Rusecki v. State
Rusecki v. State
Opinion of the Court
Two evidentiary questions are raised on this review:
1. Did the trial court err in not excluding Krass’s testimony concerning the defendant’s runaways, such information being communicated to him from the boy’s parents ?
2. Did the trial court err in not excluding the medical report and Krass’s testimony concerning that report pursuant to sec. 885.21, Stats. ?
A. Hearsay testimony.
It is the contention of defendant that the trial court’s delinquency finding, based upon sec. 48.12 (3), Stats.,
The state argues Krass’s testimony concerning the runaways falls within both the official records
The objectionable testimony, according to defendant, is as follows:
“Q. Could you tell us when he broke any of these rules and what rules he broke? A. On May 10 of 1971 he was a runaway and that he did run away from his home for approximately one week’s time. However, he did return on his own accord. On June 17, 1971, he did run away from home, at which time he did violate a court order indicating that he was restricted to the home pending a hearing on the allegation that was before the court at that time.
“Q. Mr. Krass, leaving the home without his parents for a day or more at a time, is that contrary to one of the rules that you have for probation? A. That is correct.
“Q. And did you discuss any of these breaking of the rules with Scott Ruseeki ? A. Yes, I did.
“Q. And do you have the power, Mr. Krass, to discipline someone ? A. That is correct.
“Q. What sort of discipline do you have the power to give? A. Most generally I restrict the individual to the home.
“Q. And did you apply any of this discipline to Scott Ruseeki? A. That is correct.
“Q. What else do you do, if anything, regarding a boy who breaks your probation rules? A. If he continues to*306 break the restrictions I would petition the court. But I have no type of discipline other than that. It’s at my disposal.
“Q. Now, Mr. Krass, you referred to a runaway some time in May? A. That is correct.
“Q. Now, how were you— Were you in any way involved in this runaway? A. I was contacted by the parents and they indicated to me that he was, in fact, a runaway.
“Mr. Rose: I am going to object, that’s hearsay. It’s also not in the petition. The petition just recites a June 17 runaway.
“[The objection was overruled by the trial court and the remarks were elaborated upon by Krass.] ”
The Children’s Code expressly provides for the use of the customary rules of evidence used in civil trials in the juvenile court hearing.
“. . . Hearsay evidence is testimony in court or written evidence, of a statement made out of court, such statement being offered as an assertion to show the truth of the matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.”6
In addition to ch. 48, Stats., providing for the use of civil trial evidence in the juvenile adjudication, this court has provided that unverified hearsay statements are generally to be excluded. In Harry v. State,
1. Waiver. The state contends that the defendant cannot now complain of the receipt in evidence of the hearsay portions of the social worker’s report because he waived its admissibility when his counsel failed to make a timely objection to that evidence. The state cites State v. Hebard
We have said:
“It is one of the most elementary rules of evidence that an objection must be made as soon as the opponent might*308 reasonably be aware of the objectionable nature of the testimony . . . .” (Emphasis supplied.)12
It is perfectly clear from the instant record here that the hearsay aspect of Krass’s statement was not apparent from the first exchange concerning the runaways. Only during the second exchange, seconds later, did it become apparent that the probation officer was not testifying from personal knowledge or observation, but from information communicated to him by others. At this point this line of questioning was immediately objected to. Defendant’s objection was timely.
2. The official records exception. The state contends that the social worker-probation officer’s report was validly received in evidence in its entirety under the official records exception to the hearsay rule. That exception is stated in sec. 889.18, Stats., which provides:
“(1) As evidence. Every official record, report or certificate made by any public officer, pursuant to law, is evidence of the facts which are therein stated and which are required or permitted to be by such officer recorded, reported or certified . . . .”13
The record made by a child’s probation officer undoubtedly is an official record within the purview of this statute. The Children’s Code provides that juvenile court workers or probation officers who are appointed to furnish services to the court as per secs. 48.06 and 48.07, must keep a written record of their investigations and submit that record to the juvenile court judge.
But the precise question here becomes whether hearsay statements may be included within the probation
In Jacobson v. Bryan,
The official report or records exception was also interpreted in Estate of Eannelli,
More recently, in Wilder v. Classified Risk Ins. Co.
“. . . Generally, under sec. 889.18 matters appearing therein founded upon hearsay are admissible, but this court has made a qualification for traffic-accident reports.”
Our inquiry then must be: Is the official records exception applicable to the juvenile adjudication? The Children’s Code, as has been noted, makes the usual evidentiary rules of civil trials applicable to juvenile
McCormick, on the other hand, chafes at the limitation to personally observed matters in the public records exception. He observes
“[T]he conclusions of a professional investigator making inquiries required by his professional and public duty contain assurances of reliability analogous to those relied upon as assuring accuracy of his statements of fact, from firsthand knowledge. A skilled investigator can be presumed to report as accurate or to rely upon a hearsay statement only after inquiry into its accuracy. Often such an inquiry, by one professionally equipped to make it well and on the scene at a time when events are fresh and inquiry is most likely to be fruitful, could be relied upon to assure the reliability of those hearsay statements upon which he relies.”19
However, McCormick opts for the more limited expansion of the public records exception propounded in the Proposed Federal Rules of Evidence rather than the broader approach of the Uniform Rules. The Proposed Federal Rules
Several cases in sister jurisdictions have discussed the admissibility of investigative reports containing hearsay statements. Thus, for example, in Warner v. Ward,
The Supreme Court of Errors of Connecticut in In re Appeal of Dattilo,
In Long v. Long
Finally, the Municipal Court of Appeals for the District of Columbia reversed an order of commitment of a child by the juvenile court on the basis that an employee of the social services department was permitted to read an ex parte report which contained statements from the child’s doctor.
“But even if we put aside the question of privilege there still remains the basic fact that respondent’s rights were adjudicated and her liberty taken from her on the basis of an alleged professional opinion of a medical man whom her counsel had no opportunity to cross-examine. The doctor was described as a psychiatrist, but there was nothing in the record about his professional status except his name. Respondent had no opportunity to cross-examine him as to his experience or qualifications, as to the nature and extent of his professional contact with respondent, as to the basis for his opinions, or whether commitment for an indefinite period . . . was the only sound medical solution of the frictions and problems which had arisen between mother and daughter.”26
In summary, the question for determination by this court is whether the official records exception to the
The commentators urge caution where the rights of confrontation and cross-examination in criminal cases exist. Liberalization has been the trend in the child custody cases,
Arguably, the United States Supreme Court has indicated its desire that the formalities of the criminal adjudicative process are not to be engrafted onto the juvenile court system.
While juvenile adjudications are not “criminar’ they may result in a significant curtailment of a child’s freedom. For this reason we choose to concur with McCormick and the Proposed Federal Rules which limit the admissibility of public records containing hearsay statements to civil litigation, i.e., to litigation wherein the rights of confrontation and cross-examination of one’s accusers are not all important.
“Business records as evidence. Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of such act, transaction, occurrence or event, if the custodian or other qualified witness testifies to its identity and mode of preparation, and if made in regular course of any business, and if it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter. All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but such circumstances shall not affect its admissibility. The term ‘business’ as' used in this section, includes business, profession, occupation and calling of every kind.”
Again, this court has not interpreted this exception to the hearsay rule in the juvenile court context. While it has generally been applied in civil litigation, this court has also applied the exception to criminal trials. Thus, in Blackwell v. State
As previously noted, in Wilder v. Classified Risk Ins. Co.,
“. . . In business as in hospitals, the persons making the entries have personal knowledge in most cases or they rely on statements of employees or persons in the business or hospital who have a duty to make the statements relied upon.” (Emphasis supplied.)32
On the question of whether investigative reports ought fully to fall within the business-records exception, McCormick vacillates.
“. . . If, however, the supplier of the information does not act in the regular course [of business], an essential link is broken; the assurance of accuracy does not extend to the information itself, and the fact that it may be recorded with scrupulous accuracy is of no avail. An illustration is the police report incorporating information obtained from a bystander: the officer qualifies as acting in the regular course but the informant does not. . . . The rule follows this lead in requiring*316 an informant with knowledge acting in the course of the regularly conducted activity.”35
It is our conclusion that the business-entry exception to the hearsay rule should not be interpreted to allow the probation officer’s report containing hearsay allegations into evidence during the adjudicative phase of the juvenile proceeding. The scholars and proponents of the Uniform Evidentiary Codes are significantly cautious when the hearsay exceptions confront rights of confrontation and cross-examination. These constitutional rights, since Gault, properly belong to the juvenile as well as the adult accused. The “wooden” designation of juvenile adjudications as criminal or civil is singularly unimportant.
We conclude, therefore, that it was error to admit into evidence the hearsay aspects of the social worker-probation officer’s report.
B. Privileged information.
Defendant argues that the juvenile court’s finding of delinquency based upon sec. 48.12 (4), Stats.,
For three reasons, defendant’s position with respect to the physician-patient privilege is untenable. The first is that the record does not show defendant was being treated by Dr. Kappus.
Second, sec. 885.21 (1), Stats., itself provides an exception to the privilege where:
“ (f) In situations where the examination of an abused or injured child creates a reasonable ground for an opinion of the physician or surgeon that the condition was other than accidentally caused or inflicted by another.” (Emphasis supplied.)
While there are no Wisconsin cases interpreting this provision as applying to other than child abuse juvenile litigations, a plain reading would appear to include any case where a child is injured other than accidentally.
Third, although the juvenile court admitted Dr. Kappus’s medical evaluation of Scott Rusecki, over counsel’s objection, the court expressly stated it would not consider the report except for purposes of disposition. Defendant’s counsel strenuously argues that the only evidence of a sec. 48.12 (4), Stats., violation was the reference to drug abuse by Dr. Kappus. This is not true. Excluding from consideration any reference to either drug abuse or hearsay runaways, the police officer’s testimony that he found defendant half naked and incoherent is more than sufficient to base a finding that defendant “habitually so deports himself as to injure or endanger the morals or health of himself or others” within the meaning of sec. 48.12 (4).
We thus conclude that, although the finding of delinquency under sec. 48.12 (3), Stats., was in error, the finding under sec. 48.12 (2) is unopposed and the finding under sec. 48.12 (4) is valid. The order for transfer must be affirmed since the adjudication of delinquency is upheld on two of the three grounds found by the trial court, the court’s disposition is within the prescribed statutory limits, and we find no abuse of discretion in that disposition.
By the Court. — Judgment affirmed.
“(3) He is uncontrolled by his parent, guardian or legal custodian by reason of being wayward or habitually disobedient; »
See. 889.18 (1), Stats.
Sec. 889.25, Stats.
Sec. 48.25 (8), Stats.: “Evidence. If there is a disputed issue of fact, the customary rules of evidence applied to issues of fact in civil trials shall be followed. . . .”
McCormick, Evidence (2d ed. hornbook series), p. 460, sec. 225. See: Auseth v. Farmers Mut. Automobile Ins. Co. (1959), 8 Wis. 2d 627, 630, 99 N. W. 2d 700; Grunwald v. Halron (1967), 33 Wis. 2d 433, 439,147 N. W. 2d 543.
(1944), 246 Wis. 69, 81,16 N. W. 2d 390.
(1966), 32 Wis. 2d 152, 161, 145 N. W. 2d 178.
(1966), 383 U. S. 541, 562, 86 Sup. Ct. 1045, 16 L. Ed. 2d 84.
Excluded, that is, irom the adjudicative portion of the bifurcated juvenile adjudication. Although there is no authority therefor, these reports containing hearsay allegations, nonadjudi-cated police contacts, and the like, are uniformly perused during the dispositional phase of the proceeding.
(1971), 50 Wis. 2d 408, 425, 184 N. W. 2d 156.
Collier v. State (1966), 30 Wis. 2d 101, 104, 140 N. W. 2d 252.
The statute continues with an exception not applicable here.
Sec. 48.08 (1), Stats.
(1944), 244 Wis. 359,12 N. W. 2d 789.
(1955), 269 Wis. 192, 68 N. W. 2d 791.
(1970), 47 Wis. 2d 286, 289, 177 N. W. 2d 109.
5 Wigmore, Evidence (3d ed.), p. 532, see. 1635.
McCormick, Evidence (2d ed. hornbook series), p. 738, sec. 317.
Proposed Federal Rules of Evidence, Rule 803 (8), 51 F. R. D. 315, 420 (1971). See also: 2 Federal Civil Practice (4th ed.), pp. 56, 57, 206-208.
4 Jones, Evidence (5th ed.), Uniform Rules, 63 (15), p. 1950.
(Ky. 1966), 401 S. W. 2d 62, 64.
(1950), 136 Conn. 488, 72 Atl. 2d 50, 53.
(1967), 251 Cal. App. 2d 732, 59 Cal. Rptr. 790.
In re Sippy (D. C. Ct. App. 1953), 97 Atl. 2d 455.
Id. at page 457.
See Larson v. Larson (1966), 30 Wis. 2d 291, 140 N. W. 2d 230; Dees v. Dees (1969), 41 Wis. 2d 435, 164 N. W. 2d 282.
McKeiver v. Pennsylvania (1971), 403 U. S. 528, 551, 91 Sup. Ct. 1976, 29 L. Ed. 2d 647. See also: In re D. M.D. (a minor) v. State (1972), 54 Wis. 2d 313, 317, 195 N. W. 2d 594.
In re Gault (1967), 387 U. S. 1, 87 Sup. Ct 1428, 18 L. Ed. 2d 527. See also; Winburn v. State (1966), 32 Wis. 2d 162, 145 N. W. 2d 178.
(1969), 42 Wis. 2d 615, 623, 167 N. W. 2d 587.
Supra, footnote 17.
Id. at page 293.
McCormick, Evidence, supra, footnote 19, at pp. 717-734, secs. 304-314.
Id. at page 727.
(1971), 51 F. R. D. 419, 427. See also: 2 Federal Civil Practice (4th ed.) pp. 202-206.
Cf. McKeiver v. Pennsylvania, supra, footnote 28.
“(4) He habitually so deports himself as to injure or endanger the morals or health of himself or others.”
Sec. 885.21, Stats.: “Communications to doctors. (1) No physician or. surgeon shall be permitted to disclose any information he may have acquired in attending any patient in a professional character, necessary to enable him professionally to serve such patient . . . .”
See generally, Racine v. Woiteshek (1947), 251 Wis. 404, 29 N. W. 2d 752 (treatment required); also, Simecek v. State (1943), 243 Wis. 439, 448, 10 N. W. 2d 161.
See. 48.24, Stats.
Concurring Opinion
(concurring). The judgment must be affirmed since it is supported by an uncontested find
The only admissible evidence considered by the juvenile court in reaching that finding was Officer Schuetz’s testimony that on one occasion he found defendant half naked and incoherent in a public park. This court’s opinion strains the accepted meaning of “habitually” by holding that a single occurrence can show habit.
Apart from the particular facts of this case, I am troubled by this court’s willingness to approve a finding of delinquency based upon the vague and uncertain language of sub. (4) of sec. 48.12, Stats. We have repudiated the concept that the state’s interest in the welfare of children allows it to play fast and loose with their constitutional right of due process. Winburn v. State (1966), 32 Wis. 2d 152, 145 N. W. 2d 178. Where adult offenders are concerned, we have recognized that statutes which fail to give adequate notice of the conduct prohibited are constitutionally infirm. State v. Driscoll (1972), 53 Wis. 2d 699, 193 N. W. 2d 851; State v. Zwicker (1969), 41 Wis. 2d 497, 164 N. W. 2d 512. Here, defendant’s liberty is at stake.
In juvenile proceedings, sec. 48.12, Stats., serves a role analogous to the use of the criminal code in actions against adult offenders. A juvenile should not be deprived of his liberty on the basis of the language of sec. 48.12 (4). That statute not only fails to give adequate notice of the conduct punishable by incarceration, but also fails to provide the juvenile court with sufficient guidance for making a finding of delinquency.
We note that see. 48.12, Stats., has been amended by Laws of 1971, ch. 125, sec. 316, effective November 5, 1971, to provide
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