Frye v. State
| Decision Date | 05 March 2009 |
| Docket Number | No. CR 08-635.,CR 08-635. |
| Citation | 313 S.W.3d 10,2009 Ark. 110 |
| Parties | Doyle Dewayne FRYE, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
COPYRIGHT MATERIAL OMITTED
Knutson Law Firm, by: Gregg A. Knutson, Little Rock, for appellant.
Dustin McDaniel, Att'y Gen., by: Valerie Glover Fortner, Ass't Att'y Gen., for appellee.
Appellant, Doyle Dewayne Frye, appeals the judgment of the Benton County Circuit Court convicting him of the rape of A.C., his then-nine-year-old niece, and sentencing him as a habitual offender to life imprisonment. Our jurisdiction is pursuant to Ark. Sup.Ct. R. 1-2(a)(2). For reversal of the judgment, Appellant alleges the trial court erred in making three evidentiary rulings. We find no merit to the arguments and affirm the judgment of conviction, which was entered pursuant to a jury verdict.
Appellant does not challenge the sufficiency of the evidence; therefore, only a brief recitation of the facts and evidence is necessary. The State alleged that Appellant raped his niece by penetrating her vagina digitally and orally during the late night of August 1 or the early morning of August 2, 2006. A jury heard testimony from multiple witnesses including the victim, other family members, and law enforcement officials about the events and circumstances occurring before, during, and after the rape. We relate the evidence in detail only as required to understand Appellant's three assignments of error.
As his first point for reversal, Appellant alleges the trial court erred in admitting the hearsay testimony of the child-victim's mother, Bobbie Jean Murchison, concerning statements the child made to her about the rape. The trial court allowed the testimony as an excited utterance, over Appellant's objection that the statement was made after a significant delay following the startling event and in the absence of testimony that the child was still under the effects of the event.
On appeal, Appellant points out that the testimony was about an event that occurred, by the mother's own admission, prior to 2:00 a.m. that morning. Appellant thus emphasizes there was a significant break in time between the alleged event in the early morning and the evening when the family had moved into a new apartment. Appellant further emphasizes that the child's statement was made in response to questioning from her mother, rather than a statement blurted out in response to the alleged stressful event. In sum, argues Appellant, the alleged incident and excitement had clearly ended that evening by the time the family had moved into their new apartment when the victim made the statement.
Appellee responds by pointing out that this court has followed the trend observed and discussed in Smith v. State, 303 Ark. 524, 798 S.W.2d 94 (1990), of allowing an expansion of the time interval between the startling event and the statement when the declarant is a child. Citing Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986), Appellee further responds that excited utterances may come as answers to questions, particularly from victimized children.
Arkansas Rule of Evidence 803(2) provides an exception to the hearsay rule for excited utterances, regardless of the availability of the declarant. For the exception to apply, there must be an event which startles or excites the declarant. Rodriguez v. State, 372 Ark. 335, 276 S.W.3d 208 (2008). In addition, it must appear that the declarant's condition at the time was such that the statement was spontaneous, excited or impulsive, rather than the product of reflection and deliberation. Id. The statements must be uttered during the period of excitement and must express the declarant's reaction to the event. Id. It is within the circuit court's discretion to determine whether the statement was made under the stress of excitement. Id.
This court has recognized there are several factors to consider when determining if a statement falls under the excited utterance exception in Rule 803(2): the lapse of time, the age of the declarant, the physical and mental condition of the declarant, the characteristics of the event, and the subject matter of the statement. Smith, 303 Ark. 524, 798 S.W.2d 94. When adopting these factors from the decision in United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980), this court observed that the lapse of time between the startling event and the out-of-court statement, although relevant, is not dispositive. Smith, 303 Ark. 524, 798 S.W.2d 94. This court observed further in Smith the fact that the declarant's statement was made in response to an inquiry was likewise not controlling. Id.; see Jackson, 290 Ark. 375, 720 S.W.2d 282.
In this case, the evidence showed that the nine-year-old declarant was raped both digitally and orally by her uncle in the middle of the night, dismissed shortly thereafter by her sleeping mother when she was searching for another place to sleep, and then evicted along with her parents and siblings the following morning and forced to find a new place to live. It was while unpacking and settling in the new apartment that the child victim made the challenged statement about the abuse that occurred during the early morning hours. Her mother's husband observed something wrong with the child and asked her mother to check on her. After doing as her husband suggested, the mother checked on her daughter and stated the child was crying, upset, and not her normal self when she made the challenged statement that she was glad that Appellant
This court has observed that sexual abuse is a startling event within the meaning of Rule 803(2). Killcrease v. State, 310 Ark. 392, 836 S.W.2d 380 (1992). Whether the statement was made under the stress of the excitement of the event rather than after intervening reflection and deliberation is a matter included within the trial court's discretion to admit or exclude evidence, and we will not reverse a trial court's decision regarding the admission of evidence absent a manifest abuse of discretion. Rodriguez, 372 Ark. 335, 276 S.W.3d 208. The fact that the declarant in this case is a young child and a victim of rape are certainly appropriate factors for the trial court to consider. Also appropriate to consider is the fact that the declarant was undergoing the continued stress of her family's eviction, finding a new place to live, and then moving. Under these circumstances, it is quite possible this was the child's first real opportunity to report the startling event. See Smith, 303 Ark. 524, 798 S.W.2d 94 (citing Morgan v. Foretich, 846 F.2d 941 (4th Cir.1988)). Although it is not known the exact number of hours that had elapsed, the statement was made less than twenty-four hours following the startling event and in response to her mother's questions. As we stated in Smith, 303 Ark. 524, 798 S.W.2d 94, these factors are not controlling of the analysis, especially when considered in light of the other factors, such as the brutal criminal event, the young age of the victim, the upset demeanor of the victim, and the subject matter of the statement. For these reasons, we conclude Appellant's argument is without merit and the trial court did not abuse its discretion in ruling the challenged testimony admissible under the excited-utterance exception to the hearsay rule.
As his second argument for reversal, Appellant contends the trial court erred in allowing Investigator Richard Feast to give his opinion as to the truthfulness of Appellant's statements made during a custodial interview. Investigator Feast testified for the State about his arrest and subsequent interview of Appellant. On cross-examination, Investigator Feast stated that he informed Appellant of his Miranda rights, that Appellant was cooperative and strongly maintained his innocence from the very beginning, but that his body language indicated he had something to hide. Defense counsel continued asking questions about Appellant's demeanor during the interview, even going so far as to ask, "Are you an expert at body language?" Investigator Feast responded, "I've been to school on it, yes." After further questions from defense counsel about his training, the investigator clarified that he was not holding himself out as an expert on body language. On redirect examination, the prosecution inquired further into Investigator Feast's training in interview techniques. He explained that based on his training and on his experience of interviewing several hundred witnesses, he felt Appellant's body language indicated he was being deceptive.
At this point, Appellant's counsel objected as follows: "Judge, I believe at this point the State is trying to elicit testimony in the form of an expert opinion, and we feel that Investigator Feast had in no way been...
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