State v. Davis
| Decision Date | 10 March 2003 |
| Docket Number | No. 49679-4-I.,49679-4-I. |
| Citation | 116 Wash. App. 81,64 P.3d 661 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Adrian Martell DAVIS, Appellant. |
Nancy Collins (WAP), for Appellant.
Julie Cook (KCPA), for Respondent.
Adrian Davis was convicted of felony violation of a no-contact order. He appeals his conviction on three grounds: He argues the trial court (1) deprived him of his right to confrontation by admitting a 911 tape that was unreliable hearsay; (2) failed to give the jury a missing witness instruction when the victim failed to appear for trial; and (3) failed to give a complete to convict instruction because the felony violation of a no-contact order "assault" element was included in the special verdict form but not in the to convict instruction. We affirm.
On February 1, 2001, a 911 dispatcher received a hang-up call from Michelle McCottry's residence in Kent. The 911 dispatcher called back and talked to McCottry who was upset and crying. She stated, "He's here jumping on me again." In response to the 911 operator's questions, McCottry said Davis ran out the door after hitting her with his fists, she had a protection order against him that prohibited him from seeing her, and because she was moving, Davis came to pick up some of his things. McCottry was arguing with a visitor when Davis arrived. Davis joined the argument, and McCottry stated that he "jump[ed] up and start[ed] beating [her] up." McCottry identified herself and Davis during the call.
Officers Mark Jones and Steve Tamanaha responded to the scene. When they arrived, McCottry was visibly upset and crying. Officer Jones noticed that the house was in a state of disarray and there was damage to one of the walls. McCottry had fresh injuries on her forearm and face that were beginning to swell. While she spoke with the officers, she was frantically moving around the house and packing her family's belongings. When Officer Tamanaha photographed McCottry's injuries, she tried to cover her face. The officers later confirmed there was a protection order against Davis and cited him for violating a no-contact order. Davis was convicted of felony violation of a no-contact order and sentenced within the standard range. He filed a timely appeal.
In all criminal prosecutions, a defendant has a right to confront his accusers to ensure the reliability of evidence against him.1 However, admission of a hearsay statement does not violate an accused's confrontation right if it bears adequate "indicia of reliability."2 Reliability may be inferred when the statement either (1) falls within a firmly-rooted hearsay exception or (2) contains particularized guarantees of trustworthiness.3 We review the trial court's decision that a statement is an excited utterance under the abuse of discretion standard.4
Davis argues that although the trial court admitted the 911 tape as an excited utterance, it does not properly satisfy Confrontation Clause concerns because it is unreliable. The State asserts that the 911 tape testimony falls within a firmly-rooted hearsay exception and therefore is inherently reliable. We agree with the State because (1) McCottry's statements were properly characterized as excited utterances and (2) excited utterances are firmly-rooted exceptions to the hearsay rule which meet the reliability test the Supreme Court adopted in Ohio v. Roberts.5
The excited utterance exception assumes that a reaction to the stress of a startling event offers little or no opportunity for a statement that is a misrepresentation or conscious fabrication.6 A statement is an excited utterance under ER 803(a)(2) if it relates to a startling event or condition and is made while the declarant was under the stress or excitement caused by the event or condition.7 In this case, when McCottry answered the 911 call-back there was yelling in the background and she sounded frantic as she responded to the operator's questions about what was happening. When McCottry identified Davis and told the operator he was running from the scene in his car, she abruptly dropped the phone, saying she needed to close the door to the house. The police officers who responded to the scene several minutes after the call corroborated her condition by describing her as "crying" and visibly "upset." Because the statements made on the tape were clearly made during and immediately after a startling event and related to that event, they are properly admitted as excited utterances.
An excited utterance is a firmly-rooted hearsay exception.8 If a statement falls within a firmly-rooted hearsay exception, adequate indicia of reliability are presumed under Roberts.9 When a hearsay statement satisfies the requirements of Roberts, further inquiry into whether the statement is trustworthy is not necessary.10 We accordingly reject Davis' argument that this court should examine "circumstantial indicators" that the 911 tape is unreliable under the factors set forth in State v. Ryan.11
Davis claims State v. Brown12 and Lilly v. Virginia13 support his argument that an excited utterance can be unreliable. Neither case is persuasive. In Brown, the victim told authorities that she was abducted and raped. At the pretrial hearing, the trial court admitted a 911 tape of her telephone conversation with an operator. At trial, the victim testified that she fabricated the statements she made on the 911 tape. The Washington Supreme Court concluded the trial court abused its discretion by admitting the tape as an excited utterance because it was an actual fabrication. There is no evidence of fabrication in this case. In Lilly, the U.S. Supreme Court held an accomplice's confession obtained in police custody and admitted under the "statement against penal interest" exception to the hearsay rule was unreliable because of the accomplice's natural motive to attempt to exculpate himself."14 Statements against penal interest are not among the firmly-rooted exceptions to the hearsay rule.15 Nor is McCottry an accomplice or coconspirator, and the record reveals no reason for her to lie.16
Davis also relies on State v. Ross17 in which this court held that the State violated a defendant's right to confrontation by introducing hearsay statements on a 911 tape when the declarant failed to testify. Although no case has expressly overruled Ross, its holding was effectively overruled by the Washington Supreme Court's opinion in State v. Palomo.18 in Palomo, the court rejected "the broad proposition that the confrontation clause bars admissibility of hearsay statements unless unavailability of the declarant is shown."19 The Palomo court held that a statement is properly admitted under the excited utterance exception to the hearsay rule regardless of the declarant's availability at trial.
In sum, we conclude that the trial court properly admitted the 911 tape as an excited utterance, and its admission does not offend Davis' right to confrontation because the statements fall within a firmly-rooted hearsay exception.
Davis argues that the trial court erred by failing to give the jury a missing witness instruction when McCottry did not testify at trial. The instruction informs the jury it can infer from the witness' absence at trial that her testimony would have been unfavorable to the party who would logically have called her. The instruction is appropriate when (1) the witness is "peculiarly available" to a party, (2) the witness' testimony relates to an issue of fundamental importance, and (3) circumstances at trial establish that, as a matter of reasonable probability, the party would not fail to call the witness unless her testimony would have been damaging or unfavorable.20 But no inference is permitted if the witness' absence can be satisfactorily explained.21 We conclude that the trial court properly refused to give the missing witness instruction because McCottry's absence was satisfactorily explained at trial and the record shows that the State used all available means to locate her.
McCottry was unavailable because the State could not locate her even though it reasonably believed she would appear at trial. The State was in contact with McCottry until the day of trial.22 During that time, she appeared when asked to appear, met with the prosecutor several times, and promptly returned the prosecutor's and victim advocate's phone calls. McCottry told the prosecutor that she would appear at trial, and the State subpoenaed her. When McCottry unexpectedly failed to appear for a defense interview, the prosecutor tried to locate her to no avail. The following day, the victim's advocate got a phone message from McCottry in which she said that Davis had contacted her and threatened that her children would be taken away and she would look like a liar if she came and testified. The prosecutor explained that McCottry and her children were involved in a house fire two weeks before, there were concerns about housing arrangements, and the State did not know where she was living. This was a fully adequate explanation.23
Second, the State used all available means to locate McCottry. When she failed to appear for a defense interview, the prosecutor immediately attempted to contact her personally and through the victim's advocate. Both attempted to contact her by telephone, the State sent a detective to her last known address, and the detective attempted to find her address through a reverse phone directory.24 Despite this, the State could not locate McCottry.
Because the State provided a satisfactory explanation for the witness' absence and used all available means to contact her, the trial court properly refused a missing witness instruction.
Finally, Davis contends he was deprived of due process because the to convict jury instruction for felony violation of a domestic violence...
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Davis v. Washington, No. 05-5224.
...the recording of her exchange with the 911 operator, and the jury convicted him. The Washington Court of Appeals affirmed, 116 Wash. App. 81, 64 P. 3d 661 (2003). The Supreme Court of Washington, with one dissenting justice, also affirmed, concluding that the portion of the 911 conversation......
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State v. Mills, 73894-7.
...defective. Id. at 110-16, 64 P.3d 1253. We granted Mills' petition for review and consolidated the case with State v. Davis, 116 Wash.App. 81, 64 P.3d 661 (2003). However, following a rehearing of oral argument in State v. Davis, we deconsolidated Davis and Mills and issue separate opinions......
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U.S. v. Carr, 07-30133.
...court is AFFIRMED. 1. The decision of the Court of Appeals of Washington in State v. Davis is not to the contrary. See 116 Wash.App. 81, 64 P.3d 661 (2003), aff'd, 154 Wash.2d 291, 111 P.3d 844 (2005), aff'd, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). In Davis, the state court di......
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After Crawford double-speak: "testimony" does not mean testimony and "witness" does not mean witness.
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