollection when she related these six statements.

¶53 Daniel argues that these statements were not made in good faith because Elizabeth was involved in an affair with Stahl and therefore had an incentive to disparage her husband to others; also she was contemplating a divorce. However, the trial court took into account that these statements were made to people to whom Elizabeth was close, describing events soon after they occurred. The court decided that, given the nature and circumstances of these statements, Elizabeth made them in good faith notwithstanding that she might be thinking of a divorce. There is no evidence these statements were instigated by anyone. We conclude this was a proper exercise of the wide discretion given the trial court on the issue of the declarant’s good faith.

¶54 Daniel also argues that corroboration is required for this exception, citing State v. Stevens, 171 Wis. 2d 106, 119, 490 N.W.2d 753 (Ct. App. 1992). In that case, we held that the exception “does not apply to the aural perception of an oral statement privately told to a person.” Id. We reasoned that reliability under this exception depends upon “the possibility of corroborating the declarant’s

Case No.:	02-1670-CR
Complete Title of Case:		†Petition for Review filed.

Opinion Filed:	September 25, 2003
Submitted on Briefs:	May 14, 1003
Oral Argument:

JUDGES:	Deininger, P.J., Dykman and Vergeront, J.J.
Concurred:
Dissented:

Appellant
ATTORNEYS:	On behalf of the defendant-appellant, the cause was submitted on the briefs of T. Christopher Kelly, Kelly & Habermehl, S.C., Madison.

Respondent
ATTORNEYS:	On behalf of the plaintiff-respondent, the cause was submitted on the brief of Lara M. Herman, asst. attorney general, and Peggy A. Lautenschlager, attorney general.