Moore v. State, CR

• Decision Date: 12 September 1994
• Docket Number: No. CR,CR
• Citation: Moore v. State, 317 Ark. 630, 882 S.W.2d 667 (Ark. 1994)
• Parties: Steven Kindall MOORE, Appellant, v. STATE of Arkansas, Appellee. 94-222.
• Court: Arkansas Supreme Court

Page 667

882 S.W.2d 667

317 Ark. 630

Steven Kindall MOORE, Appellant, v.STATE of Arkansas, Appellee.

No. CR 94-222.

Supreme Court of Arkansas.

Sept. 12, 1994.

Daniel D. Becker, Public Defender, Terri L. Harris, Deputy Public Defender, Hot Springs, for appellant.

Kent G. Holt, Asst. Atty. Gen., Little Rock, for appellee.

CORBIN, Justice.

Appellant, Steven Kindall Moore, appeals a judgment of the Garland County Circuit Court convicting him of first degree murder and sentencing him to life imprisonment in the Arkansas Department of Correction.He raises two points for reversal of the judgment which was entered pursuant to a jury verdict.First, he argues the trial court erred in allowing certain hearsay testimony.Second, he argues the trial court erred in refusing his proffered jury instruction on accomplice liability.Both arguments are without merit and we affirm the judgment.

As appellant does not challenge the sufficiency of the evidence, the facts need not be recited in detail.However, it is helpful to note that appellant was charged along with a co-defendant, Jeffery William Miller, with the first degree murder of Nicholas Benavidez.The evidence presented at trial revealed that Mr. Benavidez was shot and killed in the front yard of his home in Hot Springs at approximately 7:00 p.m. on June 8, 1993.

Appellant's first argument for reversal is that the trial court erred in allowing Teresa Interiano to testify as to what Mr. Benavidez told her about a visit he had from two men on the day he was murdered.Ms. Interiano testified that she, her baby, and her husband went to Mr. Benavidez's house to help install an air conditioner at approximately 6:00 p.m. on the evening of the murder.Ms. Interiano stated she knocked three times before Mr. Benavidez answered the door.According to Ms. Interiano, Mr. Benavidez was frightened and in hysterics when he answered the door and had a machete in one hand and a pistol in his pocket.Appellant interrupted Ms. Interiano's testimony at this point, making a hearsay objection.The trial court ruled Ms. Interiano's testimony established that the witness was upset, scared, and nervous so as to allow additional testimony under the excited utterance exception to the hearsay rule.Ms. Interiano then recounted that Mr. Benavidez described two men who entered his house, threw him so hard against a wall it left an indentation, and told him to stay home because they would be back.Appellant concedes in his brief that the descriptions given by Mr. Benavidez and recounted by Ms. Interiano match the descriptions of himself and his co-defendant.

Ms. Interiano continued her testimony by stating she contacted the Hot Springs Police from her parents' home, which was near Mr. Benavidez's home.Officer Richard Giles of the Hot Springs Police Department testified he arrived at Mr. Benavidez's home at approximately 6:00 p.m. or 6:30 p.m. on June 8, 1993.Officer Giles stated Mr. Benavidez would not answer his questions, although he indicated he did not need assistance from the police.Ms. Interiano was present while the police questioned Mr. Benavidez.After the officers left, Ms. Interiano returned to her parents' home.Shortly thereafter, two men shot and killed Mr. Benavidez in his front yard.

Appellant argues the challenged testimony was not admissible as an excited utterance because there was no reference to the time lapse between the altercation with the men and the statements Mr. Benavidez made to Ms. Interiano.Appellant contends that if indeed the altercation occurred immediately prior to the statements, Mr. Benavidez would have recounted it to Officer Giles.Specifically, appellant contends Ms. Interiano did not testify as to the time the altercation or the startling event occurred.

Our law on the excited utterance exception is well-settled:

A statement relating to a startling event made while the declarant is under the stress of excitement caused by the event is not excluded by the hearsay rule.A.R.E. Rule 803(2).For the excited utterance exception to apply, there must be an event which excites the declarant.Also, the statements must be uttered during the period of excitement and must express the declarant's reaction to the event.Smith v. State, 303 Ark. 524, 798 S.W.2d 94(1990).

....

Borrowing from United States v. Iron Shell, 633 F.2d 77(8th Cir.1980), we stated the factors to consider in determining whether a statement is an excited utterance include (1) the age of the declarant, (2) the physical and mental condition of the declarant, (3) the characteristics of the event, and (4) the subject matter of the statement, and we noted that the lapse of time between the startling event and the out-of-court statement, although relevant, is not dispositive of the application of the excited utterance exception to the hearsay rule.

Killcrease v. State, 310 Ark. 392, 394-95, 836 S.W.2d 380, 381- 82(1992)(emphasis added).It is within the trial court's discretion to determine whether a statement was made under the stress of excitement or after the declarant has calmed down and had an opportunity to reflect.Marx v. State, 291 Ark. 325, 724 S.W.2d 456(1987).

The testimony here indicated the adult declarant was assaulted and battered in his home on the day he was murdered by two men who threatened to return.This is without doubt a startling event as contemplated in Rule 803(2).The testimony also indicated the victim answered the door of his home later that day armed with a pistol and a machete.This is evidence the victim was still under the stress and excitement of the startling event.The declarant's statements to Ms. Interiano therefore satisfy the requirements of the excited utterance exception.We emphasize that the declarant's condition at the time he made or did not make any statements to Officer Giles is irrelevant to the declarant's condition when he made the statements to the witness, Ms. Interiano.There was no abuse of discretion in the trial court's decision.SeeKillcrease, 310 Ark. 392, 836 S.W.2d 380;see alsoSmith v. State, 303 Ark. 524, 798 S.W.2d 94.

Appellant's second argument for reversal...