Noel v. Com.

Decision Date13 June 2002
Docket NumberNo. 2000-SC-0527-DG.,2000-SC-0527-DG.
Citation76 S.W.3d 923
PartiesKenneth Ray NOEL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
CourtSupreme Court of Kentucky

R. Burl McCoy, Tonya S. Conner, McCoy & West, Lexington, KY, for appellant.

A.B. Chandler, III, Attorney General, State Capitol, Frankfort, KY, Courtney J. Hightower, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, KY, for appellee.

COOPER, Justice.

Appellant Kenneth Ray Noel was convicted in the Fayette Circuit Court of sexual abuse in the first degree, KRS 510.110(1)(b)2, and was sentenced to two years in prison. The Court of Appeals affirmed, and we granted discretionary review to consider certain evidence issues raised by the facts of this case. We now affirm both the Fayette Circuit Court and the Court of Appeals.

In November 1997, the victim, C.M., then age five, resided with her mother and stepfather, Angela and Steve Ethington. Clotene Noel is Angela Ethington's mother and C.M.'s grandmother. Appellant is Clotene's husband and C.M.'s stepgrandfather. Angela Ethington and C.M.'s father, Mark M., were divorced in 1996. They had joint custody of C.M. with Angela being the primary physical custodian and Mark having scheduled visitation rights. Mark was paying court-ordered child support to Angela for the benefit of C.M. The Noels, the Ethingtons and Mark M. all resided in Lexington, Fayette County, Kentucky.

C.M. spent the night of Monday, November 24, 1997, at the Noels' residence. Because she did not like to sleep alone in the guest bedroom, she slept in the same bed with Appellant and his wife. C.M. testified at trial that, while she was lying in bed between Appellant and his wife, Appellant placed his hand inside her underpants and touched her vaginal area with his index finger. She further testified that Appellant had done this "more than one time" but did not specify whether the other time(s) occurred on that same occasion or on (a) different occasion(s).

On Wednesday, November 26, 1997, C.M. and her father, Mark M., drove to Inez, Martin County, Kentucky, to spend the Thanksgiving weekend with Mark's girlfriend, Roxanne Maynard, and Roxanne's sixteen-year-old daughter, Brandy Maynard. Brandy testified at trial that on Saturday, November 29, 1997, she was in her bedroom talking on the telephone when C.M. entered the room and began licking her (Brandy's) leg. When Brandy asked C.M. what she was doing, C.M. covered her ears and said she did not want to talk about it. When Brandy persisted, C.M. asked if Brandy's grandfather had ever touched her "in a way that she didn't think was right." Brandy said "No," then told C.M. that if her grandfather had touched her in that way, she should tell her father, Mark. When C.M. responded that she did not want to get in trouble, Brandy told her, "You can tell me." C.M. then told Brandy that Appellant had touched her between the legs with his hand. According to Brandy, C.M.'s demeanor at the time she made this statement was "sad." Brandy reported this information to her mother, Roxanne, who reported it to Mark, who called the police. A social worker arrived on Sunday morning to commence the investigation that ultimately led to Appellant's indictment. Appellant asserts that Brandy Maynard's repetition at trial of C.M.'s out-of-court statement should have been suppressed as inadmissible hearsay. KRE 801(c); KRE 802.

I. EXCITED UTTERANCE, KRE 803(2).

The trial judge concluded that C.M.'s statement to Brandy Maynard was admissible under the "excited utterance" exception to the hearsay rule. KRE 803(2). Under that exception, the following is admissible even though hearsay:

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

The premise for the exception is that statements made under the stress of the excitement caused by a startling occurrence are more likely the product of that excitement and, thus, more trustworthy than statements made after the declarant has had an opportunity to reflect on events and to fabricate. Morgan v. Foretich, 846 F.2d 941, 946 (4th Cir.1988); Mounce v. Commonwealth, Ky., 795 S.W.2d 375, 379 (1990); Robert G. Lawson, The Kentucky Evidence Law Handbook § 8.60, at 454-56 (3d ed. Michie 1993). For an out-of-court statement to qualify for admission under KRE 803(2), "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." United States v. Iron Shell, 633 F.2d 77, 86 (8th Cir.1980) (gathering cases), cert. denied, 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203 (1981). We have identified the following factors as relevant to a determination of whether an out-of-court statement is admissible under KRE 803(2):

(i) lapse of time between the main act and the declaration, (ii) the opportunity or likelihood of fabrication, (iii) the inducement to fabrication, (iv) the actual excitement of the declarant, (v) the place of the declaration, (vi) the presence there of visible results of the act or occurrence to which the utterance relates, (vii) whether the utterance was made in response to a question, and (viii) whether the declaration was against interest or self-serving.

Jarvis v. Commonwealth, Ky., 960 S.W.2d 466, 470 (1998) (quoting the pre-code case of Souder v. Commonwealth, Ky., 719 S.W.2d 730, 733 (1986)). We have also clarified that these factors do not pose a true-false test for admissibility but, rather, are guidelines to be considered in determining admissibility. Jarvis, supra, at 470 (citing the pre-code case of Smith v. Commonwealth, Ky., 788 S.W.2d 266, 268 (1990), cert. denied, 498 U.S. 852, 111 S.Ct. 146, 112 L.Ed.2d 112 (1990)). Finally, we have held that, in a close case, "the trial court's decision to admit or exclude the evidence is entitled to deference." Souder, supra, at 733. As we stated in Young v. Commonwealth, Ky., 50 S.W.3d 148 (2001), however, "[t]hat is but another way of saying that when the determination depends upon the resolution of a preliminary question of fact, the resolution is determined by the trial judge under KRE 104(a) on the basis of a preponderance of the evidence" and is reviewed under a "clearly erroneous" standard. Id. at 167 (citing Commonwealth v. Deloney, Ky., 20 S.W.3d 471, 473-74 (2000)). Of course, the party seeking admission of hearsay evidence has the burden to prove that it falls within an exception to the hearsay rule. Slaven v. Commonwealth, Ky., 962 S.W.2d 845, 854 (1997); Jarvis, supra, at 470.

The Court of Appeals concluded that the trial judge's KRE 104(a) finding that C.M.'s statement to Brandy Maynard was an "excited utterance" was clearly erroneous. We agree. The statement was made five days after the startling occurrence and, though C.M. was acting strangely prior to making the statement, she was not exhibiting excitement when the statement was made. Nor was the statement made at the place where the described event occurred or in the presence of any visible results of the act or occurrence to which the statement related. Further, the statement was not spontaneous but in response to interrogation, albeit C.M. initially raised the issue by inquiring as to whether Brandy had ever been improperly touched by her (Brandy's) grandfather.

The trial judge ruled the statement admissible based upon a factual representation by the prosecutor that Saturday, November 29th, was C.M.'s first opportunity to discuss this incident outside the presence of Appellant or Appellant's wife. In fact, Brandy Maynard testified to C.M.'s out-of-court statement before the Commonwealth presented evidence that C.M. was outside of the Noels' presence and at home with her mother and stepfather on November 25th and part of November 26th, and that she was with her father at the Maynard residence in Martin County from November 26th until the statement was made on the afternoon of November 29th. The Commonwealth primarily relies on the case of Morgan v. Foretich, supra, in support of its theory that "the first opportunity to report" is a significant factor in determining whether a child victim's report of sexual abuse can be classified as an excited utterance. However, in Morgan, the report was made within a few hours of the child's removal from the influence of the perpetrator. Id. at 947. In McClure v. Commonwealth, Ky.App., 686 S.W.2d 469 (1985), the only Kentucky case finding that a delayed report was an "excited utterance," the delay was only thirty to fifty minutes after the first opportunity to report. See also United States v. Nick, 604 F.2d 1199, 1202 (9th Cir.1979) (the same day); People v. Sandoval, 709 P.2d 90 (Colo.Ct.App.1985) (fourteen hours); Brantley v. State, 177 Ga.App. 13, 338 S.E.2d 694 (Ct.App.1985) (several hours); People v. Nevitt, 135 Ill.2d 423, 142 Ill.Dec. 854, 553 N.E.2d 368 (1990) (five hours); State v. Rodriquez, 8 Kan.App.2d 353, 657 P.2d 79 (Ct.App.1983) (four hours); People v. Pottruff, 116 Mich.App. 367, 323 N.W.2d 402 (Ct.App.1982) (less than twenty-four hours); Love v. State, 64 Wis.2d 432, 219 N.W.2d 294 (1974) (the following day). We are cited to no case holding that a statement made more than twenty-four hours after the first opportunity to report was an "excited utterance." Furthermore, the mere fact that a statement was made soon after the first opportunity to report would not support a finding that the statement was an "excited utterance" in the absence of other relevant factors discussed supra.

Thus, we agree with the Court of Appeals that the facts of this case do not support a finding that C.M.'s statement to Brandy Maynard falls within the "excited utterance" exception to the hearsay rule. Mounce v. Commonwealth, supra, at 379.

II. PRIOR CONSISTENT STATEMENT, KRE 801A(a)(2).

C.M.'s statement to Brandy Maynard was a prior statement consistent with her...

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