Kelly v. State

• Decision Date: 31 January 1985
• Docket Number: No. 84-75,84-75
• Citation: 694 P.2d 126
• Parties: Gordon KELLY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 126

694 P.2d 126

Gordon KELLY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 84-75.

Supreme Court of Wyoming.

Jan. 31, 1985.

Leonard D. Munker, State Public Defender, Martin J. McClain, Appellate Counsel and K. Leslie Delk, Asst. Public Defender, Laramie, for appellant; oral argument by K. Leslie Delk.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Sr. Asst. Atty. Gen., and Michael A. Blonigen, Asst. Atty. Gen., for appellee; oral argument by Michael A. Blonigen.

Before THOMAS ^*, C.J., and ROSE, ROONEY ^**, BROWN and CARDINE, JJ.

CARDINE, Justice.

This appeal is from an involuntary manslaughter conviction for which appellant was sentenced to the Wyoming State Penitentiary for a term of not less than twelve nor more than eighteen years. The claims of error, as stated by appellant, are:

"1. Whether the trial court erred in admitting into evidence the hearsay statements of Arnette Goepfert.

"2. Whether James Ratcliff's statements were inadmissible under the dying declaration exception to the hearsay rule since the prejudicial nature of such statements far outweighed their probative value."

We affirm.

On May 29, 1983, the beginning of the Memorial Day weekend, appellant Gordon Kelly, his girlfriend, Arnette Goepfert, and James B. Ratcliff, with tent and fishing gear, left Thermopolis, Wyoming, in Kelly's car. They traveled to the Ten Sleep area where they camped that weekend. During their return trip to Thermopolis on May 31, 1983, they stopped at a Ten Sleep tavern for a few drinks of alcoholic beverage. After leaving the tavern and reentering the automobile, Kelly decided they needed a six-pack of beer and reentered the tavern to make this purchase. Ratcliff decided that Kelly was too drunk to drive and he drove off with Miss Goepfert leaving Kelly behind. As he was driving away, Kelly came out of the tavern, running and yelling "stop," but to no avail.

Kelly hitchhiked back to Thermopolis, going immediately to the Ratcliff trailer where he picked up his car and left. Later that evening Gordon Kelly returned to the Ratcliff trailer. He was angry, became involved in a fight with Arnette Goepfert, grabbed her arm and slapped her. Ratcliff stepped in to calm them down and Kelly began to fight with him. Kelly was violent, struck Ratcliff and knocked him to the floor. Arnette Goepfert tried to stop him but could not, was scared, ran to the neighbor's house to call police to "get Gordon [Kelly] away from [Ratcliff]."

When the police arrived, Ratcliff was in bed and refused medical attention. The next morning, June 1, 1983, Kelly and a friend took Ratcliff to Hot Springs County Memorial Hospital where he remained until June 17, 1983. On that date, he was transferred to a hospital in Cody, Wyoming for surgery. Ratcliff's death on July 14, 1983, resulted from constrictive pericarditis due to scarring around the heart which was caused by blunt force trauma. James Ratcliff was 58 years and Gordon Kelly was 28 years of age at the time of the incident.

I ADMISSION OF HEARSAY TESTIMONY OF CRANDALL

Arnette Goepfert left the Ratcliff trailer to get help during the time Gordon Kelly was beating and stomping James Ratcliff. She ran across the street to the Crandall residence where she telephoned the police, notifying them of the fight at the trailer. Phyllis Crandall, over objection by appellant, was allowed to testify that Arnette Goepfert had stated that evening at her residence that Gordon Kelly first beat her and then beat up James Ratcliff.

Appellant objected to the testimony upon the grounds of hearsay. " 'Hearsay' is a statement, other than one made by the declarant while testifying at the trial * * *." Rule 801(c), W.R.E. Phyllis Crandall when testifying, was the declarant. When she repeated the statements of Arnette Goepfert, they were statements made by one other than herself (declarant), and they were hearsay.

Hearsay is generally inadmissible ¹ because it is thought to be unreliable and untrustworthy and because there is no opportunity to confront the witness or cross-examine. 29 Am.Jur.2d Evidence § 493. Where, however, a statement is made under circumstances which bring it within an exception to the exclusionary-hearsay rule, it will be admissible. 4 Louisell & Mueller, Federal Evidence § 437 (1980). The hearsay statement of Arnette Goepfert, in this case, was admissible under the "excited utterance" exception of Rule 803(2), W.R.E., which provides that statements are not excluded by the hearsay rule that relate "to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." The exception is founded upon the proposition that a statement made during the stress of excitement resulting from a startling event is probably trustworthy, since there is not leisure to reflect, contrive or fabricate. Lancaster v. People, 200 Colo. 448, 615 P.2d 720 (1980); Bankers Life Co. v. Nelson, 56 Wyo. 243, 108 P.2d 584 (1940), rehearing denied, 56 Wyo. 513, 111 P.2d 136 (1941).

The beating and stomping of a 58-year-old man into helplessness resulting in multiple rib fractures on both sides of the chest and of such magnitude as to necessitate surgery is surely a startling event. Because of her involvement in that event, Arnette Goepfert was frightened, scared and ran screaming across the street "bursting" into her neighbor's residence to call the police. In this condition, under the stress of excitement caused by the event, she made the statements to which Phyllis Crandall testified. Generally these questions of admissibility must be determined upon their own facts and circumstances. Matter of GP, Wyo., 679 P.2d 976 (1984). Considering the sudden and violent nature of the assault, Arnette Goepfert's inability to stop it, and her frightened, screaming state, it was not an abuse of discretion for the court to rule the statements admissible under the excited-utterance exception to the exclusionary hearsay rule.

Appellant contends, nevertheless, that the statements should have been held inadmissible because Arnette Goepfert had been drinking intoxicating liquor and was made at Kelly; therefore, the statements were unreliable and not trustworthy. Whether a hearsay statement is admissible under the excited-utterance exception to the hearsay rule is determined by the nature and effect of the startling event and stress of excitement under which the statement is made. If the witness is competent and the statement is found to be made under conditions which satisfy the excited-utterance exception, it is admissible. Once the statement is held admissible, the weight to which it is entitled and the credibility of the person making the statement may be affected by that person's age, ability, experience, intelligence, mental state, or sobriety. Goldade v. State, Wyo., 674 P.2d 721 (1983), cert. denied 467 U.S. 1253, 104 S.Ct. 3539, 82 L.Ed.2d 844 (1984); State v. Jeffers, 135 Ariz. 404, 661 P.2d 1105, cert. denied 464 U.S. 865, 104 S.Ct. 199, 78 L.Ed.2d 174 (1983). Appellant adduced evidence of drinking and the mental state of Arnette Goepfert at the time of making the statements. It is assumed that the jury duly considered the evidence of Miss Goepfert's condition and gave the statements the weight to which they were entitled.

II ADMISSION OF DYING DECLARATION

James Ratcliff's daughter was allowed, over objection, to testify to statements made by her father concerning appellant Kelly's beating and stomping him. Testimony as to these statements was also hearsay under Rule 801(c), W.R.E., supra, and inadmissible under Rule 802, W.R.E., supra, unless it also falls within an exception to the hearsay rule.

The statement of the victim, James Ratcliff, was offered into evidence as a dying-declaration exception to the hearsay rule pursuant to Rule 804(b)(2), W.R.E., which provides:

"The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

* * *

* * *

"(2) Statement Under Belief of Impending Death.--In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death."

It is uncontroverted that the statement offered was that of a declarant (Ratcliff) in a homicide prosecution and concerned the circumstances of his impending death. Appellant contends only that the statement was inadmissible because not made at a time Ratcliff believed "his death was imminent."

The rationale for the admissibility of a dying declaration is,

" * * * held to rest on the religious belief 'that the dying declarant, knowing that he is about to die would be unwilling to go to his maker with a lie on his lips' * * * [and] the feeling that 'men are not apt to lie in the shadow of death' * * *." 4 Weinstein's Evidence p 804(b)(2) (1984) at p. 804-80.

For this reason, a statement made while "believing death imminent," is thought to be trustworthy and reliable. But that may not be so. If the statement itself, and the facts and circumstances surrounding the making of the statement, indicate that it is patently unreliable, as where it is speculative, conjectural, or conclusory without any basis in fact or foundation, it should be excluded although made at a time the declarant believed death imminent. Shepard v. United States, 290 U.S. 96, 54 S.Ct. 22, 78 L.Ed. 196 (1933). In this case the statement of James Ratcliff was not speculative or conjectural, but entirely factual, describing in detail the beating administered by Gordon Kelly. Thus, where the statement is made at a time the declarant believes his death imminent and the statement itself has a factual basis, other facts and circumstances surrounding the making of it may serve to make clearer its reliability. This is so where the statement is corroborative of other testimony...