McCalip v. State, F-85-503
| Decision Date | 14 August 1989 |
| Docket Number | No. F-85-503,F-85-503 |
| Citation | 778 P.2d 488 |
| Parties | Jimmy Don McCALIP, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Jimmy Don McCalip, appellant, was tried by jury and convicted of Child Abuse (21 O.S.Supp.1982, § 843), After Former Conviction of Two Felonies (21 O.S.1981, § 51), in Oklahoma County District Court, Case No. CRF-84-5272, before the Honorable William Saied, District Judge. The jury set punishment at twenty (20) years imprisonment. Judgment and sentence was imposed accordingly. We reverse.
Because we find merit in appellant's first assignment, it is unnecessary to summarize the evidence presented at trial except as it pertains to the first issue wherein appellant claims the trial court committed reversible error in admitting hearsay statements made by two-year-old M.J. respectively to his mother, Ms. Jim, a daycare employee, Ms. Wise, and a social worker, Ms. McPherren.
Appellant first challenges M.J.'s statement that "Jimmy hit me" which was made in response to questioning by his mother, Ms. Jim, on the morning of October 4. Defense counsel objected that the statement was not an excited utterance. (Tr. 10) Relying solely on Newbury v. State, 695 P.2d 531 (Okla.Crim.App.1985), the trial court overruled the objection on the ground the child made the statement upon first seeing his mother after he awoke. (Tr. 11) Neither the State nor the trial judge applied the foundational requirements under 12 O.S.1981, § 2803(2). The crux of appellant's argument concerns scholarly criticisms of the Newbury decision. See 1 L. Whinery, Guide to the Oklahoma Evidence Code 82-83 (Supp.1988) (); Maye & Meiring, The Child Witness in Abuse Prosecutions, 56 Okla.B.J. 2946, 2951 (1985) (); Note, Criminal Law: The "Excited Utterance Exception" to the Hearsay Rule: An Analysis of Federal and Oklahoma Law in Light of Newbury v. State, 39 Okla.L.Rev. 84, 96 (1986) () [hereinafter cited as Note, Excited Utterance Exception ].
"Three foundational requirements must be met before hearsay evidence is admissible under the excited utterance exception: (1) a startling event or condition; (2) a statement relating to the startling event or condition; and (3) the statement must be made while the declarant is under the stress of excitement caused by the event or condition." Note, Excited Utterance Exception, supra, at 84. See also Whinery, supra, at 282. The State's theory of the case was that appellant abused M.J. between 7:30 and 10:00 p.m. on October 3, 1984, while his mother, Ms. Jim, was absent. M.J. slept soundly through the night. Appellant left for work at 6:00 a.m. the next morning. Between 8:00 and 8:30 a.m., according to Ms. Jim, M.J. came into her bedroom. He "wasn't walking too well and he didn't act like he was feeling too well, either." (Tr. 9-10) When Ms. Jim asked M.J. what was wrong, he replied "Jimmy hit me."
First, we have little difficulty in finding that acts of child abuse meet the requirement of a startling event. Accepting the State's theory of the case, the startling event, i.e. abuse, occurred between 7:30 and 10:00 p.m. on October 3, 1984. Second, at least on its face, M.J.'s statement appears to relate to the acts causing his injuries. However, insofar as appellant admitted spanking M.J. during the time he was babysitting, it cannot be said with certainty that the statement directly related to acts of child abuse as opposed to the spanking. See Note, Excited Utterance Exception, at 95.
Third, the most difficult question is whether the statement was made while M.J. was under the stress of excitement caused by the startling event. Admittedly, Ms. Jim testified that M.J. wasn't "walking too well" at the time of his statement, suggesting that he was at least suffering physically from acts of abuse. However, unlike our most recent cases, here there was no evidence that M.J. was emotionally upset or excited at the time of the statement. See e.g., Rawlings v. State, 740 P.2d 153, 163 (Okla.Crim.App.1987); Stouffer v. State, 738 P.2d 1349, 1357 (Okla.Crim.App.1987), cert. denied, 484 U.S. 1036, 108 S.Ct. 763, 98 L.Ed.2d 779 (1988); Griffith v. State, 734 P.2d 303, 305 (Okla.Crim.App.1987). See also Miller v. Keating, 754 F.2d 507, 512 (3d Cir.1985). Further, in Rawlings and Stouffer the hearsay statements were made within minutes following the startling event, and in Griffith, the statements were made while the victim was being attended to by medical personnel at the scene of the shooting. In contrast, M.J.'s statement to his mother was made between ten and twelve hours after he was alleged to have been abused. The fact that M.J. slept soundly through the night makes it less probable that his statement the next morning was made while he was under the stress of excitement of a startling event. See Note, Excited Utterance Exception, at 93. More importantly, in the case at bar, the record does not support a finding that M.J. spontaneously volunteered the statement upon awakening and first seeing his mother. Ms. Jim testified that prior to M.J.'s statement, she had tried to feed him breakfast, but he would not eat. (Tr. 10-11)
The underlying justification for the excited utterance exception "is that the spontaneity of the statement in relation to the exciting event gives rise to trustworthiness." Whinery, supra, at 282. Here, M.J.'s statement was made in response to questioning by his mother, and was not truly spontaneous. See Note, Excited Utterance Exception, supra, at 93. Further, inconsistencies in Ms. Jim's testimony cast doubt on the spontaneity of the statement. Ms. Jim testified she tried to feed M.J. breakfast prior to the statement (Tr. 10-11); that she did not have time to feed M.J. breakfast that morning (Tr. 19); and that she fed M.J. breakfast before taking him to the daycare center. (Tr. 22)
Thus, we hold the trial court erred in failing to sustain defense counsel's objection to the admission of M.J.'s statement as an excited utterance. Insofar as Newbury is inconsistent with our holding, it is hereby overruled. Further, because the statement was not admissible as an excited utterance, and the State made no attempt to demonstrate the...
To continue reading
Request your trial
-
Paxton v. State
...stress of the startling event. The legal grounds upon which the case was based were not affected and remain good law. See McCalip v. State, 778 P.2d 488 (Okl.Cr.1989). Further, the facts in the instant case are quite different from Newbury and McCalip as the court was not faced with a state......
-
Slaughter v. State
...is under the stress of excitement caused by the startling event or condition. Marquez, 890 P.2d at 983 (citing McCalip v. State, 778 P.2d 488, 490 (Okl.Cr.1989)). In determining whether statements fall under this exception, we examine both the timing of the statement and its spontaneity. As......
-
Mitchell v. State
...must be paid both to the time of the statement and to the spontaneity of the statement); McCalip v. State, 1989 OK CR 46, ¶ 8, 778 P.2d 488, 490 (statement not shown to have been made under the stress of excitement of the startling event and was in response to mother's question and not spon......
-
Williams v. State
...983 (witness statements were made spontaneously upon waking the morning after crime and there was no time for reflection); McCalip v. State, 778 P.2d 488 (Okl.Cr.1989) (victim's statement made when questioned morning after crime, was not evidence that the witness was still excited); Hawkins......