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A child's conduct falls within the res gestae exception to the hearsay rule if it is: (1) spontaneous and, (2) so close to the transaction as to exclude any presumption of fabrication. Admissibility lies largely within the trial court's discretion.
William Turk died of multiple skull fractures. These fractures were inflicted by a blunt instrument. Turk's hands and feet had been bound with electrical cord. Turk had also been repeatedly stabbed. Albert Leo Galvan’s former wife, Jenny Perez, testified that on October 5, 1977, at about 10:00 PM, Galvan received a telephone call from Phillip Cuevas. Upon receiving the call, Galvan told Perez he was going to pick up Phillip Cuevas and Cuevas' wife Mary at Galvan's other house in Des Moines. Galvan left at approximately 10:15 PM, taking with him his youngest daughter, then aged two. At approximately 11:00 PM, Galvan returned with the Cuevases, who proceeded directly to the bathroom. Perez provided clothes for Cuevas’ wife. After they finished in the bathroom, the Cuevases burned the initial clothing they used. Later, Perez observed blood spots inside the lavatory in the bathroom used by the Cuevases. At about midnight, the Cuevases left in a red and white car, which later turned out to be owned by the victim, William Turk. The Cuevases were charged with and convicted of murder. Galvan was charged with first-degree murder, based on a theory of aiding and abetting in Turk’s murder. Over defense counsel’s objection, Perez testified that two days after the events, her two-year old daughter behaved in a unique way, i.e., she had taken a belt from her mother’s robe and bound her own hands with it, then she made several gestures as if beating her own chest. Perez further testified that five months later, the daughter had an adverse reaction to a cartoon in which a mouse was tied up. Galvan was convicted of the crime charged. On appeal, Galvan argued that Perez’s testimony was prejudicial hearsay.
Did the trial court abuse its discretion in admitting Perez’s testimony about the behavior of the child?
Yes, with respect to the conduct of the child five months after the event.
The Court found no abuse of trial court discretion in allowing testimony of the child's first conduct, as the testimony has been spontaneous and unsolicited. The passage of two days, especially for so young a child, left it close enough to the transaction so that the trial court could have believed any presumption of fabrication was excluded. However, the child’s second behavior was in no way close to the transaction but was most remote to it. Whether it was prompted by the event itself or by something the child saw on television was left entirely to conjecture; thus, the Court was obliged to hold that admission of Perez's testimony of the second event was error. The Court held that the erroneous admission of hearsay evidence was presumed to be prejudicial unless the contrary was affirmatively established. The case against defendant was circumstantial. There was no direct evidence of his presence at the actual killing. Accordingly, any evidence placing him there was extremely damaging to his defense. The purpose of the aforementioned evidence was to do just that. It placed him at the scene of the crime by showing that his daughter, who accompanied him, was at the scene. The court reversed the judgment and remanded for a new trial.