Gibbons v. State, 11355
| Decision Date | 24 June 1981 |
| Docket Number | No. 11355,11355 |
| Citation | 97 Nev. 299,629 P.2d 1196 |
| Parties | Leland Wade GIBBONS, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Appellant was convicted of kidnapping and sexual assault. During the trial two police matrons were allowed to testify in great detail concerning what the victim told them about the incident after its occurrence.
"Such testimony is hearsay, and was inadmissible in evidence except in her (the victim's) cross-examination, or as confirmatory of her story if attacked." State v. Campbell, 20 Nev. 122, 126, 17 P. 620, 623 (1888).
The testimony was admitted by the trial court under the "res gestae" exception to the hearsay rule; however the testimony clearly was not admissible under any exception commonly characterized by this label.
The prosecutrix made the statement to the matrons at least two hours after the conclusion of the incident. In the interim she had talked to several people from whom she had sought help, as well as detectives at the Sparks Police Department. The declarations pertained to "a past and completed occurrence" and "could in no way be considered contemporaneous with the attack." See State v. Urbauer, 109 Ariz. 584, 514 P.2d 717, 719 (1973), cert. denied, 415 U.S. 950, 94 S.Ct. 1474, 39 L.Ed.2d 566 (1974); State v. Schimmelpfennig, 92 Wash.2d 95, 594 P.2d 442 (1979).
The state now argues, however, that the testimony was admissible as non-hearsay under Campbell, supra, and NRS 51.035, 1 because its function was confirmatory and it was offered to rebut charges of recent fabrication or improper motive implied in defense cross-examination.
The principal "attack" or "charge against" the victim which might call for the type of claimed rebuttal offered by the police matrons is stated in the state's brief as being "(d)efense counsel's inferences that (the victim) concocted the sordid kidnapping and sexual assault story ..." and "that the only reason she was following through with her complaint was to avoid possible humiliation to her reputation for losing her car to a drunken Indian."
In a case interpreting statutory language identical to NRS 51.035, the Ninth Circuit approved the admission of corroborative testimony introduced for the purpose of rehabilitation but noted that "prior consistent statements are admissible where it affirmatively appears that the prior consistent statement was made at a time when the declarant had no motive to fabricate." U.S. v. Rodriguez, 452 F.2d 1146 (9th Cir. 1972). (Emphasis added.)
There can be no doubt that defense counsel was attacking the motives of the victim, implying that she consented to the relationship and was later abandoned in the desert when the appellant took her car. Afterwards, motivated by embarrassment or revenge or both, she decided, the defense suggests, to make charges of kidnapping and sexual...
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